EXHIBIT 10.21
UMC
Foundry Agreement
Between
United Microelectronics Corporation
And
Centillium Communications, Inc.
FOUNDRY AGREEMENT
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This Foundry Agreement (the "Agreement") is entered into this March 7th , 2000
(the "Effective Date") by and between Centillium Communications Inc., a
corporation having its principal place of business at 00000 Xxxxxxxx Xxxx.,
Xxxxxxx, Xxxxxxxxxx, 00000 ("Buyer") and UMC Group (USA), a California
corporation having its principal place of business at 000 XxXxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxx, 00000 ("Seller"), for provision of foundry services to be
performed by United Microelectronics Corporation, an ROC corporation
("Manufacturer").
RECITALS
A. WHEREAS, Seller is in the business of furnishing integrated circuit
manufacturing services performed by Manufacturer, which shall perform, at
Seller's request, the manufacturing services contracted for with Seller
hereunder;
B. WHEREAS, Buyer desires to have Seller furnish integrated circuit
manufacturing services for it;
NOW, THEREFORE, in consideration of the following covenants and conditions the
parties agree:
1 DEFINITIONS
1.1 "Products" shall mean the products to be manufactured pursuant to this
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Agreement as specified in Quotation(s).
1.2 "Quotation(s)" shall mean the quotations attached hereto under Exhibit a
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and such further quotations as are agreed upon in a writing signed by Buyer
and an Officer of Seller. Each such Quotation shall describe the Products
to be manufactured, prices, fees and charges for the Products, acceptance
criteria for Products, all aspects of, and services needed for, mask
making, testing, assembly and packaging, and all other specifications,
quantities, cycle and lead times and parameters for the Products. Prices
shall be separately itemized for mask sets, processed wafers, wafer probe,
assembly and final test.
2 PRODUCTION PROCEDURES
2.1 Product Prototype Approval. No Product prototypes shall be manufactured
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except pursuant to a Quotation approved in writing by Buyer and an Officer
of Seller. For each Quotation for a new Product agreed upon by the parties,
Buyer will deliver a tape in GDS II format or a mask set. If Buyer provides
its design in the form of a tape, then upon receipt of the tape from Buyer,
Seller, or its subcontractors, will produce a mask set. In either case,
Seller will produce one or more pilot wafer runs according to the schedule
and at the price set forth in the Quotation. Within ninety
(90) days after receipt of pilot run wafers for a new Product, Buyer may
return any claimed non-conforming pilot wafers to Seller with a written
rejection statement specifying the alleged failure or failures of the pilot
wafers to meet the Acceptance Criteria set forth in the Quotation. If Buyer
does not return the pilot wafers with a written rejection statement within
such ninety (90) day period, then the process and pilot wafers shall be
deemed to have been approved by Buyer. If any pilot wafer does not meet the
Acceptance Criteria for reasons attributable to Seller and is rejected by
Buyer, Seller shall at Seller's expense use commercially reasonable efforts
to rerun the pilot wafers and resubmit the results in a manner that
complies with the Acceptance Criteria. If Seller, within ninety (90) days
after receipt of Buyer's timely written rejection report, is unable to
supply Buyer with conforming pilot wafers, then either party may by written
notice to the other terminate this Agreement as to such Product and
Quotation, and if so terminated, Buyer will not owe Seller any amounts for
the pilot wafers involved (1) otherwise provided in the Quotation, or (2)
the noncompliance was attributable to Seller.
2.2 ECNs
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2.2.1 Buyer ECNs. After initial qualification, Buyer shall have the right to
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make such changes as it deems appropriate to the design of Products to be
fabricated for it by Seller, provided however that each such change must be
timely documented by Buyer through written change notices. Notwithstanding
anything to the contrary, after process qualification runs for a particular
design have been made and approved by Seller and Buyer, any Buyer-requested
changes to design, process or materials for such Products shall be subject
to Seller's consent (which will not be unreasonably withheld) and payment
by Buyer of applicable reasonable costs, if any, related to such change.
2.2.2 Seller ECNs. For changes that Seller desires to make, the following
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procedure shall apply:
2.2.2.1 Routine Changes. Seller may, with Buyer's prior written approval, which
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may not unreasonably be withheld, make changes in the processes used to
manufacture Products (i) that do not materially affect physical or
functional interchangeability or performance; or (ii) when required for
purposes of safety and/or compliance with applicable law or regulations.
2.2.2.2 Material Changes.
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2.2.2.2.1 Seller shall give Buyer advance written notice of any proposed
change(s) ("Proposed Change Notice") in materials and/or to the
manufacturing processes qualified for production of Products, which, to
the best of Seller's knowledge, might affect the form, fit, performance,
maintainability, operation, function, reliability, interface,
interconnectability, compatibility, design rules, models, or size of the
chips for Products then qualified and subject to open purchase orders from
Buyer.
2.2.2.2.2 Such Proposed Change Notice shall describe the nature of the proposed
change(s), including reasons for the change(s), the anticipated
schedule for implementation of the change(s), and other relevant
technical and logistic considerations, including without limitation
quality and reliability data to the extent available.
2.2.2.2.3 Buyer shall approve or disapprove any such proposed change promptly,
but in no event may any such change be disapproved later than five
(5) business days after receipt of the Proposed Change Notice.
2.2.2.2.4 If Buyer disapproves such proposed change within the five business
day period allowed, Seller shall continue to manufacture and deliver
to Buyer unchanged Products in accordance with the applicable
Agreements for a minimum of six (6) months from the date Seller
issues the Proposed Change Notice.
2.2.2.2.5 Upon the expiration of three months after the following Proposed
Change Notice, Seller, in its discretion and by then giving a minimum
of three months prior written notice to the Buyer, may stop
manufacture and delivery of all Products involved without liability.
2.2.3 Quality Assurance. No additional quality assurance requirements or
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measurements (whether cv plots, metal step coverage analysis, SEM
analysis, or other) will be required except upon Seller's written
agreement as to the step or measurement to be performed, and Buyer's
written commitment to pay Seller's stated costs.
2.3 Production Runs, Pilot Runs, Hot Runs, etc. Exhibits a and B set forth the
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terms applicable to Wafer Cycle Time, Pilot Runs, Hot Lots, Production Runs
and On Hold.
3 ORDER, DELIVERY, PRICING AND PAYMENT TERMS
3.1 Forecasts
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3.1.1 During the first seven calendar days of each month, Buyer will provide
to Seller by facsimile or other electronic communication a written
rolling forecast of its wafer capacity requirements from Seller's
facilities for the next twelve full calendar months (each a "Buyer
Forecast") (provided however that forecasts for the seventh and later
months are for reference only and not binding on either party).
3.1.1.1 Each such Buyer Forecast shall show the quantity of wafer outs and the
specific technology and/or process for the wafers listed. Buyer shall
make good faith efforts to ensure that all such Buyer Forecasts are
reasonable estimates of its anticipated needs. Subject to this
obligation, and except as expressly stated in this Section 3.1.1 and/or
in a written capacity quotation, all such Buyer
Forecasts (and any responses to them) will be for planning purposes only,
and will not create any obligation to purchase and/or sell.
3.1.1.2 Each such Buyer Forecast shall constitute a commitment by the Buyer to
purchase a minimum of the following percentages of the amounts indicated:
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Month in the forecast First month Second month of Third month Fourth month Fifth & sixth
of forecast forecast of forecast of forecast months
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Minimum percentage
commitment for 100% 100% 100% 75% 50%
amounts forecast for
that month
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3.1.1.3 Seller will provide a written response to each Buyer forecast within
two weeks of Seller's receipt. Subject to Section 3.1.2 below and the other
terms set forth in this Agreement, Seller's response shall accept the
quantities in the applicable months to the extent they are less than or
equal to those accepted by Seller for the applicable month(s) pursuant to
prior written agreement and/or forecasts. Seller's response may accept
and/or reject in whole or in part any additional forecast quantities for
those months.
3.1.2 To the extent that any forecast from Buyer pursuant to Section 3.1.1
above fails to forecast the full capacity or quantity if any, allocated or
promised to Buyer during any one or more of the first twelve months of such
forecast: (i) Seller shall be entitled in its sole and complete discretion
to enter commitments with others for such unexercised capacity for the
applicable months and in the amounts not so exercised, and (ii) such Buyer
will not have any right to require Seller to provide that unexercised
capacity to that Buyer in the month(s) involved.
3.2 Orders And Production Release. No order for production quantities of a
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Product shall be placed by Buyer unless and until Buyer has approved the
pilot runs or prototypes for the Product. If Buyer properly places an order
for production quantities of a Product, Seller may deem such an order as
written production release approval for such Product. All orders for
Products shall be in writing. Seller shall acknowledge in writing, within
three (3) business days of receipt of an order, either the acceptance of
the order, or the reason such order cannot be accepted, or if Seller wishes
to modify such order. If Seller does not provide such acknowledgement
within the time provided, Buyer shall contact Seller to determine the cause
for the lack of acknowledgment. No acceptance of a purchase order shall
constitute acceptance of any terms at variance with this Agreement and/or
previously agreed forecasts, and purchase orders shall be null and void as
to those variances.
3.3 Cancellation and Modifications to Orders.
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3.3.1 Cancellations and Modifications. Unless wafer processing has started, or
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Seller has incurred engineering or tooling charges, Buyer may cancel or
modify a
purchase order without penalty by delivering to Seller a written notice of
cancellation or modification within three (3) days of Seller's receipt of
the original purchase order involved; provided however that no such
cancellation will relieve Buyer of any obligations under any other
applicable provisions or agreements including without limitation any
obligation to comply with loading commitments, forecasts and/or purchase
orders.
3.3.2 Cancellation Charges. In addition to, and without waiving any other
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remedies, the minimum charges for order cancellation shall be the contract
price multiplied by the proportion of the relative mask step at which the
wafer(s) were at the time of cancellation, plus all costs of starting wafer
materials and mask sets.
3.3.3 Partially Completed Products. In no event will Buyer have rights in
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partially completed Products.
3.4 Delivery.
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3.4.1 Delivery will be made FCA (Incoterms 2000), Manufacturer's plant, Science
Based Industrial 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.
3.4.2 Title to the Products will pass to Buyer upon delivery to carrier.
3.4.3 All shipping and delivery dates are subject to timely receipt of fully-
approved mask sets and fully-completed purchase orders in the HsinChu
office of Manufacturer's fab where the wafers are to be processed.
3.4.4 Seller shall make reasonable efforts to achieve on-time delivery and
linear shipments. Subject to this and Seller's written commitments for
wafer starts, SELLER SHALL NOT BE LIABLE FOR ANY DELAYS OR FAILURES TO MEET
DATES.
3.4.5 In the event of any delays and/or any breach of any written warranty,
Buyer may give prompt written notice to Seller, adjusting forecasted and/or
ordered amounts, and/or canceling orders for affected Products, to the
extent necessary as a result of any impact of such delay on Buyer's need
for such Products.
3.5 Pricing.
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3.5.1 Refer to Exhibit A.02 for Pricing. Exhibit A.02 shall be reviewed on a
yearly basis and pricing may be revised if needed. Such review shall be
done during the last quarter of each year to set prices for the following
year.
3.5.2 Any tax or related charge which Seller shall be required to pay to or
collect for any government upon or with respect to services rendered or the
sale, use or delivery of the Product or other materials (except for taxes
based on Seller's
income) shall be billed to the Buyer as a separate item and paid by Buyer,
unless a valid exemption certificate is furnished by Buyer to Seller.
3.6 Payment
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3.6.1 Unless otherwise agreed or stated in Seller's quotation, full payment
shall be made in New Taiwan Dollars or U.S. Dollars (as stated in the
applicable Quotation or as otherwise agreed in writing) within 30 days of
delivery.
3.6.2 Seller reserves the right to change credit terms at any time in its
reasonable discretion.
3.6.3 Buyer will issue written purchase orders at least four weeks, plus the
agreed cycle time, prior to requested wafer out day.
3.6.4 Regardless of anything to the contrary, Buyer understands that Seller
generally needs to start more than the numbers of wafers ordered by Buyer
in order to guarantee the quantities of wafers so ordered which will yield
within the agreed specifications. Accordingly, Buyer 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 RELIABILITY & QUALITY
4.1 Quality Data. Seller will provide, upon Buyer's written request during the
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term of their foundry relationship, Seller's available reliability and
quality data regarding Products produced for Buyer for the purpose of
maintaining consistent quality and reliability standards for such Products.
4.2 Traceability. During the term of the foundry relationship, Seller shall
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maintain fab and test lot traceability for Products manufactured on behalf
of Buyer.
4.3 Notification of Defects. Seller will promptly after discovery advise Buyer
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of defects and/or non-conformity in Products already shipped to and/or in
lots currently in manufacture for Buyer.
4.4 Acceptance Criteria. Wafer acceptance will be subject to process control
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monitor acceptance criteria to be mutually agreed upon on a process-by-
process basis. Once approved, no such wafer acceptance criteria shall be
binding until in a writing signed by an Officer of Seller which clearly and
specifically identifies the Products (by mask or product number) and
processes (by Seller's process designation) involved. All accept/reject
criteria shall be stated in the agreed upon wafer acceptance and visual
inspection specifications and all critical dimension and process tolerances
shall be solely as agreed upon in writing.
4.5 Stop Shipments.
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4.5.1 Subject to Buyer's obligations with respect to volumes committed under
the ordering and forecasting procedures involved, upon receipt of Buyer's
written Stop Request, Seller will immediately stop shipment of Products
which are subject to a suspected failure to meet the criteria specified in
the wafer acceptance criteria agreed upon in writing between Buyer and
Seller. If Seller is responsible for such failure, and Seller is not able
to correct the matter within sixty (60) days of receipt of such Stop
Notice, then (i) Buyer may reject non-conforming Products, and, (ii) Buyer
may, without penalty (including loss of capacity), cancel any then-pending
purchase order(s) for such Products as to which Wafers have not been
started by sending written notice of cancellation to Seller within seventy-
five (75) days of the written Stop Request. Such a notice of cancellation
shall be effective on receipt by Seller.
4.5.2 If Buyer requests Seller to stop shipment of any Products which Buyer is
obligated to purchase, and the Products are determined in good faith by
Seller to have been processed in accordance with the applicable written
requirements, in addition to and without waiving any other remedies, Buyer
shall pay Seller in full for completed Products and, in addition, for
Seller's reasonable costs for work in progress. Under this Section 4.5
payment for completed Products will be at the purchase order price, and
payment for work in progress shall be based on Buyer's actual costs for raw
materials and the relative mask step reached when work is stopped.
4.6 Failure Analysis. Upon written request from Buyer and subject to
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satisfactory arrangements for payment to Seller for the reasonable costs
involved, Seller will perform failure analysis of Products returned to
Seller pursuant to Seller's standard Return Policy and Procedures. If such
analysis shows the existence of material defects in breach of applicable
Seller warranties, Seller will not be entitled to payment for the cost of
Seller's failure analysis concerning such defects for the specific Products
which were subject to them.
4.7 Return Material Authorization (RMA). Buyer will not make any returns to
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Seller without first obtaining a written Return Material Authorization
(RMA). Buyer agrees to pay Seller the full purchase price and all costs and
charges incurred by Seller in connection with any returned wafers or
Products which Seller determines were within Seller's specifications at the
time of initial delivery to the carrier or at the time of return to Seller.
Generally, Seller will analyze authorized returns within four (4) working
weeks of receipt by Seller, and promptly thereafter report on the results.
Buyer agrees to cooperate in good faith with Seller to resolve any problems
that may arise and to promptly send Seller the results of all tests and
analyses concerning Products.
5 WARRANTY
5.1 Limited Warranty. Seller warrants Products delivered after initial
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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.
5.2 Exclusions.
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5.2.1 Products which have been subject to abuse, misuse, accident, alteration,
neglect, conditions outside specification, unauthorized repair or improper
application are not covered by any warranty.
5.2.2 Seller shall not be responsible for defects or claims caused by acts not
performed by Seller; or by design or application; or by combination of
Products with other things.
5.2.3 Products 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.
5.3 Remedy. To the extent that any Products fail to meet the applicable
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warranties and/or requirements due to reasons for which Seller is
responsible, Seller shall either (i) replace such Products without charge,
or (ii) refund the payments made to Seller for such Products, 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 Products for which refund and/or
replacement is sought and all returns shall be handled pursuant to Seller's
Return Policy and Procedures.
5.4 Sole Warranty. This Section 5 is the only warranty by or on behalf of
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Seller 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. With respect to obligations of Seller under this
Agreement which would logically be undertaken and/or performed by
Manufacturer, Seller guarantees Manufacturer's performance thereof.
5.5 No Reliance. Buyer is not relying on any statements or information in
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Seller'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
made goods, embedded devices and processes may differ from similar goods,
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 makes no warranty in connection with such
IP. Buyer is not relying on any statements or information provided by
Seller 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.
5.6 Disclaimer. EXCEPT AS PROVIDED ABOVE, SELLER MAKES NO WARRANTIES OR
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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.
5.7 Limitation. REGARDLESS OF CAUSE OR REASON FOR DAMAGE (WHETHER ACCIDENT,
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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 negligence or fault. Upon written request sent to the billing
address listed on Buyer'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.
6 LIMITATION OF LIABILITY
6.1 Force Majeure. Neither party will be liable for any loss, damage or claim
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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.
6.2 Limitation of Liability.
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6.2.1 SELLER'S LIABILITY ARISING OUT OF ANY QUOTATION, ANY AGREEMENT, ANY
BREACH THEREOF, OR ANY PRODUCTS OR SERVICES WILL BE LIMITED TO REFUND OF
THE PURCHASE PRICE
OR REPLACEMENT OF PURCHASED PRODUCTS (RETURNED TO SELLER FREIGHT PREPAID);
OR 1N THE EVENT OF a FAILURE OR BREACH BY SELLER REGARDING DELIVERY, AN
AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE OF THE PRODUCTS THAT HAVE NOT BEEN
DELIVERED DUE TO SUCH FAILURE. ALL CLAIMS WILL BE SUBJECT TO THE TIME
LIMITATIONS STATED IN SELLER'S RETURN POLICY AND PROCEDURE.
6.2.2 AS a SEPARATE LIMITATION, IN NO EVENT WILL SELLER BE LIABLE (i) FOR COSTS
OF SUBSTITUTE PRODUCTS, (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 UNDER ANY AGREEMENT AND/OR WITH RESPECT TO WAFERS,
SERVICES AND/OR PRODUCTS.
6.3 Commencement of Actions or Proceedings. No action or proceeding (except for
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payment for delivered Products) may be commenced by either party against
the other, whether for breach, indemnification, contribution or otherwise,
more than one year after delivery of the Products 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.
6.4 BUYER EXPRESSLY AGREES TO THE LIMITATIONS OF SECTIONS 5, 6, 7 AND 8 AND TO
THEIR REASONABLENESS.
7 INDEMNIFICATION & COOPERATION
7.1 Indemnification by Seller. Seller will defend and/or settle all suits
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against Buyer to the extent based on any claim that any processes (as
performed by Seller with respect to Products) infringe any R.O.C.,
Canadian, Japanese, European Community and/or U.S. patent, copyright, trade
secret or trademark; provided, however, that Buyer (i) gives immediate
written notice to Seller, (ii) permits Seller to defend, and (iii) gives
Seller all needed information, assistance, and authority.
7.2 Exclusions. Seller will not be responsible for infringements resulting from
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anything not manufactured entirely by 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.
7.3 THIS ARTICLE 7 STATES SELLER'S ENTIRE LIABILITY AND OBLIGATION WITH RESPECT
TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR AND IS EXPRESSLY
SUBJECT TO ARTICLE 6. Except as to claims Seller is obligated to defend
and/or resulting from Seller's wrongdoing and/or negligence, BUYER WILL
INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER FROM ALL CLAIMS, COSTS, LOSSES,
AND DAMAGES (INCLUDING REASONABLE ATTORNEYS' FEES) AGAINST AND/OR ARISING
OUT OF PRODUCTS AND/OR SERVICES.
7.4 Buyer Guarantee and Indemnity. Without limiting any other terms, Buyer
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guarantees that production of Products 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 becomes party to any infringement or
misappropriation action or dispute with respect to Products, (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) resulting from any
claimed breach of Buyer's guarantee.
7.5 Cooperation. Seller and Buyer will cooperate in connection with any issue
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raised with respect to intellectual property rights of third parties
relating to goods and/or to services under this Agreement. Without limiting
the foregoing, upon written notice to the other, any Party may suspend (i)
performance of its obligations, (ii) exercise of its rights of first
refusal with respect to capacity and/or (iii) providing capacity to the
extent that such Party has reasonable concerns that its future performance
in connection with such matters will subject it to claims by others with
respect to such matters, provided however that no such suspension will
affect any obligation to pay for Products delivered and/or manufactured in
whole or in part prior to the date of written notice concerning such
matters. In the event that Seller exercises any of its rights pursuant to
this Section 7, Seller will negotiate in good faith to minimize the
liability of Buyer to others.
8 CONFIDENTIALITY
8.1 NDA. The terms of the Reciprocal Non-Disclosure Agreement, attached hereto
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as Exhibit C, are expressly incorporated herein.
8.2 Buyer's Masks and Databases. Seller will treat any and all masks and design
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databases provided by Buyer as confidential, whether or not they are marked
as required by Exhibit C.
8.3 Process Technology. Regardless of anything to the contrary., all processes,
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recipes, and manufacturing, fabrication, assembly and test techniques, and
related improvements ("process technology") provided and/or developed by or
on behalf of Seller shall be wholly owned by and the property of Seller,
and Seller shall not be limited or restricted by this Agreement with
respect to any process technology unless clearly stated to the contrary in
a writing signed by an officer of Seller identifying the specific
information in precise detail.
9 TERMINATION & RELATIONSHIPS
9.1 Term. The term of this Agreement as related to any specific Product covered
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by this Agreement shall be five (5) years from the date of the Quotation
for that Product, and shall thereafter be automatically extended for
additional one (1) year terms, unless and until a party to this Agreement
gives no less than one (1) year's notice that the term should not be
further extended for that Product. If Seller gives Buyer notice that the
terms for a Product will not be extended, then during the one (1). year
notice period Seller shall continue to accept and fill all orders placed by
Buyer for commercially reasonable quantities calling for delivery within
lead time of that Product.
9.2 Termination For Insolvency or Bankruptcy. Subject to Section 9.4 below,
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Buyer and/or Seller (collectively "the Parties") shall have the right to
terminate the rights of the other Party under their applicable Agreements
(and any other agreement concerning Products) by giving written notice of
termination to that other Party at any time upon or after:
9.2.1 the filing by the other Party of a petition in bankruptcy or insolvency;
9.2.2 any adjudication that the other Party is bankrupt or insolvent;
9.2.3 the filing by the other Party of any petition or answer seeking
reorganization, readjustment or arrangement of its business under any law
relating to bankruptcy or insolvency;
9.2.4 the appointment of a receiver for all or substantially all of the
property of the other Party;
9.2.5 the making by the other Party of any assignment for the benefit of
creditors; or,
9.2.6 the institution of any proceeding for the liquidation or winding up of
the other Party's business or for the termination of its corporate charter.
Notwithstanding anything to the contrary, no termination under Section 9.2 as to
such other Party shall affect the rights of the Party giving the notice of
termination with respect to Products delivered and/or as to which production had
begun prior to the effective date of termination. Termination pursuant to this
Section 9.2 shall be effective
immediately upon personal delivery, of the written notice, or in the case of
airmail notice, five days after dispatch.
9.3 Termination for Breach.
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9.3.1 Termination Events. If any party fails to perform or violates any
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material obligation under the applicable Agreements, effective upon thirty
(30) days' written notice to the breaching party specifying such default
(the "Default Notice"), the non-breaching party, may terminate the
applicable Agreement (and all related agreements concerning Products) as to
its responsibilities and obligations, without liability (subject to
Sections 9.4 and 9.5 below), unless:
9.3.1.1 The breach specified in the Default Notice has been cured within the
thirty (30) day period, or if the breach is disputed, the amount in dispute
is placed in a reasonably secure third party escrow account pending
resolution of the dispute;
or
9.3.1.2 The default reasonably requires more than (30) days to correct
(specifically excluding any failure to pay money), and the defaulting party
has begun substantial corrective action to remedy the default within such
thirty (30) day period and diligently pursues such action, in which event,
termination shall not be effective unless sixty (60) days has expired from
the date of the defaulting party's receipt of the Default Notice without
such corrective action being completed and the default remedied.
9.4 Effect of Termination.
----------------------
9.4.1 Termination by Buyer. If Buyer terminates the applicable Agreements for
--------------------
any reasons stated in Sections 9.2 and/or 9.3 above, Seller will, if so
requested in writing by Buyer: (i) cease all production required by Buyer's
then outstanding purchase orders under the Agreements; and (ii) otherwise
complete and deliver all Products pursuant to Buyer's then outstanding and
accepted purchase orders and invoice Buyer for the Products.
9.4.2 Termination by Seller. If Seller terminates this Agreement as to Buyer
---------------------
pursuant to Sections 9.2 and/or 9.3 above, in addition to and without
waiving any other remedy, Seller shall be entitled to payment in full upon
delivery of all completed Products manufactured on behalf of Buyer, as well
as to reimbursement for all reasonable direct costs incurred for up to one
month's work then in progress for Buyer.
9.5 Survival.
---------
9.5.1 All obligations to pay monies which accrue prior to termination and/or
expiration, and the provisions of the Reciprocal Non Disclosure Agreement
attached as Exhibit C, as well as all other obligations of confidentiality,
all limitations on
warranties and remedies, all obligations with respect to indemnification
and cooperation, contribution, dispute resolution, and termination shall
survive the expiration and/or termination of the applicable Agreements
and/or of any purchase order or understanding concerning Products.
9.5.2 The exclusions and limitations of Sections 5, 6 and 7 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. THE PARTIES EXPRESSLY WAIVE AND RELINQUISH ANY CONTRARY RIGHTS
UNDER ANY AGREEMENT, AND/OR LAW, DECISION, CUSTOM OR PRACTICE.
10 DISPUTE RESOLUTION
10.1 Management Resolution. Within thirty days of a written demand to meet to
---------------------
resolve such one or more disputes arising out of and/or relating to any
Agreement and/or Products, senior management with the authority to
negotiate and resolve the issues shall meet in Taiwan or in some other
mutually agreeable location to discuss the issues, and, from time to time
during the forty-five day period following such demand (or longer if
agreeable to the Parties), such management will negotiate and attempt to
resolve the issues as reasonably requested by any party involved.
10.2 Arbitration.
-----------
10.2.1 Any such disputes relating to and/or arising out of any Agreement and/or
Products which cannot be so resolved will be decided exclusively by binding
arbitration under procedures which ensure efficient and speedy resolution.
Such an arbitration may be commenced by Seller and/or Buyer (i) after the
expiration of the forty-five day period following the written demand to
meet to resolve the dispute pursuant to Section 10.1 above, and/or (ii) at
such earlier time as any Party involved repudiates and/or refuses to
continue with its obligations to negotiate in good faith.
10.2.2 The arbitration hearing will be before a panel of three neutral,
independent arbitrators. The arbitration hearing will be conducted in Santa
Clara, California (U.S.A).
10.2.3 The arbitration will be conducted under the International Rules of the
American Arbitration Association. Notwithstanding anything to the contrary:
10.2.3.1 the arbitrators will have no power to order discovery;
10.2.3.2 the arbitrators will follow such procedures and enter such orders and
conduct the hearing under conditions which ensure at least the same
degree of confidentiality for each party as provided by Seller's Standard
Non-Disclosure Agreement, and which adequately protect the participants
from disclosure of
highly sensitive information to anyone other than the arbitrators and
lawyers (or comparable legal representatives) and reasonably necessary
expert witnesses and not to persons employed by one or more of the
parties nor to competitors of them, and
10.2.3.3 the arbitrators shall require pre-hearing exchange of documentary
evidence to be relied upon by each of the respective parties in their
respective cases in chief, and pre-hearing exchange of briefs, witness
lists and summaries of expected testimony.
10.2.4 The arbitrators will make their decision in writing; and their decision
will be binding upon the Parties and it may be entered by any court having
jurisdiction.
10.3 Injunctive Relief. 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.
10.4 Governing Law. This Agreement and all foundry arrangements involving
-------------
Seller and all performance and disputes arising out of and/or relating to
such matters and/or any Products 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 on Contracts for the International Sale of
Goods.
11 GENERAL
11.1 Non-Exclusive Relationship. Except as stated in a separate written
--------------------------
agreement signed by duly authorized officers of Seller and of Buyer,
nothing in the Agreements shall prohibit Buyer from purchasing goods and/or
foundry services from other suppliers, nor prohibit Seller from offering
wafers and/or foundry services to others or from offering products or
services on its own behalf.
11.2 No Agency or Partnership. Nothing in the Agreements shall be deemed to
------------------------
create a general or limited partnership or an agency relationship between
Buyer and/or Seller, and Buyer and Seller are independent companies. Buyers
will purchase products manufactured from Seller in an arm's length vendor-
purchaser relationship. No party shall be entitled to act on behalf of
and/or to bind any one or more of the others.
11.3 Compliance with Law. 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. Buyer agrees at its sole expense to comply with all applicable
laws in connection with the purchase, use or sale of the Products.
11.4 No Implied Licenses. Nothing contained in this Agreement is intended to or
-------------------
shall be construed as:
11.4.1 conferring any right to the other Party to use in advertising,
publicity, or otherwise, any trademark, trade name or names of any Party,
or any contraction, abbreviation or simulation thereof; and/or
11.4.2 conferring by implication, estoppel or otherwise, upon any Party any
license or other right under any class or type of copyright, maskwork,
trademark, trade name, patent, utility, model or design patent except the
licenses and rights expressly granted under a written agreement signed by
the Parties.
11.5 Entire Agreement. This Agreement (including the attached exhibits)
----------------
contains all material and essential terms of a binding agreement between
the parties with respect to with respect to foundry., fabrication,
semiconductors, design support and goods, there are no other agreements
concerning such subject matter. This Agreement is the entire agreement
between the parties with respect to the stated subject matter; it
supersedes all prior understandings and agreements with respect to these
matters, and there are no prior representations, warranties or other
agreements relating thereto. This Agreement may not be modified, except in
writing signed by duly authorized officer of each party, and no addition,
deletion or modification shall be binding on Seller unless expressly agreed
to in a writing signed by an officer of Seller.
11.6 Notices. All notices, payments, reports and other communications required
-------
or permitted hereunder shall be in writing and shall be mailed by first
class, registered or certified mail, postage prepaid, or otherwise
delivered by hand, by messenger (including express mail courier services)
or by facsimile, addressed to the addresses first set forth above or at
such other address furnished with a notice in manner set forth herein. Such
notices shall be deemed to have been served when delivered or, if delivery
is not accomplished by reason of some fault of the addressee, when
tendered. Notices shall be addressed as follows:
If to Seller: UMC Group (USA) Copy to: Law+
000 XxXxxxxx Xxxxx 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
Attn: President Attn: Xxxxx Xxxxxxxx, Esq.
Fax (000) 000-0000
If to Buyer: Centillium Communications Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Vice President of Operations
11.7 Assignment. Neither this Agreement nor any of the rights and obligations
----------
created hereunder may be assigned, transferred, pledged, or otherwise
encumbered or disposed of, in whole or in part, whether voluntarily or by
operation of law or otherwise, by any party, without the prior written
consent of the other party. This Agreement shall inure to the benefit of
and be binding upon the parties' permitted successors and assigns.
11.8 Captions and Section Headings. The captions and section and paragraph
-----------------------------
headings used in this Agreement are inserted for convenience only and shall
not affect the meaning or interpretation of this Agreement.
11.9 Partial Invalidity. If any paragraph, provision, or clause thereof in this
------------------
Agreement shall be found or be held to be invalid or unenforceable in any
jurisdiction in which this Agreement is being performed, the remainder of
this Agreement shall be valid and enforceable and the parties shall
negotiate, in good faith, a substitute, valid and enforceable provision
that most nearly reflects the parties' intent in entering into this
Agreement.
11.10 Presumptions. In construing the terms of this Agreement, no presumption
------------
shall operate in either party's favor as a result of its counsel's role in
drafting the terms or provisions hereof.
11.11 Language. The English language shall govern the meaning and
--------
interpretation of this Agreement.
11.12 Waiver. The failure of either party to enforce at any time the provisions
------
of this Agreement, or the failure to require at any time performance by the
other party of any of the provisions of this Agreement, shall in no way be
construed to be a present or future waiver of such provisions, nor in any
way affect the right of either party to enforce each and every such
provision thereafter. The express waiver by either party of any provision,
condition or requirement of this Agreement shall not constitute a waiver of
any future obligation to comply with such provision, condition or
requirement.
11.13 Cumulative Remedies. The remedies under this Agreement shall be
-------------------
cumulative and not alternative and the election of one remedy for a breach
shall not preclude pursuit of other remedies unless as expressly provided
in this Agreement.
11.14 Confidentiality of Agreement. Each party agrees that the terms and
----------------------------
conditions of this Agreement and Quotations shall be treated as
confidential information of both parties, and that neither party will
disclose the terms or conditions to any third party without the prior
written consent of the other party, provided, however, that each party may
disclose the terms and conditions of this Agreement, to the extent
necessary:
11.14.1 as required by any court or other governmental body;
11.14.2 as otherwise required by law;
11.14.3 to legal counsel of the parties, accountants, and other professional
advisors;
11.14.4 in confidence, to banks, investors and other financing sources and
their advisors;
11.14.5 in connection with the enforcement of this Agreement or rights under
this Agreement; or
11.14.6 in confidence, in connection with an actual or prospective merger or
acquisition or similar transaction.
11.15 Authority. Each party represents that all corporate action necessary for
---------
the authorization, execution and delivery of this Agreement by such party
and the performance of its obligations hereunder has been taken.
11.16 Counterparts. This Agreement may be executed in two (2) or more
------------
counterparts, all of which, taken together, shall be regarded as one and
the same instrument.
IN WITNESS WHEREOF, the parties have authorized their undersigned
representatives to sign this Agreement and to bind them to its terms and
conditions in accordance with the foregoing.
Buyer: Seller:
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxx Xxxxx
------------------------ -------------
Authorized Signature Authorized Signature
Xxxxxxx X. Xxxxxxxxx Xxx Xxxxx
-------------------- ---------
Printed Name Printed Name
Vice President, Operations President, Worldwide Marketing/Sales
-------------------------- ------------------------------------
Title Title
March 8, 2000 March 7, 2000
------------- -------------
Date Date
EXHIBIT A
---------
Quotation
---------
Exhibit A.01 - Initial Process (es)
UMC STANDARD "0.35 um CMOS double-layer poly and triple-layer metal (2P3M)
process on 8-inch non-epi wafers".
Exhibit A.02 - Price Quote
Xxxxxxx X. Xxxxxxxxx ref.:CC030200
Vice President of Operations 3/6/00(revised)
Centillium Communications
Process Technology
0.35 um CMOS double-layer poly and triple-layer metal (2P3M) process on 8-inch
non-epi wafers
Mask Tooling
A mask set for design using the above technology will be provided at a NRE
charge of $37,900. Mask charge per layer shall be as follows:
Layer Price
----------- -------
Diffusion $ 3,000
N-Well $ 1,600
P-Well $ 1,600
Poly 0 $ 3,000
HR $ 1,600
Poly 1 $ 3,000
N+ $ 1,600
P+ $ 1,600
SAB $ 1,600
Contact $ 3,000
Metal 1 $ 3,000
Via 1 $ 3,000
Metal 2 $ 3,000
Via 2 $ 3,000
Metal 3 $ 3,000
Pad $ 1,300
Total $37,900
Proto Lot
A proto lot, processed with HOT LOT status, consists of a minimum of 6 wafers
and without process split conditions, will be provided at a NRE charge of
$25,000 per lot. UMC guarantees that wafers from this prototype lot meet our
outgoing PCM specifications.
Corner Lot
An engineering xxxxx lot with a maximum of 14 wafers, processed with QTAP
status, will be provided at a NRE charge of $25,000 per tot. UMC guarantees that
nominal wafers from this lot meet our outgoing PCM specifications.
Wafer Price
Monthly run-rate * 500 wafers: $1,400 per wafer
Monthly run-rate ** 500 wafers: $1,380 per wafer
Notes:
1. NRE charges for the proto and xxxxx lots are applicable only for the first
tape-out of a new technology.
2. The Super Hot Lot charge is $5,000 per lot for the above mentioned process
technology.
3. Wafers shall meet UMC standard PCM data.
Exhibit A.03 - Fabrication Cycle Times
Prototype: 20 days Cycle Time from mask generation to wafer out.
11 days from Metal 1 to wafer out.
Production: 38 days to wafer out after P.O. acceptance.
Exhibit A.04 - CAPACITY
--------
Product Current Capacity Additional forecast Upside Max Capacity
Based on monthly time needed before incremental to Current
submission of 12 wafer start to meet Capacity
month forecast Upside Demand
(wafers/month) (wafers/month)
Analog CPE 100 8 weeks 100 WAFERS
Analog CO 100 8 weeks 100 WAFERS
Analog Line Driver 50 8 weeks 50 WAFERS
------------
* less than
** greater than or equal to
EXHIBIT B
PROCEDURES
B.1 QUALIFICATION, HOT RUNS & PILOT RUNS
------------------------------------
B.1.1 All pilot runs and hot runs ("Hot Lots") require Seller's written
consent.
B.1.2 For engineering lots, split and hold conditions will be as set by written
agreement with Seller, and no splits or hold conditions will be permitted
without Seller's written consent.
B.1.3 The minimum quantity of wafers for each split condition is two (2)
wafers.
B.1.4 The minimum quantity for each pilot run is twelve (12) wafer starts.
Regardless of anything to the contrary, Seller's only obligation for pilot runs
is that six (6) out of twelve (12) wafer starts shall meet the PCM
specifications agreed upon in writing before wafer start.
B.2. PRODUCTION RUNS & ON-HOLD WAFERS
--------------------------------
B.2.1 Unless otherwise conspicuously stated in a purchase order accepted and
signed by Seller, the minimum quantity in any lot shall be 25 wafers and no
staged wafer runs will be allowed in production without Seller's consent.
B.2.2 Subject to the other terms and conditions herein, by conspicuous written
request in Buyer's purchase order, Buyer may request staging of mask code and
gate array wafers as follows:
(a) the purchase order must include the holding stage and forecast release
date;
(b) the minimum quantity for any stage release shall be at least six (6)
wafers;
(c) all stage releases which have less than eighteen (18) wafers shall be
subject to surcharge in an amount Seller will quote;
(d) if the holding time for any step is more than four weeks, for each two
week and for each partial two week period thereafter, Buyer will pay a per hold
wafer surcharge equal to three percent (3%) of the total purchase order price;
(e) if any on-hold time exceeds eight weeks, Buyer will pay Seller the full
purchase order price plus the applicable surcharges stated above;
(f) if any on-hold time exceeds ten weeks, in addition to all other
remedies, Seller may scrap the staged wafers from the production line, unless
before the expiration of that on-hold xxxx Xxxxxx receives written request from
Buyer to return the staged wafers.
B.2.3 Regardless of anything to the contrary, once the purchase order has been
received by Seller, Seller will not be obligated to accept or honor orders or
requests to hold wafers.
B.3 Wafer Cycle Time. Unless otherwise agreed in writing, Wafer Cycle Time--the
----------------
time from wafer start (and written approval of PCM specifications) to final
visual inspection at Seller's premises--shall be as stated in Seller's written
quotation for the specific Products.
Reciprocal NDA
RECIPROCAL NON-DISCLOSURE AGREEMENT
Effective Date: 8/11/98
-------
To protect certain confidential information that may be disclosed between
them. United Microelectronics Corporation, a California Corporation with
principal offices at 000 Xxxxxxx Xxx. Xxxxxxxxx, Xxxxxxxxxx ("UMC") and
Centillium Technology (the "Company") agree:
---------------------
1. This Reciprocal Non-Disclosure Agreement ("Agreement") shall only apply to
information designated as "CONFIDENTIAL" at the time of disclosure as follows:
(a) Confidential Information disclosed in any tangible form or thing must
be marked or labeled clearly as "CONFIDENTIAL" or with a similar legend
sufficient to notify the receiving party that it is subject to the terms of this
Agreement;
(b) Confidential Information disclosed in any of the manner must be clearly
identified as "CONFIDENTIAL" at the time of disclosure, and summarized in
reasonable detail and designated as "CONFIDENTIAL" in a writing delivered to the
receiving party within thirty (30) days of oral disclosure.
2. Each party agrees that for a period of five (5) years, and notwithstanding
any termination, expiration or cancellation hereunder, it will hold in strict
confidence and not disclose to any third party any Confidential Information
received from the other party hereto except as expressly agreed upon in writing.
Each party further agrees that it will not use or incorporate any Confidential
Information received from the other party hereto for any purpose whatsoever
except solely for the evaluation and/or pursuit of mutually amicable business
relations between the Company and UMC. Notwithstanding anything to the contrary,
to the extend reasonably appropriate in connection with the evaluation and/or
pursuit of mutually amicable business relations, UMC may disclose Confidential
Information from Company to one or more of the foundries within the UMC Group
subject to the requirement that the parties will be bound as if such foundry was
part to this Agreement. For purposes of this Agreement, the foundries in the UMC
Group include United Microelectronics Corporation's Fabs I and II, United
Semiconductor Corporation, United Integrated Circuits Corporation, United
Silicon, Inc. and the joint venture to be formed to operate the foundry location
currently known as UMC's Module 5 in the Science Based Industrial Park, Hsin-Chu
City, Taiwan.
3. Each party shall secure and safeguard any and all things, documents, work
in process, and work product that embodies Confidential Information of the other
in locked files or areas reasonably restricting access and preventing
unauthorized use and/or disclosure. Each party further agrees that it will
maintain reasonable procedures to prevent accidental or other loss of any
Confidential Information of the other, and to use at least the same degree of
care for such information as it uses to protect its own proprietary information.
In the event of any loss, disclosure or use of Confidential Information in
violation of this Agreement, the party involved shall immediately notify the
other.
4. The obligations of this Agreement shall not apply to Confidential
Information which the receiving party shows is:
(a) already in the possession of the receiving party at or before the time
of disclosure hereunder as reasonably shown by evidence existing at the
time of disclosure; or
23
UMC CONFIDENTIAL
24
(b) now or hereafter publicly known through no wrongful act of the
receiving party (provided that if Confidential Information becomes publicly
known this shall not excuse a prior breach); or
(c) LAWFULLY RECEIVED FROM a THIRD PARTY WITHOUT OBLIGATION OF CONFIDENCE;
OR
(d) independently developed by the receiving party; or by persons not
having access to the Confidential Information; or
(e) approved for release by written authorization of the disclosing party
(f) disclosed pursuant to the requirement or demand of a lawful
governmental or judicial authority, but only to the extent required by
operation of law, regulation of court order.
5. Upon termination, cancellation or expiration of this Agreement, or upon
written request of the disclosing party, the receiving party shall promptly
return to the disclosing party all documents and other tangible things
reflecting Confidential Information of the disclosing party, together with all
copies, extract, summaries and (except as provided by agreement) other material
derived therefrom.
6. Confidential Information shall remain the property of the disclosing
party. The parties agree that nothing in this Agreement (expressly or impliedly)
grants any patent, copyright, trademark, mask work, trade secret or other
property right to the receiving party, by licensee or otherwise. The parties do
not intend that any agency, joint venture or partnership relationship be created
between them by this Agreement.
7. Neither party has an obligation under this Agreement to purchase nay item
or service from the other or to offer for sale products using or incorporating
Confidential Information. Either party may, at its sole discretion, and without
using Confidential Information of the other, offer products for sale, modify
products and/or discontinue products.
8. Notwithstanding anything to the contrary, all processes, recipes, and
manufacturing, fabrication, assembly and testing techniques, and improvements
relating thereto ("process technology") provided and/or developed by or on
behalf of UMC shall be wholly owned by and the property of UMC and UMC shall not
be limited or restricted by any terms of this Agreement with respect to any
process technology unless clearly stated to the contrary in a writing signed by
an officer of UMC and identifying the specific information involved in precise
detail.
9. This Agreement shall be governed by and construed under the laws of
California.
10. There are no understandings, agreements, or representations, expressed or
implied, regarding the Confidential Information except as stated above. This
agreement may not be amended, modified or altered except by a writing signed by
both parties hereto.
UMC COMPANY
By: /s/ Xxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
------------- ------------------------
Name/Title: Xxxx Xxxx Name/Title: Xxxxxxx X. Xxxxxxxxx
---------- --------------------
Customer Engineering Director Vice President, Operations
24
UMC CONFIDENTIAL
25
