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EXHIBIT 10.8
Agreement for ASIC Design and Purchase of Products
between
IBM Microelectronics
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxxx, Xxxxxxx
and
Juniper Networks
Agreement Number V1967
Commencement Date: At Signoff
IBM Customer Account
Representative: Xx Xxxxxxx
Name and Address of Buyer:
Juniper Networks
000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
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 Juniper Networks, ("Buyer"), incorporated under the laws of
the State of California.
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 April 14, 1997.
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.
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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.
1.7 "INITIAL ASIC DESIGN REVIEW CHECKLIST" ("IDR") means a 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 "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.
1.9 "NON-RECURRING ENGINEERING CHARGES" ("NRE CHARGES") means the costs for
NRE Services.
1.10 "NON-RECURRING 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.
1.11 "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.
1.12 "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.
1.13 "PROTOTYPE ACCEPTANCE" means Buyer's written approval that Buyer's
Prototype evaluation demonstrates Prototype conformance to Product
Specifications.
1.14 "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.
1.15 "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.
1.16 "RELEASE TO LAYOUT CHECKLIST" ("RTL") means a performance approval 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.
1.17 "RELEASE TO MANUFACTURING CHECKLIST" ("RTM") means a performance approval
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.
1.18 "SCHEDULED SHIPMENT DATE" means the date for shipment of Product requested
by Buyer in a Purchase Order.
1.19 "SHIPMENT DATE" means the date for shipment of Product requested by Buyer
in a Purchase Order.
1.20 "STATEMENT OF WORK" or "SOW" means a 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 date of execution (the "Contract Period"), subject,
however, to earlier termination as permitted under Section 13.0.
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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 other Products, each such Product
shall be developed under and subject to a separate SOW, separate
development checklist and separate Product pricing.
4.0 ASIC PRODUCT DESIGN
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 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 All Milestone and Prototype delivery schedules are estimates only.
4.3 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 groundrules.
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 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 may, however, continue work without regard to the requested change
until both parties have agreed in writing to adjustment in price and
estimated completion date terms, unless Buyer specifically notifies IBM in
writing to halt work.
4.5 Buyer may, for the applicable unit price specified in Section 4.0 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 two (2) weeks 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 Section 5.0 and Section 6.0.
4.8 All computer data provided to IBM by Buyer will be 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 first Product demand forecast agreed to by Buyer and IBM is set forth
in Attachment C. The forecast covers twelve (12) months 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.
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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.
6.0 PURCHASE ORDERS
6.1 Buyer shall order NRE Services by issuing written purchase orders. Purchase
orders for NRE Services will be deemed accepted by IBM unless rejected in
writing by IBM, specifying the reasons for rejection, within fourteen (14)
calendar days after IBM's receipt of such purchase order.
6.2 Buyer shall order Products by issuing written purchase orders. Purchase
orders for Products must be received by IBM in advance, with at least the
Purchase Order Lead Time specified in Attachment C, to allow IBM to meet
Buyer's requested Shipment Date. Requested Shipment Dates will be deemed
accepted (subject to the Purchase Order Lead Time) by IBM if the purchase
order requesting such Shipment Date is accepted by IBM. If so accepted, a
requested Shipment Date shall constitute a Scheduled Shipment Date. Subject
to IBM's written acceptance, Buyer may request an improved Scheduled
Shipment Date. Such acceptance shall not be unreasonably withheld by IBM.
6.3 Purchase orders for Products will be deemed accepted by IBM unless rejected
in writing by IBM, specifying the reasons for rejection, within fourteen
(14) calendar days after IBM's receipt of such purchase order. Purchase
orders for Products may be rejected by IBM if such purchase order requests
a quantity of Products that (i) exceeds the most recent Product demand
forecast accepted by IBM or (ii) a Shipment Date IBM deems unacceptable, or
(iii) does not comply with the terms and conditions of this Agreement, or
if Buyer is in breach of this Agreement.
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;
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.
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 listed or referenced in Attachment C.
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7.2 The unit price for each unit of Product ordered shall be calculated 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 yearly cumulative quantity of
units of a Products determined by the purchase orders accepted by IBM
within such calendar year after the Commencement Date, including the units
of Product requested in the purchase order that is the subject of such
price calculation.
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.
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
[***]. 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 until Buyer's account is again
current.
9.2 IBM reserves a purchase money security interest in Products purchased under
this Agreement in the amount of the price and in Buyer's proceeds from the
same, including, without limitation, accounts receivable. Purchase money
security interests will be satisfied by payment in full. Buyer agrees to
execute UCC-1 financing statements or other appropriate documents to be
filed in order to perfect IBM's security interest.
9.3 Buyer is responsible for all taxes related to Products except for taxes
based on IBM's net income.
9.4 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
Buyer will be liable for interest on any overdue payment under this
Agreement, [***] commencing on the date such
payment becomes due at an annual rate equal to the maximum legal rate in
the jurisdiction where the claim is asserted [***].
11.0 CANCELLATION CHARGES, RESCHEDULING AND 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 the total of all unpaid NRE Charges applicable to the
next development Milestone (Section 2.0 of Attachment C), 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.
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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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.
12.0 ENGINEERING CHANGES
12.1 IBM may implement Engineering Changes required to satisfy governmental
standards, protect Product, system or data integrity, or for
environmental, health or safety reasons ("Mandatory Engineering
Changes").
12.2 For all previously shipped Product not incorporating Mandatory
Engineering Changes, IBM may provide replacement Products (including
parts, materials and documentation) at the expense of the party at
fault. Buyer must use reasonable effort to install Mandatory
Engineering Changes on all Buyer installed Products and Products in
its inventory. If IBM requests the return of Products displaced by
installation of replacement Products, Buyer will promptly return any
displaced Products to IBM after installation of such replacement
Products, at IBM's expense.
12.3 In addition to Mandatory Engineering Changes, IBM may implement
Engineering Changes that result in cost reductions to the Product
("Elective Engineering Changes") with prior approval from Buyer. Such
approval shall not be unreasonably withheld. IBM shall give Buyer
prompt notice of Elective Engineering Changes.
12.4 IBM may make available other Engineering Changes ("Optional Engineering
Changes"). The cost of any Optional Engineering Changes that Buyer
desires to implement will be borne by Buyer and will be determined
through a request for quote process.
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 (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 without charge to Buyer, except
for any specific purchase order(s) that the parties mutually agree 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 changes 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 flies 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
13.2.2 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 obligations under this Agreement.
13.3 IBM may terminate this Agreement, or its obligation with respect to
specifically affected Products, immediately if:
13.3.1 Buyer unreasonably withholder its consent of IBM to make
Elective Engineering Changes under Section 12.0; or
13.3.2 IBM receives a claim or charge, and [***] otherwise has a
reasonable basis to believe any time during the term of this Agreement,
that any of the Buyer 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 one (1)
year's prior written notice to the other. If Buyer is the terminating
party, all previously accepted
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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purchase orders will be filed, 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.
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, transportation prepaid by
Buyer, to the location IBM designates for repair, replacement or credit,
at IBM's discretion. [***] IBM will 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 upon receipt of the invoice.
[***]
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 FROM IBM, 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 will be deemed to be
non-confidential. If a party wishes to exchange confidential
information, the exchange will be made under the terms of the separate
agreement for exchange of confidential information (Agreement Number
V0903) as executed between the parties on 4/27/96.
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.
17.2 IBM or its licensors shall retain and have all intellectual property
right (including, without limitation, mask work rights) associated with
any intellectual property furnished by IBM
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the Commission. Confidential treatment has been requested with respect to
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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), (iii) all
design methodologies and tools [***]. 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.
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 to Buyer.
17.4 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 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 may be required by IBM to manufacture the Product(s). 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 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
direct 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 [***].
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.
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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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.
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 sole discretion.
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 rights or delegate its
duties, in whole or in part, without the prior written consent of the other
party, [***] except that IBM may assign its rights to payment. [***] Any
act in derogation of the foregoing will be null and void.
21.3 During the term of this Agreement and for one (1) year thereafter, Buyer
shall not solicit any IBM employee who is directly engaged in performing
activities under this Agreement to fill out an application for employment;
nor shall Buyer solicit the employees of any third party engaged on behalf
of IBM in performing activities that are related to this Agreement.
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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.
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 JUNIPER
Address Address
0000 Xxxxxxx Xxxx 000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx Xxxx, XX 00000
Attn: Attn:
Xxxxxx Xxxxx/Xxxxx XxXxxxxxx Xxxxxx Xxxx
25.2 Day to day 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.
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. The parties hereto expressly
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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 Irrespective of nonpayment, 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
26.7 This Agreement may be modified only by a written amendment signed by
persons authorized to do 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.
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.
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 JUNIPER NETWORKS
MACHINES CORPORATION
By: [Illegible] By: /s/ Xxxxxx Xxxx
------------------------- -------------------------
Authorized Signature Authorized Signature
Name Name: Xxxxxx Xxxx
Title Title: Chief Financial Officer
Dated: Dated: 8/26/97
-------------------- --------------------
-----------------------------------------------------------------------------
This agreement shall not bind either party to any obligations unless and until
it is executed in writing by both parties.
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ATTACHMENT A
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ATTACHMENT B
Deliverable Items
[to be customized to the transaction]
[***]
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ATTACHMENT C
[***]
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[***]
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