Subscription Agreement

Terms and Conditions for Using the Photon Consulting Silicon Price Index

Please read the following terms and conditions carefully. They serve as a legal agreement between your company as the subscriber (Subscriber or You) and Rogol Energy Consulting, LLC (Photon Consulting). Your access to and use of Photon Consulting’s Silicon Price Index (Memo), whether in printed or electronic form (Services) provided to you, are conditioned upon Your agreement and adherence to the terms and conditions of this Subscription Agreement (Agreement). (The Memo and Services are collectively referred to herein as the Photon Consulting Information). By accepting the terms and conditions set forth below and receiving or accessing the Photon Consulting Information, You agree as follows:

1. Use of Photon Consulting Information. This Agreement allows authorized individuals within Your company to use the Photon Consulting Information onsite at Your company. You may print or download the Photon Consulting Memo and distribute it among Your employees authorized by You to review the Photon Consulting Information for the internal business use of Your company, but You may not reproduce the Photon Consulting Memo in whole  or in part or distribute them outside Your company. You may extract information from the Memo on a "limited basis" for use in Your company’s internal documents, provided that those documents are not-for-sale or for sales related purposes and that Photon Consulting is clearly referred to as the source of the material. By use of the term limited basis, Photon Consulting means that You may extract whole sentences or paraphrased statements, but not a full page in length, groups of pages and not whole sections. When information is extracted without modification, it shall be attributed to Photon Consulting in the following manner: "Source: Photon Consulting LLC; data unmodified by Company." When information is extracted and then modified in any manner whatsoever, it shall be attributed to Photon Consulting in the following manner: "Source: Photon Consulting LLC; data modified by Company." In both instances, the term Company means Your company’s name. By extracting this information You also acknowledge that the Memo and all information contained in the electronic or hard copy are copyrighted by Photon Consulting, and that such information is for the confidential use of individuals within Your company authorized by You to review the electronic or hard copy. You further agree (a) to prevent the removal of Photon Consulting documents, information, and materials from Your company’s custody, and (b) to protect extracted information from disclosure and distribution beyond Your company, unless You have obtained the prior written permission of Photon Consulting, whether or not this Agreement is in effect. Photon Consulting reserves the right, in its sole discretion, without any obligation and without any notice requirement, to change, improve or correct the Photon Consulting Information, including the Memos and Services. Photon Consulting may change or discontinue any aspect of its Photon Consulting Information including the Memos or Services at any time, including its content or features.

2. Further Restrictions on Use. You (a) acknowledge that the Photon Consulting Information contains valuable data developed or acquired by Photon Consulting at great expense, and You agree to use Your commercially reasonable best efforts to protect the information from unauthorized reproduction, re-distribution, disclosure, use, or publication; (b) acknowledge and agree that the Photon Consulting Information contains Photon Consulting’s analysis of information which in some cases has been furnished to Photon Consulting by responsible persons on the understanding that it will be released by Photon Consulting only to a limited audience and not made widely available or that its release will be restricted due to its confidential nature (publication of this information is not intended to constitute a disclosure to the public of the information contained within the Memo); (c) agree not to use the name, service marks, or logos of Photon Consulting in promotional materials, publicity releases, advertising, or any other similar publications or communications, without Photon Consulting’s prior written permission. Photon Consulting reserves the right to deny approval of external usage for any reason (external usage includes the publication, promotion, website posting, or the display and/or dissemination of advertisements, press releases and other materials which may be viewed by persons who are not officers, employees or contractors of Your company and not obligated to treat such material as confidential); (d) agree not to pass Photon Consulting Information on to any of Your outside directors or to affiliated firms of Your company; and (e) agree not to use any Photon Consulting Information in any legal proceedings, and not to require or request the participation of Photon Consulting or its employees in any legal proceedings, and You agree not to allow others to do so.

3. Copyright and License. The Photon Consulting Information contains new information as well as information and text previously published under various titles and copyrighted by Photon Consulting during the years from 20__ through the current year. By accepting the terms of this Agreement, You have a limited license to use the Photon Consulting Information as provided herein, but You do not become the owner of any information or any database engines used. All right, title, and interest in the Photon Consulting Information and any content contained herein is the exclusive property of Photon Consulting, except as otherwise expressly stated. The entire contents of the Photon Consulting Information are protected by law including, but not limited to, United States copyright, patent, trade secret, and trademark laws, as well as other state, national, and international laws and regulations. You acknowledge that access to the Photon Consulting Information is subject to and limited by the license terms set forth herein and any modification thereof must be in writing and executed by Photon Consulting.

4. Disclaimer of Warranties. PHOTON CONSULTING DOES NOT WARRANT THE PHOTON CONSULTING INFORMATION, INCLUDING THE MEMOS OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, WHETHER EXPRESSLY OR IMPLIEDLY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. ALTHOUGH THE PHOTON CONSULTING INFORMATION PROVIDED BY PHOTON CONSULTING IS OBTAINED OR COMPILED FROM SOURCES CONSIDERED RELIABLE, PHOTON CONSULTING CANNOT AND DOES NOT GUARANTEE THE ACCURACY, VALIDITY, TRUTHFULNESS, TIMELINESS, OR COMPLETENESS OF ANY PHOTON CONSULTING INFORMATION. NO INDEPENDENT STEPS HAVE BEEN TAKEN TO CONFIRM THE ACCURACY, VALIDITY, TRUTHFULNESS, TIMELINESS, OR COMPLETENESS OF ANY PHOTON CONSULTING INFORMATION AND PHOTON CONSULTING DISCLAIMS ALL WARRANTIES AS TO THE ACCURACY, VALIDITY, TRUTHFULNESS, TIMELINESS, COMPLETENESS, OR ADEQUACY OF SUCH INFORMATION. THE USER ASSUMES SOLE RESPONSIBILITY FOR THE SELECTION OF THE PHOTON CONSULTING INFORMATION TO ACHIEVE THE USER’S INTENDED RESULTS.

5. Limitation of Liabilities and Indemnification. Photon Consulting is not liable for any loss or damage claimed to have resulted from the use by You of any Photon Consulting Information furnished by Photon Consulting, regardless of the circumstances. This includes, but is not limited to, damages for lost profits, business interruption, and loss of programs or information arising out of the use or inability to use the Memos or Services. You agree to hold Photon Consulting harmless from, and to indemnify it for, any loss, cost, damage or expense, including reasonable attorneys' and experts’ fees, suffered or incurred as a result of, or in connection with, any claim, suit or action by any third party relating to Your use. In no event will Photon Consulting be liable for any indirect, special, consequential, or exemplary damages, even when advised of the possibility of such damages, or for any damages in excess of the amount actually received by Photon Consulting under this Agreement as of the date when the cause of action accrued. You agree that these limitations are fair and reasonable in connection with the allocation of risk between the parties in light of Photon Consulting’s charges for the Photon Consulting Information.

6. Term. This Agreement shall commence upon the earlier of (i) date of execution hereof or (ii) Your payment of Photon Consulting’s subscription order form and/or invoice, and shall remain in full force and effect for a period of one (1) year. Upon Your payment for a subsequent annual subscription, this Agreement (or, if Photon Consulting has modified it, the modified version hereof; a current copy of the Agreement will be mailed to You along with Photon Consulting’s invoice), shall automatically renew for an additional one (1) year period, unless prior to renewal, Photon Consulting notifies You of its election not to renew this Agreement. Any liability or obligation of one party to the other under this Agreement, including restrictions on the use of Photon Consulting Information extracted under this Agreement, use of Photon Consulting’s logos, service marks, or name, all limitations on liability, and any other provisions of this Agreement which, by their nature or terms are contemplated or should be expected to survive (or to be performed after) expiration or termination of this Agreement, will in each case survive expiration or termination hereof. Either party shall be entitled to terminate this Agreement at any time on written notice to the other party in the event of a material default by the other party and a failure to cure such default within a period of thirty (30) days following receipt of written notice that such default has occurred.

7. Confidential Information. Notwithstanding the foregoing, certain Confidential Information of each party will be exchanged between the parties hereto in connection with the development and distribution of the Photon Consulting Information.

   1. Confidential Information. Confidential Information means all technical and commercial information and data which either party (the Delivering Party) has or may disclose to the other party (the Receiving Party) pursuant to this Agreement in written or other tangible medium and marked as confidential, or if disclosed orally or displayed, confirmed in writing within thirty (30) days after disclosure, excluding any portion thereof which: (i) is known to the Receiving Party before receipt thereof under this Agreement or the Assignment Agreement; (ii) is disclosed to the Receiving Party by a third person who is under no obligation of confidentiality to the disclosing party hereunder with respect to such information and who otherwise has a right to make such disclosure; (iii) is or becomes generally known in the trade through no fault of the Receiving Party; (iv) is independently developed by the Receiving Party, as evidenced by the Receiving Party's written records, without access to such information; or (v) is approved for release by written authorization of the original Disclosing Party.

   2. Nondisclosure. Confidential Information of the Delivering Party is the exclusive property of the Delivering Party. Confidential Information of the Delivering Party may be used by the Receiving Party only in connection with the performance of or as authorized by this Agreement. The Receiving Party shall protect the confidentiality of Confidential Information of the Delivering Party in the same manner that it protects the confidentiality of its own proprietary and confidential information (but in no event less than a reasonable degree of care), including, without limitation, by entering into agreements with employees, independent contractors and subcontractors that include appropriate confidentiality obligations. Access to and use of the Delivering Party’s Confidential Information shall be restricted to those of the Receiving Party’s employees or contractors engaged in a use permitted under this Agreement and who are bound by confidentiality obligations similar to those herein. Each party shall be responsible for any breaches of this Section 7 by its employees or contractors. Confidential Information may not be copied or reproduced without the Delivering Party’s prior written consent, except as necessary for use in connection with this Agreement.

   3. Disclosure Upon Process; Return; Breach. In the event the Receiving Party receives a subpoena, or other validly-issued administrative or judicial process, requesting that Confidential Information of the Delivering Party be disclosed, it shall promptly notify the Delivering Party of such receipt. The Delivering Party shall thereafter be entitled to comply with such subpoena or other process, only to the extent required by law. Either Delivering Party may at any time notify the Receiving Party that such Receiving Party must return to the Delivering Party the Delivering Party's Confidential Information. Each party hereby agrees to, within ten (10) business days of such notification: (a) return all documents and tangible items it or its employees or agents have received or created pursuant to this Agreement pertaining, referring or relating to the other party's Confidential Information; and (b) return or certify (in a writing attested to by a duly authorized officer of such party) destruction of all copies, summaries, modifications or adaptations that such party or its employees or agents have made from the materials provided by the Delivering Party. Breach or threatened breach of this Section 7 could cause irreparable harm to the Delivering Party and such Delivering Party shall be entitled, without first exhausting other remedies or procedures, to equitable relief, including injunctive relief, without the necessity of posting any bond or surety, in addition to all of its other rights and remedies at law or in equity that may be available to it.

8. Miscellaneous. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflict of laws thereof, and supersedes all prior agreements or understandings, written or oral, among any of the parties relating to the subject matter hereof, and incorporates the entire understanding of the parties with respect to such subject matter. This Agreement may be amended, supplemented or waived only by a written instrument signed by the party against whom the amendment, supplement or waiver is sought to be enforced. In the event that any of the provisions contained in this Agreement shall, for any reason, be declared or held to be unlawful, unenforceable or otherwise invalid in any respect, such term or provision shall be deemed modified to the extent necessary to make it enforceable, and in no event shall such declaration or holding affect the validity of any other provision of this Agreement, all of which provisions shall continue in effect in accordance with their terms. Your rights and obligations under this Agreement may not be assigned or transferred (by merger, operation of law or in any other manner) without the prior written consent of Photon Consulting, which consent may be withheld in Photon Consulting’s sole discretion. A party’s delivery of a signed counterpart of this Agreement by facsimile will constitute such party’s valid execution and delivery of this agreement.