Exhibit 10.58*
* Confidential treatment has been granted or requested with
respect to
portions of this exhibit, and such confidential portions have been
deleted
and separately filed with the Securities and Exchange
Commission.
CUSTOM SALES AGREEMENT
IBM
BASE AGREEMENT
International Business Machines
Corporation
1000 River Street, 967Q
Essex Jct., VT 05452
Signature
Version
Agreement
No. 003637
CUSTOMER: RAMTRON INTERNATIONAL CORPORATION
1850
RAMTRON DRIVE
COLORADO SPRINGS, CO 80921
This Custom Sales Agreement between Customer and International
Business
Machines Corporation ("IBM"), which consists of this Base Agreement
and
Statement of Work Attachments, will be referred to as the
"Agreement". The
term of this Base Agreement commences on the date identified below
by the
second party to sign this Base Agreement; however, if Customer
fails to
identify a date of signing, the term of this Base Agreement
commences on the
date of signing identified by IBM. The term of this Base
Agreement expires
on December 31, 2016.
By signing below, the parties each agree to be bound by the terms
and
conditions of this Agreement. Statement of Work Attachments under
this
Agreement must be signed by the parties to become
effective.
This Agreement is the complete agreement regarding transactions
covered by
this Agreement, and replaces any prior oral or written
communications between
Customer and IBM with respect to such transactions. In
entering into this
Agreement, neither party is relying on any representation that is
not
specified in this Agreement including without limitation any
representations
concerning: (a) estimated completion dates, hours, or charges to
provide any
Service, Product or Prototype; (b) performance or function of any
Product,
Prototype or system, other than as expressly warranted in this
Agreement;
(c) the experiences or recommendations of other parties; or (d)
results or
savings Customer may achieve. Additional or different terms
in any written
communication from Customer, except for those written
communications that the
parties have expressly agreed in this Agreement to have an effect
between the
parties (such as the quantities and part numbers specified in a
purchase
order) are void. This Agreement may not be amended or modified
except by a
written amendment signed by duly authorized signatories of both
parties.
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ACCEPTED AND AGREED TO:
Ramtron International Corporation
By: /s/ Bill Staunton
-------------------------
Bill Staunton
Authorized Signature
Name: Bill Staunton
Title: Chief Executive Officer
Date: February 9, 2009
International Business Machines Corporation
By: /s/ John G. Beiswenger
--------------------------
John G. Beiswenger
Authorized Signature
Name: John G. Beiswenger
Title: Executive Manager, WWC&BP, IBM Microelectronics
Division/STG
Date: February 9, 2009
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1.0 DEFINITIONS
Capitalized terms in this Agreement have the following
meanings. An
Attachment may define additional terms; however, those terms apply
only to
that Attachment.
1.1 "Item" means any part, specification, design, document,
report, data or
the like which is owned, or licensed from a third party, by
Customer or which
Customer delivers to IBM under this Agreement.
1.2 "Product" means production units to be sold or purchased
under this
Agreement. Products do not include Prototypes.
1.3 "Prototype" means a preliminary version of a Product which is
intended
for internal use and testing and not for resale, and is not
suitable for
production in commercial quantities but which Customer may deliver
to
potential customers without charge for sampling purposes only.
1.4 "Service" means any manufacturing activity or design, or
engineering
work IBM performs.
1.5 "Shipment Date" means IBM's estimated date of shipment
for Products or
Prototypes.
2.0 AGREEMENT STRUCTURE
2.1 This Agreement consists of (a) the Base Agreement, which
defines the
basic terms and conditions of the relationship between the parties
and
(b) Attachments, which specify the details of a specific work
task. If there
is a conflict among the terms and conditions of the various
documents,
Attachment terms and conditions govern.
2.2 Except for Product part numbers, part number
descriptions, prices,
quantities, and Shipment Dates, purchase orders and acknowledgments
will be
used to convey information only and any terms and conditions on
those are
void and replaced by this Agreement.
2.3 For all orders submitted by Customer during the term of
this Agreement
for IBM Microelectronics Division products, prototypes, or
services, it is
agreed that all such orders will incorporate the terms of this
Agreement,
whether expressly referenced or not, and will only be accepted
subject to the
terms of this Agreement, which will govern and control, unless
there is
another signed, written agreement to the contrary in place between
IBM and
Customer with respect to the subject matter of the order. The
foregoing will
be in effect regardless of whether Customer and IBM have executed
any
Attachment specific to the products, prototypes, or services
ordered.
3.0 ORDER AND DELIVERY
3.1 Customer will issue written purchase orders to request
Products,
Prototypes and Services. Customer will identify its desired
shipment date(s)
in each order it submits for Products or Prototypes. IBM will
identify the
Shipment Date(s) in its order acknowledgment. Accepted purchase
orders will
be governed by the terms of this Agreement.
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3.2 Customer is responsible for all freight and duty charges
from IBM's
shipping location. Title and risk of loss pass to the Customer upon
IBM's
tender to the carrier for shipment to the Customer from IBM's
shipping
location.
4.0 CUSTOMER'S USE OF PRODUCTS
Customer represents and warrants that:
4.1 Products will be (a) integrated or incorporated into
systems sold under
Customer's logo or trade name unless otherwise specified by IBM in
writing or
(b) distributed in incidental additional quantities for use as
service or
upgrade parts in systems Customer has sold. Customer may also
use up to 5%
of the Products internally.
4.2 Customer will not knowingly integrate, promote, sell, or
otherwise
transfer any Product to any customer or end user for use in any
applications
where it is reasonably foreseeable that failure of the Product as
used in
such application(s) would lead to death, bodily injury, or
catastrophic
property damage. Examples of such applications may include,
without
limitation, certain uses in nuclear facilities, air traffic
control, weapon
systems, direct life support machines, aeronautical or
automotive
applications.
5.0 CANCELLATION AND RESCHEDULING
5.1 It is IBM's objective to fill any order it accepts.
However,
notwithstanding any other provision in this Agreement, in the event
that
IBM's ability to supply Product becomes constrained, IBM may, as
IBM deems
reasonable, reduce quantities or delay deliveries to
Customer.
5.2 Customer may cancel or reschedule an order upon prior
written notice to
IBM. In the event of a cancellation or a reschedule that exceeds
the
rescheduling rights set forth in the applicable Attachment, the
cancellation
or reschedule charge in the applicable Attachment will apply.
In the event
no Attachment governing the Product(s) at issue has been executed,
the
cancellation charges set forth in the most recent quote issued by
IBM
governing the Products or Services at issue will apply.
6.0 PAYMENT
6.1 Prices will be as set forth in an applicable Attachment. IBM
will invoice
Customer after the Products or Prototypes have been shipped from
IBM's
shipping location or the Services provided. Customer will pay
the full
amount of the invoice within thirty (30) days of the invoice date
via
electronic funds transfer (e.g., wire or electronic data
interchange),
provided however, and notwithstanding any other provision of the
Agreement,
that IBM will have the right, in its sole discretion, to require
payment
before its acceptance of a purchase order or delivery, or payment
via letter
of credit, if Customer fails to comply with applicable credit terms
or limits
or this Agreement or IBM determines that Customer's credit rating
warrants
such action. IBM may stop deliveries to Customer if Customer
does not comply
with applicable credit terms or limits or this Agreement. IBM
may charge
Customer interest on any overdue payment, calculated from the date
payment
was due until the date payment is made, at the rate of 1.5% per
month or the
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maximum legal rate under applicable law, whichever is less.
If IBM issues an
invoice for such interest, Customer will pay the invoice in
accordance with
this Section 6.1.
7.0 TAXES
7.1 Customer is responsible for all taxes related to
Products, Prototypes
and Services except for taxes based on IBM's net income.
8.0 LIMITED WARRANTY
8.1 IBM warrants all Products to be free from material
defects in
workmanship and material. If Customer claims that any Product
does not
conform to this warranty, Customer must notify IBM in writing of
such claim
within thirty (30) days from the date IBM delivered the Product
(unless
otherwise stated in an Attachment applicable to such Product) and
comply with
Section 8.3. IBM does not warrant uninterrupted or error free
operation of
Products or that IBM will correct all defects.
8.2 IBM's sole liability and Customer's sole remedy for
breach of warranty
will be limited as stated in this Section 8 and Section 12, and in
applicable
Attachments.
8.3 To make a warranty claim, Customer must (a) provide
the written notice
required by Section 8.1 promptly after learning of a Product
defect, and
identify the defect(s) in the notice, (b) follow IBM's Return
Materials
Authorization instructions for return of the Product, and (c) at
IBM's
request, return the Product freight collect to the IBM designated
location.
8.4 If IBM determines such Product does not meet the
warranty, IBM will, at
its option, repair or replace the Product or issue a credit at the
purchase
price. Every returned Product that IBM replaces, or for which
IBM issues a
credit, will become IBM's property. This warranty does not cover
Products
that are defective because of any of the following: (a) accident,
abuse,
misuse, negligence, modification, or improper maintenance; (b)
failure caused
by a product that IBM did not provide or for which IBM is not
responsible; or
(c) use or storage in other than IBM's specified operating
environment. This
warranty is void if Product labels or markings have been removed or
altered.
8.5 This warranty is not transferable. No course of
dealing, course of
performance, usage of trade, or description of any Product,
Prototype or
Service will be deemed to establish a warranty, express or
implied.
8.6 ALL PROTOTYPES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR
INDEMNIFICATION
OF ANY KIND BY IBM.
8.7 THE FOREGOING WARRANTIES ARE CUSTOMER'S EXCLUSIVE
WARRANTIES AND REPLACE
ALL OTHER WARRANTIES OR TERMS, EXPRESS OR IMPLIED, INCLUDING THE
WARRANTY OF
NON- INFRINGEMENT AND NON-INTERFERENCE AND THE IMPLIED WARRANTIES
OR TERMS OF
MERCHANTABILITY, FITNESS OR USAGE FOR PARTICULAR PURPOSE.
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9.0 PATENTS AND COPYRIGHTS
9.1 If a third party claims that a Product IBM provides to
Customer
infringes that party's patent or copyright, IBM will defend
Customer against
that claim at IBM's expense and pay all costs, damages, and
attorney's fees
that a court finally awards, or any applicable settlement amount
that IBM
negotiates, provided that Customer does the following:
(a) promptly notifies IBM in writing
of the claim against Customer; and
(b) allows IBM to have sole control,
and reasonably cooperates with IBM
in the
defense and any related settlement negotiations. Customer
may
participate in such defense at Customer's own expense.
If such a claim is made or appears likely to be made, Customer
agrees to
permit IBM to enable Customer to continue to use the Product, to
modify it,
or replace it with one that is at least functionally
equivalent. If IBM
determines that none of these alternatives is reasonably available,
Customer
agrees to return the Product to IBM upon written request. IBM
will then
provide Customer a credit equal to the amount the Customer paid for
the given
Product. However, unless otherwise required by a court order,
such
modification, replacement, or return will be limited to only those
Product(s)
that are under the reasonable control of the Customer.
This is IBM's entire obligation to Customer regarding any claim
of
infringement.
9.2 IBM will have no obligation regarding any patent or
copyright claim
based on any of the following:
(a) any Item;
(b) Customer's modification of a
Product;
(c) the combination, operation, or
use of a Product with any product,
data, or
apparatus that IBM did not provide with the Product; or
(d) infringement by a non-IBM
product alone, as opposed to its
combination
with Products IBM provides to Customer as a system.
9.3 If a third party claims that a Product IBM provides to
Customer
infringes that party's patent or copyright, and such claim is based
upon any
of the factors specified in Section 9.2, Customer will defend IBM
against
such claim at Customer's expense and pay all costs, damages, and
attorney's
fees that a court finally awards, or any applicable settlement
amount that
Customer negotiates, provided that IBM does the following:
(a) promptly notifies Customer in
writing of the claim against IBM; and
(b) allows Customer to have sole
control, and reasonably cooperates
with
Customer, in the defense and any related settlement
negotiations. IBM may participate in such defense at IBM's
own
expense.
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10.0 LICENSE DISCLAIMER
10.1 No license, immunity or other right is granted herein to
either party,
whether directly or by implication, estoppel, or otherwise, with
respect to
any patent, trademark, copyright, mask work, trade secret, utility
model,
know-how, or other intellectual property rights.
11.0 TRADEMARK
11.1 Nothing in this Agreement grants either party any rights
to use the
other party's trademarks or trade names, directly or indirectly,
in
connection with any product, prototype, service, promotion,
publication or
publicity without prior written approval of the other party or
trademark or
trade name owner.
12.0 LIMITATION OF LIABILITY
12.1 Circumstances may arise where, because of a default on
IBM's part or
other liability, Customer is entitled to recover damages from
IBM. In each
such instance, regardless of the basis on which Customer is
entitled to claim
damages from IBM (including fundamental breach, negligence,
misrepresentation, or other contract or tort claim), the following
terms
apply as Customer's exclusive remedy and IBM's exclusive
liability. IBM is
liable for no more than the following:
(a) payments referred to in the
patents and copyrights terms above in
Section
9.1;
(b) damages for bodily injury
(including death) and damage to real
property and
tangible personal property; and
(c) the amount of any other actual
direct damages up to the greater of
(i) the
charges for the Product or Service that is the subject of
the claim or
(ii) U.S. $100,000 (or equivalent in local currency).
This limit also applies to any of IBM's subcontractors. It is
the maximum
for which IBM and its subcontractors are collectively
responsible.
12.2 Under no circumstances is IBM, or its subcontractors,
liable for any of
the following even if informed of their possibility:
(a) third-party claims against
Customer for damages (other than those
under the
first two items listed in Section 12.1 above);
(b) loss of, or damage to, records
or data; or
(c) special, incidental, punitive or
indirect damages or for any
economic
consequential damages (including lost profits, business,
revenue,
goodwill or anticipated savings).
13.0 TERMINATION
13.1 If a party materially breaches a term of this Base
Agreement or an
Attachment, the other party may, at its option, terminate this
Agreement or
any or all Attachments provided the party in breach is given
written notice
and fails to cure such breach within thirty (30) days from the date
of the
notice. A party may terminate this Agreement immediately in
the event of (a)
insolvency, dissolution or liquidation by or against the other
party, (b) any
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assignment of the other party's assets for the benefit of
creditors, (c) any
act or omission of an act by the other party demonstrating its
inability to
pay debts generally as they become due, or (d) any transfer of
substantially
all of the other party's business or assets to a third party, other
than a
third party to which this Agreement is assigned pursuant to Section
17.4
below. If IBM has a reasonable basis to believe any of the
Items infringe an
intellectual property right of any third party, IBM may immediately
terminate
or suspend its obligations hereunder without liability as to
Products
relating to such Items.
13.2 If IBM terminates this Agreement or an Attachment in
accordance with
Section 13.1, IBM will be entitled to treat any or all applicable
outstanding
purchase orders as if cancelled by Customer and Customer will pay
(a) any
applicable cancellation charges, (b) IBM's cost of any components
procured by
IBM to fill Customer's purchase orders that IBM cannot otherwise
use, and
(c) any outstanding invoices. Monies owing IBM will become
immediately due
and payable.
13.3 If Customer terminates this Agreement or an Attachment
in accordance
with Section 13.1, IBM will fill all applicable previously accepted
purchase
orders for Products, but IBM will not be obligated to accept
further
applicable purchase orders after receiving notice.
13.4 This Base Agreement will continue after its termination
or expiration
with respect to any Attachments already in place until they expire,
are
terminated or completed. Provided that no monies are due IBM,
applicable
Items will be disposed of as directed by Customer in writing at
Customer's
expense after a termination or expiration.
14.0 EXPORT REGULATIONS
14.1 Customer agrees that Customer will act as the exporter
or importer of
the Products, Prototypes, and technical data. Customer
warrants that
Customer is in full compliance with all applicable export laws,
including
those of the U.S. Customer further agrees to comply with U.S.
prohibitions
on delivery of Products, Prototypes, and technical data and
providing
services to certain end users and for certain end uses as set forth
in the
U.S. Export Administration Regulations, including but not limited
to, the
following end uses/end users: nuclear facilities, space or missile,
and
weapons systems (including without limitation chemical and
biological).
14.2 For orders by non-U.S. customers who take delivery in
the United States
the following section will apply: Customer agrees that Customer
will
determine any export license requirements, obtain any export
license or other
U.S. Government export authorization, carry out any U.S. Customs
formalities,
and otherwise fulfill all relevant requirements for the export of
Products,
Prototypes, and technical data. Customer agrees that the
designation of IBM
as the U.S. principal party in interest to the export, and the use
by
Customer or its designated forwarding agent(s) of any information
supplied to
Customer by IBM will be used solely for completion of the Shipper's
Export
Declaration (or AES record). Customer agrees to provide to IBM, or
have its
forwarding agent(s) provide, a copy of every Shipper's Export
Declaration (or
AES record) in which IBM's Employer Identification Number is
used.
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14.3 In the event that IBM arranges for export or import,
Customer agrees to
provide all information necessary to determine all relevant
export
authorizations and to export and import the Products, Prototypes
and
technical data, including as applicable the Export Classification
Control
Number (ECCN) and subheadings, or munitions list category number,
and agrees
to assist with obtaining any required licenses and authorizations
and with
making any required filings. Customer will be fully responsible for
the
correctness of information provided by Customer and any use of it
to comply
with applicable regulations.
15.0 NOTICES
15.1 All communications and notices between the parties
concerning this
Agreement will be in writing given to the appropriate individual
listed in
the applicable Attachment, his/her successor or assignee, and will
be deemed
sufficiently made on the date personally served or sent in a manner
that
generates a reliable written receipt (e.g. via mail, facsimile or
electronic
data interchange). Communication by facsimile or electronic
data interchange
is acceptable as a "writing." The autographs of
representatives of the
parties, as received by facsimile or electronic data interchange,
will
constitute "original" signatures.
16.0 INDEPENDENCE OF ACTION
16.1 Each party agrees that this Agreement will not restrict
the right of
either party to enter into agreements with other parties for same
or similar
work, or to make, have made, use, sell, buy, develop, market or
otherwise
transfer any products or services, now or in the future, so long
as
confidential information is not disclosed or used, except as
otherwise
permitted in this Agreement.
17.0 GENERAL
17.1 Neither party may disclose the terms and conditions of this
Agreement to
any third party without the other party's prior written consent,
except
(a) as required by law, (b) to legal counsel of the parties,
accountants, and
other professional advisors, (c) in connection with the enforcement
of this
Agreement or rights under this Agreement, or (d) in confidence, in
connection
with an actual or prospective merger, acquisition, sale of assets
or similar
transaction. All other information exchanged between the
parties will be
considered nonconfidential, unless exchanged under a separate
confidentiality
agreement signed by the parties.
17.2 Except for Customer's obligation to pay, neither party
will be
responsible for failing to perform under this Agreement for acts of
God,
natural disasters, or other similar causes beyond its reasonable
control.
17.3 The validity, construction, and performance of this
Agreement will be
governed exclusively by the substantive laws of the State of New
York, United
States, as though this Agreement were executed in and fully
performed within
the State of New York and without regard to any conflict of laws
provisions.
The United Nations Convention on Contracts for the International
Sale of
Goods will not apply to this Agreement. Neither party will bring a
legal
action against the other more than
*** years after the cause of action
---------
Confidential Information (indicated by *** ) has been omitted and
filed
separately with the Securities and Exchange Commission.
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arose, except for actions for nonpayment or to enforce intellectual
property
rights. Both parties waive the right to a jury trial in any dispute
arising
out of this Agreement. Both parties agree that any action
concerning this
Agreement will be brought exclusively in a court of competent
jurisdiction in
the State of New York and hereby consent to the exclusive
personal
jurisdiction of any such court and to service of process in the
manner
provided for the giving of notices pursuant to this
Agreement. If,
notwithstanding the foregoing, a New York court's judgment is not
enforceable
against a party, the other party may bring such an action in any
court of
competent jurisdiction.
17.4 Except as provided below, neither party may assign or
transfer, in
whole or in part, by operation of law or otherwise, this Agreement,
or any of
its rights or obligations under this Agreement, without the prior
written
consent of the other party, and any such attempted assignment or
transfer
will be null and void. IBM may assign its rights to payment
to any third
party or subcontract its obligations under this Agreement, and
either party
may upon written notice to the other party, assign or transfer, in
whole or
in part, this Agreement and any of its rights and obligations
hereunder to
any third party that acquires all or substantially all of any
assets
(tangible or intangible) related to the development, manufacture,
use or sale
of Products,
***
.
17.5 No delay or failure by either party to act in the event
of a breach or
default hereunder will be construed as a waiver of that or any
subsequent
breach or default of any provision of this Agreement.
17.6 If any part, term or provision of this Agreement is
declared unlawful
or unenforceable by a court of competent jurisdiction, the
remainder of this
Agreement will remain in full force and effect.
17.7 The headings contained in this Agreement are for
reference purposes
only and will not affect in any way the meaning or interpretation
of this
Agreement.
17.8 Once signed by both parties, any reproduction of this
Agreement made by
reliable means (e.g. photocopy or facsimile) is considered an
original.
17.9 Any terms of this Agreement which by their nature extend
beyond
expiration or termination of this Agreement will remain in effect
until
fulfilled and will bind the parties and their legal
representatives,
successors, heirs and assigns.
17.10 This Agreement is in English language only, which will
be controlling
in all respects, and all versions hereof in any other language will
be for
accommodation only and will not be binding upon the parties
hereto. All
communications and notices to be made or given pursuant to this
Agreement
will be in English language.
17.11 This Agreement is not intended to and does not benefit
any party
except IBM and Customer. It is the parties' express intent
that this
Agreement is not a third party beneficiary contract.
---------
Confidential Information (indicated by *** ) has been omitted and
filed
separately with the Securities and Exchange Commission.
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17.12 Customer will not (a) make any representations or
warranties about
IBM, the work performed by IBM under the terms of the Agreement or
the
Products, Prototypes or Services other than those IBM specifically
authorizes
in writing or (b) take any action or make any commitment on IBM's
behalf.
17.13 Customer agrees to allow and to obtain any necessary
permissions to
allow IBM to store its contact information, such as names, phone
numbers, and
e-mail addresses, in any country where IBM does business and to use
such
information internally and to communicate with Customer for the
purposes of
Customer's and IBM's business relationship.
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SEMICONDUCTOR SERVICES ATTACHMENT NO. 1
TO CUSTOM SALES AGREEMENT NO. 003637
This Attachment is incorporated into Custom Sales Agreement No.
003637
("Agreement") as Attachment No. 1 ("Attachment"). The term of
this
Attachment commences on the date identified below by the second
party to sign
this Attachment; however, if Customer fails to identify a date of
signing,
the term of this Attachment commences on the date of signing
identified by
IBM (the "Effective Date") and will remain in effect until IBM
provides the
deliverables and Services in accordance with this Attachment,
unless earlier
terminated or extended in accordance with this Attachment or the
Agreement.
This Attachment is governed
