<DOCUMENT>
<TYPE>EX-10.1
<SEQUENCE>7
<FILENAME>ex10-1.txt
<DESCRIPTION>EXHIBIT 10.1
<TEXT>
<PAGE> 1
CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT 10.1
CONFIDENTIAL TREATMENT
PDF SOLUTIONS, INC. HAS REQUESTED
THAT THE MARKED PORTIONS OF THIS
DOCUMENT BE ACCORDED CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
INTEGRATION TECHNOLOGY AGREEMENT
THIS INTEGRATION TECHNOLOGY AGREEMENT ("this Agreement") is made and
entered into as of *** (the "EFFECTIVE DATE") by and between Philips
Semiconductors, a Netherlands corporation ("CUSTOMER") with a Tax Identification
Number of _________________, and PDF Solutions, Inc., a California corporation
("PDF SOLUTIONS") with a Tax Identification Number of 25-1701361.
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, and images of said
structures or circuit elements, historically or hereafter created or customized
by PDF Solutions for the purposes of creating a test
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CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
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.
"Foundry" refers to any facility Customer owns or operates to manufacture
products and any third party foundry with which Customer has a relationship that
manufactures products for Customer.
"Manufacturing Designs" refers to all non-public information relating to
Customer's manufacturing processes and integrated circuit designs (structures
and elements) used in connection with the CV to generate Raw Data.
"Mask Set" refers to translucent glass plates used as a light filter to transfer
designs onto a wafer.
"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 international intellectual property,
unfair competition or trade secret laws.
"PDF Technology" refers to all historically, or hereafter developed
methodologies, techniques, software, designs, CVs, problem solving processes and
practices utilized by PDF Solutions, and any modifications, compilations or
works derivative of the foregoing, excluding know-how, methodologies, techniques
or practices that are commonly known or that Customer independently has the
right to use.
"Raw Data" shall mean the data generated by PDF Solutions using the CV in
conjunction with Customer's Manufacturing Design.
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 on ***, unless sooner terminated in accordance with
Sections 1.2 or 1.3.
1.2 Termination Without Cause. Either party may upon 120 days prior
written notice to the other party, at any time and/or for any reason, terminate
this Agreement. In such case, Customer shall pay PDF Solutions all Fixed Fees
(as defined in EXHIBIT "B" attached hereto) payable at the effective date of
such termination, all Reimbursements (as
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defined below) incurred through the effective date of such termination and all
Incentive Fees and Gainshare Fees (as defined in EXHIBIT "B") that would
otherwise have been earned had this Agreement not been terminated; provided that
should PDF Solutions exercise its right to terminate this Agreement under this
Section 1.2 prior to the end of the term PDF Solutions shall thereby forfeit any
and all right it may have in any Incentive Fee, Gainshare Fee (as defined in
EXHIBIT "B" attached hereto) other than Incentive Fees and Gainshare Fees earned
based upon work completed prior to the effective date of such termination.
1.3 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 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 1.3, 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 and
Gainshare Fees that would otherwise have been earned had this Agreement not been
terminated.
1.4 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) and 9 (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 AND TECHNOLOGY
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 sole discretion and control of PDF
Solutions.
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 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
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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 specified in
EXHIBIT A 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 Foundry completing certain tasks or adhering to
certain schedules within Customer's control. Consequently, the schedule for
completion of the services specified in EXHIBIT A or any portion thereof 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 delays in the provision of services specified in EXHIBIT A or any portion
thereof proximately caused by failure by Customer or a third party Foundry to
complete a reasonable task or adhere to a reasonable schedule.
2.5 Right to Perform Services for Others. Customer acknowledges that PDF
Solutions has extensive expertise, experience, technology and proprietary
products and tools in the area of electronic design and yield improvement and
that PDF Solutions intends to utilize such expertise, experience, products and
tools in providing consulting services and other services to other clients.
Subject to PDF Solutions' compliance with the confidentiality provisions stated
herein, nothing in this Agreement shall restrict or limit PDF Solutions from
providing integration technology or services to any other entity in any
industry, including the semiconductor and electronics industries. Customer
agrees that, except as otherwise agreed in this Agreement, PDF Solutions and its
employees may provide design consulting services similar in nature to the
Services and Technology for any third parties both during and after the term of
this Agreement. Subject to the limitations placed on PDF Solutions by this
Agreement, PDF Solutions may in its sole discretion develop, use, market,
license, offer for sale, or sell any software, application or product that is
similar or related to that which was developed by PDF Solutions for Customer
hereunder.
SECTION 3. PAYMENT FOR SERVICES AND TECHNOLOGY
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
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CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
("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 the
designated individual(s) set forth in EXHIBIT "C" attached hereto.
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. Invoices shall be mailed to:
Philips Semiconductors
9651 Westover Hills Blvd.
San Antonio, TX 78251
Attn: ********
3.4 Payment of Invoices. All payments by Customer hereunder shall be
made by corporate or other check. All invoices shall be due and payable within
thirty (30) days 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
shall give 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 and all Proprietary Rights in the Analysis,
Manufacturing Design and the Raw Data; and
(c) Customer is the exclusive owner of Mask Sets.
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CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
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 and the
Proprietary Rights in the Analysis, Manufacturing Designs and Raw Data, and in
the Mask Sets.
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 and its subsidiaries, ***************
license ***** 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 in connection with the development, manufacture
and fabrication of integrated circuit products of Customer and its
majority-owned subsidiaries. The foregoing license includes all PDF Technology
disclosed by PDF Solutions in its work for Customer hereunder (including
methodologies or practices observed by Customer personnel in the course of PDF
Solutions' work hereunder); provided, however, that specifically excluded from
this license of PDF Technology is any and all software or software tools or
software manuals and documentation. Customer shall be bound by and shall cause
its sublicensees to be bound by the confidentiality obligations contained in
Section 5 or obligations at least as restrictive as the confidentiality
obligations contained in Section 5. Except as specifically provided herein,
Customer shall not disclose or license PDF Technology to any third party.
Customer understands that PDF Solutions will not disclose to Customer certain
proprietary methods or trade secrets in connection with the services to be
rendered by PDF Solutions hereunder. To this end, PDF Solutions retains the
right to take industry standard measures to keep such proprietary methods or
trade secrets from Customer, unless the same defeats or substantially impedes
the Scope of Services and Services and Technology under Section 2 of this
Agreement.
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:
(a) to incorporate Customer's Manufacturing Designs in CVs at any
time during the term solely for the purpose of performing under this Agreement;
(b) to use, copy, compile, manipulate, analyze or reproduce Raw
Data and the Mask Sets solely for the purpose of performing under this
Agreement; and
(c) to use and rely upon Raw Data and Analysis from any Foundry
for any purpose, including with other customers of PDF Solution. PDF Solutions
shall be bound by and shall cause its sublicensees to be bound by the
confidentiality obligations contained in Section 5 or obligations at least as
restrictive as the confidentiality obligations contained in Section 5. Customer
will, in good faith, work with PDF Solutions
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and third party Foundry to encourage third party Foundry to provide any required
consents or licenses in accordance with this Section 4.
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.
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 other confidential information if it is marked 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 software 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 five years 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
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supported by reasonable contemporary evidence, (5) becomes 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
******** years thereafter. Disclosing party assumes no responsibility or
liability whatever under this Agreement for any use of Confidential Information
by the recipient or its sublicensees, customers or 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 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.
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 U.S. 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
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PARTY HEREBY 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 PARTIE'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, infringes any
United States patent; 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 adopt 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
and Gainshare 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
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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 SERVICE PROVIDER
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 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. MISCELLANEOUS
9.1 Publicity. Neither party shall disclose 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.
Customer agrees during the term to work in good faith with PDF Solutions to
produce five mutually acceptable public announcements of PDF Solutions'
engagement with Customer under this Agreement. Notwithstanding the above, should
one of the parties be required to disclose either the existence or terms of this
Agreement to a court of law, a governmental agency, an auditor or a bank, 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.
9.2 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.
9.3 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 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
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.
9.4 Notices. All notices or correspondence 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
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CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
days following the date of mailing to the addresses as follows, or such
alternative address the parties may designate in the future:
To Customer:
Philips Semiconductors
9651 Westover Hills Blvd.
San Antonio, TX 78251
Attn: *************
Tel: (210) 522-7010
Fax: (210) 522-7301
To PDF Solutions:
PDF Solutions, Inc.
333 West San Carlos Street
Suite 700
San Jose, CA 95110
Attn: Chief Financial Officer
Tel: (408) 938-6445
Fax: (408) 938-6478
9.5 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 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.
9.6 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.
9.7 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.
9.8 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 site at Foundry.
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9.9 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 sixty (60) 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 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 either Santa Clara County,
California.
9.10 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.
9.11 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.
9.12 Interpretation. In the event that any term of the Scope of Services
conflicts with the terms of this Agreement, the terms of this Agreement shall
take precedence.
9.13 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.
9.14 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.
12
<PAGE> 13
9.15 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.
9.16 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.
9.17 Exhibits. Exhibits "A," "B," and "C" attached hereto are
incorporated herein by this reference as if fully set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Services
Agreement as of the date(s) set forth below to be effective as of the Effective
Date.
PDF SOLUTIONS, INC., A CALIFORNIA CORPORATION PHILIPS SEMICONDUCTORS
By: /s/ PS Melman By: /s/ David N. Ledvina
----------------------------------------- ---------------------------
Name: PS Melman Name: David Ledvina
--------------------------------------- -------------------------
Title: CFO Title: VP - General Manager
-------------------------------------- ------------------------
Date: 6/15/00 Date: 6/14/00
--------------------------------------- -------------------------
13
<PAGE> 14
CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
STATEMENT OF WORK
for
************
Philips Semiconductor, Inc. - ********
SCOPE: THIS STATEMENT OF WORK (SOW) DESCRIBES TASKS TO BE PERFORMED BY
PDF SOLUTIONS INC. IN COLLABORATION WITH PHILIPS SEMICONDUCTOR, INC. - ********.
AS INDICATED BELOW, IT IS THE GOAL OF THIS EFFORT TO GENERATE A CHARACTERIZATION
VEHICLE (CV) FOR A SCALABLE _ FLOW FRONT-END AND SUPPORT FOR PHILIPS'
***************.
1. PROJECT PLAN
1.1 Phase I *****************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
- ********
- ********
- ********
- ********
- ********
- ********
1.2 Phase II ****************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
1.3 Phase III ******************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
1.4 Phase IV *******************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
****************************************************************
******************
14
<PAGE> 15
CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
2. PROJECT MILESTONES
<TABLE>
<CAPTION>
STEP DESCRIPTION PHASE DELIVERABLE DATE*
---- --------------------------- ----- ----------- ---------------
<S> <C> <C> <C> <C>
0 Project Start Date N/A N/A TBD
1 ************* I Start date plus
********************** ********
******** **************
**************************
******
2 ************ I 0 Step 1 plus
********
3 ************************ II 0 Step 2 plus
************************ ********
4 ************************** II 0 Step 3 plus
************************** ********
5 ************************** III 0 TBD
**************************
********
6 *********************** III TBD
7 **************************** IV Step 6 plus
********
8 ************************** IV 0 Step 7 plus
************************** ********
***********
</TABLE>
3. DELIVERABLES
The deliverables are itemized below:
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
***********************************************************************
********.
15
<PAGE> 16
CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
1 COMPENSATION
1.1 Service Fees for this IP and service will be ******** for the CV
and initial full support plus ******** per month for on-going
support.
1.1.1. The initial support period will last for *************
The start of the ************ support period will
commence after **************************************
*****************************************************
****************************** whichever occurs first.
1.2 Philips will reimburse all authorized travel by PDF Solutions up
to a limit of ***********.
1.3. CV and CVA License Fees
1.3.1. NRE: CV (GDSII) and associated analysis - included in
fixed fee.
1.3.2. CV use in ******** for ************* technology -
included in fixed fee.
1.4. Other expenses to be paid by Philips include ***************
cost.
16
<PAGE> 17
CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE SUCH OMISSIONS.
Philips Semiconductors
9651 Westover Hills Blvd.
San Antonio, TX 78251
Attn: ********
Tel: (210) 522-7010
FAX: (210) 522-7301
PDF Solutions
101 West Renner RD
Suite 325
Richardson, TX 75082
Attn: ********
Tel: (972) 889-3085 ext. 208
FAX: (972) 889-2486
</TEXT>
</DOCUMENT>