CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM
THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
Exhibit 10.3
Semiconductor Custom
Manufacturing Attachment No. 2
Custom Sales Agreement
No. 000569
When signed by the parties where
provided below, this Attachment shall be incorporated into Custom
Sales Agreement No. 000569 as Semiconductor Custom
Manufacturing Attachment No. 2(“Attachment”) and
shall be effective as of the date identified below by the second
party to sign this Attachment (the “Effective Date”);
however, if Customer fails to identify a date of signing, then the
Effective Date shall be the date of signing identified by
IBM.
Attachments are governed by the
terms and conditions of the Base Agreement.
Statement of Work
Unique Terms and
Conditions
The following terms and conditions
are applicable to this Attachment only. Referring to the Base
Agreement:
(a) Modify the following terms
and conditions:
Delete Section 4.1 in its
entirety and replace it with the following:
4.1 [***] . Products will be:
(1) integrated or incorporated into systems sold by Customer
unless otherwise specified by IBM in writing; or
(2) distributed in incidental additional quantities for use as
service or upgrade parts in systems Customer has sold.
Delete Section 5.3 in its
entirety.
Delete Section 8.1 in its
entirety and replace it with the following:
8.1 IBM warrants that each unit of
Product will be free from defects in material and workmanship for
[***] after delivery. For purposes of this provision only,
delivery to Customer of each unit of Product is deemed to occur
five (5) calendar days after shipment from IBM. This warranty
does not include repair of damage resulting from failure to provide
a suitable installation environment, any use for other than the
intended purpose, accident, disaster, neglect, misuse,
transportation, alterations, or non-IBM repairs or activities.
Customer acknowledges that the functionality of Products is
contingent on Customer’s designs and, therefore, such
warranty does not apply to the functionality of Products fabricated
under this Agreement. IBM warrants Services will be performed using
reasonable care and skill.
Delete Section 8.4 in its
entirety and replace with the following:
8.4 If IBM determines such Products
do not meet the warranty, IBM will, at its option, repair or
replace the Products or issue a credit in accordance with the
purchase price. Every returned Product that IBM replaces, or for
which IBM issues a credit, will become IBM’s property and
will be destroyed. This warranty is void if Product labels or
markings have been removed or altered.
Delete Section 13.2 in its
entirety and replace it with the following:
13.2 If IBM terminates this
Agreement or an Attachment pursuant to Section 13.1, IBM shall
be entitled to treat any or all applicable outstanding purchase
orders as if cancelled by Customer and Customer shall pay
(i) the quoted price applicable for any affected Products
and/or Services delivered or ready for shipment, and (ii) the
cancellation charges set forth in the applicable Attachment or
Attachments. Monies owing IBM shall become immediately due and
payable.
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Custom Sales
Agreement No. 000569
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Microtune,
Inc.
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Attachment No.
2
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Page 1 of 5
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[***] CONFIDENTIAL TREATMENT
REQUESTED BY MICROTUNE, INC.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM
THIS EXHIBIT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND
HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
1.1 IBM will manufacture photomasks
and Products in accordance with Part A of this
Attachment.
1.2 Customer will provide IBM with
the Customer’s Items and cooperate with IBM to enable IBM to
perform foundry services in accordance with this
Agreement.
The term of this Attachment expires
on August 30, 2011.
3.1 Customer may, at any time and
from time to time, by written notice to IBM, request changes to the
part numbers, specifications, or work scope. IBM will submit a
written report to Customer setting forth the probable effect, if
any, of such requested change on prices, payment or delivery. IBM
shall not proceed with any change until authorized in writing by
Customer. The parties shall promptly amend this Attachment to
incorporate any agreed changes.
3.2 IBM may implement engineering
changes required to satisfy governmental standards, protect Product
or system integrity, or for environmental, health or safety reasons
(“Mandatory Engineering Changes”). If requested by IBM,
Customer will use reasonable efforts to incorporate such changes in
Products already shipped by IBM. Except for Mandatory Engineering
Changes, IBM shall give Customer prior notice of engineering
changes affecting form, fit or function of a Product, provided that
Customer has and maintains access to the tool used by IBM to notify
customers of engineering changes electronically and provided that
Customer has purchased such Product within the two-year period
preceding the engineering change.
4.1 Customer shall provide
IBM’s customer account representative with a Product demand
forecast, which shall cover a minimum of twelve (12) months
broken out by Product and month. By the fifth (5th) day of
every month during the term of this Attachment, Customer will
provide IBM’s customer account representative with an updated
Product demand forecast covering a rolling twelve (12) month
period (not to extend beyond the term of this Attachment), which
will be reviewed for approval by IBM within ten (10) days of
receipt by IBM. Forecasts shall constitute good faith estimates of
Customer’s anticipated requirements for Products but shall
not contractually obligate IBM to supply, nor contractually
obligate Customer to purchase, the quantities of Product set forth
in such forecasts.
4.2 Customer will request delivery
of Products by issuing written purchase orders to IBM. IBM will
notify Customer of its acceptance or rejection of a purchase order
within seven (7) days of receipt of the purchase order.
Notwithstanding the foregoing, IBM’s failure to respond
within such seven (7) day period will not constitute a breach
of the Agreement. At a minimum, purchase orders submitted by
Customer must comply with the terms and conditions of the Agreement
and this Attachment, be consistent with the most recently accepted
forecast and fall within the most recent Customer credit limit as
granted by IBM.
Customer will request delivery of
Products by issuing written purchase orders to IBM. Purchase orders
will specify only the following information:
a) Customer’s purchase order
number;