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FICTIV INC.

MANUFACTURING PARTNER TERMS OF SERVICES

Agreement last revised May 28, 2019

Welcome to Fictiv, which is owned and operated by Fictiv Inc, a Delaware corporation with its principal place of business at 168 Welsh St., San Francisco CA 94107 (“Fictiv” or “we”). This Manufacturing Partner Terms of Services (“MP Terms”) is made and entered into between Fictiv and you (“you” or “your” or “Manufacturing Partner”). PLEASE READ THESE TERMS CAREFULLY. THESE TERMS CONSTITUTE A LEGALLY ENFORCEABLE AGREEMENT BY AND BETWEEN YOU AND FICTIV.

BY ACCESSING OR USING FICTIV’S WEBSITE (THE “SITE”), CLICKING ON THE “AGREE AND CONTINUE” BUTTON, BY SIGNING THIS AGREEMENT, OR BY COMPLETING FICTIV’S MANUFACTURING PARTNERSHIP APPLICATION (“APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FICTIV, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND YOUR COMPANY TO THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MP TERMS OR A MASTER SERVICES AGREEMENT EXECUTED BY YOU AND FICTIV, YOU MAY NOT USE THIS SITE OR PARTICIPATE IN FICTIV’S PARTNER MANUFACTURING PROGRAM AS DESCRIBED BELOW.

Fictiv’s general Terms of Use and Privacy Policy are incorporated herein by reference and are a part of these MP Terms (all collectively referred to as the “Terms”).

1. CHANGES AND UPDATES TO THE TERMS

Fictiv may modify these MP Terms at any time, and such modifications shall be effective immediately upon posting of the modified version on the Site for orders placed after such modifications have been posted. Fictiv will also update the “Last Updated” date at the top of these MP Terms. If Fictiv makes any material changes, and you have registered with Fictiv to create an account as set forth in Section 2, Fictiv may also send you an email to the last email address you provided to Fictiv. Any changes to these MP Terms will be effective immediately for new users of the Site or Services (as defined below) and will be effective thirty (30) days after posting or providing notice of such changes on the Site for existing users (whichever is earlier). If you do not agree to any changes after receiving a notice of such changes, you shall stop using the Site and Services. Otherwise, your continued use of the Site shall be deemed your conclusive acceptance of the modified Terms.

2. MANUFACTURING PARTNER APPLICATION PROCESS

In order to access the Fictiv Platform and be a member of the Fictiv manufacturing partner network, you must complete our Application. By submitting an Application, you agree to: (a) provide accurate, current, and complete information about you (and your company) and your manufacturing capabilities as may be prompted by the Application via the Site (“Account Information”); (b) maintain the security of your password and identification; (c) maintain and promptly update your Account Information, and any other information you provide to Fictiv, to keep it accurate, current, and complete; and (d) accept all risks of unauthorized access to your Account Information and any other information you provide to Fictiv. You are responsible for safeguarding the password that you use to access certain areas of the Site. When you register with Fictiv, you should use a strong password.

3. PROCESSING WORK ORDERS

Fictiv’s Customers (as defined in Section 4 a) use the Site and Fictiv’s manufacturing partner network (“Manufacturing Partner Network”) to have manufactured parts produced (each, a “Product”) through the Manufacturing Partner dashboard. Customers seeking certain manufacturing services (“Services”) and Products submit requests to Fictiv (“Requests”). Fictiv, in turn, aggregates such Requests for Services and delegates such Requests to members of the Manufacturing Partner Network based on proprietary algorithms and other factors (each such delegation, a “Work Order”). For purposes of clarity you acknowledge that Fictiv is under no obligation to offer any Work Order to any Manufacturing Partner. Each Work Order includes: (a) the customer’s specifications, design file (3D drawing/CAD), instructions, and/or other information required and/or provided by Fictiv or Customer related to the design, development, manufacturing, purchase, performance, or production of the Products (“Specifications”), (b) the quantity of Products to be produced; (c) the delivery date and time for the Products (the “Delivery Date”) as well as the delivery method and delivery destination; (d) the prices/fees payable and, if applicable payment terms in exchange for completing the Work Order, and (e) shipping and handling fees (the “Fees”) ((a) through (e) above, together with the Terms and the terms and conditions set forth in a Work Order, are collectively the “Requirements”). You must accept or reject the Work Order within one (1) business day unless a different date and time is set forth in the Work Order (the “Acceptance Deadline”). Fictiv will consider any Work Orders you have not accepted by the Acceptance Deadline to be automatically rejected.  Upon accepting a Work Order, you agree you will not be permitted to terminate or cancel such Work Order. You shall be liable for any and all damages or losses caused by any failure to perform as agreed upon in accepted Work Order(s). The aforementioned damages or losses mentioned in this clause are capped at the greater of (a) the amount in the applicable Work Order or SOW or (b) the cost to cover like products.

4. MANUFACTURING SERVICES

    a) Manufacture and Delivery. You agree to perform the Services specified in the accepted Work Order pursuant to the Terms, including manufacturing the Products in strict compliance with all the Requirements and for the price(s) you provided in the quote for the manufacture and delivery of such Products. You shall not subcontract or delegate any of your obligations hereunder without the prior written consent of Fictiv. All Product shall be delivered ExWorks (Incoterms 2010) to the destination specified by Fictiv, and will be packaged in an adequate manner to protect and preserve the Product and in compliance with any instructions on the Work Order, if any. All shipment of Products shall be with a Fictiv approved carrier and with adequate liability and replacement insurance coverage. Title to the Products furnished by you shall vest in Fictiv or the customer who submitted the Work Order (the “Customer”), as applicable, when Products are inspected and accepted by Fictiv or the Customer, as applicable, pursuant to the Terms.

    b) Inspection, Testing and Acceptance of Products. Fictiv or Customer (to the extent authorized in writing by Fictiv) shall have the right, but not the obligation, to inspect and test the Products for damage incurred during shipping and for non-conformity with the Work Order or Specifications. Within fifteen (15) business days of receipt by Fictiv or Customer (as the case may be), Fictiv reserves the right to reject any Product or Service that does not conform to the Requirements, and neither payment nor other conduct or inaction shall constitute acceptance of Product or Services before final testing and acceptance by Fictiv. In the event a Product or shipment is properly rejected in accordance with the terms herein, you agree to promptly, on receipt of notice of rejection, use best efforts to provide replacement Products, at your sole cost and expense. If Fictiv (or Customer) determines that the Products, as revised, still do not comply with the Requirements, Fictiv may either (a) afford you the opportunity to repeat the correction and modification as set forth above at no additional cost or charge to the Fictiv or the applicable Customer, (b) Fictiv may itself correct the Product(s) (or engage a third-party to do so) and may deduct the costs and reasonable expenses associated with such correction from the fees owed to you; or (c) cancel the Work Order without payment of any fees, costs or expenses to you.

    c) Tooling and Testing Equipment. If Fictiv or its Customer provides you with any Fictiv (or Customer) raw materials, components, tooling and testing equipment (“Equipment”), you shall hold the Equipment as a bailee only and will not permit any lien or other encumbrance to be placed against it while in your care, custody, or control. Fictiv retains ownership of such Equipment. You shall use the Equipment solely and exclusively for Fictiv (or its Customers), and in compliance with any applicable Work Orders, SOWs, manuals and/or Specifications. You shall store all Equipment in a clean, safe and secure environment in accordance with industry standards for those Equipment. Under no circumstances will you move the Equipment from the location designated by Fictiv without Fictiv’s prior written consent, or deny Fictiv, its agents, or contractors, access to the Equipment, subject to Fictiv providing you with at least one (1) business day prior written notice. You agree to return the Equipment to Fictiv in the same condition as it was provided to you, except for normal wear and tear. You will be responsible for all maintenance, repair, replacement, physical loss of, theft or damage to, the Equipment while in your care, custody, or control, excluding normal wear and tear. The Equipment is provided to you “as is” and Fictiv disclaims all warranties, express or implied, including the implied warranties of merchantability and fitness for a particular purpose.

5. INTELLECTUAL PROPERTY RIGHTS, LIMITED PURPOSE LICENSE AND OWNERSHIP

As between Fictiv and you, Fictiv’s pricing algorithms, processes and mechanisms, the Site, and all content therein (collectively, the “Fictiv Platform”) and all worldwide Intellectual Property Rights (as defined below) in each of the foregoing, are the exclusive property of Fictiv and its licensors. All rights in and to Fictiv Platform are reserved by Fictiv and its licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding Fictiv Platform or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the software. The Specifications that the Customer provides to Fictiv and/or uploads to the Fictiv Platform are the exclusive property of the Customer who submitted them either via email or the Site. Subject to the Terms, you are hereby granted a non-exclusive, non-transferable, non-sublicensable, limited license to use, the Specifications and any other instructions that are provided by the Customer for the sole purpose of performing the obligations hereunder. You agree that upon the completion of your manufacturing obligations for any Work Order, or upon request from Fictiv, you will return or destroy the Specifications and any other instructions for such Work Order. You further understand and agree that the Specifications and other information uploaded by the Customer are the confidential and proprietary information of the applicable Customer, and you will not disclose the such Specifications or information to any third party, without the prior written consent of Fictiv or the applicable Customer; provided, that, you may disclose such Specifications and information to your employees who have a need to know and who are bound by confidentiality obligations no less restrictive than those contained herein.

If the Products includes or embodies in any manner your intellectual property, trade secrets and/or know-how, you hereby grant to Fictiv (and the Customer) an unrestricted, worldwide, royalty-free, perpetual, irrevocable license to the extent necessary for the Customer to exploit, make, have made, use, market, import, distribute, copy, develop, modify, prepare derivative works of, perform, display, disclose and sublicense to the extent necessary to use, sell, manufacture, distribute, modify, exploit, service, support and otherwise commercialize the Product.

To the extent you improve, upgrade, modify or create derivates of any design specification files, technical outlines, schematics, or other material provided in the Specifications provided to you via the Site or pursuant to a Work Order (“Modifications”) you, to the fullest extent permitted by law, hereby assign to Fictiv all right, title, and interest in and to such Modifications including any and all Intellectual Property Rights (as defined below) embodied therein, and you hereby, to the extent permitted by law, irrevocably waive and agree never to assert any moral rights in or with respect to such Products that may exist anywhere in the world, together with all claims for damages and other remedies asserted on the basis of moral rights. For the purpose of these MP Terms, “Intellectual Property Rights” means any and all intellectual property rights throughout the world, without limitation all rights in any idea, design, concept, creation, invention, technique, information, data, expression, device, method, process, discovery, modification, improvement, proprietary information or know-how regardless of whether protection under patent, patent application, copyright, trademark, trade secret, industrial right, mask work, utility model, moral rights, design registration or other law is available or sought.

6. CANCELLATION OF WORK ORDER(S)

Fictiv may cancel or reduce a Work Order or any part thereof, at any time prior to your shipment of the Product. As long as you are in full compliance with the Requirements , if Fictiv cancels or terminates a Work Order within thirty (30) days of the Delivery Date, Fictiv agrees to pay you reasonable cancellation charges that consist solely of direct costs for materials and labor for the cancelled Work Order that are actually incurred by you before the notice of cancellation, minus the salvage amount that you can realize by selling or utilizing any materials. For cancellations or terminations thirty (30) days or more of the Delivery Date, you will only be entitled to invoice Fictiv for non-cancellable, non-returnable long lead materials that were expressly ordered by you to timely accommodate the specific Work Order.  You shall take all reasonable actions to minimize any cancellation or delay charges unless otherwise agreed to by Fictiv in writing. Fictiv reserves the right to verify claims hereunder, and you agree to make reasonably available to Fictiv upon its request all relevant books, records, inventories and facilities for its inspection and audit. If you fail to make such records available to us, you shall be deemed to have waived and relinquished any claim asserted in connection with a Work Order cancelled by Fictiv. Work Orders rescheduled by Fictiv within ninety (90) days of their original delivery date shall not be considered cancelled or terminated and shall not trigger any financial liability for such Products unless otherwise agreed to by Fictiv in writing.

7. CHANGES

Fictiv may request a change to a Work Order or the Specifications. If Fictiv requests a change, you will use best efforts to accommodate such requests as soon as commercially reasonable. Unless otherwise agreed to in writing by Fictiv, you agree to promptly notify Fictiv of the impact such change will have on the Fees and the Delivery Date, if any, within three (3) business days of the date of the requested change. No change will be implemented unless and until Fictiv has approved the change and any related additional fees and/or development time in writing.

8. CUSTOMER INTERFACE

You acknowledge and agree that Customer satisfaction is extremely important to Fictiv, and that in order to ensure such satisfaction, Fictiv requires that all Customer interface and communications must be directly with Fictiv and take place on or via the Site. As such, you covenant and agree that all contact and communications with a Customer related in any way to any Work Order, shall be conducted exclusively through Fictiv and via the Site unless expressly authorized by Fictiv in writing. You further acknowledge that Fictiv may monitor such contact and communications at any time without notice for the purpose of providing the Site and related services. You agree not to knowingly, without the prior written consent of Fictiv, either on your own behalf or on behalf of any third party, (i) solicit, recruit, raid, directly engage or in any manner interfere with Fictiv’s customers, contractors, vendors, suppliers, partners (including manufacturing partners) or other business relationships of a party (collectively the “Restricted Persons”) that were introduced to you by Fictiv, or learned by you during the Term of this Agreement or in furtherance of the transactions contemplated between you and Fictiv; or (ii) attempt to persuade, encourage or induce any such Restricted Persons to discontinue their relationship with Fictiv or to shift their business dealings or interface from Fictiv to yourself, for a period of twelve (12) months from the date a Restricted Person is first introduced or learned, or expiration or termination of this Agreement, whichever is later.

9. FEES AND PAYMENTS

Subject to the MP Terms, Fictiv will pay you, as its sole compensation hereunder for the performance hereunder, including the manufacture and delivery of the Products, the fees set forth in the applicable Work Order. You will be responsible for all costs and expenses associated with any Work Order and the Products, including the manufacture of the Product(s) except as otherwise expressly set forth in the Work Order.

10. NO OBLIGATION

These MP Terms imposes no obligations upon either party to provide, purchase, sell, license, transfer or otherwise transact in any business, technology, services, or products except as otherwise set forth in a Work Order.

11. CONFIDENTIALITY

All quotes, Requests, Work Orders, Requirements, and Designs constitute “Confidential Information” of Fictiv or its customers. You will maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted in these MP Terms and to fulfill your manufacturing service obligations as a member of the Fictiv manufacturing partner network. You will use the same degree of care in protecting the Confidential Information as you use to protect your own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by you solely for the purpose of carrying out your manufacturing service obligations under these MP Terms. In addition, you: (a) will not reproduce Confidential Information except as required to accomplish your manufacturing service obligations hereunder; and (b) will only disclose Confidential Information to your directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under these MP Terms and if such directors, officers, employees and/or contractors have executed a non-disclosure agreement with you with terms no less restrictive than the non-disclosure obligations contained in these MP Terms.

12. YOUR WARRANTY OBLIGATIONS

You represent and warrant, in addition to all other warranties set forth in these MP Terms or provided by law, as follows: (a) you have full power to enter into an agreement in accordance with these MP Terms, to carry out its respective obligations pursuant to these MP Terms, and to grant the rights granted pursuant to these MP Terms. Further, you have obtained all corporate, third party, and governmental approvals, licenses and/or permits necessary to enter into this agreement and carry out the transaction contemplated hereby; (b) The Products will conform to the Work Order(s), these MP Terms and the applicable Specifications and will be free from defects in workmanship and materials; (c) None of the Products, Services or any portion thereof are subject to any agreements or licenses to or from third parties that impose any obligations on Fictiv or its Customers beyond Fictiv’s obligations hereunder; and (d) you will complete the manufacture of the Products and provision of the Services free from any claim, lien, charge or encumbrances of any nature by a third-party. Within three (3) business days of being notified of any warranty issue by Fictiv and upon Fictiv’s request, you must conduct a thorough root cause analysis to determine the cause of any defect or failure in meeting the warranty obligations and you shall provide Fictiv the root cause analysis report and explain in reasonable detail the steps you will take to avoid any future defects, failures or delays in your performance.

13. LIMITATION OF LIABILITY AND DISCLAIMER

As a Manufacturing Partner to a platform for on-demand manufacturing services, Fictiv cannot (a) assess the viability of designs, (b) determine whether a party who has submitted designs via the Site owns (or has full rights to) the Intellectual Property Rights with respect to such submitted designs, (c) guarantee a certain level of business to any of the members of the Manufacturing Partner Network and/or (d) bear any liability with respect to the Products created by you.

Therefore, you acknowledge and agree that the Site, the Fictiv Platform and any services, in general, performed or provided by Fictiv are provided on an “as is” basis without any representations, warranties, covenants, or conditions of any kind.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FICTIV WILL NOT BE LIABLE TO YOU OR ANY OF YOUR AFFILIATES, EMPLOYEES, SUBCONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, UNDER ANY THEORY OF LIABILITY, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, ECONOMIC, LOST PROFIT OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU OR OTHERS IN CONNECTION WITH THE SITE, FICTIV PLATFORM, THE SERVICES, ANY SPECIFICATIONS SUBMITTED BY CUSTOMERS, ANY PRODUCTS CREATED BY YOU, ANY THIRD-PARTY MATERIALS, ANY FICTIV MATERIALS OR THE TERMS, WHETHER OR NOT FICTIV OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES. FICTIV’S MAXIMUM DAMAGES AND TOTAL AGGREGATE LIABILITY TO YOU AND ANY THIRD PARTY ARISING FROM OR IN CONNECTION WITH THE TERMS, THE SERVICES, USE OF FICTIV’S PLATFORM, THE REQUIREMENTS, ANY DELIVERABLES OR PRODUCTS MANUFACTURED FOR FICTIV OR A CUSTOMER, ANY FICTIV MATERIALS, AND/OR ANY TRANSACTION RELATED THERETO SHALL BE CAPPED AT THE AMOUNT SET FORTH IN AN APPLICABLE WORK ORDER OR SOW.  

EXCEPT FOR YOUR (I) INDEMNIFICATION LIABILITY UNDER THESE MP TERMS; (II) LIABILITY FOR INFRINGING FICTIV'S OR CUSTOMER’S INTELLECTUAL PROPERTY RIGHTS; (III) LIABILITY FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER THESE MP TERMS OR THE NDA; (IV) LIABILITY FOR CLAIMS COVERED BY YOUR INSURANCE AT MINIMUM COVERAGE AMOUNTS SET FORTH IN THESE MP TERMS; (V) LIABILITY FOR BREACH OF YOUR OBLIGATIONS TO COMPLY WITH LAWS, OR (VI) LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (i) YOU SHALL NOT BE LIABLE TO FICTIV OR ITS AGENTS, SUBCONTRACTORS, EMPLOYEES, SUCCESSORS OR ASSIGNS, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES WITH RESPECT TO ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRODUCTS AND/OR THE TRANSACTIONS CONTEMPLATED HEREIN, AND (ii) YOUR MAXIMUM LIABILITY TO FICTIV SHALL BE CAPPED AT TWO MILLION DOLLARS ($2,000,000).

14. INDEMNITY

You agree, at your sole expense to indemnify, defend and hold harmless, Fictiv, its officers, directors, affiliates, subsidiaries, agents, consultants, agents, partners, assigns, employees and its Customers (collectively the “Fictiv Indemnitees”), from and against any and all liabilities, losses, claims, damages, fines, penalties, corrective measures, causes of action, costs and expenses of any kind (including, but not limited to, reasonable attorneys’ fees and other reasonable expenses of litigation) brought against, threatened, suffered or incurred by Fictiv Indemnities, for any death, injury, property damage, or infringement or violation of any Intellectual Property Rights or other rights of any third party caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your (or your employees, agents, subcontractors) negligent or willful acts, errors or omissions, (ii) your breach of your obligations under these MP Terms or a Work Order, including but not limited to your failure to comply with the Requirements, (iii) your violation of applicable Laws (as defined in Section 15) applicable to your performance, or (iv) your infringement, misappropriation or violation of any Intellectual Property Rights of a third party (except to the extent caused by your strict compliance with the Specifications). Part of your indemnity obligation will be to compensate Fictiv or its Customers for any incidental or consequential losses, and refund to Fictiv the amount paid for such infringing Products. Fictiv reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fictiv in asserting any available defenses. You agree that the provisions in this section will survive any termination, this agreement or your access to the Fictiv Platform. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement, including a Work Order, between you and Fictiv.

15. COMPLIANCE WITH LAWS

You shall comply, at your own sole cost and expense, with all applicable statutes, regulations, rules, ordinances, codes and standards (collectively, “Laws”) governing the manufacture, assembly, transportation, import, export, or sale of Products and provision of the Services. Without limiting the foregoing, this includes all applicable commerce, transportation, environmental, occupational safety, securities, data privacy, export and arms controls and employment and labor Laws. You shall maintain appropriate procedures to: (1) detect (a) the unauthorized access to or release of data, and (b) the export or transfer of data from, or storage of data in violation of applicable law, and (2) obtain and maintain any registration, license or agreement, or other authorization required by applicable Laws. You shall promptly notify Fictiv of any actual or suspected violation, and Fictiv may immediately suspend you in the event of a violation. You shall secure binding obligations from any independent contractors or other parties who have access to Fictiv or Fictiv’s Customers’ data or otherwise are performing Services or activities in connection with these MP Terms.

16. TERM AND TERMINATION

This agreement commences on the date when you accepted these MP Terms (as described in the preamble above) and shall remain in full force and effect while you use the Fictiv Platform or until all obligations are performed by you pursuant to these MP Terms, unless terminated earlier in accordance with these MP Terms.

    a) Termination by You. If you want to terminate this agreement, you may do so by (a) notifying Fictiv at any time and (b) closing your account. Your notice should be sent to help@fictiv.com Notwithstanding anything to the contrary, any open or pending Work Order or Statement of Work shall survive your termination and you shall remain obligated to perform all of the obligations thereunder.

    b) Termination by Fictiv. Fictiv has the right to, immediately and without notice, suspend or terminate any Work Order or these MP Terms or your use or participation in the Site, the Fictiv Platform and any services provided thereunder at any time (with or without cause), including if you have materially breached any provision of these MP Terms, or if Fictiv is required to do so by law (e.g., where the provision of the Site, or the service is, or becomes, unlawful). You agree that all terminations shall be made in Fictiv’s sole discretion and that Fictiv shall not be liable to you or any third party for any termination of your account.

    c) Effect of Termination. Upon termination pursuant to this Section 16, you shall delete your password and all related information, files and content associated with or inside your account (or any part thereof). Upon any termination: (a) all of your rights and licenses hereunder will immediately cease; (b) you must promptly provide to Fictiv any Products in-progress or finish them, at Fictiv’s sole discretion and direction; and (c) you must promptly destroy all copies of the Confidential Information. All provisions of these MP Terms which by their nature should survive, shall survive termination, including without limitation, ownership provisions, warranty disclaimers, indemnification, confidentiality and limitation of liability shall survive termination.

17. INSURANCE

Without limiting or qualifying your liabilities, obligations or indemnities otherwise assumed by you pursuant to these MP Terms, you shall maintain appropriate insurance policies, at your sole cost and expense, in amounts adequate to cover your obligations and responsibilities under this agreement. Upon Fictiv’s request, you will promptly furnish to Fictiv written evidence of your insurance coverage.

18. THE SITE AND TRADEMARKS

Fictiv’s name, Fictiv™, Fictiv logos and any other Fictiv product or service name or slogan relating to the Services (collectively, “Fictiv Marks”) are owned by Fictiv and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Fictiv. You may not use any metatags or any other “hidden text” utilizing “Fictiv” or any other Fictiv Mark without our prior written permission.

All other trademarks, registered trademarks, product names and company names or logos mentioned in the Fictiv Platform are the property of their respective owners. Reference to any other products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply Fictiv’s endorsement, sponsorship or recommendation.

Subject to the grants expressly set forth in these MP Terms, Fictiv and its licensors own all right, title, and interest in and to the Site, the Fictiv Marks, the look and feel of the Site (including, but not limited to, all page headers, custom graphics, button icons, and scripts) and all content and other materials contained on the Site (including, but not limited to, all designs, text, graphics, pictures, information and data (collectively, the “Fictiv Materials”) together with any and all Intellectual Property Rights embodied therein or related thereto.

Subject to the Terms, you are granted a personal, limited, non-sublicensable, non-transferable, non-exclusive, revocable license to access and use the Fictiv Materials in accordance with these MP Terms for the sole purpose of enabling you to use the Site for the purpose of providing Services.

19. HYPERLINKS AND THIRD-PARTY MATERIALS

You may create a hyperlink to the Services for noncommercial purposes, but you may not use, frame or utilize framing techniques to enclose any Fictiv Materials (including any Fictiv Marks) without Fictiv’s express prior written consent. Fictiv may make third-party content or services available on or through the Services (collectively, the “Third-Party Materials”) solely as a convenience to its users (e.g., links to third-party websites, advertisements, and promotions from third parties and the ability to use social media tools provided by third parties). YOUR USE OF ANY SUCH THIRD-PARTY MATERIALS IS SOLELY AT YOUR OWN RISK AND SUBJECT TO THE APPLICABLE TERMS AND CONDITIONS AND PRIVACY POLICIES APPLICABLE TO SUCH THIRD-PARTY MATERIALS. Fictiv does not control, endorse, or adopt any Third-Party Materials and makes no representation or warranties of any kind regarding the Third-Party Materials, including without limitation regarding the accuracy or completeness of such Third-Party Materials. Your business dealings or correspondence with such third-party, and any terms, conditions, warranties, or representations applicable to the Third-Party Materials, are solely between you and such third party. When you leave our Site, this agreement and all other Fictiv policies no longer govern your use of such websites and services or any content contained thereon.

20. GENERAL PROVISIONS

    a) Entire Agreement. These MP Terms, together with the applicable terms, conditions and provisions of any Fictiv generated Work Order, Statement of Work and all attachments and schedules hereto, constitute the entire understanding and agreement of the parties and supersedes all prior and contemporaneous understandings, representations and agreements, whether written or oral, with respect to the subject matter of these MP Terms unless the parties enter into a Master Services Agreement (or its contractual equivalent), which shall take precedence and control.

    b) Governing Law and Venue. These Terms will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this agreement. Prior to the filing or initiation of any action or proceeding relating to this agreement, the parties must participate in good faith mediation in San Francisco County, California. If a party initiates any proceeding regarding this agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this agreement. The parties expressly reject any application of the United Nations Convention on Contracts for the International Sale of Goods. These Terms are written in English and shall be construed in its English form, regardless of your location, Fictiv or Customer entity that provides or purchases the Products or Services.

    c) Assignment. These MP Terms, and your rights and obligations hereunder, may not be assigned or otherwise transferred by you without Fictiv’s prior written consent, and any attempted assignment, or transfer in violation of the foregoing will be null and void.

    d) Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner, nor partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

    e) Injunctive Relief. You acknowledge and agree that damages will not be an adequate remedy in the event of a breach of any of your obligations hereunder. You therefore agree that Fictiv will be entitled (without limitation of any other rights or remedies otherwise available to Fictiv and without the necessity of posting a bond or other security) to obtain an injunction from any court of competent jurisdiction prohibiting the continuance or recurrence of any breach of these MP Terms or any of the Requirements.

    f) Severability. If any provision of these MP Terms is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of these MP Terms will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these MP Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify these MP Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

    g) Electronic Communications. The communications between you and Fictiv use electronic means, whether you visit the Site or send Fictiv e-mails, or whether Fictiv posts notices on the Fictiv Platform or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Fictiv in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fictiv provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

    h) Order of Precedence. (a) In the event of any conflict between these MP Terms and the Terms of Use, these MP Terms shall supersede and control to the extent of any such conflict. (b) In the event of any conflict between a Work Order and these MP Terms, the Work Order shall supersede and control to the extent of any such conflict. (c) In the event of any conflict between a Work Order and a Master Service Agreement (or its contractual equivalent) between you and Fictiv, the Master Service Agreement shall superset and control to the extent of any such conflict unless otherwise expressly stated in such Master Service Agreement.

    i) Privacy. Please see Fictiv’s Privacy Policy for information about how Fictiv collects, uses, and discloses information about users of the Site and Fictiv Platform.

    j) Feedback, Questions, Claims. If you have any questions or claims with respect to the Fictiv Platform, please contact us at: help@fictiv.com. We will make a good effort to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. In the event you elect to provide any suggestions, comments, or other feedback with respect to Fictiv, the Services, the Site or Manufacturing Partnership program (collectively, “Feedback”), such Feedback will constitute confidential information of Fictiv. Further, you acknowledge and agree that Fictiv will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.

21. CONTACT US

If you have any questions about these MP Terms, please contact us at: 168 Welsh Street, San Francisco, CA 94107 or email us at help@fictiv.com.