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EXHIBIT 10.8
FOUNDRY AGREEMENT
This Agreement (the "Agreement") is entered into this 1st day of September, 1999
by and between
TEMIC Semiconductor GmbH, having its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, hereinafter referred to as `TEMIC'
and
Stanford Microdevices Inc., having its registered office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, hereinafter referred to as `SMI'.
TEMIC desires to sell, and SMI desires to buy, semiconductor wafers and parts to
be manufactured by TEMIC using SMI proprietary designs, pursuant to the terms
and conditions of this Agreement.
The provisions of this Agreement do not alter the provisions specified in the
License Agreement between SMI and TEMIC. The Agreements complement each other.
NOW, THEREFORE; in consideration of these premises, and the mutual promises and
conditions in this Agreement, the parties agree as follows:
1. SCOPE OF FOUNDRY SERVICE
1.1 Subject to the terms and conditions contained in Section 13 of
this Agreement, SMI and TEMIC hereby will disclose know-how,
copyrights and mask work rights to make and have made wafers (as
defined in Exhibit A) at TEMIC fabrication facility in
Heilbronn, Germany, or any TEMIC facility previously qualified
by SMI, in accordance with the Wafer Specifications set forth in
Exhibit B, to test such wafers, and to sell such wafers only to
SMI at the prices established in Exhibit A.
"Know-how", when used in this Agreement, shall mean all of SMI
designs, techniques, technology, trade secrets, proprietary
information and other confidential information disclosed by SMI
to TEMIC pursuant to this Agreement which SMI, at its sole
discretion, determines is necessary for TEMIC to produce wafers
under this Agreement.
1.2 TEMIC shall provide appropriate masks, wafer processing of
engineering runs and process validation runs (multi-project
wafers) at the prices per Exhibit A.
1.3 For all prices set forth in Exhibit A or in any amendment
thereto, such prices shall be no less favourable for SMI than
are extended to TEMIC customers, other than the TEMIC Companies,
for comparable goods or services supplied in comparable
quantities.
1.4 During this agreement TEMIC will not sell products, which are
pin-to-pin compatible to SMI products, [***]
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However in no case shall TEMIC sell in any form products
exclusively developed by SMI to anyone other than SMI. This does
not preclude TEMIC from selling foundry services to anyone
(including those above) that do not include SMI intellectual
property.
2. PAYMENT
2.1 SMI shall pay in United States Dollars for wafers supplied by
TEMIC to SMI hereunder within [***] days after SMI receipt of
an invoice from TEMIC which shall be submitted to SMI upon
shipment.
2.2 SMI shall bear all costs to produce the initial mask set
necessary to produce any specific product, or mask changes to
complete design or process changes initiated by SMI. SMI shall
bear all costs for replacement masks or new masks to complete
process changes initiated by SMI as well as all costs for
replacement of masks worn of during production at TEMIC.
3. ORDERS, WARRANTY AND CLAIMS
3.1 TEMIC shall supply wafers, parts and other production services
to SMI in accordance with written purchase orders to be provided
by SMI. Each purchase order shall include the following:
(a) purchase order number
(b) product name
(c) manufacturing process
(d) quantities
(e) unit wafer prices and total prices
(f) desired shipment date (subject to Section "DELIVERY
TIMES" below)
(g) delivery instructions
(h) any special requests or comments
Subject orders shall become effective only upon the written
acceptance thereof by TEMIC within 5 working days.
The terms of this Agreement shall prevail over any conflicting
terms in any order documents, invoices or similar documents
exchanged between the parties hereunder.
3.2 SMI shall provide TEMIC every month with a good faith rolling
forecast of its wafer, parts and other production service
requirements on a monthly basis, and TEMIC shall use its best
efforts to make available to SMI sufficient fabrication capacity
and
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engineering support to meet such forecast requirements. In
addition to the status reports established under Section 5
below, the parties shall provide one another with reasonable
notice about changes in desired shipping or production
schedules, availability of capacity or other similar situations.
The forecast is considered as firmorder for the period of 0-60
days, can change by [***] in the period of 60-120 days and can
vary by [***] for the period >120 days.
3.3 Any other provision of this Agreement notwithstanding, if TEMIC
shall be delayed more than sixty (60) days in the production and
delivery of wafers for any particular SMI purchase order,
regardless of cause, SMI may, at its reasonable discretion,
provided that TEMIC is unable to provide a recovery program
acceptable to SMI, cancel such order effective upon written
notice thereof to TEMIC. Upon resubmission of any such cancelled
order by SMI and acceptance thereof by TEMIC. TEMIC shall then
use its best efforts to give a priority delivery date to such
new order. If TEMIC delays production and delivery more than
sixty (60) days under three (3) or more SMI purchase orders in
any six (6) months' period under this Agreement, SMI may
terminate this Agreement immediately by sending notice of
termination to TEMIC.
3.4 TEMIC gives warranty on workmanship and material for [***]
months. In case of warranty claims by SMI, TEMICs warranty is
limited to the replacement of wafers.
3.5 TEMICs standard Terms & Conditions (Exhibit D) apply if not
otherwise specified in the contract.
4. DELIVERY TIMES
4.1 Unless otherwise agreed to in writing by SMI, delivery times
upon acceptance of a SMI purchase order by TEMIC shall be:
(a) twelve (12) weeks for production wafers, with the target
to go down to eight (8) weeks within Q4/99
(b) eight (8) weeks for engineering masks and wafers
TEMIC shall use its best efforts to achieve such delivery times
on a regular and consistent basis. However, since these delivery
times correspond to the actual production cycles for wafers, no
recovery is possible in case of accidental misprocessing of
wafer batches.
4.2 In the event of a third party suit or claim against SMI and/or
TEMIC involving a Third Party Right (as defined in Section 15),
TEMIC may, at its reasonable discretion and upon advice of its
legal counsel, suspend or terminate the production and supply of
any wafers to SMI if such continued production and supply would
or could cause TEMIC to violate such Third Party Right. TEMIC
shall discuss any such suspension or termination with SMI and
shall give due opportunity for SMI to satisfy the provisions of
Section 15, prior to the implementation thereof. In case TEMIC
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interrupts production due to circumstances described
hereinabove, it shall provide reasonable assistance to SMI in
order to re-establish deliveries of wafers, if appropriate, by
subcontracting to another foundry.
5. STATUS REPORTS
5.1 Upon request from SMI, TEMIC shall provide SMI with
work-in-process, in SMI content and format, status reports, with
projection of wafer-out dates.
5.2 Any deviations from acknowledged delivery dates due to
unforeseen manufacturing problems shall be reported to SMI
within 3 working days when such problems become apparent.
6. PROCESS HOLDS
6.1 SMI may request in writing that TEMIC hold engineering wafer
processing at mask levels of [***] and [***] for a maximum
cumulative period of [***] days, and TEMIC shall accept such
requests.
7. PROCESS CHANGES
7.1 Either party may request the other party to accept changes in
the production process for wafers, provided, however, any
material changes to the production process for wafers that has
been previously approved by SMI for production of its wafers,
including changes to procedures, flow or specifications, may
only be made if such changes are first approved in writing by
SMI, which approval shall not be unreasonably withheld.
7.2 Changes requiring written approval are major changes as
described in Exhibit C.
8. OWNERSHIP AND RESPONSIBILITY
8.1 TEMIC acknowledges and agrees that SMI shall own all rights,
including, without limitation, all patent rights, copyrights,
trade secret rights, and mask work and similar rights, in and to
the wafers and other products produced by TEMIC for SMI
hereunder, and in the know-how disclosed by SMI to TEMIC
hereunder. TEMIC shall own all rights in and to the production
process and all know-how independently developed by TEMIC and
used in the manufacturing of the wafers. SMI and TEMIC
acknowledge that TEMIC is acting only as a foundry.
9. DISCONTINUATION OF PRODUCTION
9.1 In the event SMI cannot consume all processed wafers, TEMIC will
stop production immediately upon written notice of SMI and
advice the work-in-process status to SMI. In lieu of paying the
order value for completed wafers, the following compensation may
be calculated:
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(a) For any wafers due for delivery in less than 8 weeks,
irrespective of the state of completion and in addition
to the charges under (b), (c) and (d) below
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(b) For any wafers processed up to Poly-l [***]
(c) For any wafers processed up to Metal-1
(or Metal-2 if applicable) [***]
(d) For any wafers processed beyond Metal [***]
The percentages relate to the wafer prices per Exhibit A.
The quantities in steps (b), (c) and (d) have to relate
reasonably to the total quantity of wafers ordered.
9.2 TEMIC agrees to provide up to [***] wafers to SMI upon
notification that TEMIC will obsolete or upgrade its wafer
fabrication process. TEMIC will provide notification at least 6
months in advance prior to time of obsolescence or major process
change. Delivery of wafers ordered under this provision will be
at a mutually agreeable rate.
9.3 1 year after the final production, TEMIC may scrap the masks or
send the masks to SMI on SMIs request.
10. TEMIC QUALITY INSPECTION
10.1 TEMIC shall ship only such wafers or parts as have passed visual
inspection and electrical testing (PCM) by TEMIC, in accordance
with the specifications set forth in Exhibit B (the
"Specifications Used By Foundry to Build Wafers").
10.2 SMI and/or its appointed customers shall be entitled upon any
reasonably written request and during normal business hours, and
at its sole expense, to witness inspection and testing of all
wafers manufactured by TEMIC for SMI under this Agreement and to
audit the TEMIC quality control system to monitor the quality of
wafers manufactured. If corrective actions require follow-up,
additional, directly related audits are permitted, SMI
personnel, in conducting such inspections or audits, shall be
bound by TEMIC rules at its plants respecting visits by outside
personnel.
10.3 TEMIC shall keep and provide reasonable access by SMI to all
TEMIC test, inspection, processing, and full tracing of all
wafers, from fabrication to shipment, including scraps, normally
maintained for a wafer lot for each lot of wafers processed, for
SMI on the same terms as it handles its standard production
records for other customers. TEMIC shall not destroy records
pertaining to the wafers within 18 months of their creation, and
without first giving SMI thirty (30) days written notice of such
intended destruction and the right to obtain copies of such
records for SMI own files and at SMI own expense.
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10.4 If TEMIC experiences any unusual technical problems in
manufacturing wafers pursuant to this Agreement, TEMIC may
request that SMI assist TEMIC in resolving such technical
problems, and SMI shall use its best efforts to assist TEMIC in
resolving such problems as promptly as possible. If SMI
personnel are requested by TEMIC to travel to TEMIC facilities
to assist TEMIC in resolving such technical problems, SMI shall
bear all of its own overhead costs and personnel and travel
expenses. TEMIC will provide adequate technical equipment for
carrying out effective analyses of the perceived technical
problems to SMI personnel while working at TEMIC facilities. If
TEMIC and SMI agree in good faith that the perceived problems
are not related to the design of SMI products, TEMIC will
reimburse travel expenses, including room and board.
10.5 Should TEMIC discover or be informed about a condition that may
affect the quality of reliability of wafers in process or
shipped to SMI will inform SMI immediately and present to SMI
all pertinent data.
11. LOC INSPECTION
11.1 SMI shall conduct its own inspection of shipped wafers or parts
in accordance with the Wafer Specifications within fifteen (15)
business days after receipt thereof by SMI. If any wafers or
parts shipped by TEMIC do not meet Wafer Specifications upon
such inspection, SMI shall immediately notify TEMIC in writing
of the rejection of such shipment and the lot number(s)
affected, and the specific defect of deficiency identified by
the inspection. SMI shall hold such materials in a safe and
secure facility and make them available for inspection by TEMIC,
subject to Section 11.5.
11.2 If appropriate TEMIC may direct SMI to return such defective
materials to TEMIC for further inspection, testing or other
procedures. Any such direction shall be accomplished by an TEMIC
Return Material Authorization ("RMA"), including a specific
tracer number to be prominently displayed on the shipping
container for such returned materials. Upon issuance of an RMA,
SMI shall promptly ship such materials together with all
relevant data from the SMI inspection to the designated TEMIC
facility, freight and insurance prepaid, in the original
shipping container or containers of equivalent protective
constitution.
11.3 SMI may return such wafers or parts hereunder for a credit and
may recover its return shipping and insurance expenses from
TEMIC if, and only if, defects in such materials actually exist
as indicated in the SMI rejection notice and were not caused by
SMI own misuse unauthorized modifications, neglect, improper
testing, attempts to repair, or by accident, fire or other
hazard, while such materials are in the possession or control of
SMI.
11.4 TEMIC and SMI acknowledge that some wafers or parts which do not
meet Wafer Specifications and/or are broken may nevertheless
still be expected to yield a functional and reliable produce. If
SMI elects to purchase such below-specification
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wafers or parts, shall be entitled to a partial credit against
the TEMIC invoice amount as may be reasonably agreed upon in
writing by SMI and TEMIC. If SMI and TEMIC fail to agree upon a
partial credit amount, then the below-specification wafers or
parts shall be returned to TEMIC at TEMICs expense for
destruction by TEMIC. TEMIC shall not sell or provide access to
such wafers to any third party.
11.5 SMI and TEMIC agree that conformance to the specifications
within this document does not necessarily indicate the wafers
are free of defects in material and/or workmanship, and that
subsequent processing or testing may uncover such defects in
material and/or workmanship. Warrant claims of such nature shall
be made by SMI no later than 30 working days after the first
indication of a potential problem to SMI and TEMIC agree to use
their best efforts to correct such defects and provide each
other with a reasonable amount of data or information to effect
a cure.
11.6 Any other provision of this Agreement to the contrary
notwithstanding, no claim by SMI with respect to wafers, parts
or services delivered to SMI thereunder shall be greater in
amount than the purchase price of the order in respect of which
damages are claimed. IN NO EVENT SHALL TEMIC BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, HOWEVER
CAUSED, WITH REGARD TO ANY WAFERS, PARTS OR SERVICES DELIVERED
HEREUNDER. REGARDLESS OF WHETHER TEMIC HAS BEEN INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES OR NOT.
12. DELIVERY QUANTITIES
12.1 Delivery quantities will match with ordered quantities as
closely as possible; however, wafer shipments will always be
done in integer multiples of production batches for the sake of
lot traceability. A production batch is currently [***] wafers.
In large volume continuous production, batches of [***] wafers
are preferred for better economy of scale. SMI will, whenever
possible, place orders in integer multiples of production
batches and TEMIC will deliver and invoice the actually
accomplished number of wafers (normally +0/-10 % of batch size).
13. CONFIDENTIALITY
13.1 Each party acknowledges that the information disclosed in
connection with any transactions contemplated hereunder will
contain the Confidential Information and trade secrets of the
disclosing party, and will remain the property of the disclosing
party ("Confidential Information"). A party receiving any
Confidential Information of the other party shall take all
reasonable measures to keep and hold any such Confidential
Information of the other party in strict confidence as it would
be its own Confidential Information and shall not disclose such
Confidential Information of the other party to any person, firm
or corporation without the prior written consent of the party
disclosing such Confidential Information. A party receiving
Confidential Information of the other party shall not, except as
may be authorized hereafter in
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writing by the disclosing party, use any Confidential
Information of the other party for any purpose not stated in
this Agreement.
13.2 A party receiving Confidential Information of the other party
shall limit dissemination of and access to any Confidential
Information of the other party to those employees or consultants
of the receiving party who have a good faith need for such
access to effectuate the purpose of this Agreement and who have
executed a standard non-disclosure agreement with the receiving
party.
13.3 The obligations of the receiving party described in this Section
shall survive termination or expiration of this Agreement and
shall continue in full force and effect with respect to any
information as long as it remains Confidential Information under
this Section 13.
13.4 A party receiving Confidential Information of the other party
may disclose such information to subcontractors upon the prior
written approval of the party disclosing the Confidential
Information if such disclosure is necessary to perform its
duties under this Agreement, and such approval shall not be
unreasonably withheld. The receiving party shall cause its
permitted subcontractors to sign a confidentiality agreement
with substantially the same terms and conditions of this Section
prior to disclosing Confidential Information of the other party
to such subcontractors.
13.5 Neither party shall have the obligation to the other party with
respect to any information of the other party of any portion
thereof which is:
(a) already known to the receiving party at the time of
receiving same as shown by the receiving party's files
and records in existence at the time of disclosure;
(b) or hereafter becomes publicly known through no wrongful
act of the receiving party;
(c) rightfully received from a third party without
restriction on disclosure and without breach of this
Agreement;
(d) now or hereafter independently developed by the
receiving party and without reliance in any degree upon
any Confidential Information of the other party;
(e) furnished by the disclosing party to a third party
without any restriction upon disclosure comparable to
that set forth in this Agreement; or
(f) revealed pursuant to a requirement of a governmental
agency or lay, provided that the receiving party
provides prompt written notice of such requirement or
law so as to afford the disclosing party an opportunity
to intervene and oppose disclosure.
13.6 The parties agree that any material breach of Section 13 will
cause irreparable injury and that injunctive relief in a court
of competent jurisdiction will be appropriate to
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prevent either an initial or continuing breach of such
nondisclosure and confidentiality provisions herein in addition
to any other relief to which the owner of such Confidential
Information may be entitled.
13.7 Insofar as the performance hereunder involves the transfer of
products and technologies subject to the United States Export
Regulations (15 C.F.R., Parts 779, et seq.), the parties hereto
warrant to fully comply with all pertinent regulations.
14. TERM
14.1 This Agreement may be terminated by SMI or TEMIC upon written
notice to the other party:
(a) in the event the other party files a petition in
bankruptcy, or in the event all or part of the other
party's assets are assigned to a trustee or receiver, or
if an involuntary petition in bankruptcy is filed by a
third party and the other party does not resolve such
petition in its favour within sixty (60) days after
filing and notice thereof; or
(b) in the event of a substantial breach of a material term
of this Agreement not remedied by the other party in
breach within thirty (30) days after receipt of written
notice by the terminating party specifying such breach
and requesting that it be remedied.
(c) immediately for any violations or Section 13.
14.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR
ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES,
HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF
THE TERMINATION OF THIS AGREEMENT.
14.3 TEMIC shall not be liable for any damages caused by SMI
products, due to design, packaging, testing and whatsoever.
14.4 This agreement shall be in effect for 60 months and shall be
self renewing annually. Should TEMIC decide to not renew this
agreement the discontinuation of product clause (Section 9.1)
becomes valid.
15. INFRINGEMENT
15.1 TEMIC warrants to SMI that TEMIC owns the know-how, copyrights,
mask work rights, and other intellectual rights solely to enable
TEMIC to produce the wafers or parts for SMI lawfully. SMI
hereby indemnifies and holds TEMIC and its directors, officers,
employees and agents harmless from any claim, suit or other
liability (including reasonable attorneys, fees and costs)
arising out of or resulting from a material breach of the
foregoing warranty.
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15.2 SMI warrants to TEMIC that SMI owns, or otherwise has the right
to use on behalf of TEMIC all applicable intellectual property
rights to the manufacturing processes not otherwise licensed to
SMI by TEMIC which will be used by TEMIC to produce the wafers
or parts. SMI hereby indemnifies and holds TEMIC and its
directors, officers, employees and agents harmless from any
claim, suit or other liability (including reasonable attorneys,
fees and costs) arising out of or resulting from a material
breach of the foregoing warranty.
15.3 In the event of the institution of any suit or claim against an
indemnified party alleging that TEMIC manufacture of the wafers
or parts violates any circuit design patent or mask work,
manufacturing process patent, or other circuit design or
manufacturing process proprietary right of a third party
recognised under the laws of the United States of America
(hereinafter "Third Party Rights"), or shall become the subject
of any claim for violation of Third Party Rights, the
indemnified party shall promptly notify the indemnifying party
of such suit or claim and provide reasonable details thereof.
Failure to give such notice, if it materially impairs the
ability of the indemnifying party to defend against such suit or
claim, shall terminate any duty of indemnification under this
Section.
15.4 The indemnifying party shall have sole control of any action or
settlement negotiations relating to any such suit or claim, and
the indemnified party shall render all cooperation reasonably
requested by the indemnifying party in defense of such suit or
claim, provided that the indemnified party may retain its own
counsel at its own expense. The indemnified party shall not
settle or attempt to settle any such suit or claim without the
express written consent of the indemnifying party.
15.5 In addition to its duty of indemnification hereunder, the
indemnifying party may, at its sole discretion and expense:
(a) alter or change the circuit design or manufacturing
process, as may be the case, so as to make said design
or process non-infringing of any third Party Right; or
(b) obtain permission from the affected thirty party to use
the Third Party right, it being the intention of both
parties to continue the performance of this Agreement if
commercially reasonable to do so.
If neither of these methods is appropriate to eliminate the
infringement of the Third Party Right, the indemnifying party at
its sole discretion may terminate this Agreement or withdraw the
infringing products without any additional obligation or
liability to the indemnified party, for lost opportunity or
profits or otherwise, due to such termination.
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16. NOTICES
16.1 Any and all notices or other communications required or
permitted by this Agreement or by law to be served on or given
to either party hereto by the other party shall be in writing
and shall be deemed duly served and given when personally
delivered to either of the parties to whom it is directed, or in
lieu of such personal service, on the same day of transmission
by telex or confirmed facsimile or seven (7) days after deposit
in the mail, first class international air mail postage prepaid,
or two (2) business days after being sent by overseas courier,
addressed to:
Stanford Microdevices Inc. TEMIC Semiconductor GmbH
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ D-74072 Heilbronn
Attn. of: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attn. of: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Copy to:
AMTEL Corporation
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. of: ▇▇▇▇ ▇▇▇▇
Copy to:
TEMIC Semiconductor
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn. of: ▇▇▇▇▇▇ ▇▇▇▇▇
Either party may change the addresses above upon notice duly
given in writing to the other party.
17. ARBITRATION
17.1 Except for any claim based upon an alleged or actual violation
of Section 13 above with respect to confidentiality and
non-disclosure, any dispute relating to the interpretation or
performance of this Agreement or the grounds for the termination
thereof shall be resolved at the request of either party through
final and binding arbitration as set forth herein. Such
arbitration shall be conducted by three (3) arbitrators, at
least one (1) of whom shall have reasonable technical knowledge
of and experience in the semiconductor industry, selected by the
mutual agreement of the parties, or, failing such agreement, as
selected according to the applicable rules specified below. The
parties shall bear the costs of such arbitrators equally.
17.2 Arbitration shall be conducted in the English language in
Sacramento, California, USA, under the Commercial Arbitration
Rules of the American Arbitration Association (the "AAA") and
its Supplementary Procedures for International Commercial
Arbitration, except as superseded by the provisions of this
Section. The
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arbitration panel shall operate in all respects by a majority
vote of the arbitrators. The parties shall be entitled to all
discovery permitted under Section 1283.05 of the California Code
of Civil Procedure, with all such discovery to be completed
within ninety (90) days of the commencement of the arbitration,
provided, however, that if TEMIC is not entitled to discovery
under Germany's or other law, SMI shall not be entitled to
discovery. Upon completion of the arbitration bearing, the
arbitrators shall promptly render their decision and award,
which shall be in writing and which shall state the reasons for
the conclusions reached.
17.3 The arbitrators shall have the power to render any award for
ordinary damages or injunctive relief but may not award punitive
damages. If judicial enforcement or review of such arbitration
award is sought by either party, judgement may be entered upon
such award in any court of competent jurisdiction in the United
States or Germany, as the case may be.
17.4 The prevailing party in any such judicial enforcement,
arbitration or review proceeding or in any other legal
proceeding relating to the interpretation or performance of this
Agreement or the grounds for termination thereof shall be
entitled to its reasonable attorneys' fees and related other
costs (including the costs for any interpreters or translators)
in addition to any other amount of recovery ordered by such
court. For purposes of this Section, a "prevailing party" shall
be that party which recovers more than one-half (1/2) of the
amount set forth in its claim in the arbitration or which
defeats the other party's claim by more than one-half, or which
achieves a comparable result in respect of injunctive relief.
18. MISCELLANEOUS
18.1 This document constitutes the entire agreement of SMI and TEMIC
with regard to the subject matter hereof and supersedes all
prior negotiations and agreements whether written or oral. The
executed English language version of this Agreement and of any
other documents prepared by the parties under this Agreement
shall be controlling for all purposes.
18.2 This Agreement may be amended only by a written document
executed by authorized representatives of SMI and TEMIC.
18.3 SMI and TEMIC acknowledge the need for certainty, orderliness
and predictability essential to the performance of this
agreement in international commerce. The parties further
acknowledge that the choice of law to be applied by the parties
or by a tribunal in the event of arbitration of litigation
arising out of this Agreement is a material and bargained for
provision upon which both parties have had the opportunity to
consult with their respective legal advisors. In light of the
foregoing, this Agreement shall be governed by and construed in
accordance with the laws of the State of California, excluding
(a) its choice of law rules and
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(b) the United Nations Convention on the International sale
of Goods.
18.4 No right may be assigned, and no duty may be delegated, by
either party under this Agreement except upon the written
consent of the other party, and any attempted assignment and
delegation without such consent shall be void.
18.5 Notwithstanding the foregoing, however, either party shall be
entitled to assign this Agreement, and all rights and
obligations hereunder, to a successor to all or substantially
all of its assets, whether by sale, merger, or otherwise,
provided that either party indicating such assignment shall
provide the other party with at least thirty (30) days prior
written notice and cause such assignee to be bound by this
Agreement. This agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective
representatives, heirs, administrators, successors and permitted
assigns except as otherwise provided herein.
18.6 The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
18.7 Except for the duty of payment for goods and services previously
supplied, neither party shall be responsible or liable to the
other party for non-performance or delay in performance of any
terms or conditions of this Agreement due to acts of God, acts
of governments, wars, riots, strikes or other labour disputes,
shortages of labour or materials, or other causes beyond the
reasonable control of the non-performing or delayed party,
provided, however, non-performance or delay in excess of one
hundred eighty (180) days shall constitute cause for termination
of this Agreement by either party.
18.8 This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but such counterparts
together shall constitute only one and the same instrument.
18.9 Any waiver (express or implied) by either party of any breach of
this agreement shall not constitute a waiver of any other or
subsequent breach.
18.10 In the event any provision of this Agreement is held to be
invalid or unenforceable, the valid or enforceable portion
thereof and the remaining provisions of this Agreement will
remain in full force and effect.
18.11 Each party hereto is an independent contractor of the other, and
neither shall be deemed an employee, agent, partner or joint
venturer of the other. Neither party shall make any commitment,
by contract or otherwise, binding upon the other nor represent
that it has any authority to do so.
18.12 Each party shall obey all applicable laws and regulations in the
performance of its respective duties and tasks under this
Agreement and shall use its best efforts to assist the other
party to do likewise.
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18.13 Each party shall designate a single management representative
who shall be the primary point of contact for that party in its
relations with the other party hereunder, and each party may
change its representative from time to time upon prior written
notice to the other party. Initially, the SMI representative
shall be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and the TEMIC representative shall
be ▇▇▇▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF the parties have caused this agreement to be
executed by their respective duly authorized representatives.
FOR STANFORD MICRODEVICES FOR TEMIC
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------- ---------------------- -----------------------
(signature) (signature) (signature)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Operating Officer Vice President Business Chief Executive Officer
Stanford Microdevices Center Communications TEMIC Semiconductors
TEMIC Semiconductors
Sept 01, 1999 09/09/99 09/09/99
---------------------- ---------------------- -----------------------
(date) (date) (date)
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EXHIBIT A
PRODUCT DESCRIPTION
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
16
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT B
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT C
[***]
All other changes are considered to be minor changes, unless otherwise mutually
agreed on in writing.
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT D
STANDARD TERMS AND CONDITIONS OF SALE
1. GENERAL: This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California. This constitutes
the entire Agreement between Buyer and Supplier with respect to the
purchase and sale of the Products described on the face hereof and only
representations or statements contained herein shall be binding upon
Supplier as a warranty or otherwise. Acceptance or acquiescence in the
course of performance rendered pursuant hereto shall not be relevant to
determine the meaning of this writing even though the accepting or
acquiescing party has knowledge of the nature of the performance and
opportunity for objection. No addition to or modification of any of the
terms and conditions specified herein shall be binding upon Supplier
unless made in writing and signed by a duly authorized representative of
Supplier. The terms and conditions specified herein shall prevail
notwithstanding any variance from the terms and conditions of any order
or other form submitted by Buyer for the Products set forth on the face
of this Agreement ("Products"). To the extent that this writing may be
treated as an acceptance of Buyer's prior offer, such acceptance is
expressly made conditional on assent by Buyer to the terms hereof, and,
without limitation, acceptance of the goods by Buyer shall constitute
such assent. All cancellations and reschedules require a minimum of
thirty (30) days notice for standard product and ninety (90) days notice
for non-standard product, commencing 5 days after notice is received at
the Temic facility that was designated to ship the product. All products
scheduled for delivery during the respective thirty (30) or ninety (90)
day period will be shipped unless an exception is negotiated with the
Product Marketing Manager.
2. PRICES AND TAXES:
(a) Prices shown are F.O.B. Supplier's plant. Regardless of any
prices quoted by Supplier or listed on Buyer's order, any order
is accepted only at the price shown on Supplier's Sales Order
Acknowledgment of such order and Supplier reserves the right to
revise such prices prior to shipment so as to reflect any
increased cost to Supplier for materials used in the manufacture
of the Products. Prices are also subject to revision when
interruptions, engineering changes or modifications are caused
or requested by Buyer. All prices are quoted, all orders are
accepted, and all ▇▇▇▇▇▇▇▇ are rendered exclusive of all
federal, state and local excise, transactions, sales, use and
similar taxes. Consequently, in addition to the prices specified
herein, the amount of any present or future excise,
transactions, sales, use or similar tax applicable to the sale
of a product hereunder shall be paid by Buyer. Such taxes, when
applicable, Will appear as separate additional items on the
invoice unless Supplier receives a proper tax exemption
certificate from Buyer prior to shipment. All personal property
taxes assessable on the products after delivery to Buyer shall
be borne by Buyer.
(b) In the event that a "revert pricing" schedule, a "▇▇▇▇ back"
schedule, or a pricing schedule which indicates lower per unit
prices or higher volume purchases appears as part of this
Agreement, it is understood and agreed that the unit price to be
paid by Buyer is that price determined by the total number of
units purchased by Buyer in accordance with the schedule at the
date of termination of this Agreement. Any payment made by Buyer
at price levels equal to the lowest per unit price appearing on
this Agreement is accepted by Supplier only as an accommodation
to Buyer and as a partial payment in the event that the
necessary volume of units to achieve the lowest available price
is not purchased. In the event of any termination of this
Agreement for any reason, Buyer agrees that it will pay Supplier
a unit price based upon the total number of units purchased
prior to termination.
(c) In the event Buyer shall desire quantities of any product in
addition to those contracted for pursuant to this Agreement
Buyer agrees that Supplier shall have no obligation whatsoever
to renegotiate this price.
3. TERMS AND CONDITIONS OF PAYMENT. Where Supplier has extended credit to
Buyer, terms of payment shall be net thirty (30) days from the date of
invoice. A late charge in the amount of the lesser of one percent (1%)
of the outstanding amount or the maximum amount permitted by law shall
be assessed each twenty-eight (28) days on all accounts fifteen (15)
days past due. The amount of credit may be changed or credit withdrawn
by Supplier at any time in Supplier's sole discretion. On any order on
which credit is not extended by Supplier, shipment or delivery shall be
made at Supplier's election: Cash with Order (in whole or part) C.O.D.
or sight draft attached to ▇▇▇▇ of lading or other shipping documents,
with all costs of collection to be paid by Buyer.
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Buyer agrees to make payment of each shipment separately and understands
that if payment is not so made Supplier is under no obligation to make
further shipments. If shipment or manufacture is delayed by Buyer,
payment shall become due on the date when Supplier is prepared to make
shipment or on the date on which manufacture is delayed, and such
payment shall be made based on the contract price and the percentage of
completion. Products held by Supplier for Buyer by reason of Buyer's
delay shall be held at the risk and expense of Buyer. If, in the
judgment of Supplier, the financial condition of Buyer at any time does
not justify continuance of production or shipment upon the terms of
payment specified, Supplier may require full or partial payment in
advance and, in the event of bankruptcy or insolvency of Buyer, or in
the event any proceeding is brought by or against Buyer under the
bankruptcy or insolvency laws, Supplier shall be entitled to cancel any
order of Buyer then outstanding and shall receive reimbursement from
Buyer for all costs incurred by Supplier in connection with any such
canceled order from and after the date of such order to and including
the date of cancellation.
4. DELIVERY AND RISK OF LOSS: All products shall be delivered to Buyer,
F.O.B. Supplier's plant, and Buyer assumes all risk of loss from the
time the products are delivered to a common carrier or placed in the
United States Mails, as the case may be, for shipment to Buyer. Should
United States Mails be specified as method of delivery by Buyer, Buyer
waives right to proof of delivery in the absence of specific
instructions. Supplier will exercise its discretion in the method of
shipment. Unless otherwise specified to the contrary, supplier is under
no obligation to ship by any particular date. Shipping dates are
approximate, and in the case of development contracts, it is recognized
that no delivery dates are certain until by a separate writing signed by
Supplier, supplier obligates itself to specific delivery dates.
5. WARRANTIES: THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF
ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, EXCEPT AS
TO TITLE, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY THE SUPPLIER AND EXCLUDED
FROM THIS AGREEMENT. In no event shall Supplier have any warranty
obligation to any person with respect to products purchased from someone
other than Supplier or one of its contract distributors. Standard
Products of Supplier (those products appearing on Supplier's official
price list) are warranted to be free from defects in materials and
workmanship and, when tested, to meet the applicable published
specification as of the date hereof. Development Products of Supplier
(those products not appearing on Supplier's official price list) are
warranted to be free from defects in materials and workmanship and to
meet the agreed to applicable specification supplied by Buyer to
Supplier as of the date of this agreement. Unless otherwise specifically
agreed to in writing signed by Supplier, Supplier's warranty shall
extend for one year from the date of invoice or until Buyer resells the
respective product(s), whichever date first occurs. The liability of
Supplier under the warranty as herein set forth is limited solely to
replacing, repairing or issuing credit (each at the discretion of
supplier) for such products that are defective at the time they are
received by Buyer, provided that supplier will not be liable under this
warranty unless, (i) Supplier is, during the warranty period, promptly
notified in writing upon discovery of defects by Buyer, (ii) the
defective unit is returned to Supplier, transportation charges prepaid
by Buyer, (iii) the defective unit is received by Supplier for
adjustment no later than four weeks following the last day of the
warranty, and (iv) Supplier's examination of such unit shall disclose to
its satisfaction, that such defects have not been caused by misuse,
neglect, improper installation, repair, alteration or accident. In no
event shall Supplier be responsible for reimbursing Buyer for any costs
of replacement of any defective product. Supplier shall not be
responsible for any shortage unless Buyer shall notify Supplier in
writing within thirty days following receipt of shipment, of Buyer's
claim for any such shortage, together with a reasonably detailed
description of the basis of such claim.
IN NO EVENT SHALL SUPPLIER BE LIABLE TO BUYER FOR LOSS OF PROFITS, LOSS
OF USE, OR CONSEQUENTIAL DAMAGES BASED UPON A CLAIM FOR BREACH OF
CONTRACT OR BREACH OF WARRANTY. Supplier's warranty shall not be
enlarged, diminished or affected by and no obligation or liability shall
arise or grow out of Supplier rendering technical advice or service in
connection with Buyer's order for the products furnished hereunder.
Tools, dies and other equipment furnished Supplier by Buyer shall be at
Buyer's risk and expense. Weights and dimensions set forth in sales
literature on equipment products are not guaranteed unless specifically
agreed to in writing signed by Supplier.
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6. PATENTS, COPYRIGHTS, AND MASK WORKS:
With respect to products manufactured solely to Supplier's design or
specification, Supplier shall indemnify, defend and hold Buyer harmless
against any and all expenses, damages, costs or losses resulting from
any suit or proceedings brought against Buyer based on a claim that any
such products or any parts thereof constitute an infringement of any
patent, copyright or mask work of the United States or any other
jurisdiction, provided that supplier is notified promptly of such claim
in writing and given authority, information and assistance (at
Supplier's expense) for the defense of same in the event said products
or any parts thereof, are found to constitute infringement of any United
States or other patent, copyright or mask work right and the use of said
products or parts is enjoined. Supplier shall, in its sole discretion
either procure for buyer the right to continue using said products or
parts, replace said products or parts with noninfringing substitutes or
accept the return of said products or parts and refund the purchase
price and the transportation costs related thereto.
Buyer shall indemnify, defend and hold Supplier harmless from any and
all expenses, damages, costs or losses resulting from any suit or
proceeding brought for infringement of patents, copyrights, mask works,
or trademarks or for unfair competition or violation of trade secrets
arising from compliance with Buyer's designs, specifications or
instructions.
The sales of products or any parts thereof hereunder confers on Buyer no
license to or other rights under any patent, copyright or mask work
rights, trade secrets, or other proprietary information or processes of
Supplier covering or relating to (a) the structure, design or concept of
any devices to which the products or parts may be applied, or (b) any
process, part or machine in connection with which such products may be
manufactured or used. Supplier shall not be liable for any costs or
damages incurred by Buyer as a result of any suit or proceeding brought
against Buyer and Buyer will indemnify, defend and hold Supplier
harmless from any expenses, damages, costs or losses resulting from any
suit or proceeding brought against Supplier, either severally or jointly
with Buyer so far as such suit or proceeding is based upon claims (a)
that use by Buyer of any product, or any parts thereof furnished
hereunder, in combination with products not supplied by Supplier or (b)
that a manufacturing use or other process by Buyer utilizing any
product, or any parts thereof furnished thereunder constitutes either
(i) direct or contributory infringement of any patent, copyright or mask
work right of the United States or other jurisdiction, or (ii) direct or
indirect violation of any trade secret or proprietary right.
THIS PROVISION IS STATED IN LIEU OF ANY OTHER EXPRESSED, IMPLIED OR
STATUTORY WARRANTY AGAINST INFRINGEMENT AND SHALL BE THE SOLE AND
EXCLUSIVE REMEDY FOR PATENT, COPYRIGHT, OR MASK WORK INFRINGEMENT OF ANY
KIND.
7. CONTINGENCIES: Supplier shall not be liable for any failure to perform,
or delay in performance, caused by circumstances beyond its reasonable
control which makes such performance commercially impracticable
including, but not limited to fire, storm, flood, earthquake, explosion,
accident, acts of a public enemy or rebellion, insurrection, sabotage,
epidemic, quarantine restrictions, labor dispute, labor shortages,
transportation embargoes, or delays in transportation, shortages of
materials, acts of God, acts of Federal government or any agency
thereof, acts of state or local government or agency thereof, and
judicial action. In the event of inability due to any of the above
circumstances to supply the total demands for the goods specified in
Buyer's orders, Supplier may allocate its available supply without
liability for any failure of performance which may result therefrom. To
the extent that no allocation is made to Buyer, either Buyer or Supplier
shall have the right to terminate the contract by prompt notice to the
other party in writing.
8. NON-WAIVER OF DEFAULT. In the event of any default by Buyer, Supplier
may decline to make further shipments without in any way affecting its
rights under such order. If, despite any default by Buyer, Supplier
elects to continue to make shipments, its action shall not constitute a
waiver of any default by Buyer or in any way affect the Supplier's legal
remedies regarding any such default. No claim or right arising out of a
breach of the Agreement by Buyer can be discharged in whole or in part
by waiver or renunciation of the claim or right unless the waiver or
renunciation is supported by consideration, and is in writing signed by
Supplier.
9. ASSIGNS: The Agreement shall be binding and inure to the benefit of the
successors and assigns of Supplier, but shall not be assignable by Buyer
voluntarily or involuntarily without the written consent of Supplier.
10. TITLE TO PRODUCTS: Title to and right of possession of the products sold
hereunder shall remain with Supplier until all payments provided
hereunder (including deferred payments whether evidenced by notes or
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otherwise and revert pricing or billback payments) shall have been made
in full, and Buyer agrees to do all acts necessary to perfect and
maintain such right and title in Supplier. Failure of the Buyer to pay
the purchase price for any product when due shall give the Supplier the
right, without liability, to repossess such product with or without
notice, and to avail itself of any remedy provided by law.
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