EXHIBIT 10.6
(graphic)
UMC WAFER FOUNDRY STANDARD TERMS AND CONDITIONS
1. ACCEPTANCE OF TERMS
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United Microelectronics Corporation (USA) ("Seller" or "UMC"), and Buyer (i)
accepts these terms as essential to their relationship governing provision of
foundry services to be performed by United Microelectronics Corporation, an ROC
corporation ("Manufacturer") (collectively, these terms, all foundry agreements,
and all written quotations (if any) are referred to as "Agreements") and (ii)
confirm acceptance by Buyer's failure to return wafers/die or to reject services
(collectively "goods") within five (5) days of delivery.
2. DELIVERY
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2.1 Delivery will be made Free Carrier (Incoterms 2000). Manufacturer's plant,
Science Based Industry Park, HsinChu City, Taiwan to a carrier designated
in writing by Buyer or, if Buyer fails to designate a carrier, to a carrier
designated by Seller.
2.2 Title to the goods will pass to Buyer upon delivery to carrier.
2.3 All shipping and delivery dates are subject to timely receipt by Seller or
Manufacturer of fully-approved mask sets and fully-completed purchase
orders.
2.4 Seller shall make reasonable efforts to achieve on-time delivery and linear
shipments. Subject to this and Xxxxxx's written commitments for wafer
starts, SELLER SHALL NOT BE LIABLE FOR ANY DELAYS OR FAILURES TO MEET
DATES.
3. TERMS OF PAYMENT & QUANTITIES
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3.1 Unless otherwise agreed, full payment shall be made in New Taiwan Dollars
and/or U.S. Dollars (as stated in the invoice) within 30 days of delivery.
3.2 Seller reserves the right to change credit terms at any time in its sole
discretion.
3.3 Buyer will issue written purchase orders at least 75 days prior to
requested wafer out day, and guarantees prompt payment of all obligations
accrued pursuant to purchase orders.
3.4 Regardless of anything to the contrary, Xxxxx understands that Manufacturer
generally needs to start more than the numbers of wafers ordered by Buyer
in order to guarantee at the time of wafer start the quantities of wafers
so ordered which will yield within the agreed specifications. Accordingly,
Xxxxx will accept quantity variations (and pay according to the agreed
pricing) up to as much as ten percent (10%) above the quantities stated in
Buyer's purchase order(s).
4. PRICE, CYCLE TIMES, QUALIFICATION, PILOT FUNS, HOT LOTS, PRODUCTION, OH-
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HOLD
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Unless otherwise agreed in writing, Wafer Price, Wafer Cycle Time,
Qualification, Pilot runs, Hot Lots, Production Runs and On Hold will be
exclusively as stated in Seller's Foundry Procedures and/or Seller's
written quotation for the goods involved.
5. NON-DISCLOSURE, CONFIDENTIALITY OF DESIGN & OWNERSHIP OF PROCESS
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5.1 Unless otherwise agreed in writing, the terms of Seller's Reciprocal Non-
Disclosure Agreement are expressly incorporated herein.
5.2 Unless otherwise expressly agreed in writing to the contrary, Seller will
treat any and all masks and databases provided by Buyer as confidential.
5.3 Regardless of anything to the contrary, nothing in this Agreement shall
limit or restrict either party from using and/or implementing in the
ordinary course of its business any and all processes, recipes, and
manufacturing, fabrication, assembly and test techniques, and related
improvements ("process technology") provided, derived and/or developed in
whole or in part by or on behalf of that party, and neither party shall be
limited to or restricted with respect to any such process technology unless
clearly stated to the contrary in a writing signed by an officer of the
party involved identifying the specific information in precise detail.
6. CHANGE NOTICES, ECN PROCEDURES, RELIABILITY & QUALITY
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Change Notices, ECN Procedures and Reliability and Quality shall be as
stated in Seller's Foundry Procedures, or in another writing signed by
Xxxxxx and Buyer.
7. LIMITED WARRANTY
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7.1 Seller warrants goods delivered after initial qualification shall be
processed (i) using the masks (or duplicates of them) which were used for
qualification, (ii) within the tolerances stated in Seller's applicable
process specifications, and (iii) in compliance with applicable Wafer
Acceptance and/or Yield Criteria agreed to in a writing signed by Seller
and Buyer.
7.2 Goods which have been subject to abuse, misuse, accident, alteration,
neglect, conditions outside specification, unauthorized repair or improper
application are not covered by any warranty.
7.3 Seller shall not be responsible for defects or claims caused by acts not
performed by or on behalf of Seller or Manufacturer; or by design or
application; or by combination of goods with other things.
7.4 Goods are not intended for use in, and no warranty is made with respect to,
applications where failure to perform can reasonably be expected to result
in significant injury (including, without limitation, navigation, weaponry,
aviation or nuclear equipment, or for surgical implant or to support or
sustain life) and Buyer will indemnify, defend, and hold harmless Seller
from all claims, damages and liabilities arising out of any such matters.
7.5 To the extent that any goods fail to meet the applicable warranties and/or
requirements due to reasons for which Seller and/or Manufacturer is
responsible, Seller shall either (i) replace such goods without charge, or
(ii) refund the payments made to Seller for such goods, all within sixty
(60) calendar days of Seller's receipt of written notice from Buyer of such
non-conformity. The parties will discuss in good faith which of these two
remedies is the most appropriate; provided however that if they cannot
agree, Seller may choose in its sole discretion between the two remedies,
and provided further that all goods for which refund and/or replacement is
sought and all returns shall be handled pursuant to Seller's return policy
and procedures.
7.6 This Section 7 is the only warranty by or on behalf of Seller or
Manufacturer and may not be modified or amended except in writing signed by
an authorized officer of Seller and by Buyer. Buyer is not relying upon any
warranty or representation except for those specifically stated here or in
such a signed writing.
7.7 Buyer is not relying on any statements or information in Seller or
Manufacturer's literature, and Buyer will test all parts and applications
under extended field and laboratory conditions as appropriate.
Notwithstanding any cross-reference or statements of compatibility,
functionality, interchangeability, and the like, Seller-provided goods,
circuits, embedded devices and processes may differ from similar goods,
circuits, devices and processes from other vendors in performance, function
or operation, or as to matters, ranges and conditions not stated in and/or
outside Seller's written specifications; and Buyer agrees that Seller makes
no warranties and is not responsible for such things. All reusable IP,
including that listed in Seller's Intellectual Property Catalog, and
including but not limited to blocks, libraries, tools, and documentation
therefor, is licensed to Buyer by the individual IP vendors and not by
Seller, and in any event Seller and Manufacturer make no warranty in
connection with such IP. Buyer is not relying on any statements or
information provided by Seller or Manufacturer in connection with such IP,
and Buyer will fully verify all IP as appropriate and be responsible to
ensure that such IP is compatible and suitable for Buyer's intended purpose
and applications.
7.8 EXCEPT AS PROVIDED ABOVE, SELLER AND MANUFACTURER MAKE NO WARRANTIES OR
CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, AND EXPRESSLY EXCLUDES AND
DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NONINFRINGEMENT, OR
FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION.
7.9 REGARDLESS OF CAUSE OR REASON FOR DAMAGE (WHETHER ACCIDENT, NEGLIGENCE, OR
OTHERWISE) SELLER SHALL HAVE NO LIABILITY (DIRECT, CONSEQUENTIAL OR OTHER)
FOR, IN CONNECTION WITH OR ARISING FROM PROPERTY FURNISHED FOR USE AT OR
LEFT AT SELLER; and by delivering or entrusting property to Seller, Buyer
expressly confirms this limitation. Notwithstanding this limitation, Seller
will replace, or pay the reasonable retooling costs to replace, masks
damaged or destroyed as a result of Seller's or Manufacturer's negligence
or fault.
Upon written request sent to the billing address listed on Xxxxx's latest-dated
purchase order, Buyer will promptly take possession of any and all property
of Buyer, and should Buyer fail to do so within thirty days of such
request. Seller may destroy or reclaim such property without liability.
8. LIMITATION OF LIABILITY
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8.1 Neither party will be liable for any loss, damage or claim resulting from
causes beyond its reasonable control, including but not limited to, war,
fire, delay caused by others, material shortage, force majeure, or labor
conditions; and in the event of such a condition(s), the date(s) for
Seller's performance will be extended for a period equal to any resulting
delay.
8.2 SELLER'S AND MANUFACTURER'S LIABILITY ARISING OUT OF ANY QUOTATION, ANY
AGREEMENT, ANY BREACH THEREOF, OR ANY GOODS OR SERVICES WILL BE LIMITED TO
REFUND OF THE PURCHASE PRICE OR REPLACEMENT OF PURCHASED GOODS (RETURNED TO
UMC FREIGHT PREPAID); OR IN THE EVENT OF A FAILURE OR BREACH BY SELLER
REGARDING DELIVERY, AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE OF THE
GOODS THAT HAVE NOT BEEN DELIVERED DUE TO SUCH FAILURE.
8.3 AS A SEPARATE LIMITATION, IN NO EVENT WILL SELLER OR MANUFACTURER BE LIABLE
(i) FOR COSTS OF SUBSTITUTE GOODS, (ii) FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL OR INDIRECT DAMAGES, OR (iii) FOR LOSS OF USE, OPPORTUNITY,
MARKET POTENTIAL, GOODWILL AND/OR PROFIT ON ANY THEORY (CONTRACT, TORT,
FROM THIRD PARTY CLAIMS OR OTHERWISE). THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR OF ANY FAILURE OR
INADEQUACY OF ANY REMEDY. THIS AGREEMENT STATES THE ONLY AND EXCLUSIVE
REMEDY FOR ANY AND ALL CLAIMS MADE AGAINST SELLER AND/OR MANUFACTURER UNDER
ANY AGREEMENT AND/OR WITH RESPECT TO WAFERS, SERVICES AND/OR GOODS.
8.4 No action or proceeding may be commenced by either party against the other,
whether for breach, indemnification, contribution or otherwise, more than
one year after delivery of the goods to the carrier; and no claim may be
brought unless the non-claiming party has first been given commercially
reasonable notice, a full written explanation of all pertinent details
(including copies of all materials), and a good faith opportunity to
resolve the matter.
8.5 BUYER EXPRESSLY AGREES TO THE LIMITATIONS OF SECTIONS 5, 7, 8 AND 9 AND TO
THEIR REASONABLENESS.
8.6 The exclusions and limitations of Sections 5, 7, 8 and 9 will survive the
termination of the applicable Agreements, and shall apply notwithstanding
any claim of a failure of any one or more remedies to accomplish their
purpose, and THE PARTIES EXPRESSLY WAIVE AND RELINQUISH ANY CONTRARY RIGHTS
UNDER ANY AGREEMENT, AND/OR LAW, DECISION, CUSTOM OR PRACTICE.
9. INDEMNIFICATION & COOPERATION
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9.1 Seller will defend and/or settle all suits against Buyer to the extent
based on any claim that any processes (as performed by Seller with respect
to goods) infringe any R.O.C., Canadian, Japanese, European Community
and/or U.S. patent, copyright, trade secret or trademark; provided,
however, that Xxxxx (i) gives immediate written notice to Seller, (ii)
permits Seller to defend, and (iii) gives Seller all needed information,
assistance, and authority.
9.2 However, neither Seller not manufacturer will be responsible for
infringements resulting from anything not manufactured entirely by or on
behalf of Seller, or from any combination with things or materials not
furnished by Seller, or for any claim due in whole or in part to any act,
omission, design and/or specification of Buyer.
9.3 THIS SECTION 9 STATES SELLER'S AND MANUFACTURER'S ENTIRE LIABILITY AND
OBLIGATION WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS
THEREFOR AND IS EXPRESSLY SUBJECT TO SECTION 8. Except as to claims Xxxxxx
is obligated to defend, BUYER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS
SELLER AND MANUFACTURER FROM ALL CLAIMS, COSTS, LOSSES, AND DAMAGES
(INCLUDING REASONABLE ATTORNEYS' FEES) AGAINST AND/OR ARISING OUT OF GOODS
AND/OR SERVICES.
9.4 Without limiting any other terms, Buyer guarantees that production of goods
pursuant to Buyer's specifications and/or designs will not infringe,
misappropriate or violate any applicable R.O.C., Canadian, Japanese,
European Community and/or U.S. copyright, trademark, patent, trade secret,
mask work, or other rights of third parties. In the event Buyer is a party
to any infringement or misappropriation action or dispute, (i) Seller may,
at its sole option, immediately terminate and/or suspend performance, and
(ii) Buyer shall be fully and solely responsible, and will defend,
indemnify and hold Seller harmless from any and all damages, losses and
costs (including Seller's reasonable attorneys fees) from and against any
claim of breach of Buyer's guarantee in this paragraph.
9.5 Seller and Xxxxx will cooperate with respect to intellectual property
rights of third parties relating to goods and/or services as stated in
Seller's Foundry Procedures.
10. TERMINATION & DISPUTE RESOLUTION
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10.1 Cancellation and/or termination of the Agreements and/or any order for
goods shall not be permitted except strictly pursuant and subject to
Seller's Foundry Procedures.
10.2 Buyer and Seller shall cooperate and attempt in good faith to resolve any
and all disputes arising out of and/or relating to any Agreement and/or
goods as described in Seller's Foundry Procedures.
10.3 Any disputes relating to and/or arising out of any Agreement and/or goods
which cannot be so resolved will be decided exclusively by binding
arbitration under procedures which ensure efficient and speedy resolution.
The specific procedures concerning such arbitrations shall be pursuant to
the Rules for International Arbitrations under the American Arbitration
Association, as described in more detail in Seller's Foundry Procedures.
10.4 Notwithstanding anything to the contrary, any party may apply to any court
of competent jurisdiction for interim injunctive relief with respect to
irreparable harm which cannot be avoided and/or compensated by such
arbitration proceedings, without breach of this Section 10 and without any
abridgment of the powers of the arbitrators.
11. NO OTHER WARRANTY OR REPRESENTATION
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These terms and conditions (and the Agreements) are the entire agreement
between Seller and Buyer with respect to foundry, fabrication,
semiconductors, design support and goods, there are no other agreements
concerning such subject matter, and no addition, deletion or modification
shall be binding on Seller unless expressly agreed to in a writing signed
by an officer of Seller.
12. MISCELLANEOUS
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12.1 All foundry arrangements involving Seller and all performance and disputes
arising out of and/or relating to such matters and/or any Goods involved
will be governed by the laws of California and the United States of
America, without reference to conflicts of laws principles, and/or any
contrary provision, including without limitation, the U.N. Convention of
Contracts for the International Sale of Goods.
12.2 The parties will comply with all applicable restrictions and requirements
of applicable law, including without limitation those relating to labor,
employment, environment, and export control.
Wafer Foundry Standard Terms
