Signature Copy
Agreement for ASIC Design and Purchase of Products
between
IBM Microelectronics
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and
Maker Communications, Inc.
Agreement Number: X0458
Commencement Date:
IBM Customer Account
Representative: ▇▇▇▇ ▇▇▇▇▇▇
Maker Communication, Inc.
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This agreement ("Agreement") is entered into by and between International
Business Machines Corporation, incorporated under the laws of the State of New
York ("IBM") and Maker Communications, Inc. ("Buyer"), incorporated under the
laws of the State of Delaware.
This Agreement and its attachments ("Attachments") sets forth the terms and
conditions pursuant to which semiconductor products will be designed,
manufactured, sold and purchased. The terms and conditions by which IBM licenses
to Buyer the IBM Design Kits specified in Attachment A are governed by the IBM
Design Kit License initially executed by the parties on December 13, 1996.
1.0 DEFINITIONS
1.1 "ASIC(s)" means application specific integrated circuits.
1.2 "ASIC Tool Kits" means any computer aided design software and data
provided by IBM and used by Buyer for the purpose of designing or
checking ASIC designs, as updated or enhanced from time to time by IBM.
1.3 "Buyer Deliverable Items" means any information and materials supplied
to IBM by Buyer, as set forth in Attachment B, including, without
limitation, software, schematics, netlists, microcode, designs or
techniques, as accepted by IBM and utilized in the design of or
otherwise incorporated into a Product.
1.4 "EngineerIng Change" means a mechanical or electrical change to the
Product which affects form, fit, function or maintainability.
1.5 "IBM Deliverable Items" means the information, materials and tools
supplied to Buyer by IBM, as set forth in Attachment B, including,
without limitation, IBM Design Kits, ASIC Tool Kits and Prototype
devices.
1.6 "IBM Design Kits" means any IBM computer aided design software and data
(including libraries) provided to Buyer for the purpose of designing or
testing ASIC designs, as updated and enhanced from time to time. The
term "IBM Design Kits" includes ASIC Tool Kits.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS
EXHIBIT, WHICH PORTIONS HAVE BEEN OMITTED AND REPLACED WITH [**] AND FILED
SEPARATELY WITH THE COMMISSION.
IBM/Maker Page 1 of 17
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1.7 "Initial ASIC Design Review Checklist" ("IDR") means a written report in
form and content as regularly used by IBM to make a preliminary
assessment of the feasibility of Buyer's proposed Product design.
1.8 "Mandatory Engineering Changes" means engineering changes required to
satisfy governmental standards, protect Product, system or data
integrity, or for environmental, health or safety reasons.
1.9 "Milestones" means completion of the (i) initial design review ("IDR
Milestone"), (ii) pre-layout and timing analysis ("RTL Milestone"), and
(iii) the release to manufacturing ("RTM Milestone") stages of work.
1.10 "Nonrecurring Engineering Charges" ("NRE charges") means the costs for
NRE Services.
1.11 "Nonrecurring Engineering Services" ("NRE Services") means engineering
services provided by IBM to develop Products to be manufactured under
this Agreement, which shall include delivery of Prototypes as specified
in Attachment C.
1.12 "Product(s)" means production units of the ASIC product(s) to be sold
and purchased under this Agreement as specified in Attachment A and as
may be amended by the parties to include additional Products. Products
shall not include Prototypes.
1.13 "Product Specifications" means the specifications for each Product
including, without limitation, the post-layout electronic data
interchange format ("EDIF") and timing requirements (including clock
skew requirements), a statement of post-layout test coverage and I/O
placement; as documented in the RTM, expressly or by specific
incorporation.
1.14 "Prototype Acceptance" means Buyer's written approval that Buyer's
Prototype evaluation demonstrates Prototype conformance to Product
Specifications.
1.15 "Prototype device(s)" or "Prototypes" means a preliminary version of a
Product which may or may not be functional and which is not suitable for
production in commercial quantities.
1.16 "Purchase Order Lead Time" means the required minimum amount of time
between IBM's receipt of the Purchase Order issued by Buyer and the
requested shipment date necessary to accommodate manufacturing cycle
time, as specified in Attachment C.
1.17 "Release to Layout Checklist" ("RTL") means a performance approval
written report in form and content as regularly used by IBM to document
completion of the pre-layout Level Sensitive Scan Design ("LSSD") and
timing analysis milestone of the SOW.
1.18 "Release to Manufacturing Checklist" ("RTM") means a performance
approval written report in form and content as regularly used by IBM to
document the design review milestone at the completion of the
post-layout timing analysis.
1.19 "Scheduled Shipment Date" means the date for shipment of Product
requested by Buyer in a Purchase Order and accepted by IBM in accordance
with Section 6.0 of this Agreement.
1.20 "Shipment Date" means the date for shipment of Product requested by
Buyer in a Purchase Order.
1.21 "Statement of Work" or "SOW" means a written statement of work as set
forth in Attachment A that identifies the respective design obligations
that the parties agree to complete for the development of particular
Products.
2.0 TERM OF AGREEMENT
This Agreement shall become effective on the date it is executed by
Buyer and IBM (the "Commencement Date"). The term of this Agreement will
begin on the Commencement Date and will be effective for a period of
three (3) years after the Commencement Date (the "Contract Period"),
subject, however, to earlier termination as permitted under Section
13.0.
3.0 WORK SCOPE
3.1 IBM will provide Buyer with engineering support and assistance and Buyer
will provide IBM with the Buyer Deliverable items and cooperate with IBM
in the use of IBM Deliverable Items to enable IBM to manufacture
Products, in accordance with the SOW. The Products are designed for
verification on IBM ASIC tools and to be manufactured by IBM under this
Agreement. The terms and conditions by which IBM licenses the IBM Design
Kits are exclusively governed by the IBM Design Kit License Agreement,
which is hereby incorporated by reference.
3.2 In the event that multiple Products are developed under this Agreement
or this Agreement is amended to include additional Products, each such
Product shall be developed under and subject to a separate SOW, separate
development checklist and separate Product pricing.
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4.0 ASIC PRODUCT DES1GN
4.1 IBM's ASIC development checklists shall document the development of each
of Buyer's Product design(s).
4.1.1 The IDR will be used to make a preliminary feasibility assessment
of each of Buyer's proposed Product design(s) and to advise Buyer of any
areas where Buyer's design(s) do not conform to IBM design requirements.
4.1.2 The RTL shall include, expressly or by specific incorporation, the
design specifications for each Product required by Buyer to successfully
place, route, time and conform to LSSD and provide static timing
analysis. The RTL shall also document the fact that such information is
available to Buyer and has been communicated to Buyer before each
Product netlist is released to layout. Buyer's signature on the RTL
shall record Buyer's acknowledgment of satisfactory completion of all
work on such Product through such Milestone.
4.1.3 Buyer's signature on the RTM shall record Buyer's acknowledgment
of (i) satisfactory completion of all work on such Product through the
RTM Milestone and (ii) the specifications to which IBM's warranty
obligations, set forth in Section 14.0, apply. To the extent that
specifications and test parameters contained in the RTM vary those set
forth in the RTL, the specifications contained in the RTM shall govern.
4.1.4 Buyer's signature on the RTL and RTM checklists shall not be
unreasonably withheld.
4.2 IBM shall use commercially reasonable efforts to meet all Milestone and
Prototype delivery schedules.
24.3 Any data relating to a Product design that Buyer is to furnish to IBM
must be compatible with IBM tools, with which IBM will verify all design
and engineering work for conformance to IBM's technology ground rules.
4.4 Buyer may request changes to any Product design during the course of the
SOW by submitting a written request to IBM. Upon receipt by IBM of any
such request, IBM shall promptly inform Buyer in writing of the effect
of the requested change on the SOW including estimated completion of the
design work to incorporate any requested changes and applicable price
increase(s), if any. IBM shall immediately halt work until the Buyer and
IBM agree, in writing, to changes in pricing, completion date and any
other terms of the SOW, which are affected by such request for change.
If Buyer fails to order a restart of work within fifteen calendar days,
then the cancellation charges in Section 9.0 of Attachment C will apply.
4.5 Buyer may, for the applicable unit price specified in Section 6.0 of
Attachment C, order Prototypes in addition to the quantity included in
the NRE Charges at any time before five (5) working days prior to RTM
signoff. Subject to the RTM signoff and adequate yield from the initial
wafer lot, IBM shall use reasonable efforts to deliver such additional
Prototypes within five (5) working days of the estimated delivery date
for Prototypes.
4.6 Subject to the terms and conditions of this Agreement, both parties will
exercise reasonable diligence in performing the design activities set
forth in the SOW for each Product.
4.7 IBM agrees to provide Products to Buyer as requested by Buyer and
accepted by IBM subject to the provisions of this Agreement.
4.8 All computer data provided to IBM by Buyer supplied pursuant to this
Agreement will be, to the best of supplier's knowledge, free from any
virus, worm or other routines that would permit unauthorized access or
otherwise harm software, hardware or data.
5.0 PRODUCT DEMAND FORECASTS
5.1 The Product demand forecasts agreed to by Buyer and IBM are set forth in
Attachment C. The forecasts cover yearly periods through 1999 broken out
by Product and month. During the term of this Agreement, Buyer will
provide IBM with updated Product demand forecasts on a monthly basis
covering a rolling twelve (12) month period (not to extend beyond the
Contract Period), which will be reviewed for approval by IBM within ten
(10) days of receipt by IBM. Updated forecasts shall be in substantially
the same format as the first forecast in Attachment C. Forecasts shall
be provided to IBM's Customer Account Representative as identified
above. Forecasts shall constitute good faith estimates of Buyer's
anticipated requirements for Products for the periods indicated based on
current market conditions, and IBM's acceptance shall constitute IBM's
good faith intention to quote and supply such requirements if requested
and ordered by Buyer in accordance with this Section 5.0.
Notwithstanding the foregoing, Product demand forecasts accepted by IBM
shall not contractually obligate IBM to supply, nor contractually
obligate Buyer to purchase, the quantities of units of Product set forth
in such forecasts.
5.2 Buyer may request Products that exceed Product demand forecasts
previously accepted by IBM. Such requests are subject to rejection by
IBM for any reason, including, without limitation, resource
availability. In the event IBM rejects such a request, IBM shall provide
buyer with written notice of such rejection within fourteen (14)
calendar days of Buyer's Request, specifying the reason for the
rejection.
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6.0 PURCHASE ORDERS
6.1 [**]
6.2 [**]
6.3 [**]
6.4 Purchase orders issued to IBM shall include the following:
6.4.1 NRE Services and/or Product(s) being ordered;
6.4.2 quantity of units of Product requested (in increments of the
minimum ship pack quantity ("SPQ") only);
6.4.3 NRE Charges and/or unit price per Attachment C;
6.4.4 billing address;
6.4.5 shipping instructions, including carrier, destination address and
requested shipment dates; and
6.4.6 reference to this Agreement and Agreement Number.
6.5 This Agreement shall take precedence over and govern in case of any
additional, different or conflicting terms and conditions in any
purchase order(s) or any other form of either party. Purchase orders and
other forms of either party may not vary the terms of this Agreement.
Additional, different or conflicting terms and conditions on a purchase
order or other form shall be of no effect, unless in writing and signed
by both parties.
6.6 Notwithstanding any other provision of this Agreement, in the event that
IBM's ability to supply the Product is constrained (except as caused by
Buyer) for reasons which include, but are not limited to, component
availability, and the Scheduled Shipment Date cannot be met, IBM will
reduce the quantities of Products to be supplied to Buyer in proportion
to the reduction in quantities of products of the same technology or
utilizing the same manufacturing process to be supplied to satisfy
others. Receipt of such allocated supply and later delivery of all
undelivered ordered quantities after the constraint ends shall
constitute Buyer's exclusive remedy in the event of such supply
constraint.
7.0 PRICING
7.1 Buyer shall pay IBM the NRE Charge applicable to such Product as set
forth in Attachment C, as well as other sums for special services as are
separately ordered by Buyer and listed or referenced in Attachment C, or
as otherwise agreed to in writing by the parties.
7.2 The unit price for each unit of Product ordered shall be determined at
the time the applicable purchase order is accepted using the Product's
Price Quantity Matrix set forth in Attachment C. The quantity used as an
input into such Price Quantity Matrix shall be the cumulative quantity
of units of a Products determined by the purchase orders accepted by IBM
after the Commencement Date, including the units of Product requested in
the purchase order that is the subject of such price determination.
8.0 TITLE AND SHIPMENT
8.1 Title and risk of loss for a Product pass to Buyer when IBM delivers the
Product to the carrier.
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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8.2 Products shall be shipped from the manufacturing location FOB for
domestic U.S. destinations and ExWorks (as defined in the 1990 INCO
Terms) for international shipments.
8.3 In no event shall IBM be deemed to assume any liability in connection
with any shipment, nor shall the carrier be construed as an agent of
IBM.
9.0 INVOICING, PAYMENT TERMS, TAXES
9.1 NRE Charges shall accrue and be invoiced on the schedule set forth in
Section 2.0 of Attachment C. IBM shall invoice Buyer for all units of
Product upon shipment. All payments under this Agreement shall be due
within thirty (30) days of the date of invoice. If Buyer's account
becomes in arrears or if Buyer exceeds its credit limit with IBM, in
addition to any other right under this Agreement, IBM reserves the right
to cease development work or stop shipment to Buyer or ship to Buyer on
a cash-in-advance basis, or other mutually agreeable terms, until
Buyer's account is again current.
9.2 Buyer is responsible for all state and federal sales and use taxes
related to Products, except for IBM's own corporate income taxes.
9.3 Buyer shall provide IBM with a copy of a valid reseller's exemption
certificate for Products purchased for resale for each applicable taxing
jurisdiction. Based on such certificate, and where the law permits, IBM
will treat Buyer as exempt from applicable state and local sales tax for
Products purchased hereunder. Buyer shall notify IBM promptly in writing
of any modification or revocation of its exempt status. Buyer shall
reimburse IBM for any and all assessments resulting from a refusal by a
taxing jurisdiction to recognize any Buyer reseller's exemption
certificate, or from Buyer's failure to have a valid reseller's
exemption certificate. If Buyer purchases Product under this Agreement
for internal use, Buyer agrees to notify IBM and pay applicable sales
tax.
10.0 INTEREST ON OVERDUE PAYMENTS
Late payment of invoices will be assessed a charge equal to the lesser
of one and one-half (1.5%) per month or the statutorily maximum rate of
interest in accordance with the laws of the State of New York.
11.0 CANCELLATION CHARGES, RESCHEDULING, ORDER CHANGE PROVISIONS [**]
11.1 Buyer may cancel a purchase order or any portion thereof upon written
notice to IBM. If Buyer cancels a purchase order for NRE Services or
Prototypes, or if Buyer unreasonably withholds its signature from the
RTL or RTM, IBM will cease further work in connection with the Product
and invoice Buyer for (i) the total of all unpaid NRE Charges applicable
to the next development Milestone (Section 2.0 of Attachment C) and (ii)
an NRE cancellation charge pursuant to Section 3.0 of Attachment C and
the applicable unit price for any canceled Prototype devices that were
ordered pursuant to Section 4.5 of this Agreement. For purchase orders
for units of Product, if the written notice is less than the Purchase
Order Lead Time, then a cancellation charge, as specified in Section 9.0
of Attachment C, will immediately become due for each canceled unit.
11.2 For a purchase order for production units which is more than thirty (30)
days, but less than the Purchase Order Lead Time from its Scheduled
Shipment Date, Buyer may request in writing a one-time deferral of the
Scheduled Shipment Date for not more than ninety (90) days, with no
cancellation charge imposed. However, if this purchase order is
subsequently deferred or canceled, then the cancellation charge
specified in Section 9.0 of Attachment C will be due.
11.3 [**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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12.0 ENGINEERING CHANGES
12.1 [**]
12.2 [**]
12.3 [**]
12.4 [**]
13.0 TERMINATION OF AGREEMENT
13.1 If either party is in material default of a provision of this Agreement
and such default is not corrected within thirty (30) days of receipt of
written notice, this Agreement may be terminated by the party not in
default.
13.1.1 If Buyer terminates due to IBM default, all previously accepted
purchase orders shall be automatically canceled without charge to Buyer,
except for any specific purchase order(s) that the parties mutually
agree in writing not to cancel.
13.1.2 If IBM terminates due to Buyer default, at IBM's discretion, all
previously accepted purchase orders shall be automatically canceled and
adjustment charges and cancellation charges will apply in addition to
any other amounts then due.
13.2 Notwithstanding the provisions of Section 13.1, either party shall have
the right to terminate this Agreement immediately if:
13.2.1 The other party files a petition in bankruptcy, undergoes a
reorganization pursuant to a petition in bankruptcy, is adjudicated a
bankrupt, becomes insolvent, becomes dissolved or liquidated, files a
petition for dissolution or liquidation, makes an assignment for benefit
of creditors, or has a receiver appointed for its business; or
3.2.2 The other party is subject to property attachment or court
injunction or court order which has a substantial negative effect
on its ability to fulfill its material obligations under this Agreement.
13.3 IBM may terminate this Agreement, or its obligations with respect to
specifically affected Products, immediately if:
13.3.1 Buyer unreasonably withholds its consent for IBM to make Elective
Engineering Changes under Section 12.0; or
13.3.2 Either party receives a claim or charge, or otherwise has a
reasonable basis to believe any time during the term of this Agreement,
that any of the other parties Deliverable Items infringe third party
intellectual property rights.
13.4 In the event this Agreement is terminated pursuant to Section 13.1.2,
13.2 or 13.3, all amounts due and payable to the non-terminating party
as of the date of such termination shall become immediately due and
payable.
13.5 Either party may terminate this Agreement without cause upon twelve (12)
months prior written notice to the other. If Buyer is the terminating
party, all previously accepted purchase orders will be filled, but IBM
shall not be obligated to accept further purchase orders after receiving
notice. If IBM is the terminating party, IBM will continue to accept new
purchase orders pursuant to Section 6.0 during the notice period.
13.6 All Products shipped against accepted purchase orders will be subject to
the terms and conditions of this Agreement notwithstanding any
termination or expiration of the term of this Agreement.
13.7 Within thirty (30) days after filling all outstanding purchase orders
after termination, IBM shall provide Buyer with a refund of any net
credit remaining after all amounts due have been applied.
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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14.0 WARRANTIES
14.1 IBM warrants that each unit of Product after delivery will be free from
defects in material and workmanship and will conform to the Product
Specifications as set forth in the RTM for the applicable period set
forth in Attachment C. Delivery to Buyer of each unit of Product is
deemed to occur five (5) days after shipment from IBM. Buyer
acknowledges that the functionality of Products is contingent upon
Buyer's designs and, therefore, the warranty of this Section 14.1 does
not apply to the functionality of Products fabricated hereunder. This
warranty does not include repair of damage resulting from failure to
provide a suitable installation environment, or any use for other than
the intended purpose, accident, disaster, neglect, misuse,
transportation, alterations, or non-IBM repairs or activities.
14.2 Any unit of Product that fails to conform to the warranty of Section
14.1, while under warranty, may be returned, freight collect, to the
location IBM designates for repair, replacement or credit, at IBM's
discretion, provided, however, that IBM will provide a credit upon
Maker's reasonable request. IBM will within a reasonable time, but no
sooner than Purchase Order Lead Time repair or replace such units or
provide a credit to Buyer for the purchase price paid for such units by
Buyer. IBM will ship replacement units back to Buyer, transportation
prepaid by IBM, and such units of Product will be considered newly
delivered for warranty purposes.
14.3 Should any unit of Product returned to IBM hereunder be found by IBM to
be free from defects or non-conformities, IBM will return such unit of
Product to Buyer transportation prepaid by IBM. Payment for such unit of
Product will be due and payable by Buyer as set forth in Section 9.0
above.
14.4 Prototypes provided by IBM under this Agreement are provided on an "AS
IS" basis, without warranty of any kind.
14.5 No course of dealing, course of performance, usage of trade, Product or
Prototype description shall be deemed to establish a warranty, express
or implied.
14.6 THE FOREGOING WARRANTIES MADE BY IBM ARE EXCLUSIVE AND IN LIEU OF ANY
OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, AND ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT.
15.0 CONFIDENTIAL INFORMATION
All information exchanged under this Agreement is subject to the terms
of the separate agreement for exchange of confidential information
(Agreement Number V1424) as executed between the parties on December
9,1996.
16.0 TRADEMARKS AND TRADE NAMES
16.1 Neither this Agreement, nor the sale of Products hereunder, shall be
deemed to give either party any right to use the other party's
trademarks or any of the other party's trade names without specific,
prior written consent.
17.0 INTELLECTUAL PROPERTY RIGHTS
17.1 Buyer represents, and IBM acknowledges Buyer's representation, that all
Buyer Deliverable Items for the Products are the property of Buyer.
Buyer represents and warrants it is the rightful owner, or authorized
licensee (with all requisite rights to sublicense) of the Buyer
Deliverable Items and all other designs, information, and materials
supplied to IBM hereunder, and that no part of such materials knowingly
incorporate or infringe the intellectual property of any third party.
Buyer and/or its suppliers shall have and retain all intellectual
property rights associated with any intellectual property furnished by
Buyer, but excluding any intellectual property furnished by or for IBM.
17.2 IBM or its licensors shall retain and have all intellectual property
rights (including, without limitation, mask work rights) associated with
any intellectual property furnished by IBM in connection with this
Agreement, including without limitation, (i) all base array layers, (ii)
all IBM-licensed library elements (including, without limitation, any
megafunctions or cores), and (iii) all design methodologies and tools,
(iv) all IBM-furnished modifications of any of the foregoing. To the
extent Buyer has access to such intellectual property, Buyer shall use
such intellectual property solely for the purpose of designing
Prototypes and Products for manufacture pursuant to this Agreement.
Buyer hereby conveys to IBM any intellectual property rights it may
acquire therein. IBM represents and warrants, and Buyer acknowledges
IBM's representation, that IBM is the rightful owner or authorized
licensee of all intellectual property furnished by IBM in connection
with this Agreement.
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17.3 IBM shall own any masks made by IBM using logic data provided by Buyer.
IBM will use any tangible netlist tape(s), and tangible GDS II tape(s)
received from Buyer or generated exclusively for Buyer hereunder, and
any masks made from such GDS II tape(s), only to manufacture Products
for sale solely and exclusively to Buyer.
17.4 Except as set forth in section 17.2, if in the course of performance
under this Agreement either party discovers or invents any process,
pattern, device or other invention, that party shall be deemed the sole
owner of such discovery or invention. In the event any such invention is
jointly discovered or invented by the parties, the parties shall be
deemed joint owners of such discovery or invention without any duty of
accounting.
17.5 The parties understand and agree that no license or other right is
granted herein to either party, directly or by implication, estoppel or
otherwise, with respect to any know-how, inventions, patents, trade
secrets, copyrights, mask works or other intellectual property rights,
except as expressly set forth in this Agreement. No additional license
or other right, express or implied, shall arise from the consummation of
this Agreement, or from any acts, statements or dealings leading to such
consummation.
18.0 INTELLECTUAL PROPERTY INDEMNIFICATION
18.1 IBM shall indemnify Buyer from and against any damages finally settled
or awarded by a court of competent jurisdiction resulting from any
direct infringement of any patents or copyrights of a third party in any
country in which IBM sells similar products that expose IBM to similar
liabilities as the Product, arising as a result of any of IBM's
manufacturing process, equipment or testing, that is not specifically
required by Buyer's designs, specifications or instructions. IBM shall
defend at its own expense, including attorney's fees, any suit brought
against Buyer alleging such infringement. In the event that Buyer
becomes enjoined from using Product in its inventory due to such
infringement, IBM at its option and expense, will secure for Buyer the
right to continue to use and market the Product, or modify or replace
the Product with a non-infringing product. If IBM determines that
neither of the foregoing alternatives is reasonably available, Buyer may
return the affected Product in Buyer's inventory to IBM for a credit
equal to the price paid for the units of Product affected. IBM shall
have no obligation regarding any claim based upon modification of the
Product by Buyer or its customers, use of the Product in other than its
intended operating environment or the combination, operation or use of
the Product with non-IBM products or equipment.
18.2 Buyer shall indemnify IBM from and against any damages finally settled
or awarded by a court of competent jurisdiction resulting from any
infringement of any patents or copyrights of a third party in any
country where Buyer uses or distributes the Product, arising as a result
of IBM's compliance with any of Buyer's design, specifications,
instructions or modifications of the Product by Buyer and shall defend
at its own expense, including attorney's fees, any suit brought against
IBM alleging any such infringement.
18.3 The rights provided in Sections 18.1 and 18.2 are contingent upon the
parties seeking to enforce indemnification by giving prompt written
notice to the indemnifying party regarding any claim, demand or action
for which the indemnified party seeks indemnification. The indemnified
party is required to fully cooperate with the indemnifying party at the
indemnifying party's expense and shall allow the indemnifying party to
control the defense or settlement of any such claim, demand or action,
including obtaining the written consent of the indemnifying party prior
to any settlement proposal or settlement. IBM shall have the right to
waive Buyer's obligations under Section 18.2 and provide for its own
defense, at IBM's sole discretion and expense.
18.4 The purchase, receipt or possession of the Product from or through IBM
carries no license or immunity, express or implied, under any patent of
IBM covering the combination of the Product with other products or the
use of any such combination, or under any patent or other intellectual
property right of any third party relating to the Product or its
combinations with any other products.
18.5 Except as expressly stated in this Agreement, this Section 18.0 states
the entire liability of the parties and their exclusive remedies with
respect to infringement and all other warranties against infringement of
any intellectual property rights, statutory, express or implied are
hereby disclaimed.
19.0 INDEPENDENT PARTIES
Each party hereto is an independent contractor and is not an agent of
the other party for any purpose whatsoever. Neither party shall make any
warranties or representations on the other party's behalf, nor shall it
assume or create any other obligations on the other party's behalf. IBM
and Buyer agree to indemnify from and against any damages finally
awarded by a court of competent jurisdiction resulting from any
violation of this Section 19.0.
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20.0 LIMITATION OF REMEDIES
20.1 IBM's entire liability and Buyer's exclusive remedy are set forth in
this Section:
20.1.1 In all situations involving non-conforming or defective Products
furnished under this Agreement as set forth in Section 14.1, Buyer's
exclusive remedy is the replacement of the Products or a credit to Buyer
of the purchase price paid for such units by Buyer, at IBM's discretion,
provided, however, that IBM will provide a credit upon Maker's
reasonable request.
20.1.2 IBM's liability for actual damages for any cause whatsoever
(other than as set forth in Section 20.1 .1), shall be limited to the
greater of fifty thousand dollars ($50,000) or the applicable unit price
for the specific units of Product that caused the damages or that are
the subject matter of, or are directly related to, the cause of action.
This limitation will apply, except as otherwise stated in this Section,
regardless of the form of action, whether in contract or in tort,
including negligence. This limitation will not apply to the payment of
costs, damages and attorney's fees referred to in Section 18.0. This
limitation will also not apply to claims by Buyer for bodily injury or
damage to real property or tangible personal property caused by IBM's
negligence.
20.1.3 In no event will either party be liable to the other party for
any lost profits, lost savings, incidental damages or other
consequential damages, even if advised of the possibility of such
damages, except as provided in Section 18.0. In addition IBM will not be
liable for any claim based on any third-party claim, except as provided
in Section 18.0. In no event will IBM be liable for any damages caused
by Buyer's failure to perform Buyer's responsibilities.
20.1.4 In addition, IBM shall have no liability when the Products are
used in conjunction with (a) any medical implantation or other direct
life support applications where malfunction may result in direct
physical harm or injury to persons or (b) commercial aviation, nuclear
materials, or other ultra-hazardous activities.
21.0 SUBCONTRACT AND ASSIGNMENT
21.1 IBM has the right to subcontract its responsibilities under this
Agreement, provided that any subcontractor retained by IBM is obligated
in writing to the same obligations as set forth herein with respect to
IBM. In the event that IBM does subcontract certain portions of its
responsibilities, the term "employee" as used herein shall be deemed to
include such subcontractor and/or its employees.
21.2 Neither party to this Agreement may assign its obligations or delegate
its duties in whole or in part without the prior written consent of the
other except that IBM may assign its rights to payment under this
Agreement and if the assets or stock of that portion of IBM to which
this Agreement pertains hereafter becomes owned or controlled, directly
or indirectly, by a third party, IBM may assign its entire right, title
and interest in this Agreement to such third party. Any other
assignments or delegations will be void.
22.0 COMPETITIVE PRODUCTS AND SERVICES
Neither this Agreement nor any activities hereunder will impair any
right of IBM or Buyer to design, develop, manufacture, market, service,
or otherwise deal in, directly or indirectly, other products or services
including those which are competitive with those offered by IBM or
Buyer.
23.0 PROMOTIONAL ACTIVITY
Press releases and other like publicity, advertising or promotional
material which mention the other party by name, this Agreement or any
term hereof shall be agreed upon by both parties in writing prior to any
release.
24.0 FORCE MAJEURE
Except for payments due IBM, neither party shall be in default or liable
for any delay or failure of compliance with this Agreement due to an act
of nature, public enemy, freight embargo, or other cause if such act of
nature, public enemy, freight embargo, or other cause is beyond the
control of the non-performing party. A non-performing party shall cure
as soon as practicable, and as soon as practicable after such force
majeure event, notify the other party in writing of such event.
IBM/Maker Page 9 of 17
Signature Copy
25.0 NOTICES
25.1 All notices shall be in writing and shall be deemed delivered when sent
by certified mail return receipt requested.
IBM Maker Communications, Inc.
Dept. LJGV-965-3J ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Contract Administrator Attn: Chief Financial Officer
25.2 Day to day technical activities under this Agreement will be directed by
the Technical Coordinators identified in Attachment A, who will be
responsible for maintaining technical liaison between the parties.
Either party may change its respective representative designated for
receipt of notices, or its Technical Coordinator and their addresses
designated for notices by notifying the other party in the same manner
as any other notice.
25.3 IBM will provide Buyer with ninety (90) days written notice whenever IBM
changes the location or locations, where a substantial portion of the
Product is manufactured.
26.0 GENERAL PROVISIONS
26.1 This Agreement may be executed in any number of identical counterparts,
each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument when each
party has signed one such counterpart.
26.2 The activities of each party and its employees, agents or
representatives while on the other party's premises (including any
design center) shall comply with the host company's policies and
procedures for such facilities, including security procedures and
visitation guidelines.
26.3 Each party will comply with all applicable federal, state and local
laws, regulations and ordinances including, without limitation, the
regulations of the U.S. Government relating to the export of commodities
and technical data insofar as they relate to the activities under this
Agreement. Buyer agrees that machines, commodities, and technical data
provided under this Agreement are subject to restrictions under the
export control laws and regulations of the United States of America,
including, without limitation, the U.S. Export Administration Act and
the U.S. Export Administration Regulations. Buyer hereby gives its
written assurance that neither machines, commodities or technical data
provided by IBM under this Agreement, nor the direct product thereof,
will be exported, or re-exported, directly or indirectly, to prohibited
countries or nationals thereof without first obtaining applicable
government approval. Buyer agrees it is responsible for obtaining
required government documents and approvals prior to export of any
machine, commodity, or technical data.
26.4 This Agreement shall be construed, and the legal relations between the
parties hereto shall be determined, in accordance with the substantive
laws of the State of New York, without regard to the conflict of laws
principles thereof. Buyer shall bring any and all actions arising under
or relating to this Agreement only in courts of competent jurisdiction
in the State of New York. IBM shall bring any and all actions arising
under or relating to this Agreement only in courts of competent
jurisdiction in the Commonwealth of Massachusetts. The parties hereto
expressly waive any right they may have to a jury trial and agree that
any proceeding under this Agreement shall be tried by a judge without a
jury.
26.5 If any section or subsection of this Agreement is found by competent
judicial authority to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of any such section
or subsection in every other respect and the remainder of this Agreement
shall continue in effect so long as the redacted Agreement still
expresses the intent of the parties. If the intent of the parties cannot
be preserved, this Agreement shall be either renegotiated or terminated.
26.6 No actions, regardless of form, arising out of this Agreement, may be
brought by either party more than two (2) years after the cause of
action has arisen, or, in the case of nonpayment, more than two (2)
years from the date the last payment was due.
26.7 This Agreement may be modified only by a written amendment signed by
persons authorized to so bind Buyer and IBM. This Agreement shall not be
supplemented or modified by any course of dealing, course of performance
or trade usage. The term "this Agreement" as used herein includes any
applicable Attachments or future written amendment(s) made in accordance
with this Section.
IBM/Maker Page 10 of 17
Signature Copy
26.8 Failure by either party to insist in any instance on strict conformance
by the other to any term of this Agreement or failure by either party to
act in the event of a breach will not be construed as a consent to or
waiver of any subsequent breach of the same or of any other term
contained in this Agreement.
26.9 All obligations and duties which by their nature survive the expiration
or termination of this Agreement shall remain in effect beyond any
expiration or termination, including, without limitation, Sections 8.0,
9.0, 10.0, 13.6, 14.0, 15.0, 16.0, 17.0, 18.0,19.0 and 20.0.
26.10 The headings in this Agreement are for convenience only and are not
intended to affect the meaning or interpretation of this Agreement.
IBM/Maker Page 11 of 17
Signature Copy
27.0 SOLE AGREEMENT
The parties acknowledge that each has read this Agreement and its
Attachments, understands them, and agrees to be bound by their terms and
conditions. Further, the parties agree that this Agreement and its
Attachments and the IBM Design Kit License Agreement, are the complete
and exclusive statement of the agreement between the parties, which
supersedes all proposals and all prior agreements, oral or written, and
all other communications between the parties relating to the subject
matter hereof.
Agreed to: Agreed to:
INTERNATIONAL BUSINESS MAKER COMMUNICATIONS, INC.
MACHINES CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------- --------------------------
Authorized Signature Authorized Signature
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP North American Sales, IBM MD Title: VP & CFO
Dated: 8/13/98 Dated: 9/2/98
--------------------------------------------------------------------------------
This agreement shall not bind either party to any obligations unless and until
it is executed in writing by both parties.
--------------------------------------------------------------------------------
IBM/Maker Page 12 of 17
Signature Copy
Attachment A
1.0 Product Name and Description
[**]
2.0 Technical Coordinators
[**]
3.0 Design Schedule/Statement of Work
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 13 of 17
Signature Copy
Attachment B
Deliverable Items
1.0 [**]
2.0 [**]
3.0 Deliverable Items associated with the RTM Milestone:
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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Signature Copy
Attachment C
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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Signature Copy
Attachment C (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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Signature Copy
Attachment C (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 17 of 17
Signature Copy Page 1 of 7
AMENDMENT 1 TO AGREEMENT X0458
This Amendment to the Agreement for ASIC Design and Purchase of Products
("Amendment 1") is made and entered into between International Business Machines
Corporation ("IBM") and Maker Communications, Inc. ("Buyer"). This Amendment 1
shall be effective as of February 15, 1999 (the "Effective Date").
WHEREAS IBM and Buyer are parties to the Agreement for ASIC Design and Purchase
of Products, Agreement Number X0458, having an effective date of September 2,
1998 (the "Agreement");
WHEREAS IBM and Buyer desire to amend the Agreement as set forth herein;
NOW THEREFORE the parties hereby agree as follows:
The parties agree that Attachments A, B and C to the Agreement for ASIC Design
and Purchase of Products, with Agreement Number X0458, shall be amended, and are
restated as follows:
Attachment A-1
1.0 Product Name and Description
[**]
2.0 Technical Coordinators
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
Signature Copy Page 2 of 7
Attachment A-1 (continued)
3.0 Design Schedule/Statement of Work
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
Signature Copy Page 3 of 7
Attachment B-1
Deliverable Items
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
Signature Copy Page 4 of 7
Attachment C-1
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
Signature Copy Page 5 of 7
Attachment C-1 (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
Signature Copy Page 6 of 7
Attachment C-1 (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
Signature Copy Page 7 of 7
Attachment C-1 (continued)
PRODUCT PURCHASE INFORMATION
[**]
This Agreement, as amended herein, sets forth the entire agreement and
understanding between the parties, and supersedes and cancels all previous
negotiations, agreements, commitments and writings, in respect to the subject
matter hereof, and neither party hereto shall be bound by any term, clause,
provision or condition except as expressly provided in the Agreement as amended
herein or as duly set forth on or subsequent to the date hereof in writing,
signed by duly authorized representatives of the parties.
Agreed to: Agreed to:
INTERNATIONAL BUSINESS MAKER COMMUNICATIONS, INC.
MACHINES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- -------------------------------
Authorized Signature Authorized Signature
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP North American Sales Title: VP and CFO
Dated: Dated:
------------------------- ----------------------------
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM Maker Communications
Signature Copy
AMENDMENT 2
TO AGREEMENT FOR ASIC DESIGN AND PURCHASE OF PRODUCTS
This amendment ("Amendment 2") to Agreement Number X0458, entered into between
IBM and Maker Communications, Inc. on September 2, 1998, as amended by Amendment
1 ("the Agreement"), is made and entered into by and between Maker
Communications, Inc. ("Buyer") and International Business Machines Corporation
("IBM"). Amendment 2 shall be effective when signed by both parties.
WHEREAS IBM and Buyer desire to amend the agreement so as to add an additional
product to be developed, manufactured and sold under the terms and conditions of
the Agreement.
NOW THEREFORE, the parties hereby agree to amend the Agreement by adding a
second set of Attachments to the base terms and conditions of the Agreement.
This Attachment has three parts: ▇-▇, ▇-▇, and C-2 that are applicable only to
the Product identified in Attachment A-2.
Attachment A-2
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
IBM/Maker Page 1 of 7
Signature Copy
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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Signature Copy
Attachment B-2
Deliverable Items
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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Signature Copy
Attachment C-2
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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Signature Copy
Attachment C-2 (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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Signature Copy
Attachment C-2 (continued)
PRODUCT PURCHASE INFORMATION
[**]
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
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Signature Copy
Agreed to: Agreed to:
INTERNATIONAL BUSINESS MAKER COMMUNICATIONS, INC.
MACHINES CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------- -------------------------------
Authorized Signature Authorized Signature
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP North American Sales Title: VP and CFO
Dated: Dated:
------------------------- ----------------------------
IBM/Maker Page 7 of 7