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EXHIBIT 10.15
INTEGRATION TECHNOLOGY AGREEMENT
THIS INTEGRATION TECHNOLOGY AGREEMENT ("this Agreement") is made and
entered into as of ********** (the "EFFECTIVE DATE") by and between
Semiconductor Company of Matsushita Electronics Corporation, a Japanese
corporation ("CUSTOMER") and PDF Solutions, Inc., a California corporation ("PDF
SOLUTIONS").
TERM AND CONTACTS
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Customer: Semiconductor Company, Contact: **********
Matsushita Electronics Corporation
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Address: ********** Phone: **********
********** Fax: **********
Website: http://www.********** E-Mail: **********
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Term: This agreement shall commence on the Effective Date and shall expire on
**********, unless sooner terminated in accordance with Sections 1.2 or 1.3.
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All notices, correspondence and invoices
pertaining to this Agreement shall be
sent to the persons and addresses listed,
or such other address as the applicable
party designates by giving written notice:
To Customer:
To PDF Solutions:
Matsushita Electronics Corporation **,
******************** PDF Solutions, Inc.
******************** 333 West San Carlos Street
Suite 700
Phone: ********** San Jose, CA 95110
Fax: ********** Attn: Chief Financial Officer
Tel: (408) 938-6445
Fax: (408) 938-6478
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The parties have caused their duly authorized representatives to execute
and deliver this Agreement, which consists of this cover page, the attached
Terms and Conditions and any attached executed exhibits.
CUSTOMER PDF SOLUTIONS, INC.
Matsushita Electronics Corporation
-----------------------------------
Signed: /s/ Seiji Ueda Signed: /s/ John K. Kibarian
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Printed: Seiji Ueda Printed: John K. Kibarian
--------------------------- ----------------------------
TITLE: Director TITLE: President & CEO
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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TERMS AND CONDITIONS
INTEGRATION TECHNOLOGY AGREEMENT
RECITALS
A. PDF Solutions possesses technology and expertise useful in
discovering, analyzing, and fixing problems in the design and manufacturing
processes that cause low yields of useable integrated circuits.
B. Customer desires to engage PDF Solutions and receive a license to
certain technology useful to analyze its internal integrated circuit
manufacturing process, identify problems therewith, and recommend solutions
thereto, by way of methodology or otherwise, upon the terms and conditions
contained herein.
C. PDF Solutions desires to be so engaged upon the terms and conditions
contained herein.
DEFINITIONS
"Analysis" refers to all interpretations, recommendations, extractions,
statistical models or other yield and performance models developed by PDF
Solutions and derived in whole or in part from Customer's Raw Data; provided,
however, that Analysis does not include any information sufficiently detailed
that Raw Data could be feasibly re-constructed.
"Characterization Vehicle" or "CV" refers to the parameterized layout structures
or circuit elements, specific implementations of said structures or circuit
elements either in computer format or layout format (for example, GDS-II files),
and images of said structures or circuit elements, historically or hereafter
created or customized by PDF Solutions for the purposes of creating a test
vehicle used to characterize any given manufacturing process. Manufacturing
Designs are usually referenced in the process of generating CVs for the purposes
of optimizing or tuning the vehicle to the targeted designs and process. The CV
is used to create a Mask Set which is used by the fabrication facility to
generate test wafers.
"Developed Technology" refers to all methodologies, techniques, designs, problem
solving processes and practices developed by jointly by the parties in the
course of the performance of this Agreement.
"Manufacturing Designs" refers to all non-public information relating to
*****************
"Mask Set" refers to translucent glass plates used as a light filter to transfer
designs onto a wafer.
"Modified Standard Process of Customer" means the standard process of Customer
for comparison purpose which will be obtained by Customer as the result of
successful completion of this project under the Agreement."
"Permitted Field of Use" means the field of use described in Exhibit "A".
"Proprietary Rights" shall mean all intellectual property rights including, but
not limited to, patents, patent applications, copyrights, copyright
registrations, moral rights, mask work rights, rights of authorship, industrial
design rights, trademarks, tradenames, know-how and trade secrets, irrespective
of whether such rights arise under U.S. or worldwide intellectual property,
unfair competition or trade secret laws.
"PDF Technology" refers to (a) all the methodologies, techniques, software,
designs, CVs, CV layout, Design of Experiments used in creating CV layout,
problem solving processes and practices developed and utilized by PDF Solutions
(i) prior to the Effective Date of this Agreement or (ii) during the term hereof
independently of this Agreement and (b) ***********
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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***
"Raw Data" shall mean the data generated by PDF Solutions using the CV in
conjunction with Customer's Manufacturing Design.
"R&D Team" means those employees of Customer and employees of the ********
(****) who provide research and development work with respect to Customers IC
products in the pre-qualification effort or have a need to know with regards to
the development work of the pre-qualification effort.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the above recitals and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Customer and PDF
Solutions, intending to be legally bound, hereby agree as follows:
SECTION 1. TERM AND TERMINATION
1.1 Term. This Agreement shall commence on the Effective Date and shall
expire as described in the attached cover sheet.
1.2 Termination for Cause. This Agreement may be terminated upon thirty
(30) days prior written notice by either party if the other party materially
breaches or fails to perform any material obligations hereunder and the
breaching party fails to cure such breach within thirty (30) days of such
written notice. Notwithstanding the foregoing, the cure period for any failure
of Customer to pay Fees and Reimbursements due hereunder shall be ten (10) days
from the date of receipt by Customer of any notice of breach relating thereto.
In the event of a termination under this Section 1.2, Customer shall pay PDF
Solutions all Fixed Fees incurred through the effective date of such
termination, all Reimbursements incurred through the effective date of such
termination and, if PDF Solutions shall so terminate this Agreement, all
Incentive Fees that would otherwise have been earned had this Agreement not been
terminated shall be paid after such termination in accordance with the time
schedule and milestone objectives in Exhibit B.
1.3 Survival of Provisions. Any and all obligations and duties which
have accrued hereunder upon such termination shall survive the termination and
remain obligations and duties of the burdened party. Additionally, Sections 3
(Payment for Services and Technology) as modified by this Section 1, 4
(Proprietary Rights), 5 (Confidentiality), 6 (Representations and Warranties), 7
(Indemnity), 8 (Limitation of Liability), 9 (Export Controls) and 10
(Miscellaneous) shall survive the expiration or sooner termination of this
Agreement and remain binding upon the parties hereto; provided that in the event
of any termination of this Agreement by PDF Solutions pursuant to Section 1.3,
any and all rights and licenses granted by PDF Solutions to Customer hereunder
shall terminate effective upon such termination.
SECTION 2. DELIVERY OF SERVICES
2.1 Scope of Services. During the term of this Agreement, PDF Solutions
shall furnish the PDF technology and related services (the "SERVICES AND
TECHNOLOGY") described in detail in EXHIBIT "A" attached hereto (the "SCOPE OF
SERVICES AND TECHNOLOGY"). The manner and means used by PDF Solutions to provide
the Services and Technology are in the control of PDF Solutions but shall at all
times be satisfactory to Customer.
2.2 Standard for Performance. PDF Solutions shall perform and deliver
the Services and Technology under this Agreement in accordance with the
standards and practices of care consistent with the quality of services PDF
Solutions performs for its other similarly situated clients. PDF Solutions at
all times shall
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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provide such number of qualified and skilled personnel to perform and deliver
the Services and Technology in accordance with the quality standards, time
frames and other requirements set forth in this Agreement. PDF Solutions shall
utilize and comply with the relevant portions of any regulatory standards
applicable to the provision of the Services and Technology. PDF Solutions shall
promptly repair or replace at its own expense all damages, scars or
disfigurements to any materials or property that is part of, or contained in,
Customer's work site that are the result of the negligence of personnel employed
by PDF Solutions.
2.3 Customer Assistance. Subject to Section 5 (Confidentiality),
Customer will provide PDF Solutions with such information, materials, technology
and Proprietary Rights as PDF Solutions shall reasonably require in order to
perform and deliver the Services and Technology as specified in the Scope of
Services and Technology.
2.4 Mutual Cooperation; Schedule. Customer and PDF Solutions agree to
cooperate in good faith to achieve completion of the Services and Technology in
a timely and professional manner. Customer understands and agrees that PDF
Solutions' provision of the Services and Technology may depend on Customer or a
third party completing certain tasks or adhering to certain schedules within
Customer's control. Consequently, the schedule for completion of the Services
and Technology or any portion thereof or milestones for payment of Fees may
require adjustments or changes in the event such tasks are not completed as
anticipated. PDF Solutions shall bear no liability or otherwise be responsible
for or penalized by delays in the provision of Services and Technology or any
portion thereof proximately caused by failure by Customer or a third party to
complete a reasonable task or adhere to a reasonable schedule.
SECTION 3. PAYMENT FOR SERVICES
3.1 Fees. As compensation for the Services and Technology, Customer
shall pay to PDF Solutions the fees ("FEES") set forth in EXHIBIT "B" attached
hereto.
3.2 Expenses. Customer shall also reimburse PDF Solutions for its
reasonable out-of-pocket expenses incurred in carrying out its obligations under
this Agreement including, but not limited to, travel, hotel, meals, document
production and other customary business expenses directly related to the
Services and Technology ("REIMBURSEMENT"). Travel, other than trips to
Customer's office or fabrication facilities, shall be in accordance with PDF
Solution's travel policy. Reimbursement for expenses incurred in an amount of up
to $******* in any calendar month shall not require the written approval of
Customer; provided, however, that any extraordinary engagement-related purchases
including, but not limited to, expenses for mask production, equipment
purchases, on-site facilities and on-site communications services, must receive
Customer's prior written authorization. Customer shall not have any liability to
PDF Solutions for any Reimbursement for expenses incurred in an amount in excess
of $******* in any calendar month, unless such expenses are approved in writing
by both parties.
3.3 Invoice. PDF Solutions shall bill Customer as agreed herein for
Services and Technology pursuant to an invoice delivered on a monthly basis.
Each invoice shall be accompanied by a reasonably detailed breakdown of the
invoiced amount.
3.4 Payment of Invoices. All payments by Customer hereunder shall be
made in U.S. Dollars by telegraphic transfer to the bank designated by PDF
Solutions. All invoices shall be due and payable within **************** after
the date of invoice. Amounts not paid in accordance herewith shall be subject to
a late charge equal to ************************ (or, if less, the maximum
allowed by applicable law). Without prejudice to other remedies available, PDF
Solutions reserves the right to suspend performance and delivery of Services and
Technology until such delinquency is corrected, provided that PDF Solutions
shall give written notice of payment delinquency and
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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shall give ten (10) days advance written notice of its intention to suspend
performance. The amounts payable to PDF Solutions hereunder are exclusive of any
sales or use or other taxes or governmental charges. Customer shall be
responsible for payment of all such taxes or charges except for any taxes based
solely on PDF Solutions' net income. If Customer is required to pay any taxes
based on this Section 3.4, Customer shall pay such taxes with no reduction or
offset in the amounts payable to PDF Solutions hereunder.
SECTION 4. PROPRIETARY RIGHTS
4.1 Ownership. Customer and PDF Solutions acknowledge and agree that, as
between them, ownership shall be as follows:
(a) PDF Solutions is the exclusive owner of all PDF Technology
and all Proprietary Rights in the PDF Technology;
(b) Customer is the exclusive owner of all Analysis,
Manufacturing Designs, Raw Data, Modified Standard Process of Customer and all
Proprietary Rights in the Analysis, Manufacturing Design ,the Raw Data and
Modified Standard Process of Customer;
(c) ************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
***********************************************.
(d) ************************************************************
********************************************************************************
********************************************************************************
*******************************************************.
To the extent the law would provide for ownership other than as provided
herein, (y) Customer hereby assigns to PDF Solutions its right, title and
interest in and to the PDF Technology and the Proprietary Rights in the PDF
Technology and (z) PDF Solutions hereby assigns to Customer its right, title and
interest in and to the Analysis, Manufacturing Designs, Raw Data, Modified
Standard Process of Customer and the Proprietary Rights in the Analysis,
Manufacturing Designs and Raw Data, such Modified Standard Process of Customer
and in the Mask Sets for CVs, subject to the restrictions set forth in
Subsection (c) above.
4.2 Grant of License by PDF Solutions. Subject to the terms and
conditions of this Agreement, including the timely payment of Fees, PDF
Solutions hereby grants to Customer, *******************************************
************* license ********************************************* only for the
********** to use the PDF Technology and associated Proprietary Rights disclosed
by PDF Solutions under this Agreement, but only to the extent PDF Solutions has
the right to grant such license; provided that such license is solely for use of
PDF Technology by the ******** within the permitted field of use. The foregoing
license includes all PDF Technology disclosed by PDF Solutions in its work for
Customer hereunder (including methodologies and practices observed by the
******** in the course of PDF Solutions' work hereunder); provided, however,
that specifically excluded from this license of PDF Technology is **************
****************************************************************************.
Customer shall not disclose or license PDF Technology to any third party or
outside of the *******.
4.3 Grant of License by Customer. Subject to the terms and conditions of
this Agreement, Customer hereby grants to PDF Solutions ************************
**********************, license ****************, but only to the extent
Customer has the right to grant such license, as follows:
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(a) to incorporate Customer's Manufacturing Designs in CVs at
any time during the term solely for the purpose of performing under this
Agreement; and
(b) to use, copy, compile, manipulate, analyze or reproduce Raw
Data and the Mask Sets for CVs solely for the purpose of performing under this
Agreement.
4.4 No Other Rights. Except as otherwise set forth in this Section 4,
neither this Agreement nor performance and delivery of the Services and
Technology shall give either PDF Solutions or Customer any ownership, interest
in, or rights to, the Proprietary Rights owned or provided by the other party.
4.5 Reference Right. Nothing in this Agreement shall be construed as
limiting the free right of Customer to refer to the Modified Standard Process of
Customer for the purpose of development and mass production of any semiconductor
products.
SECTION 5. CONFIDENTIALITY
The parties acknowledge and agree that during the course of the performance of
the mutual obligations hereunder, each party will occasionally deliver to the
other party certain information (including proprietary information, technical
data, trade secrets, know-how, research, software, developments, inventions,
processes, design flows, methods, methodologies, formulas, algorithms,
technologies, designs, drawings, engineering, hardware configuration
information, yield data or other similar information, and related documentation
and information) which the disclosing party deems to be confidential or
proprietary. Such information shall be considered and treated hereunder as
proprietary and confidential information if it is identified as "Confidential"
or "Proprietary" (hereinafter referred to as "CONFIDENTIAL INFORMATION"): (i) by
stamp or legend if communicated in writing or other tangible form, or (ii)
orally at the time of disclosure with a written confirmation within thirty days
describing the Confidential Information communicated orally. All restrictions as
to use and disclosure shall apply during such thirty day period. Except as
permitted hereunder, the receiving party shall not use or disclose the
Confidential Information of the disclosing party. Any recipient of Confidential
Information disclosed pursuant to this Agreement shall hold the Confidential
Information in strictest confidence and shall protect the Confidential
Information by using the same degree of care, but no less than a reasonable
degree of care, to prevent the unauthorized use, disclosure, dissemination or
publication of the Confidential Information as the recipient uses to protect its
own comparable confidential and proprietary information. Any permitted
reproduction of Confidential Information shall contain all confidential or
proprietary legends which appear on the original. If the disclosing party
discloses any software, the recipient is prohibited from disassembling,
decompiling, reverse-engineering or otherwise attempting to discover or disclose
the disclosing party's source code, trade secrets, ideas or methods or concepts
embodied in such software. Subject to the licenses granted in Section 4, upon
receipt of the written request of the disclosing party, the receiving party will
return, or give written certification of the destruction of all Confidential
Information in any tangible or digital form, including all copies thereof
whether on paper or in digital form, which are in the recipient's possession or
control. The recipient will immediately notify the disclosing party in the event
of any loss or unauthorized disclosure of Confidential Information. The above
restrictions on use and disclosure shall not apply to any Confidential
Information that: (1) is in the public domain or in the possession of the
recipient without restriction at the time of receipt under this Agreement
through no wrongful act or omission of the recipient, (2) is disclosed with the
prior written approval of the disclosing party, (3) is disclosed after
********** ***** from the date of expiration or earlier termination of this
Agreement, (4) is independently developed by the recipient without breach of
this Agreement which independent development is supported by reasonable
contemporary evidence, (5) becomes
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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known to the recipient from a source other than the disclosing party without
breach of this Agreement by the recipient or any other wrongful act or omission
by recipient or any third party; or (6) is required to be disclosed pursuant to
law, provided the recipient uses reasonable efforts to give the disclosing party
reasonable notice of such required disclosure sufficient to give the disclosing
party the opportunity to contest such disclosure. The obligations of
confidentiality shall survive the expiration or sooner termination of this
Agreement for a period of ********** ***** thereafter. Disclosing party assumes
no responsibility or liability whatever under this Agreement for any use of
Confidential Information by the recipient or its agents. Nothing in this
Agreement shall restrict recipient's discretion to transfer or assign its
personnel, providing the obligations of recipient under this Agreement are
otherwise met. Subject to the provisions of Section 4, either party shall be
free to use for any purpose the "residuals" resulting from access to or work
with such Confidential Information, provided that such party shall maintain the
confidentiality of the Confidential Information as provided herein. The term
"residuals" means information in non-tangible form, which may be retained in the
memories (without intentional memorization) by persons who have had access to
the Confidential Information, including ideas, concepts, know-how or techniques
contained therein. Neither party shall have any obligation to limit or restrict
the assignment of such persons or to pay royalties for any work resulting from
the use of residuals. Each party hereto recognizes and agrees that there is no
adequate remedy at law for a breach of this Section 5, that such a breach would
irreparably harm the disclosing party and that the disclosing party shall be
entitled to seek equitable relief (including, without limitation, injunctions)
with respect to any such breach or potential breach in addition to any other
remedies. PDF Solutions acknowledges that Confidential Information disclosed by
Customer may include the information of ****, and some employees of **** will
participate in the ****. Customer shall be liable for the performance of
employees of **** in the **** in performing under this Agreement and also be
liable for the confidentiality obligation of **** with respect to the
Confidential Information disclosed by PDF Solutions. The parties agree that the
MUTUAL NON-DISCLOSURE AGREEMENT among PDF Solutions, Customer and **** dated the
********** (NDA) shall be superseded by this Agreement, provided, however, that
any of the Confidential Information exchanged by the parties under the NDA shall
be treated as and included in the Confidential Information under this Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES
6.1 Corporate Warranties. Each party hereby represents and warrants to
the other party that: (i) it is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was organized, (ii) the
person executing this Agreement on behalf of each party is duly authorized to
bind such party to all terms and conditions of this Agreement, (iii) this
Agreement, when executed and delivered by each party, will be the legal, valid,
and binding obligation of such party, enforceable against it in accordance with
its terms, and (iv) the execution, delivery and performance of this Agreement by
each party does not and will not conflict with or constitute a breach or default
under such party's charter documents, delegations of authority, or any material
agreement, contract or commitment of such party, or require the consent,
approval or authorization of, or notice, declaration, filing or registration
with, any third party or governmental or regulatory authority.
6.2 Infringement. PDF Solutions warrants that it is not aware of
infringement or alleged infringement of its deliverables under third parties'
valid worldwide intellectual property rights.
6.3 Disclaimer of Warranties. THE WARRANTIES STATED IN THIS SECTION 6
ARE THE PARTIES' SOLE AND EXCLUSIVE WARRANTIES PERTAINING TO THE SUBJECT MATTER
OF THIS AGREEMENT, AND EACH PARTY HEREBY
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR
FITNESS FOR A PARTICULAR PURPOSE. NOTHING UNDER THIS AGREEMENT, OR THE STATEMENT
OF WORK OR PROJECT SHALL BE DEEMED TO BE A WARRANTY AS TO THE OUTCOME OF ANY
PROJECT OR THE EFFICACY OF ANY RECOMMENDATIONS MADE BY PDF SOLUTIONS. NOTHING
UNDER THIS AGREEMENT OR THE STATEMENT OF WORK SHALL BE DEEMED TO CREATE ANY
LIABILITY ON THE PART OF EITHER PARTY WITH RESPECT TO THE OUTCOME OF A PROJECT
OR ANY ACTIONS TAKEN BY CUSTOMER OR THE PDF SOLUTIONS AS A CONSEQUENCE OF THE
OTHER PARTY'S RECOMMENDATIONS.
SECTION 7. INDEMNIFICATION. PDF Solutions shall defend or settle at PDF
Solutions' expense any claim ("Claim") brought against Customer that the
Services and Technology and/or any tangible or intangible delivered in
connection therewith impermissibly contains third party's proprietary rights,
trade secrets, or copyrighted materials or that Customer's use of any such
materials, as permitted hereunder by the ******** in the Permitted Field of Use,
infringes **************************; provided that such indemnification shall
not extend (a) to any infringement by Customer's designs or products, (b) to any
infringement resulting from any infringement contained in any technical data,
Manufacturing Designs, Mask Sets or materials or reports or information provided
by Customer. The indemnification obligations set forth in this Section 7 are
subject to the conditions that the Customer: (i) gives prompt written notice of
the Claim to the PDF Solutions, (ii) gives the PDF Solutions the exclusive
authority to control and direct the defense or settlement of such Claim,
provided that the PDF Solutions does not take any positions that may be
prejudicial to Customer and (iii) gives the PDF Solutions, at Customer's own
expense (except for the value of the Customer's employees' time), all reasonably
necessary information and reasonable assistance with respect to such Claim. PDF
Solutions shall pay all amounts paid in settlement and all damages and costs
awarded with respect to such Claim. PDF Solutions will not be liable for any
costs or expenses incurred without its prior written authorization. In the event
of any Claim under this Section 7, PDF Solutions shall have the option, at its
election, to (a) obtain a license to permit continued use of the allegedly
infringing item or practice, (b) modify the allegedly infringing item or
practice to avoid continued infringement provided the modified item or practice
is substantially equivalent, (c) procure or provide a substantially equivalent
substitute for the allegedly infringing item or practice or (d) if PDF Solutions
is unable to achieve (a), (b) or (c) after reasonable efforts, then PDF
Solutions may require that Customer cease use of the infringing item or practice
as soon as feasible and terminate this Agreement and refund all Incentive Fees
paid by Customer to PDF Solutions.
SECTION 8. LIMITATION OF LIABILITY
THE LIABILITY OF EITHER PARTY AND OF SUCH PARTY'S OFFICERS, DIRECTORS,
EMPLOYEES, CONTRACTORS AND AGENTS, TAKEN AS A WHOLE, WHETHER IN TORT, CONTRACT
OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR
PRODUCT LIABILITY OF SUCH PARTY OR OF ITS OFFICERS, DIRECTORS, EMPLOYEES, OR
AGENTS OR FAILURE OF ESSENTIAL PURPOSE, WITH REGARD TO ANY SERVICES OR OTHER
ITEMS FURNISHED UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE
COMPENSATION PAID BY CUSTOMER TO PDF SOLUTIONS HEREUNDER. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY CLAIM FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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CONSEQUENTIAL DAMAGES, COVER OR ANY LOSS OF DATA, PROFIT, REVENUE OR USE UNDER
ANY THEORY OF LAW OR FOR ANY CAUSE OF ACTION.
SECTION 9. EXPORT CONTROL
9.1 Both parties acknowledge that certain technical information
disclosed by PDF Solutions to Customer hereunder may be subject to the export
control laws or regulations of the U. S. A. PDF Solutions shall be responsible
for obtaining any export license required under such laws or regulations with
respect to the export of any Confidential Information, and shall promptly notify
Customer in writing the technical information which is subject to the
restrictions under such laws or regulations as well as the type of license to
have been obtained.
9.2 In the event that a Japanese governmental authorization is required
for the disclosure of technical information under this Agreement, Customer will
not disclose such information until Customer obtains such authorization.
SECTION 10. MISCELLANEOUS
10.1 Publicity. Neither party shall disclose the existence of or the
terms of this Agreement to any third party, or in any manner advertise or
publish statements to such effect, without the prior written consent and mutual
agreement as to the content, medium, and manner of the public announcement of
the other party. Notwithstanding the above, should one of the parties be
required by laws or regulations to disclose either the existence or terms of
this Agreement to a court of law, a governmental agency, an auditor, a bank, or
any person such party may do so without the prior written consent of the other
party provided that the disclosing party: (i) notifies the recipient of the
confidential nature of the information, (ii) requests confidential treatment of
such information, (iii) limits the disclosure to only such information as is
required under the circumstances, and (iv) delivers prompt notice to the other
party of such requested or actual disclosure.
10.2 Assignment. Neither party shall assign any portion of its rights,
duties, or obligations under this Agreement without the prior written consent of
the other party, which consent will not be unreasonably withheld or delayed,
provided that PDF Solutions may utilize the services of consultants and
subcontractors to perform hereunder with the prior written consent of Customer.
10.3 Changes. No modification to this Agreement will be binding unless
in writing and signed by a duly authorized representative of each party. Change
orders affecting any Scope of Services and Technology will not be effective
until reviewed and approved in writing by PDF Solutions and Customer. PDF
Solutions will submit to Customer a report on how the proposed changes will
affect the current Services and Technology including the effect on the time
schedule and cost estimates. The parties will have no obligation to proceed with
changed work until both parties have approved the change in writing.
10.4 Notices. All notices or corres-pondence pertaining to this
Agreement shall be in writing, delivered by either first class mail with receipt
or by facsimile with receipt. Such notice shall be effective upon the earlier of
actual receipt or the expiration of three business days following the date of
mailing, or such alternative address the parties may designate in the future.
10.5 Independent Contractors. PDF Solutions and Customer shall perform
their obligations under this Agreement as independent contractors, and nothing
contained in this Agreement shall be construed to create or imply a joint
venture, partnership, principal-agent or employment relationship between the
parties. Neither party shall take any action or permit any action to be taken on
its behalf which purports to be done in the name of or on behalf of the other
party and shall have no power or authority to bind the other party to assume or
create any obligation or responsibility express or implied
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on the other party's behalf or in its name, nor shall such party represent to
any one that it has such power or authority. Each party shall be responsible for
damages to tangible property or personal injury cause by the gross negligence or
willful misconduct of the employees or agents of such party.
10.6 Force Majeure. Neither party shall be liable to the other party for
any loss, damage, or penalty arising from delay to the extent due to causes
beyond its reasonable control including acts of God, acts of government, war,
riots, or embargoes.
10.7 Severability. If any term or provision of this Agreement is
determined to be invalid or unenforceable for any reason, it shall be adjusted
rather than voided, if possible, to achieve the intent of the parties to extent
possible. In any event, all other terms and provisions shall be deemed valid and
enforceable to the maximum extent possible.
10.8 Insurance. PDF Solutions shall carry Workers' Compensation and
Comprehensive General Liability Insurance (including Products, Contractual, and
Automobile Liability) having limits of liability not less than $1 million
combined single limit per occurrence for bodily injury, including death and
property damages, prior to performing any services on Customer's site.
10.9 Disputes. If any claim or controversy arises out of this Agreement,
the parties shall first make a good faith attempt to resolve the matter through
a designated executive officer. The officers having cognizance of the subject
matter of the Agreement for each of the parties shall first meet and make a good
faith attempt to resolve such controversy or claim. In the event such good faith
negotiation fails to settle any dispute within ********** days from notice of
such dispute, the controversy shall be settled by binding arbitration by one or
three arbitrators, (if three are used, each party shall select one, and the
third shall be selected by mutual agreement of the parties), conducted in Santa
Clara County, California, if Customer initiates the proceedings, and in Osaka,
Japan, if PDF Solutions initiates the proceeding, and in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and
judgment upon the award rendered by the arbitrator(s) may be entered by any
court having jurisdiction thereof. The arbitrator(s) shall not be empowered to
award damages in excess of, and/or in addition to, actual damages, and the
arbitrator(s) shall deliver a reasoned opinion in connection with his/her/their
decision. Nothing herein, however, shall prohibit either party from seeking
injunctive relief if such party would be substantially prejudiced by a failure
to act during the time that such good faith efforts are being made to resolve
the claim or controversy. In the event either party seeks injunctive relief, the
parties agree that jurisdiction will be before a state or district court seated
in Santa Clara County, California.
10.10 Governing Law. This Agreement and any and all disputes arising
hereunder shall be governed by the internal laws of the State of California,
without regard to choice of law principles. This Agreement is prepared and
executed and shall be interpreted in the English language only, and no
translation of the Agreement into another language shall have any effect. The
parties agree that the United Nations Convention on Contracts for the
International Sale of Goods (1980) is specifically excluded from and shall not
apply to this Agreement.
10.11 Waiver. The failure of any party hereto to enforce at any time any
of the provisions of this Agreement or to require at any time performance by the
other party of any of the provisions of this Agreement, or any part hereof,
shall not be construed to be a waiver of said provision or to effect the right
of any party to enforce each and every provision in accordance with the terms of
this Agreement.
10.12 Interpretation. In the event that any term of the Scope of
Services and Technology conflicts with the terms of this Agreement, the terms of
this Agreement shall take precedence.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
10
<PAGE> 11
10.13 Non-Solicitation. Customer shall not actively solicit or influence
or attempt to influence any person employed by PDF Solutions to terminate or
otherwise cease his or her employment with PDF Solutions or become an employee
of Customer. PDF Solutions shall not actively solicit or influence or attempt to
influence any person employed by Customer to terminate or otherwise cease his or
her employment with Customer or become an employee of PDF Solutions.
10.14 Drafter. Neither party will be deemed the drafter of this
Agreement, which Agreement will be deemed to have been jointly prepared by the
parties. If this Agreement is ever construed, whether by a court or by an
arbitrator, such court or arbitrator will not construe this Agreement or any
provision hereof against any party as drafter.
10.15 Entire Agreement. The parties acknowledge that PDF Solutions is
not providing or licensing to Customer under this Agreement any software
programs or products and anticipate that they will enter into a Software
Evaluation and/or Software License Agreement related to the subject matter
hereof. Such agreement shall also not be affected by this Agreement. Except for
such software agreements, this Agreement shall constitute the entire agreement
between the parties with respect to the subject matter hereof and: (i) shall
supersede all prior contemporaneous oral or written communications, proposals
and representations with respect to its subject matter, and (ii) shall prevail
over any conflicting or additional terms of any statement of work, quote, order
acknowledgment or similar communication between the parties during the term of
this Agreement.
10.16 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
10.17 Exhibits. Exhibits "A" and "B" attached hereto are incorporated
herein by this reference as if fully set forth herein.
PDF SOLUTIONS, INC., A CALIFORNIA CORPORATION
By: /s/ John K. Kibarian
--------------------------------
Name: John K. Kibarian
------------------------------
Title: President & CEO
-----------------------------
Date: **********
------------------------------
CUSTOMER
By: /s/ Seiji Ueda
--------------------------------
Name: Seiji Ueda
------------------------------
Title: Director
-----------------------------
Date: **********
------------------------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT "A" TO INTEGRATION TECHNOLOGY AGREEMENT
SCOPE OF SERVICES AND TECHNOLOGY
--------------------------------------------------------------------------------
PERMITTED FIELD OF USE
PDF Solutions agrees to provide Customer with **********************************
**************************************************************. The Agreement,
and all licenses granted by PDF Solutions to Customer under the Agreement,
extends only *******************************************************************
*********.
PROJECT PHASES & DESCRIPTION
The project is described below in the following three phases. Phases may be
amended upon written notice to more appropriately achieve the targeted project
goals.
<TABLE>
<CAPTION>
------------- ------------------------------------------------- ----------------------
PROJECT PHASE GENERAL WORK STEPS ESTIMATED DURATION
------------- ------------------------------------------------- ----------------------
<S> <C> <C>
********** *********************************************** **********
********** *********************************************** **********
*********************************************** **********
***********************************************
***********************************************
------------- ------------------------------------------------- ----------------------
********** *********************************************** **********
********** *********************************************** **********
*********************************************** **********
***********************************************
***********************************************
------------- ------------------------------------------------- ----------------------
********** *********************************************** **********
********** *********************************************** **********
*********************************************** **********
***********************************************
***********************************************
------------- ------------------------------------------------- ----------------------
</TABLE>
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT "A" TO INTEGRATION TECHNOLOGY AGREEMENT
SCOPE OF SERVICES AND TECHNOLOGY
--------------------------------------------------------------------------------
DELIVERABLES
PDF Solutions agrees to provide Customer the following deliverables:
<TABLE>
<CAPTION>
----------- ----------------------------------------------------------------
PHASE DELIVERABLE
----------- ----------------------------------------------------------------
<S> <C>
********** **************************************************************
********** **************************************************************
**************************************************************
----------- ----------------------------------------------------------------
********** **************************************************************
********** **************************************************************
**************************************************************
----------- ----------------------------------------------------------------
********** **************************************************************
********** **************************************************************
**************************************************************
----------- ----------------------------------------------------------------
</TABLE>
PROJECT ACCOUNTABILITY
PDF Solutions will maintain an engagement manager to lead the project effort
throughout the duration of the project. PDF Solutions' engagement manager
currently assigned to the project is **********. Customer will also maintain a
project leader to lead the project effort and Customer team. ********** will
serve as the primary point of contact for Customer's project leader or other
Customer representatives regarding project status and updates.
REPORTS AND DOCUMENTATION
PDF Solutions agrees to provide at minimum ***** updates to Customer's Project
Leader. PDF Solutions will provide a formal presentation at the conclusion
***************.
REQUIREMENTS FROM CUSTOMER
To assist in the success completion of the project, Customer's cooperation to
support the following as reasonably required by PDF Solutions:
- Business Resources: Secure and private office space (with 24 hour access) and
other customary and reasonable business resources as required. Reasonable and
customary communication and business resources including, but is not limited
to, international access telephones, multiple analog lines, international
access fax machines and access to a photocopier.
- Computing Resources: Customary and reasonable computing resources as required.
- CVs: Customer agrees to run PDF Solution's characterization vehicles.
- Engineering Resources: Customer's engineering resources as required.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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GENERAL
Customer agrees to pay *** types of fees associated with the services and
technologies rendered with the Integration Technology Agreement.
1. A fixed fee ("Fixed Fee") component, and
2. **********
FIXED FEE
PDF Solutions shall invoice Customer the Fixed Fee on a monthly basis. The Fixed
Fee rates will be as follows:
1. *****************************************************************************
******************************************.
2.
Customer shall pay such invoices in accordance with this Agreement. If the term
of this Agreement is extended with prior written approval, both parties may
elect to continue services under this Agreement at a Fixed Fee ***************.
INCENTIVE FEE
PDF Solutions may earn **************** as follows:
<TABLE>
<CAPTION>
--- -------------- -------------- ------------------------------------------
INCENTIVE FEE INCENTIVE FEE INCENTIVE FEE MILESTONE OBJECTIVE(S)
DUE DATE AMOUNT
--- -------------- -------------- ------------------------------------------
<S> <C> <C> <C>
1 ********** ***** ***************************************
***************************************
***************************************
***************************************
--- -------------- -------------- ------------------------------------------
2 ********** ***** ***************************************
* ***************************************
***************************************
***************************************
--- -------------- -------------- ------------------------------------------
3 ********** ***** ***************************************
* ***************************************
***************************************
***************************************
--- -------------- -------------- ------------------------------------------
</TABLE>
**************************************
Customer's obligation to pay the Incentive Fee shall be contingent on
satisfaction of the applicable milestone objective(s). PDF Solutions cannot
pre-earn any incentive; each milestone must be achieved during the time frame
applicable to such incentive payment. Should conditions beyond the control of
PDF Solutions result in an inability to achieve incentive(s) including, but not
limited to, delays in Customer
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 15
process roll-out plans, both parties agree to adjust either the Incentive Fee
milestones, Incentive Fee deadlines or both as required.
PRODUCT VOLUME EXCLUDED FROM INCENTIVE FEE CALCULATIONS
The following wafers shall be excluded from the calculation of the defect
density in determining Incentive Fees:
- Mis-processed wafers
- Wafers adversely affected by equipment failures or malfunctions
- Wafers adversely affected by non-qualified PM (preventative maintenance)
adjustments. Non-qualified means new equipment introduced but not verified to
process tolerances. Customer and PDF Solutions agree to review the
qualification process within forty-five (45) days of Effective Date. Customer
may elect not to make any changes suggested by PDF Solutions that are deemed
unreasonable or beyond Customer's control.
- Zero yielding wafers traceable to equipment failures, malfunction, or PM cycle
dependency.
- Operator errors
- Mishandled wafers during processing or test.
- Scrapped wafers
- Failures caused by tester malfunction, test program inadequacy, or measuring
beyond the capability of the tester.
If products under this Agreement contains a design *****************************
**************************************************
********************************************************************************
********************************************************************************
********************************************************************************
********************************************************************************
Wafers included or excluded in the yield calculations may be modified provided
both Customer's designated Project Manager and PDF Solutions' designated
Engagement Manager agree to the modifications in writing.
YIELD MODEL
For the purposes of this Agreement, the yield model equation used in determining
Incentive Fees when appropriate will be the ************************************
******************************.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
