ENPH 03.31.2015 EX 10.1








Exhibit 10.1










Enphase Energy
201 1st Street, Suite 300
Petaluma, CA 94952














MASTER  DEVELOPMENT  & PRODUCTION AGREEMENT












APPLICATION SPECIFIC INTEGRATED   CIRCUIT    (ASIC)










by
and between










Enphase Energy, Inc.




and






Fujitsu Microelectronics America, Inc.











Exhibit 10.1




This Master Development and Production Agreement (the "Agreement") is entered into this 19 day of August, 2009 ("Effective Date") by and between Enphase Energy, Inc., having its principal place of business at 201  1st St., Suite 300, Petaluma, CA 94952 (“Buyer”) and Fujitsu Microelectronics America, Inc., having its principal place of business at 1250 E. Arques Ave., Sunnyvale, CA 94085 (“Seller”). In consideration of the mutual promises herein contained, the parties hereby agree as follows:


		
	1.
	PURPOSE OF AGREEMENT


Buyer intends to place Purchase Orders with Seller for the development and production of Application Specific Integrated Circuits (“ASIC” or “Product”).  This Agreement sets forth the terms and conditions that will govern the development and supply of Products by Seller and purchase of the Products by Buyer.


		
	2.
	DEFINITIONS


This Agreement will refer to several documents, each of which are integral to the ASIC Design and development process.


		
	a.
	Development Task Order (“Task Order” - Exhibit A):   This  document  sets forth  the  terms  under  which  Seller  will develop  the  Product, including the Statement of Work and the Nonrecurring  Engineering Charges (“NRE”).




		
	b.
	Change Order (Exhibit B):  This document allows the Buyer and Seller to agree to changes to the Task Order.




		
	c.
	Risk and annual ASIC Production Terms (“APT” - Exhibit C):   This document provides the terms under which Buyer authorizes Seller to manufacture and deliver an ASIC in development under this Agreement prior to Buyer having provided written  approval of engineering samples (“Engineering Samples” or “ES”'). Also, this document provides the specific terms for the production of each ASIC manufactured under this Agreement.




		
	d.
	Design Specifications (“Specifications”):   This refers to the terms set forth in the Design Specifications Summary and in Buyer's approved post-layout simulation results based on final netlist.




		
	e.
	Register Transfer Language (“RTL”):   A high-level description ASIC language provided by Buyer if the interface is “ RTL Handoff.”




		
	f.
	Timing Constraints:   Chip input, chip output and chip internal timing requirements.




		
	g.
	Synthesis:   This  process converts RTL to a netlist based on Seller's ASIC components library. Synthesis is done by Seller since this is an RTL-Handoff.




		
	h.
	Design Specifications Summary (Exhibit D):   This document is used by Buyer to set forth the technical  information necessary to define the manufacture of the final Product.




		
	i.
	Floor  Planning and Trial Place and Route Phase:   Phase begins when Seller accepts or begins work on a partial or complete RTL. The RTL will be synthesized and the synthesized netlist may be used to make and verify component placement information. Phase continues until Seller accepts or begins work on agreed-to final RTL.




		
	j.
	Approval to Start Final Place and Route Sheet:   This  document  authorizes Seller to begin  final place and/or route when the criteria in the document are met. The execution of this form is a pre-requisite lo start the final layout of the Product.















Exhibit 10.1




		
	k.
	Final Place and Route Phase:   Phase begins with Seller's acceptance of final RTL.




		
	l.
	Timing Data Extraction:   Delay information pertaining to the ASIC, extracted from the layout. Final timing data extraction is the first one provided after Final Place and Route Phase starts that meets the agreed to Timing Constraints set when entering the Final Place and Route Phase.




		
	m.
	Layout Data Verification:   Seller verifies that the ASIC obeys physical manufacturing rules and the layout functionally matches the Buyer's circuit.




		
	n.
	Post-Layout Approval Sheet:   This document sets forth the post-layout output from the Seller's design verification tools and allows Buyer and Seller to indicate whether the data are acceptable and within the Buyer's Specifications. The execution of this form is a prerequisite to tapeout and mask making for the Product and shall be deemed to incorporate Buyer's Design Specifications Summary and Buyer's approved post-layout results.




		
	o.
	Approval to Move to Mass Production:   The Buyer must indicate approval in writing to move production control from Seller's engineering to Seller's production control. The execution of this form is a prerequisite to mass production of the Product. This form may be signed by either the VP of Operations or the Vice President of Engineering of Buyer, with the individuals currently holding such titles shown on Exhibit E.




		
	p.
	Statement of Work (“SOW” - Exhibit F):   It defines technical deliverables and responsibilities. It contains detailed schedules of ASIC design project. Subsequent SOWs may be executed as Exhibit F-1, F-2, etc.




		
	q.
	Product:   Semiconductor ASIC (Application Specific Integrated Circuit) device supplied by Seller in accordance with the terms and conditions of this Agreement.




		
	3.
	TERM


This Agreement will commence on the Effective Date and will remain in effect for five (5) years, followed by automatic one-year renewals, unless and until either party provides the other with at least six (6) months prior written notice of termination of this Agreement.


		
	4.
	DEVELOPMENT PRODUCT




The following terms and conditions apply to Products that are in the development stage:


a.         Development Task Order
For each Product in development, Buyer will execute a Task Order. Seller is authorized to proceed with Final Place & Route Phase only after the Task Order has
been signed by Buyer and Seller.


b.         Change Orders
Buyer may request changes to the then-current Task Order by submitting a Change Order to Seller. Seller will be obligated to proceed with development under the Change Order as of the date that both parties have signed the Change Order. Seller will not unreasonably, taking into consideration the significance of the change, withhold or delay its signing of each such Change Order submitted by Buyer. Once the Change Order is signed by Buyer and Seller, then work pursuant to the Change Order will be undertaken in accordance with the schedule set forth in the Change Order and any applicable Task Order and/or Statement of Work.













Exhibit 10.1




c.         Payment
Subject to credit approval by Seller (which shall be consistent with Seller's standard credit approval practices), as of the date of execution of this Agreement, Buyer has paid Seller fifty percent (50%) of NRE for development of the ASICs referred to by the parties as “Raven” and “Jay”, respectively, and payment for Item 2 for Jay in Table 1 below (in the amount of $48.000). The remaining NRE payments (those not paid by Buyer as of the date of execution of this Agreement) will be based on Seller's achievement of the milestones set forth in the below tables. Seller shall notify Buyer in writing of each achievement of a milestone set forth in the table below, which notice shall be accompanied by an invoice for the corresponding NRE payment. Payment terms for all invoices issued under this Agreement shall be net 30 days after Buyer's receipt of invoice, which will be issued electronically.


Table 1   Jay NRE Payment Schedule


	
							
	Item
	 
	Activity
	 
	Cost

	1
	 
	Project Kickoff (paid)
	 
	$
	80,000.00
	


	2
	 
	RTL Handoff (paid)
	 
	$
	48,000.00
	


	3
	 
	IP Development
	 
	$
	8,000.00
	


	4
	 
	SDF Delivery & Timing Closure
	 
	$
	8,000.00
	


	5
	 
	Tapeout
	 
	$
	8,000.00
	


	6
	 
	Engineering Samples
	 
	$
	8,000.00
	


	 
	 
	Total
	 
	$
	160,000.00
	







Table 2   Raven NRE Payment Schedule


	
							
	Item
	 
	Activity
	 
	Cost

	1
	 
	Project Kickoff (paid)
	 
	$
	100,000.00
	


	2
	 
	RTL Handoff (paid)
	 
	$
	60,000.00
	


	3
	 
	IP Development
	 
	$
	10,000.00
	


	4
	 
	SDF Delivery & Timing Closure
	 
	$
	10,000.00
	


	5
	 
	Tapeout
	 
	$
	10,000.00
	


	6
	 
	Engineering Samples
	 
	$
	10,000.00
	


	 
	 
	Total
	 
	$
	200,000.00
	







*Invoiced 6/20/09, payment due by 8/19/09 as previously agreed.







d.          NRE Costs
•    Total NRE costs (Jay and Raven) - $360.000
•    Engineering Cost of ASIC Synthesis. IP Development. Backend Design DFT insertion, Physical Layout, Physical Verification, ATPG, Logic Verification for testing), Timing Closure, Equivalency Checking, IR Drop Analysis, Package Design & Development.
•   Mask Costs (180nm), Load Boards, Test Boards, Test sockets, IP licensing
•    20 Engineering Samples (10 for Raven and 10 for Jay)


e.        Modification and Re-spin NRE Costs
If re-spin is required because of package. IP or back-end issues (other than those attributable to Buyer's written instructions or specific requests), then there will be no 







cost to the Buyer and Seller will bear all costs. Assuming package remains the same as during initial spin, and if the re-spin is required by the Buyer's written instructions or specific requests, then the below costs will apply for each ASIC re- spin so required by the Buyer. For incremental changes to the feature set of the device, when such Buyer-initiated respin requires changes to Seller's analog and/or digital macros, the engineering cost will be mutually agreed upon in writing by Buyer and Seller.


Additionally, engineering development costs of any  such Buyer-initiated respin of the package and I/O bonding of the pads will be mutually agreed upon in writing by Buyer and Seller.


Seller will provide a quotation for the total NRE cost of the respins; provided that the quoted total NRE cost for a given respin shall not exceed Seller's actual cost to perform such respin.


Metal layers change only    $45.000
All layers change    $75.000
Engineering design cost    TBD by mutual written agreement of Buyer and Seller


f.          Re-spin payment terms:
If re-spin occurs:
At time of placement of purchase order:    25% of applicable re-spin NRE costs
At time of delivery of final RTL:      25% of applicable re-spin NRE costs
At time of tape-out:      25% of applicable re-spin NRE costs
At time of delivery   of all ES parts    25% of applicable re-spin NRE costs


g.         Additional Engineering Samples; Risk Commercial Samples:
Buyer may purchase Additional Engineering Samples (“AES”) at 1.5 X unit price
(up to 150 pcs)
Buyer may purchase risk commercial samples (Risk CS) at 1.25 X unit price (up
to 500 pcs)







		
	•
	A Risk CS is a production graded commercial sample that Buyer may take at its own risk before complete ES approval


		
	•
	All orders for Risk CS are non-cancelable


		
	•
	The Risk CS materials will be purchased at or before the tape out, and are expected to be fabricated at the same time as the first ES/AES fabrication




h.         Activities & Deliverables Included in the Design Support NRE Charge
Design:
		
	•
	Under the terms of a separate agreement, Seller has provided its 180nm cell based design kit to Buyer, who will use this design kit to verify the design.




Design Verification & Layout:
		
	•
	Seller to perform logic and design rule checks.


		
	•
	Buyer to review and validate the design.


		
	•
	After final layout and post layout simulation, Seller will complete the Final Post-Layout approval sheet and Design Specifications of the design for Buyer approval and signature.




Test Vectors & Test Program:
		
	•
	- Buyer to supply functional vectors if necessary.


		
	•
	- Seller to provide logic SCAN/RAM BJST/JTAG/test bus (PLL).


		
	•
	- Seller to perform ATPG and Fault Simulation if necessary.


		
	•
	- Seller to develop wafer sort and final test programs.


		
	•
	- Seller will perform analog IP testing.


		
	•
	- Seller will provide the test RTL required for testing the parts on wafer and Buyer will integrate the RTL and deliver the final RTL to Seller.




Prototyping:
		
	•
	Seller will generate the photo masks, and fabricate prototype wafers.


		
	•
	Seller will generate the specific production test program if required.


		
	•
	Seller will deliver 20 Engineering Samples (10 of Raven and 10 of Jay) to Customer.


		
	•
	Seller may deliver AES to Customer upon request prior to tape-out.




i.          Lead times
Seller will exercise commercially reasonable efforts to achieve the following lead times; provided, however, if Seller's achievement of the following lead times will be delayed, Seller must notify Buyer in  writing of the length of the anticipated
delay and the reasons for the delay. For clarity, the exercise of “commercially reasonable efforts” under this subsection (i) does not allow Seller to delay Buyer's lead times in order to preferentially perform under other contracts, but would encompass delays attributable to unanticipated technical difficulties.







1. Tapeout to ES delivery (for both Jay and Raven)      6 weeks
2. Production (after ES sign-off, Purchase Order
release and twelve month rolling forecast)                 7-9 weeks


j.          IP Support/ Qualification
IP Support
- Under the terms of separate written agreement(s), Seller will provide support for all the IP including existing IP and new custom IP being developed for Buyer.


IP Qualification
- Seller will ensure that its IP meets Seller’s applicable specifications for the IP
(as disclosed to Buyer) and provide support for the current process technology for the same duration as the process life time.


k.        Development Types


1) RTL HANDOFF
Buyer submits to Seller functionally verified RTL. Timing Constraints, verification test benches, written approval to start Final Place and Route Phase, and written approval of post-layout results. Seller provides logic synthesis, test insertion, layout, Timing Data Extraction, Layout Data Verification, maskmaking, test generation and Engineering Samples in accordance with agreed to Specifications.


J.          Cancellation; Buyer's Approval of Post-Layout Simulation
If Buyer cancels the development of any specific Product without cause,  Buyer will pay  Seller  for  work  completed  and  milestones  achieved   as  of  the  date  of cancellation  in  accordance  with this Agreement  and Buyer  also will pay  for the next milestone payment that would have been earned if Seller had completed the
then-current phase  of Product development  which  was underway  at the time of cancellation. Any  monies previously  paid  by Buyer  that  are in  excess  of  the foregoing amounts due will be refunded to Buyer.  On or before the date of Buyer's approval of  post-layout  simulation,  Seller  will  honor  the  changes requested  by Buyer and these changes will be part of the existing Task Order.  In the absence of receipt by Seller of Buyer’s  written approval or rejection of post-layout simulation within forty-five  (45) working days of Buyer's  receipt of post-layout  simulation data, such post-layout  simulation  will be deemed  approved  by Buyer.   If Buyer wants such specific Product to be redesigned after Buyer's  receipt of such post- layout simulation  data,  Buyer and Seller will negotiate a new Task Order to cover the redesign.


m.        Approval to Start Final Place and Route Phase
Each Product under development  will be  Floor  Planned  by  Seller.  Seller will ensure that chip timing is capable of being met in the Final Place and Route Phase.
provided  Buyer  has  provided  RTL  that  is  capable  of  delivering  the  specified









timing. Buyer's RTL will be complete and functionally verified.  Timing requirements will also be complete.  Seller will begin Final Place & Route Phase upon receipt of Buyer's Approval to Start Final  Place and Route Sheet. Buyer's Approval to Start Final Place and Route Sheet confirms that criteria to proceed were met.  Seller will accept signature of Director of Engineering or a  Vice President from Buyer’s organization as approval to proceed.


n.         Post-Layout Approval
Tapeout and mask making will not begin until Seller has received Buyer's written approval   of the Seller's post-layout results and the Buyer's  final Design Specifications  Summary, which shall be provided  at least  one (1)  month prior to tapeout unless the parties otherwise mutually  agree (for the Jay ASIC, the parties have agreed to a shorter time period). Buyer will use Post-Layout Approval Sheet for approval of the post-layout  results.  Unless otherwise specified in writing by Buyer. Seller will accept signature of Director of Engineering or a Vice President from Buyer’s organization.


o.         Approval  to Move to Mass Production
For each Product. Seller shall provide Buyer with Engineering Samples as specified in the applicable Task Order relating to the Product. Seller will be responsible for ensuring that the ES meet the requirements of the Post-Layout Approval Sheet. Buyer must accept or reject the ES in writing by completing Seller’s Approval to Move to Mass Production within thirty (30) days of Buyer's receipt of all such ES shipped by Seller.  In the absence of receipt by Seller of Buyer's written notice of acceptance or rejection of such ES within such thirty (30) days, all such ES will be deemed accepted by Buyer. FMA warrants that ES will conform to the Post-Layout Approval Form for thirty (30) days following delivery to Buyer. If Buyer requests additional ES based on new design requirements or for any reason other than non-conformity of the ES to the Post-Layout Approval Sheet, Buyer and Seller may negotiate a new NRE.  If the cause for the Buyer’s rejection is due to non-conformity of the ES to the Post-Layout Approval Sheet, then Seller will redesign the Product at no charge to Buyer. If there are IP and/or Product/process production issues that require additional time for board changes, then Buyer or Seller (as applicable) will request additional time. Any issues that Buyer identified during Product production that can be attributed to Seller’s acts, omissions, or processes (or to other causes within Seller’s control) will be promptly resolved by Seller.


		
	p, 
	THE ENGINEERING SAMPLES DELIVERED TO BUYER HEREUNDER ARE FOR VALIDATION PURPOSES ONLY. EXCEPT FOR THE EXPRESS WARRANTIES   SET FORTH IN SECTION 4 (o) OF THIS AGREEMENT, ALL WARRANTIES WITH RESPECT TO


ENGINEERING SAMPLES, WHETHER EXPRESS OR IMPLIED, AND ALL GUARANTIES AND ALL REPRESENTATIONS AS TO









PERFORMANCE OF ENGINEERING SAMPLES, INCLUDING ALL WARRANTIESWHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OF TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND OF NON-INFRINGEMENT ARE DISCLAIMED.  Any rejection of Engineering Samples by Buyer must be in writing and based on a detailed description of the ES’s failure to meet the functional and parametric specifications that have been mutually agreed to in the Post-Layout Approval Sheet. Upon receipt of such rejection, Seller shall ban a period of thirty (30) days to cure the defects set forth in such notice of rejection. In the event that Seller is unable to cure the defect within such 30-day period or any extension of such period as may be agreed to by the parties in writing, Buyer may cancel further development without penalty or additional charges. Seller will perform thorough testing of ES, including Scan, DC. Boundary Scan, 1DDQ, Connectivity, Analog Testing, and Functional Testing. Buyer’s exclusive remedy and Seller’s entire liability under this Agreement with respect to non-conforming ES is to use reasonable efforts to replace any detective ES, or, in the event Seller is unable after such efforts to replace such ES, to issue a credit or refund for the purchase price of such ES.  The warranty obligation does not apply to any defects which arise from (i) misuse, neglect, improper installation, repair, alteration or accident by Buyer or its customers or agents; (ii) any modification  to the part made by Buyer or its customers or agents; (iii) Buyer’s own logic design for the ES; or (iv) the equipment, systems or software used by Buyer or its customers or agents in connection with the ES.


5.        MASS PRODUCTION   PRODUCTS


The following terms apply to mass production Products only.  Risk Production products require the execution of a separate Risk Production Task Order.  Production testing shall be performed by Seller in all operating conditions that are specified in the Design Specifications. For clarity, Purchase Orders for Products may be submitted to Seller by Buyer or by a third party designated by Buyer which is performing manufacturing or other services on behalf of Buyer.  Seller retains the right to qualify such  third party contract manufacturers and service providers on the basis of Seller's  credit evaluation, and may determine the payment terms (in accordance with objectively reasonable standard criteria that  Seller  generally uses to establish payment terms)  applicable  to  such  third  party contract manufacturers  and service providers,  including cash in advance if such payment term is consistent with such standard criteria of Seller, in its sole discretion.


a.         Price
The Product price is set forth in the APT.   Seller does not have the right to increase the prices in the APT, including any increase which may be attributable to any additional duty, tariff, tax, or other charge imposed as a result of any action by any











national or federal government, any state or local government, or any agent or agency thereof. Unless otherwise agreed to in writing by Buyer and Seller or as required by applicable laws, all amounts payable by Buyer will be itemized separately on invoices. If exempt from taxes, Buyer must provide a Certificate of Exemption prior to the time a given Purchase Order is submitted to Seller; provided that, once such Certificate of Exemption has been submitted to Seller, Buyer is not obligated to submit another Certificate of Exemption unless and until the originally submitted Certificate of Exemption is no longer applicable or valid.


b.         Terms of Payment
Subject to credit approval by Seller (which shall be consistent with Seller’s standard credit approval practices), payment terms are net thirty (30) days from the date of Buyer’s receipt of Seller’s invoice, which will be issued electronically.


Each shipment by Seller to Buyer pursuant to this Agreement will be a separate and independent transaction and will be invoiced separately, and Buyer will pay for each shipment separately and as invoiced (unless such shipment and/or invoice is disputed by Buyer). Buyer will notify Seller of any incorrect or incomplete invoices within ten (10) business days after receipt of the invoice. Seller wil1 issue corrected invoices within two (2) business days after receipt of Buyer's notification.   Should Buyer fail to notify Seller of an incorrect invoice within the ten (10) business days.  Buyer shall pay the invoice in accordance with the above payment terms and issue a separate request for credit. Should Seller fail to issue a corrected invoice within the above-described two (2) business days period, then Seller will accept Buyer's partial payment of an invoice in an amount less than the full amount of any invoice. The Seller’s acceptance of partial payment does not constitute a waiver of Seller’s right to collect the balance or an accord and satisfaction notwithstanding Seller’s endorsement of a check or other instrument.


c.         Title
Seller will ship by the method requested by Buyer. All Products purchased by Buyer will be shipped FOB Seller’s warehouse in Texas or Sellers parent company’s warehouse in Japan, unless otherwise agreed by Seller and Buyer. Title passes to Buyer and Seller’s liability as to delivery will cease upon delivery of Products to the carrier. Seller will have no obligation to ship via a carrier that does not comply with applicable U.S. law; provided that, if Buyer requests that Seller ship via such carrier, Seller shall provide prompt written notice to Buyer, so that Buyer may rebut Seller’s determination of non-compliance or may select another carrier that does comply with applicable U.S. law.


d.          Property Rights
The intellectual property created by Seller in designing and developing Products for Buyer hereunder, or in the process of manufacturing Products for Buyer,









including  the  basic  ASIC  design  software and processing  technology  utilized in the  development  and  manufacture  of  ASIC’s  for  Buyer  and  excluding   the ASIC logic circuit connection  pattern of Buyer's design embedded  in the Fujitsu Logic Description  Language (“FLDL”), will not be deemed to produce a work made for hire (collectively, “Seller IP”). Buyer shall not have any copyright, trademark, patent, trade secret or other intellectual property rights in the Seller IP, including the mask works relating to the Products which are created by Seller.  All such rights in Seller IP will remain the property of Seller and no license of any type, express or implied, under Seller IP is granted  to  Buyer  under  this Agreement, Seller will also retain all such right, title and interest to any Seller-provided  cells or macros that Seller incorporates into the ASIC design or furnishes to Buyer for use  in  its design, unless otherwise mutually  agreed  between  the  parties.   No license, express or implied, with regard to any trademark of Seller or its affiliated companies is granted to Buyer under this Agreement. No license, express  or implied,  with  regard  to  any trademark  of  Buyer  or  its affiliated  companies  is granted to Seller under this Agreement.


Notwithstanding anything to the contrary in the foregoing paragraph or elsewhere in this Agreement, Seller will provide the Products exclusively to Buyer, and shall not use Seller IP (including the mask works  relating to the Products)  to design, develop or manufacture similar products for the benefit of any third party.  Buyer solely owns and will retain, all intellectual property rights to the Products themselves. excluding Seller IP.  Seller will retain possession of all masks relating to the Products, but all such masks which are customized to meet Buyer’s Design Specifications will be made, used and held by Seller solely for Buyer’s exclusive use and exploitation.  Seller will not use such masks for the benefit of any third party without prior written authorization from Buyer (such  authorization  within Buyer’s sole discretion).  For the avoidance of doubt, Seller will supply to any third party products which are identical  or substantially  similar to the Products manufactured for Buyer under this Agreement.


If Buyer places no Purchase Orders for any Product for twelve (12) months from the date of Buyer’s  ES approval. or for twelve (12) months from the date of last delivery  of  Products),  Seller  will  keep  the masks  relating  to the  Products for Buyer’s exclusive  use for a period of 5 years from such applicable date,  provided Seller has not discontinued manufacture of the Product or the Product manufacturing process (and in such event, Section 6.b. shall apply and govern).


e.         Warranty and Sole Remedy
For the warrant period specified below, Seller warrants that  the  Products delivered hereunder  will (1) be free from defects in materials and workmanship under normal use and service, and (2) will comply with the Post-Layout Approval Sheet.  Seller  disclaims  any  warranty  for  defects  to  the  extent  such  defects primarily result from designs or Specifications provided by the Buyer and used by


II









Seller, including but not limited to Buyer’s function and logic design, and RTL. The warranty obligation of Seller does not apply to any defects to the extent such defects primarily result from (i)  Product misuse,  neglect, improper installation, Repair, alteration or accident by Buyer or its customers or agents after delivery of Product(s) to the Buyer; (ii) any modification  to the Product(s) made by Buyer or its customers  or agents after delivery of  Product(s) to the Buyer:  or  (iii) the equipment,   systems  or  software  used  by  Buyer  or  its  customers  or  agents  in connection with the Products.


Seller’s  warranty obligations  are  limited  to  replacement of any detective Product(s), or in the event Seller is unable  to replace such Product(s),  to issue,  at the election of Buyer, a credit or refund for the purchase price of such Product(s).


EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 5.e.,  ALL  WARRANTIES  WITH  RESPECT  TO PRODUCTS, WHETHER  EXPRESS  OR  IMPLIED,  AND  ALL   GUARANTIES  AND ALL  REPRESENTATIONS  AS TO  PERFORMANCE  OF  PRODUCTS, INCLUDING     ALL    WARRANTIES   THAT     MIGHT    ARISE   FROM COURSE OF  DEALING OR CUSTOM OF TRADE, INCLUDING ALL IMPLIED  WARRANTIES OF  MERCHANTABILITY,  FITNESS FOR  A PARTICULAR PURPOSE, AND OF NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY SELLER.


No agent, employee  or representative of Seller has any authority to bind Seller to any affirmation,  representation or warranty relating to the Products other than as specifically  provided  herein. An  officer  of  Seller  is  deemed  to  have  such authority to bind Seller.


The warranty provided for herein is subject to the following conditions:


		
	1)
	Buyer will notify  Seller promptly in writing of any claims  if a Product is or becomes defective during the warranty period.


		
	2)
	Buyer will follow Seller’s Return Material Authorization procedures if Seller advises Buyer to return a defective Product for replacement.


		
	3)
	Buyer will reimburse  Seller for all reasonable expenses  incurred by Seller for shipping,  handling,  and  inspection  of such  Product  alleged  by Buyer  to be defective if  such  Product  is either  (i)  not  under  warranty,  or  (ii)  is  finally determined  not  to  be defective,  or  (iii)   is  defective  due  to  any  cause  or condition  not covered  under the warranty  provided  herein.    With respect  to clause  (ii), if Seller disagrees with Buyer’s determination  that such Product is defective,  Seller shall so notify Buyer in  writing  within thirty  (30)  days.  In such event, Seller and Buyer shall meet in good faith to attempt to resolve the




12









issue in  a manner agreeable  lo both parties  (and if  circumstances  are appropriate, the parties may agree  to send  such  alleged   defective  Product  to an outside  Laboratory  or  consultant  for  testing, in  order to  achieve the parties· mutual objective of avoiding  material  delays to pre-agreed Product timelines and/or delivery dates).


4)   Buyer will pay all transportation charges  for returned Product.  Seller will reimburse Buyer for all such transportation charges incurred by Buyer, unless the returned Product is finally determined  not to be defective  in  accordance with paragraph (3) above.


5)   In no  event  will  Seller  be  liable for any defective  Products  if it is finally determined that the detect primarily  resulted (i)  after delivery  of Products to Buyer  and  (ii)  from  misuse,  abuse,  improper  installation   or  application, improper  maintenance or  repair,  assembly  by  Buyer  or  a  third  party, alteration, accident or negligence in use, storage, transportation  or handling.


6)   Any  returned  Products  which  were  electrically  or  mechanically  damaged while under the control of Buyer or its customers  or agents will not be covered by this  warranty,  unless  the  reason  for the destruction  was  a defect  in the Product itself.


7)   This warranty will exist for a period of twelve (12) months after the date of Buyer’s  receipt of Product shipment. No other warranty period is expressed or implied.


8)   If Seller material or Products do not conform to the applicable specifications. then Seller owns responsibility under the terms of this Section 5.e.






f.          Intellectual Property Indemnification


		
	1)
	Seller retains all intellectual property rights in its own intellectual property. Seller will indemnify, defend and hold Buyer harmless against all expenses, damages, costs or losses, including reasonable  attorneys’ fees, resulting from a suit or proceeding brought by a third party which claims that the Product or any part thereof, or the Seller IP or any part thereof, or the process technology or methodology used to  manufacture  the  Product,  infringes  any copyright, patent trademark, mask work,  trade  secret,  or  other  intellectual  property right.  For clarity, Seller will indemnify Buyer for such  claims  if  Seller-selected processes, materials or IP and/or Seller-selected claim elements (collectively, “Seller Selections”) are sufficient (in and of themselves. and not requiring combination  with Buyer  Selections (as defined in  subparagraph (2) below)) to support such alleged infringement  claim.  Seller will have no duty









to  indemnify  Buyer  for any claims arising out of the circumstances described in subparagraph  (2),  below.  Seller may not sell the Raven or Jay  finished Products in any form  to any third party.  except  to Buyer’s  designated  third party  contract  manufacturers  and  service  providers.  Notwithstanding the foregoing, this Agreement  shall not limit the right of  Seller to develop, have developed, procure and/or market any products or services  whatsoever now or in  the  future. including  any  products  which  perform  the  same  function  as Products, so long as such products  and services do not incorporate  or utilize any  of Buyer's  designs. Buyer IP,  as  defined  below,  or  any  Confidential Information  of  Buyer  under  the terms  of  the  Mutual  Non-Disclosure Agreement between parties, effective November 13, 2008.


2)  Buyer retains  all intellectual  property  rights  in its own  intellectual  property (“Buyer IP”), and will own the Product (i.e., the tangible property delivered to Buyer).  Buyer will indemnify,  defend  and  hold Seller  harmless  against  all expenses, damages, costs or losses, including reasonable attorneys· fees. resulting  from a suit or proceeding brought by a third party which claims that the practice  or  use of  Buyer  IP or  of  any  design  provided  or  specifically requested  by Buyer, infringes any copyright,  patent,  trademark,   trade secret, or other intellectual property  right.  For clarity,  Buyer will indemnify  Seller for such claims (i) if Buyer-selected  processes,  materials or IP and/or Buyer-selected  claim elements  (collectively.  "Buyer  Selections")  are sufficient  (in and of themselves,  and not requiring  combination  with Seller Selections)  to support such alleged  infringement claim. or (ii) if the combination  of Buyer Selections and  Seller   Selections is  necessary to  support   such   alleged infringement  claim.    Buyer  will   have  no duty  to  indemnify  Seller  for any claims arising out of the circumstances described in subparagraph (I). above.


3)  In order to obtain a defense and indemnification  under this subparagraph t~ the party seeking a defense and indemnity  will:  (i) give prompt written notice  of the claim to the other party: (ii) give the other party sole control of the defense and settlement of the claim: and (iii) provide to the other party all reasonably available   information  and  assistance,  at the  other  party’s  cost and  expense. Neither  party  will enter  into any settlement  or compromise  that  materially affects the other party without the other party’s  prior written approval, and any such settlement or compromise shall release such other party from all liability in respect of such claim.


4)  Should the manufacture, use, sale, offer for sale and/or import of a Product be enjoined   or  become   the  subject  of  a  claim  of  infringement   for  which indemnity  is  provided  by Seller  under  subparagraph  (1)  above,  Seller shall elect to (a) procure for Buyer the rights to continue  to use and distribute  the same.  or (b)  replace  or modify the same  to  make it  non-infringing  without materially  changing  the form,  fit,  or function  of the  Product: provided  that









such   replacement  or  modification  shall  be  subject to Buyer’s  prior  written approval  (such  approval   to be granted  or denied  in Buyer’s  sole discretion).


5)   In  no  event   will  Seller’s  total liability for  an  indemnified  claim  under this subparagraph  f exceed two times the total amount paid or payable by Buyer to Seller under this Agreement.


6) THE FOREGOING STATES THE EXCLUSIVE INDEMNIFICATION OBLIGATIONS OF THE PARTIES WITH RESPECT TO ANY ALLEGED COPYRIGHT, PATENT, TRADEMARK, MASK WORK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT BY SUCH PRODUCTS OR PARTS THEREOF.


6.         TERMINATION AND PRODUCT  DISCONTINUANCE


a.        Termination
Should  Buyer  wish to terminate  the development  of a Product  under a specific line item in a Task Order, or the production of a Product under a specific line item in  an Annual APT for the  Product (hereinafter  collectively   referred to as  a "collateral  agreement"), Buyer may cancel performance  under the particular line item. Notwithstanding such cancellation  by Buyer, Seller will honor the quantity of Product  for which  Seller has  received  and  acknowledged  a Purchase  Order from Buyer.   Buyer shall be obligated  to pay for finished  Product and work-in• process  that has commenced  in the manufacturing  line at the time  of any such cancellation.  in  accordance  with  the  Annual  Production  Terms,  and  all  such Product and work-in-process shall be delivered to Buyer at Buyers  request.


b.        Product Discontinuance
Seller  reserves  the  right to  discontinue  production  of any  Product  at anytime, subject to the following conditions.   In the event that production of a Product is to be discontinued  by Seller, Seller will provide notice  to Buyer in writing at least six (6) months in advance of each such discontinuation.  At a minimum,  for five (5) years  after  Seller’s  first delivery  of the  Product  that  is the  subject  of such discontinuance  by Seller, Seller  will  provide such Product for Buyer in accordance with Buyer’s Purchase Orders  for  such  Product.  If  the  Product production  process  is slated  for  end-of-life  while  this  Agreement  is in effect, Buyer  may  continue  its  use  of  all  licensed  IP  and  custom-developed  IP  for purposes  of supporting Products  sold  to Buyer’s  customers; and (ii)  Seller will provide  support  for all  licensed IP and custom  developed  IP for a period  of at least one (1) year after the last shipment  of discontinued  Product in accordance with the support terms specified in the applicable  license agreement.




7.        ADDITIONAL TERMS AND CONDITIONS


a.          Precedence
Purchase Orders placed during the term of this Agreement will be governed by and subject  to  the  terms  and  conditions  of  this  Agreement  and  applicable  Change Orders  or Task Orders/ APT.  If any inconsistency or conflict should arise between the express terms of this  Agreement and the express terms of the applicable Change Order 







or Task Order/ APT,  and if such inconsistent or conflicting  Change Order or Task Order/ APT does not expressly  state that this Agreement is intended to be amended by such Change Order or Task Order/ APT, the order of precedence  in resolving such express inconsistency or conflict will be:


i)This Agreement
ii)Task Order/APT
iii)Change Orders.





In  the event such inconsistent  or conflicting  Change Order or Task Order/ APT does expressly state that this Agreement  is intended to be amended by such Change Order or Task Order/ APT,  then such amendment  shall apply only with respect to such Change Order or Task Order/ APT and not with respect to any other Change Order or Task Order/ APT, unless such other Change Order or Task Order/ APT expressly provides otherwise.


It is expressly agreed that any lack of reference to this Agreement on any Purchase Order issued by Buyer will  not affect the applicability of this Agreement to such Purchase Order.


b.        Force Majeure
Except for Buyer’s payment  obligations under this Agreement,  neither Seller nor Buyer will be responsible for any failure to perform resulting from unforeseen circumstances or causes beyond Seller’s or  Buyer’s (respectively) reasonable control (for example, an act of God or a force majeure event).


In the event of any delay caused by such event, the date of delivery or performance will, at the request of the affected party, be deferred for a period equal to the period of the delay.


		
	c.
	INDEPENDENT  OF    ANY   OTHER  LIMITATION  HEREIN  AND REGARDLESS OF WHETHER THE PURPOSE OF SUCH LIMITATION IS  SERVED,   IT  IS  AGREED  THAT   IN  NO  EVENT   WILL   EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR  INDIRECT DAMAGES.  FOR CLARITY, THERE  IS NO LIMITATION ON EITHER PARTY’S (1) LIABILITY FOR BREACH OR OTHER VIOLATION   OF   ITS    OBLIGATIONS   REGARDING   THE OTHER PARTY’S   CONFIDENTIAL  INFORMATION  AND/OR











PROPRIETARY   PROPERTY, OR (2)  LIABILITY   FOR  ITS INTELLECTUAL  PROPERTY  INFRINGEMENT   INDEMNIFICATION OBLIGATIONS   UNDER  THIS  AGREEMENT.   EXCLUDING  THE LIABILITIES  DESCRIBED  IN THE  FOREGOING  SENTENCE  (WHICH ARE  NOT   SUBJECT  TO  ANY   LIMITATION),  SELLER’S TOTAL LIABILITY   ARISING  OUT OF  OR  DIRECTLY  RELATED  TO  THIS AGREEMENT  (INCLUDING  BUT NOT  LIMITED  TO ANY WARRANTY CLAIMS  HEREUNDER)  REGARDLESS  OF  THE   FORUM   AND REGARDLESS   OF   WHETHER   THE  ACTION  IS   BASED  ON CONTRACT,  TORT  OR  OTHERWISE,  SHALL  NOT  EXCEED  THE TOTAL   AMOUNT  PAID  BY  BUYER  TO  SELLER  UNDER   THE
AGREEMENT.


d.         Limitations  of Actions
No action against a party  for breach will be commenced  more than one (1) year after the accrual of the cause of action or a party’s  knowledge  that such cause of action exists,  whichever occurs later.


e.         Assignment
Neither  party  will  assign  this  Agreement  or  any  interest  or  rights  thereunder without  the  prior  written   consent  of  the  other  party, such consent  not  be unreasonably  withheld.  Notwithstanding  the foregoing,  so  long  as  Buyer’s intended  assignee  (i)   is   not  a  company that  at  that  time  of such  proposed assignment is a competitor  of Seller or Seller’s  parent  company  with respect to Seller’s  line of business to which this Agreement relates, or (ii) is not a company that  would reasonably  be expected  to raise  material  issues  for Seller regarding export  control  matters,  then  Buyer may assign this Agreement  without Seller's consent  (a) to an affiliate of Buyer;  (b) to a third party  that succeeds  to all or substantially all of Buyer's  business relating to this Agreement; (c) to a third party purchaser of all or substantially  all of Buyer’s assets related to this Agreement; or (d) incident  to the merger,  consolidation,  reorganization or acquisition of Buyer's stock or assets  affecting substantially  all of the assets or actual voting control of Buyer.


f.         Fair Labor Standards Act
The Seller represents that with respect to the production of the Products and/or the performance of the services covered: it will fully comply with all requirements    of the Fair Labor Standards Act of 1938 as amended.


g.         Local Currency
Any order placed and payment for such order will be in U.S.  Dollars.


h.        Governing Law









The  laws  of the  State  of California   will govern this Agreement.   Any provisions hereof which are unenforceable  in any jurisdiction  will not  affect the remaining provisions or affect the enforceability of such provisions in any other jurisdiction. Each of Buyer and Seller consents to the exercise of jurisdiction  over it  by any state court in Santa Clara County,  California or federal district  court within the Northern District of California.


i.         Dispute  Resolution
If a disagreement whether in tort, contract or otherwise arises  between Buyer and Seller, the parties will meet to attempt to resolve the disagreement.   If the parties cannot resolve the disagreement among themselves,  they will submit the matter to mediation.   The parties will agree on a suitable  mediator.   At least  10 business days before the mediation each side will provide the mediator  with a statement of its position and copies of all supporting  documents.   Each party will send to the mediation  a person who  has authority  to  bind  the party.  If the disagreement cannot  be resolved  at  mediation,  a binding  arbitration  will  be conducted  by a single arbitrator in  San Jose,  California,  USA in accordance  with the then-current commercial arbitration rules of the American Arbitration Association (“AAA”) To the extent that Buyer and Seller cannot agree on a single  arbitrator, the arbitrator shall be  appointed by AAA.  Neither  party  will sue the  other  except  for enforcement  of  the arbitrator’s  decision.    Any  arbitration  proceeding  must  be commenced within  one (1)  year after the first meeting of the parties to attempt to resolve   the  disagreement.  Nothing  in  this  Agreement  shall  be  deemed  as preventing  either  party  from seeking  injunctive relief  (or  any other  provisional remedy).


j.·         Waiver
No  provision  of or  right under  this  Agreement  shall be  deemed  to have  been waived  by any  act  or  acquiescence   on  the  part  of  any  party, its  agents  or employees, but only by an instrument in writing signed by an authorized officer of such party.  A waiver by either party of any default or of any of the terms and conditions of this Agreement will not be deemed to be a continuing  waiver of any other default or of any other of these terms and conditions.   It will apply solely to the instance to which the waiver is directed.


k.        Export
The parties shall comply with applicable export laws and regulations.   For “items” and “technologies” controlled under the Export Administration Regulations (“EAR”) (l5 C.F.R.  730-774) of the U.S.  Department  of Commerce,  Bureau of Industry & Security, each party will notify the other party of the applicable Export Control Classification  Numbers ("ECCN")  for each item and/or technology prior to transfer  or release  to the other party.   For items and technologies  controlled under  the International   Traffic in Arms  Regulations  (22  C.F.R.  120-130).   each







party  will inform the other party of such items and technologies  prior to transfer or release to the ocher party.


l.          Publicity
Neither party will publicize  or disclose  the existence  or terms and conditions  of this Agreement, or any transactions hereunder,  without  the express, prior written
consent of the other party.


m.       Government Contracts
If Buyer's original Purchase Order indicates by contract  number that it is  placed under a government contract, Buyer will notify Seller of the Federal Acquisition Regulations (FAR) requirement applicable to the P.O.  "Contracting  Officer" will mean  "Buyer."  "Contractor" will mean  "Seller,"  and  the  term  "Contract"  will mean this Agreement.


n.         Amendments
This Agreement may not be modified or amended except in a writing signed by an authorized  representative  of  each  of  the  parties.  Any changes made to  this
Agreement, other than  by Task Order, Change  Order, or APT,  will be made by amendment attached hereto and incorporated by reference.


o.         Prohibited  Uses
Parties  agree  that Product  is designed  and  intended  for  commercial  use  only. Product is not authorized  for use as a critical component  in military or medical applications, nuclear facilities or systems, or any other application  where Product failure could lead to loss of life or catastrophic  property damage.   Product is  not authorized  for use as "critical components”  in “life support systems” without the written consent of an officer of Seller.  “Life support systems” are either systems intended  for  surgical  implant  in  the  body  or  systems  which  sustain  Life.  A
"critical component"  is any component  of a lite support system whose failure to
perform  may cause  a malfunction  or failure  of the  lite  support  system  or may affect its  safety or effectiveness.  The inclusion of Product in life  support systems without the express written approval of an officer of Seller implies that the Buyer
assumes  all  risk  of  such  use  and  in  so  doing  indemnifies  Seller  against  all
damages and attorneys· foes.


p.        Entire Agreement
This Agreement,  including  its Exhibits, sets forth the entire Agreement  between Buyer and  Seller regarding  the development and production  of Product and the subject  matter  of  this  Agreement,  and  supersedes   all  prior  oral  or  written agreements, discussions and understandings, express or implied,  and prevails  over any conflicting  or additional  terms of  any  quote,  printed terms of  any  P.O. or acknowledgment,  or similar communication between the parties during the term of this Agreement.  However, notwithstanding  the  foregoing, the provisions  of the









Mutual   Non-Disclosure Agreement between Buyer and Seller, dated November  13,2008 (“NDA”), shall survive with respect to disclosures made pursuant to the NDA prior to the Effective  Date of this Agreement. On and after the Effective Date of this Agreement, (1) the “Business Purpose” described in the NDA shall be amended to include the subject matter of this Agreement, and (2) the term of the NDA shall be extended to end on the date that is five (5) years after expiration or termination of this Agreement.


q.        Notices
All notices required  to be sent to either party under this Agreement shall be sent by overnight commercial courier, or properly transmitted facsimile. to the respective addresses of the parties set forth in the preamble of this Agreement, or to such other address which may hereinafter be designated in writing by the addressee party, and shall be effective upon receipt as demonstrated by reasonable  proof of delivery.


<< Signature Page Follows>>













IN  WITNESS  WHEREOF,  this  Agreement  has  been  executed  effective as  of  the
Effective  Date.


	
					
	BUYER: 
	Enphase Energy, Inc.
	 
	SELLER:
	Fujitsu Microelectronics America, Inc

	BY: 
	/s/ Paul Nahi
	 
	BY:
	/s/ Steve Della Rocchetta

	PRINT NAME:
	Paul Nahi
	 
	PRINT NAME:
	Steve Della Rocchetta

	PRINT TITLE:
	CEO
	 
	PRINT TITLE:
	VP Sales & Marketing

	DATE:
	8/27/2009
	 
	DATE:
	8/27/2009






Exhibits:    A. Development  Task Order
B. Change  Order
C. Risk and Annual Production  Terms
D. Designated Signatories to Approval to Move to Mass Production
E. Statement of Work









EXHIBIT E:  Designated  Buyer Signatories to Approval  to Move to Mass  Production






Vice President of Operations   - Greg Steele
Vice President of Engineering - Nelu Mihai