Ex-4.11.13 Master IBM Joint Development T&C



Table of Contents





Exhibit 4.11.13




Confidential Treatment Requested : The portions of this agreement marked by XXXXX

have been omitted pursuant to a request for confidential treatment and have been filed

separately with the Securities and Exchange Commission.




MASTER IBM JOINT DEVELOPMENT TERMS AND CONDITIONS —

DECEMBER 15, 2006 VERSION




MASTER IBM JOINT DEVELOPMENT TERMS AND CONDITIONS —

DECEMBER 15, 2006 VERSION




FOR JOINT DEVELOPMENT PROJECTS




WITH




INTERNATIONAL BUSINESS MACHINES CORP.




			
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TABLE OF CONTENTS:




	 	 	 	 	 
	SECTION 1 — DEFINITIONS
	 	 	3	 
	 
	 	 	 	 
	SECTION 2 — IBM DEVELOPMENT FACILITIES; AGREEMENT STRUCTURE
	 	 	9	 
	 
	 	 	 	 
	SECTION 3 — SCOPE OF DEVELOPMENT PROJECTS; PARTICIPATING PARTIES
	 	 	10	 
	 
	 	 	 	 
	SECTION 4 —  MANAGEMENT AND STAFFING OF THE DEVELOPMENT PROJECTS
	 	 	12	 
	 
	 	 	 	 
	SECTION 5 —  FUNDING CONTRIBUTIONS, COST SHARING, AND OTHER PAYMENTS
	 	 	16	 
	 
	 	 	 	 
	SECTION 6 — INSURANCE, RESPONSIBILITY FOR RESULTS AND WARRANTIES
	 	 	16	 
	 
	 	 	 	 
	SECTION 7 —  INFORMATION TRANSFERS
	 	 	17	 
	 
	 	 	 	 
	SECTION 8 — LICENSES TO BACKGROUND KNOW-HOW
	 	 	20	 
	 
	 	 	 	 
	SECTION 9 — LICENSE TO RESIDUALS AND PROPRIETARY TOOLS
	 	 	22	 
	 
	 	 	 	 
	SECTION 10 — OWNERSHIP OF SPECIFIC RESULTS
	 	 	23	 
	 
	 	 	 	 
	SECTION 11 — OWNERSHIP OF DESIGNATED INVENTIONS
	 	 	23	 
	 
	 	 	 	 
	SECTION 12 — TERM AND TERMINATION
	 	 	24	 
	 
	 	 	 	 
	SECTION 13 — NOTICES AND OTHER COMMUNICATIONS
	 	 	27	 
	 
	 	 	 	 
	SECTION 14 — TERMS OF NEGOTIATION
	 	 	27	 
	 
	 	 	 	 
	SECTION 15 — FORCE MAJEURE
	 	 	27	 
	 
	 	 	 	 
	SECTION 16 — TAXES
	 	 	28	 
	 
	 	 	 	 
	SECTION 17 — LIMITATION OF LIABILITY
	 	 	28	 
	 
	 	 	 	 
	SECTION 18 — GENERAL
	 	 	29	 
	 
	 	 	 	 









			
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PREAMBLE




These Master IBM Joint Development Terms and Conditions (“Master Terms”) provide the terms and
conditions governing semiconductor technology joint development projects initiated by or conducted
in conjunction with International Business Machines Corporation (“IBM”). These Master Terms become
operative once incorporated by reference for a particular joint development project.



These Master Terms represent one of the three (3) elements in the contract structure for an IBM
joint development project. In addition to these Master Terms, the details of a particular
technology development project are set forth in a “Joint Development Project Agreement” which (a)
provides the terms and conditions unique to the subject development project (e.g. the strategic
technology objectives, development schedule, and duration of the development project), and (b)
incorporates these Master Terms by reference.



Lastly, each party will sign a two-way supplement (referred to as a “Participation Agreement”) with
IBM which (a) provides certain additional terms and conditions unique to such party (e.g. financial
contribution amounts, staffing commitments, and participation period), and (b) obligates such party
to one or more unsigned Joint Development Project Agreements (including these Master Terms) with
respect to IBM and all other parties. A party’s execution of the Participation Agreement (i)
creates a broad and direct contractual relationship with IBM and with all parties who have agreed
to (or subsequently agree to) participate in each of the subject development projects, and (ii)
triggers the use of the common Joint Development Project Agreement (including the referenced Master
Terms) to govern such multi-party contractual relationship for each of the development projects.



Updates to these Master Terms will be reflected on the cover page of such document (e.g. Master IBM
Joint Development Terms and Conditions — xx, 20xx Version), but such updated version shall only
apply to joint development projects incorporating such updated version by reference.







SECTION 1 —DEFINITIONS




Unless expressly defined and used with an initial capital letter in these Master Terms, words shall
have their normally accepted meanings. If there is a conflict between a definition in these Master
Terms, the Project Agreement, and/or the Participation Agreement, the order of precedence provided
in Section 18.16 of these Master Terms governs. The headings contained in these Master Terms or
the remaining portion of the Agreement (as defined below) or in any exhibit, attachment or appendix
hereto or thereto are for reference purposes only and shall not affect in any way the meaning or
interpretation of these Master Terms or the rest of the Agreement. The word “shall” is mandatory,
the word “may” is permissive, the word “or” is not exclusive, the words “includes” and “including”
are not limiting, and the singular includes the plural. The following terms shall have the
described meanings if and when used in the Agreement:



			
	 	 	 
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“Agreement” means, with respect to the Development Project, (i) these Master Terms, and (ii) the
Project Agreement, together with any exhibits, attachments, and appendices to each of the
foregoing. As between IBM and each Participating Party only, the term “Agreement” is also deemed
to include the Participation Agreement between IBM and such Participating Party for the Development
Project.



“Background Know-How” means, with respect to the Development Project, the methods, techniques,
designs, structures, software, and specifications developed or acquired by a Party outside the
performance of the Development Project, which such Party contributes or discloses to the other
Parties for use in the Development Project. Without limiting the foregoing, Background Know How is
deemed to exclude the “Background Know-How Exclusions” specified in the Project Agreement.



“Background Know-How Exclusions” is defined, with respect to the Development Project, in the
Project Agreement.



“Chip Design(s)” is defined in the Project Agreement, as applicable.



“Confidentiality Period” means, with respect to the Development Project, the period of time
identified as such in the Project Agreement.



“Designated Executive” means, with respect to the Development Project, the senior executive
appointed by a Party for the Development Project.



“Development Schedule” is defined in Section 3.1 with respect to the Development Project.



“Designated Invention” means, with respect to the Development Project, an Invention for which a
patent application has been filed by one or more of the Parties pursuant to Sections 11.1 or 11.2.



“Derivative Technology” means, with respect to the Development Project, technologies which use,
modify, or otherwise derive from the Specific Results, the Background Know-How, both, or any
portion of the foregoing.



“Development Facilities” means the (i) IBM Development Facilities and (ii) any other facilities of
a Participating Party and/or a Third Party as set forth in a Project Agreement.



“Development Project” means the technology development project and any sub-projects identified in
the Project Agreement.



“Documentation” means, with respect to the Development Project, the documentation required by the
Project Agreement.



“Embedded DRAM” or “eDRAM” means a device that either (i) primarily carries out logic functions,
and includes one or more dynamic random access memory (DRAM) cells embedded within logic circuitry
on the same semiconductor substrate, or (ii) primarily carries out memory



			
	 	 	 
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functions, and includes one or more DRAM cells in combination with a static random access memory
(SRAM) array on the same semiconductor substrate (including an array of SRAM cells linked with bit
lines, word lines, sense amplifiers, and decoders).



“IBM Development Facilities” means the (i) IBM 200mm or 300mm wafer process development facility,
(ii) the IBM Thomas J. Watson Research Center, and (iii) any other IBM facilities identified in the
Project Agreement.



“IBM Project Leader” means, with respect to the Development Project, the individual appointed by
IBM pursuant to Section 4.5.



“Integrated Circuit” means an integral unit formed on a semiconductor substrate including a
plurality of active and/or passive circuit elements formed at least, in part, of semiconductor
material. For clarity, “Integrated Circuit” includes charge-coupled devices (“CCDs”).



“Invention” means, with respect to the Development Project, each invention, discovery, design, and
improvement, conceived or first actually reduced to practice solely or jointly by one or more
Representatives of one or more of the Parties or their respective contractors during the Project
Term and in the performance of the Development Project.



“Licensed Patents” means, with respect to the Development Project, those patents, patent
applications, and utility models, licensable by the granting Party and/or its Subsidiaries without
the payment of royalties or other consideration to a Third Party other than an employee of the
granting Party, that have claims directed to semiconductor fabrication processes and have effective
filing dates any time prior to two (2) years after the expiration or earlier termination of the
Project Agreement, as the case may be; and all continuations-in-part, reissues, reexaminations, and
counterparts of same.



“Licensed Product” means, with respect to the Development Project, Integrated Circuits and/or
Semiconductor Products.



“Limitation Amount” means the amount identified as such in the Project Agreement for purposes of
Section 17 (Limitation of Liability) of these Master Terms.



“Lithography” means those aspects of Background Know-How and Specific Results directed to (i)
process technology-dependent ground rules or process technology-dependent special rules for shapes
replication as developed by the Parties for the generation of photomasks used for development and
qualification of a semiconductor process technology in the Development Project, (ii) resolution
enhancement techniques specifically created pursuant to the Development Project to generate mask
build data, (iii) such photomasks themselves and the data files used therefor as are used in the
Development Project, (iv) lithography process sequence as utilized in the Development Project, and
(v) mask data generation sequence as utilized in the Development Project.



“Management Committee” with respect to the Development Project, is defined in Section 4.1.



			
	 	 	 
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“Mask Fabrication and Photoresist Technology” means any process, procedure, Proprietary Tools,
Third Party tools, or hardware tool used in the fabrication of photomasks, as well as the
photomasks themselves, and/or the formulation and/or manufacture of photoresist; provided, however,
that “Mask Fabrication and Photoresist Technology” shall not include Lithography.



“Memory” means Chip Designs and fabrication processes related to read only memory (ROM), dynamic
random access memory (DRAM), programmable ROMs, magnetic RAM (MRAM), ferroelectric RAM, Embedded
DRAM, and other stand-alone memory. For the avoidance of doubt, “Memory” shall not include
embedded static RAM (SRAM) cell designs and process technology or the SRAM or ROM used in the
Development Projects as test vehicles.



“Module” or “Process Module” means a stand alone sequence of process steps which is a portion of a
CMOS process technology.



“Notice Address” means, with respect to the Development Project, the address designated for a Party
on the Project Database.



“Packaging Technology” means any process, procedure, software, or hardware tools used in the
packaging of integrated circuit products into single-chip packages, multi-chip packages, or any
other higher levels of assembly, including but not limited to IBM’s collapsible chip carrier
connection (“C4”) interconnect technology; provided, however, “Packaging Technology” does not
include the formation of layers on a wafer up to and including the final via layer (referred to as
LV, TV, or FV level) or chip-package-interaction (“CPI”) and related characterization methods and
modeling but shall include any process, procedure, or practice subsequent to such step.



“Participation Agreement” means the agreement a Participating Party signs with IBM, that among
other things, obligates the Participating Party to participate in the Development Project. Each
Participating Party will sign its own Participation Agreement with IBM. For clarity, a
Participation Agreement may govern multiple Development Projects.



“Partial Participating Party” means a Participating Party that participates in all or a portion of
the Development Project and is fully obligated as a Participating Party to all other Parties
pursuant to the Master Terms and the Project Agreement, but receives lesser rights than the other
Participating Parties receive pursuant to the Master Terms and the Project Agreement, as such
rights are defined in such Participating Party’s Participation Agreement with IBM.



“Participating Party” means, with respect to the Development Project, each company who now or in
the future agrees to participate in the Development Project by signing a Participation Agreement
with IBM that binds such company to the Project Agreement and these Master Terms. For clarity, IBM
is not a Participating Party.



“Participating Party Notification” means, with respect to the Development Project, a written
notification that a Participating Party provides to the other Participating Parties signifying its
entry into the Development Project.



			
	 	 	 
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“Parties” means, with respect to the Development Project, IBM and all Participating Parties.



“Party Project Leader” means, with respect to the Development Project, the individual appointed by
a Participating Party pursuant to Section 4.5.



“Patent-Participating Party” means, with respect to the Development Project, a Participating Party
who is granting patent licenses to and receiving patent licenses from the other Patent-
Participating Parties with respect to such Development Project, all in accordance with the terms in
Section 8.6(a). For the avoidance of doubt, IBM is not a Patent-Participating Party.



“Project Agreement” means the specific “Joint Development Project Agreement for xxxx” incorporating
these Master Terms.



“Project Database” means the database for the Development Project that identifies each
Participating Party and identifies certain information about each Participating Party such as its
Notice Address, Party Project Leader, Technical Coordinators and Designated Executive.



“Project Leaders” means, with respect to the Development Project, the IBM Project Leader and the
Party Project Leaders for all Participating Parties.



“Project Term” for the Development Project is defined in the Project Agreement.



“Proprietary Tools” means software (in source code form or in object code form), models and/or
data, and other instrumentalities that are not commercially available and are either owned by a
Party or under which a Party has the right to grant royalty-free licenses, and that are used in the
Development Project. For clarity, “Proprietary Tools” does not include data input to software
applications or the results of such applications.



“Representative(s)” means a Party’s employees and employees of a Party’s Wholly Owned
Subsidiaries.



“Semiconductor Product” means a component that contains an Integrated Circuit on a single or
multichip module that incorporates a means of connecting those Integrated Circuits with other
electronic elements (active or passive) and/or means to make external electrical connections to
such elements.



“Specific Results” means, with respect to the Development Project, information and items, (other
than the “Specific Results Exclusions” specified in the Project Agreement) developed and/or
contributed to the Development Project by the Parties pursuant to the development work of the
Development Project as follows:




	 	(a)      Documentation;
	 
	 	(b)      All Inventions, know-how, materials, information, and items resulting from the
Development Project, including but not limited to methods, techniques, unit processes,
process flows, structures in silicon, test software, and specifications for equipment,





			
	 	 	 
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	 	chemicals, masks, and consumables, and all derivative works or improvements created or
developed by or for a Party solely or jointly during and in the performance of the
Development Project;
	 
	 	(c)      For avoidance of doubt, the Parties acknowledge that Specific Results do not include
Background Know-How.





“Specific Results Exclusions” is defined, with respect to the Development Project, in the Project
Agreement.



“Subsidiary” means a corporation, company or other entity:




	 	(a)	 	more than fifty percent (50%) of whose outstanding shares or securities
(representing the right to vote for the election of directors or other managing
authority) are, now or hereafter, owned or controlled, directly or indirectly, by a
Party, or
	 
	 	(b)	 	which does not have outstanding shares or securities, as may be the case in a
partnership, joint venture or unincorporated association, but more than fifty percent
(50%) of whose ownership interest representing the right to make the decisions for such
corporation, company or other entity is now or hereafter, owned or controlled, directly
or indirectly, by a Party,






	 	 	provided that in either case such entity shall be considered a Subsidiary, and shall be
entitled to retain the licenses and other benefits provided by the Agreement to
Subsidiaries, only so long as such ownership or control exists.





“Technical Coordinators” means, with respect to the Development Project, the individuals referred
to in Section 4.7, below.



“Test Site” means a device or circuit evaluation site on a wafer.



“Third Party” or “Third Parties” means, with respect to the Development Project, an entity or
entities other than the Parties or their Wholly Owned Subsidiaries.



“Wholly Owned Subsidiary” shall mean 1) a corporation, company or other entity:




	 	(a)      one hundred percent (100%) of whose outstanding shares or securities (such shares or
securities representing the right to vote for the election of directors or other managing
authority) are, now or hereafter, owned or controlled, directly or indirectly, by one or
more Parties; or
	 
	 	(b)      which does not have outstanding shares or securities, as may be the case in a
partnership, joint venture, or unincorporated association, or other entity but one hundred
percent (100%) of whose ownership interest representing the right to (i) make the decisions
for such corporation, company, or other entity, or (ii) vote for, designate, or otherwise
select members of the highest governing decision making body, managing





			
	 	 	 
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	 	 	 	body, or authority for such partnership, joint venture, unincorporated association or other
entity is, now or hereafter, owned or controlled, directly or indirectly, by one or more
Parties;






	 	provided that in either case (a) or (b) such entity shall be considered a Wholly Owned
Subsidiary, and shall be entitled to retain the licenses and other benefits provided by the
Agreement to Wholly Owned Subsidiaries, only so long as such ownership or control exists; or
	 
	 	2) a corporation, company or other entity:






	 	(c)      at least seventy five percent (75%) of whose outstanding shares or securities (such
shares or securities representing the right to vote for the election of directors or other
managing authority) are, now or hereafter, owned or controlled, directly or indirectly, by
one or more Parties; or
	 
	 	(d)      which does not have outstanding shares or securities, as may be the case in a
partnership, joint venture or unincorporated association, or other entity but at least
seventy five percent (75%) of whose ownership interest representing the right to (i) make
the decisions for such corporation, company, or other entity, or (ii) vote for, designate,
or otherwise select members of the highest governing decision making body, managing body, or
authority for such partnership, joint venture, unincorporated association, or other entity
is, now or hereafter, owned or controlled, directly or indirectly, by one or more Parties;






	 	provided, that in either case (c) or (d) above, (i) all of the remaining such ownership
interest is solely owned or controlled, directly or indirectly, by one or more corporations,
companies or other entities which are purely financial investors who are not engaged in the
design, development, manufacture, marketing, or sale of Semiconductor Products, and (ii) such
entity shall be considered a Wholly Owned Subsidiary, and shall be entitled to retain the
licenses and other benefits provided by the Agreement to Wholly Owned Subsidiaries, only so
long as such ownership or control exists.









SECTION 2 — IBM DEVELOPMENT FACILITIES; AGREEMENT STRUCTURE 





	2.1	 	The Project Agreement identifies the IBM Development Facilities and any other Development
Facilities that the Parties will utilize for the Development Project.
	 
	2.2	 	IBM shall be responsible for the operations of the IBM Development Facilities, including, but
not limited to, capacity, staffing, and capital purchases. If the Project Agreement
designates a Development Facility other than an IBM Development Facility, then the Project
Agreement will establish each Party’s obligations with respect to such Development Facility
and identify any additional terms and conditions a Party must agree to in order to participate
in the Development Project at such Development Facility.





			
	 	 	 
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	2.3	 	The terms and conditions of these Master Terms and of the Project Agreement govern the
Parties’ performance of the Development Project. In addition, the Participation Agreement
between IBM and each Participating Party provides supplemental terms and conditions that
govern only between IBM and each respective Participating Party. It is the Parties’ intention
that a Party’s respective ownership, disclosure, and/or license rights as to the Specific
Results and Background Know-How of the Agreement be set forth in that Party’s Participation
Agreement, the Project Agreement, and these Master Terms.
	 
	2.4	 	If a company executes a Participation Agreement and executes and delivers a Participating
Party Notification, then (i) such company joins the Development Project as a Participating
Party, (ii) such company and the other Participating Parties are each directly contracted to
IBM and to each other based upon the terms and conditions of the Project Agreement (including
these Master Terms), without the need for any additional documentation or signatures by any
Party, and (iii) such company is estopped from contesting its direct privity of contract with
the other Participating Parties and with IBM on such referenced terms and conditions.









SECTION 3 — SCOPE OF DEVELOPMENT PROJECTS; PARTICIPATING PARTIES. 





	3.1	 	As detailed below, the Parties shall jointly develop technology that meets the requirements
set forth as “Strategic Technology Objectives” in the Project Agreement (the “Strategic
Technology Objectives”) and shall do so in accordance with the schedule set forth in the
Project Agreement (the “Development Schedule”). Any modification to such Strategic Technology
Objectives or Development Schedule requires the mutual agreement of the Parties pursuant to
Section 18.15.
	 
	3.2	 	The Project Agreement may also set forth the potential technology implementation options for
the Development Project, and if so, the Parties shall work together to evaluate the various
options available. The goal of such evaluation is to agree on an integrated technology that
meets the Strategic Technology Objectives. If the Project Leaders are unable to agree on a
particular option to be developed, or should they disagree as to the continued development of
an option that was previously selected, the option preferred by IBM shall be pursued in the
Development Project. In the event that a Party proposes an option that is presented to the
other Parties, but is not selected by the Parties after escalation, then such Party shall have
the right, subject to the other terms and conditions of the Agreement, to proceed with such
development outside the performance of the Development Project. If it is reasonably expected
that any Background Know-How or Specific Results contains or may contain technical information
or software that is or may be controlled as a defense article or technology under the
applicable export laws, regulations, or ordinances, then the Parties shall, pursuant to this
Section 3.2, also evaluate the various technology modification options to maintain broad
commercial availability of the technology and associated articles.
	 
	3.3	 	For information other than that developed by the Parties in the Development Project to be
considered Background Know-How it must be either deliberately provided to the Development
Project by the owner of such information or be evaluated by all of the





			
	 	 	 
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	 	 	Project Leaders for possible use in the Development Project. In the event such item of
information is provided, and the Party owning such information notifies the Project Leaders
within thirty (30) days after such owning Party’s disclosure or the initiation of such
evaluation that such information should be withdrawn, such owning Party may withdraw such
information from use in the Development Project and all such information in tangible form
associated therewith shall be returned to such owning Party and such tangible information
shall not become Background Know-How. In the event of such withdrawal, any non-tangible
information related to such information retained in the minds of the non-owning Parties’
employees shall be treated in accordance with Section 9.1. Absent such notice and
withdrawal within thirty (30) days, all information deliberately provided by the owner of
such information or evaluated by the Project Leaders shall be treated as Background
Know-How.






	 	3.3.1	 	Any issue as to whether information was deliberately provided to the
Development Project shall be resolved by the Project Leaders based on either of
the following criteria:






	 	3.3.1.1	 	whether the information was deliberately exposed to the other
Parties by a Representative of the owner of such information; or
	 
	 	3.3.1.2	 	whether the evaluation of the information by the Representatives was
validly considered for incorporation into the Development Project.






	 	 	 	If the Project Leaders cannot agree, such issue shall be resolved by the Management
Committee in accordance with the criteria in Sections 3.3.1.1 and 3.3.1.2.






	 	3.3.2	 	Each Party shall be responsible for instructing its Representatives
on methods of proper introduction of information into the Development Project, and
the consequences under Section 7.10, below, of information that is inadvertently
obtained.






	3.4	 	Intentionally Omitted.
	 
	3.5	 	During a Party’s participation in the Development Project, such Party shall have access to
all Specific Results and Background Know-How of the Development Project and shall be solely
responsible, including the cost therefor, for the transfer of Specific Results and Background
Know-How to its own facilities. As part of the Development Project, the Project Leaders shall
coordinate the completion of the Documentation for the Development Project and each Party
shall have access to all such Documentation during such Party’s participation in the
Development Project. Each Party shall be solely responsible for obtaining any and all
regulatory approvals as may be required to utilize Specific Results and Background Know-How at
its facilities, and shall be solely responsible for the cost of equipment and consumables as
may be required to utilize the Specific Results and Background Know-How at its facilities.





			
	 	 	 
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	3.6	 	Without liability to the other Parties for breach of the Agreement, to the extent known by a
Party disclosing information for use in the Development Project, prior to such disclosure,
such disclosing Party agrees to promptly notify the other Parties of any limitations on the
uses of such information (including applicable regulatory limitations) and whether such use
would violate or whether such information is protected by any copyright or mask work or
similar right of any Third Party. Upon such notification, the Parties may agree to accept
such information into the Development Project subject to such limitations. Upon the failure
to make such notification, or if any such limitation arises after disclosure by the disclosing
Party, then the Parties shall attempt to work together to find a unanimously agreeable
solution. Each Party further agrees to use reasonable efforts to ensure that it will not
design or develop the Development Project in such a way that requires the use of any Third
Party confidential information or any other material which is not available to the other
Parties for their use as provided in the Agreement as part of the Background Know-How and/or
Specific Results. Each Party further agrees to use reasonable efforts to ensure that it will
not disclose to the other Parties any information considered confidential by it or by any
Third Party which information does not relate to the Development Project.
	 
	3.7	 	Intentionally Omitted.
	 
	3.8	 	IBM reserves the right, in its sole discretion, to (i) add companies as Participating Parties
(including as Partial Participating Parties) for the Development Project, (ii) remove
Participating Parties from the Development Project in accordance with the terms and conditions
of the Agreement (including, for clarity, the Participation Agreement between IBM and such
Participating Party), and (iii) amend its Participation Agreement with a Participating Party
following IBM’s agreement with such Participating Party. IBM shall promptly notify or cause
the notification of the other Participating Parties after the addition, removal, or withdrawal
of a Participating Party.









SECTION 4 — MANAGEMENT AND STAFFING OF THE DEVELOPMENT PROJECTS 





	4.1	 	The Development Project shall have a Management Committee with equal representation from each
Party. The responsibilities of the Management Committee are set forth in Exhibit A. All
decisions of the Management Committee shall be by unanimous consent. Each Party shall appoint
a Management Committee representative promptly after such Party joins the Development Project.
Any Party may change its member of the Management Committee by written notice to the IBM
Designated Executive. The Management Committee will conduct regular meetings on dates and at
locations determined by the Management Committee. Meetings of the Management Committee may be
held in person, by teleconference, or by videoconference.






	 	4.1.1	 	The Management Committee shall establish a regular review process with the
appropriate senior business executives of each of the Parties of at least the level of
Vice President or other comparable level. Such review shall include review of an
overall progress report to be prepared by the Project Leaders. In addition, any
additional responsibilities of the Management Committee shall be provided in the





			
	 	 	 
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	 	 	 	Project Agreement, including the Management Committee’s right to establish
additional subcommittees for the oversight of individual Development Project
elements.
	 
	 	4.1.2	 	If any Party (i) reasonably determines that the technology to be developed
under a Development Project is no longer meeting the Strategic Technology Objectives or
the Development Schedule, or (ii) brings forth empirical evidence of changes in the
competitive marketplace for the technology such that the Strategic Technology
Objectives and/or the Development Schedule are no longer competitive; then such Party
may present such concerns to the Management Committee for discussion. If the
Management Committee, after the exercise of reasonable efforts in the conduct of such
discussions, fails to reach a unanimous agreement resolving such Party’s concerns, then
any Party may refer such concerns to the Designated Executives for the Participating
Parties who shall discuss and meet in person, if necessary, in order to attempt to
resolve such Party’s concerns. If such Designated Executives are unable to resolve
such Party’s concern, then the Designated Executives agree to instruct the Management
Committee to negotiate a unanimously agreeable reasonable wind-down plan to terminate
the development relationship set forth in the Project Agreement, with a goal of doing
so within thirty (30) days (which period of wind down shall not exceed ninety (90) days
and which plan shall include, among other things, and a final set of deliverables to
transfer Specific Results and/or Background Know-How previously undisclosed, if any) to
terminate the development relationship set forth in the Agreement. For clarity, the
termination of a development relationship in one Project Agreement pursuant to this
Section 4.1.2 does not, in and of itself, affect development relationships contained in
different Project Agreements. Such wind-down shall not be considered a breach of the
Agreement by any Party, and the survival terms of Section 12.2 shall apply.






	4.2	 	Intentionally Omitted.
	 
	4.3	 	Intentionally Omitted.
	 
	4.4	 	Intentionally Omitted.
	 
	4.5	 	Each Party shall appoint a Project Leader for each Development Project promptly after the
Party joins the Development Project. It is the intent of the Parties that Project Leaders are
assigned to the Development Project for at least a term equal to the lesser of two (2) years
and the Project Term. The IBM Project Leader shall be in charge of the day-to-day management
of the Development Project. A Party may replace its Project Leader by giving written notice
to the IBM Designated Executive of such replacement. The responsibilities of the IBM Project
Leader and the other Project Leaders are set forth in Exhibits B and C, respectively.
	 
	4.6	 	The Participation Agreement between IBM and each Participating Party establishes the
minimum number of Representatives that such Participating Party has committed to IBM





			
	 	 	 
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	 	 	to work on the Development Project. The work assignment and any reassignment of such
Representatives shall be unanimously agreed to by the IBM Project Leader and the Project
Leader responsible for such Representatives. For the avoidance of doubt, each Participating
Party’s staffing obligation to IBM under its Participation Agreement is not a material term
of the Agreement to any other Participating Party. It is the intent of the Parties that
such Representatives be assigned to the Development Project for at least a term equal to the
lesser of two (2) years and the Project Term. Each Party shall ensure its Representatives
possess appropriate skills and experience to accomplish the Strategic Technology Objectives.
	 
	4.7	 	Each Party shall appoint a Technical Coordinator promptly after joining the Development
Project. The Technical Coordinators shall be responsible for supervising exchanges of
information among the Parties pursuant to Section 7.2. A Project Leader for a Party may
replace the Technical Coordinator for such Party by giving written notice to the IBM
Designated Executive of such replacement.
	 
	4.8	 	Each Party shall ensure its Representatives comply in all material respects with all
personnel, human resources, security and safety rules, procedures, and guidelines and
regulatory requirements applicable to contractors resident at or visiting a Development
Facility while such Representatives are at that Development Facility for the Development
Project, including those IBM Development Facility Visitation Guidelines for Representatives
set forth in Exhibit D. In particular, each Participating Party agrees to abide by security
requirements as may apply to its Representatives while at the applicable Development
Facilities. Each Party shall provide to the other Parties in advance a set of documents
setting forth all such rules, procedures, and guidelines, including any updated versions
thereof, for the Development Facility of each such Party.
	 
	4.9	 	Each Party shall be responsible for the selection of its Representatives who will be assigned
to work in the Development Facilities on the Development Project. Personnel supplied by each
Party who are Representatives of the supplying Party shall not for any purpose be considered
employees or agents of any other Party. Each Party shall be responsible for the supervision,
direction and control, payment of salary (including withholding of taxes), travel and living
expenses (if any), worker’s compensation insurance, disability benefits and the like of its
own Representatives. Upon request, the operator of a Development Facility shall use good
faith efforts to cooperate with a Party, enabling such Party’s Representatives to work at the
Development Facility (e.g. by providing a letter of invitation). In addition, each Party may
reassign any of its employees as Representatives as such Party deems necessary with
appropriate notice to the IBM Project Leader; provided, however, each Participating Party is
subject to the terms of its Participation Agreement with IBM.
	 
	4.10	 	If any Party (the “Notifying Party”) should become aware of the existence of any hazardous
conditions, property, or equipment which are under the control of another Party (the
“Controlling Party”), then the Notifying Party shall promptly advise the Controlling Party;
however, it shall remain the Notifying Party’s responsibility to take all necessary
precautions against injury to persons or damage to property from such hazards,





			
	 	 	 
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	 	 	property, or equipment until corrected by the Controlling Party. Each Party agrees to
comply with the Occupational Safety and Health Act (“OSHA”), applicable OSHA standards,
applicable safety and health laws and regulations, any applicable municipal ordinances, and
applicable facility safety rules of which the Party has notice, regarding the
Representatives it assigns to the Development Project.
	 
	4.11	 	The Parties agree that the Parties and any Subsidiaries shall refrain from making any payment
or gift of any value to any Representatives of any other Party assigned to the Development
Facilities without the employing Party’s prior written approval. No Party (or any of its
Subsidiaries) may make any representation that might cause a Representative of another Party
to believe that an employment relationship exists between such Representative and another
Party.
	 
	4.12	 	No Party assumes any liability to the other Parties for any injury (including death) to
persons or damage to or loss of property suffered on or about the Development Facilities
unless caused by the gross misconduct or gross negligence of such Party, its Representatives,
or invitees.
	 
	4.13	 	To the extent permitted by law, during the term of the Agreement, each Party agrees to not,
without the prior written permission of another Party, directly or indirectly solicit for
employment purposes the Representatives of the other Party engaged in the design, research,
development, or manufacture of Semiconductor Products or Integrated Circuits, or in the
research or development directed at creating processes for the manufacture thereof at the
Development Facilities or other Representatives working on the Development Project until at
least one (1) year has passed between the date such Representative stopped being engaged in
such activities and the date of solicitation. However, the foregoing does not preclude
general (i.e., non-targeted) recruitment advertising. In addition, to the extent
permitted by law, during the term of the Agreement, each Party agrees that its units,
divisions, lines of business or other comparable organizational structures, involved in such
foregoing activities shall not hire Representatives of any other Party engaged in the
Development Project, without the prior written permission of such other Party.
	 
	4.14	 	IBM shall maintain the Project Database for the Development Project and use commercially
reasonable efforts to make it accessible to the Participating Parties and to promptly update
the Project Database to reflect, among other things, the following information received by the
IBM Designated Executive: (i) the identity and other relevant information for new
Participating Parties (e.g. Project Leader, Notice Address, and Designated Executive), (ii)
the withdrawal/removal of a Participating Party, (iii) modifications to a Participating
Party’s contact and address information. Each Participating Party shall use commercially
reasonable efforts to provide the IBM Designated Executive with written notice of any errors
and any proposed changes to the information listed for such Participating Party on the Project
Database. No proposed correction or change is effective for purposes of the Agreement until
it is reflected on the Project Database. IBM assumes no liability to the other Parties for
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	 	 	as a result of IBM maintaining the Project Database, unless caused by the gross misconduct
or gross negligence of IBM or its Representatives.









SECTION 5 —  FUNDING CONTRIBUTIONS, COST SHARING, AND OTHER PAYMENTS




Each Party’s Participation Agreement sets forth such Participating Party’s payment and cost sharing
obligations to IBM for its participation in the Development Project(s). For the avoidance of
doubt, each Participating Party’s payment and cost sharing obligations to IBM under such
Participation Agreement are a material term of the Agreement between that Participating Party and
IBM only; and a breach by such Participating Party of such obligations shall be considered a breach
by only that Party and only to IBM. Except for payments due IBM pursuant to the Participation
Agreement, each Party shall bear all its own expenses incurred in the performance of the Agreement,
and no Party is entitled to any payment, cost reimbursement, or other compensation from the other
Parties for services, deliverables, and rights granted to the other Parties under the Agreement.







SECTION 6 — INSURANCE, RESPONSIBILITY FOR RESULTS AND WARRANTIES





	6.1	 	Each Party shall use commercially reasonable efforts to pursue the Development Project in
accordance with the Agreement and shall perform all assigned tasks in a workmanlike manner.
However, the Parties acknowledge that the results of the development work to be performed and
the timing of such results are uncertain and cannot be guaranteed by any Party. The risk of
success or failure of the Development Project is shared by all the Parties. If a Party has
exerted such foregoing efforts in the performance of its responsibilities under the
Development Project, the failure to achieve the Strategic Technology Objectives or the
Development Schedule shall not constitute a breach of the Agreement or a basis to extend the
Project Term.
	 
	6.2	 	Except as otherwise expressly set forth in Section 6.1above, no Party makes any
representation or warranty with respect to another Party, and all items furnished by a Party
to the Development Project will be produced or provided by said Party in the same manner as it
produces or provides such items for its own use and will be furnished on an “AS IS” BASIS
WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, i) ANY WARRANTY THAT THE SPECIFIC
RESULTS OR BACKGROUND KNOW-HOW WILL BE FREE OF THIRD PARTY CLAIMS OF INFRINGEMENT OF PATENTS,
COPYRIGHTS, TRADE SECRETS OR MASK WORK RIGHTS and ii) ANY IMPLIED WARRANTIES OR
TERMS OF MERCHANTABILITY AND FITNESS OR USE FOR A PARTICULAR PURPOSE. FURTHER, IBM MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND RELATIVE TO THE IDENTITY OR NUMBER OF PARTICIPATING
PARTIES OR THE TERM OF EACH OF THEIR PARTICIPATION IN THE DEVELOPMENT PROJECT.





			
	 	 	 
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	6.3	 	Each Party shall maintain for the benefit of each of the others, comprehensive general
liability insurance of not less than eight million dollars ($8,000,000) per occurrence which
covers bodily injury (including death) and property damage, and which applies to any such
liability the Party may have under the Agreement. The foregoing obligation can be met with a
combination of comprehensive liability insurance augmented by umbrella liability insurance.
Purchase and maintenance of such insurance shall in no way be interpreted as relieving any
Party of any of its responsibilities hereunder, and each Party may carry, at its expense, such
additional insurance amounts and coverage as it deems necessary. In no event shall any such
insurance be cancelled without prior written notice by the insured Party’s insurance carrier
to IBM and the Participating Parties.









SECTION 7 — INFORMATION TRANSFERS





	7.1	 	The Parties recognize that each of them has patent license arrangements with Third Parties
and that it is the individual responsibility of each Party to secure any rights under the
patents of Third Parties which may be needed to enable it to manufacture and/or market the
product (including products manufactured using the technology to be developed under the
Development Project) at such time as it determines in its sole judgement that such action is
required.
	 
	7.2	 	Any confidential information disclosed by one Party or more Parties in performance of the
Development Project shall be designated with an appropriate and conspicuously obvious legend,
such as (a) “IBM Confidential”, or (b) “XYZ Confidential”, where “XYZ” is replaced with the
name of the disclosing Participating Party, or (c) “IBM-QRS Confidential”, where the
information was jointly developed by IBM and QRS pursuant to a separate development project,
as the case may be. Such legends shall clearly indicate to a person viewing or otherwise
accessing such information that it is of a confidential nature to the disclosing
Party/Parties. Any such disclosure that is made orally shall be confirmed in writing under a
like designation within thirty (30) days after the date of such disclosure. The Technical
Coordinators shall monitor and keep records of all such disclosures of confidential
information and shall ensure that it is properly marked as confidential, and record the date
of receipt. Specific Results generated pursuant to the Development Project and any
confidential information that is included in Specific Results shall be clearly designated by
the Technical Coordinators with an appropriate legend, such as “IBM-ABC Confidential”, where
IBM and ABC represent all of the Parties. Further, in the event that a Representative of any
Party obtains information relating to the Development Project in tangible form which is not
designated as confidential in accordance with this Section 7.2, but which from its nature
appears likely to be confidential, such Representative will notify the Technical
Coordinator(s) of the other Party(ies) who then will decide whether or not such information
can and should be thereafter treated as confidential. The Technical Coordinators of the
Parties shall either unanimously agree that such information is non-confidential or have all
copies of such information in tangible form promptly marked with the appropriate legend
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	7.3	 	Except as otherwise provided in the Agreement, with respect to Specific Results and
Background Know-How and any other information of any Party, which is identified as
confidential information pursuant to Section 7.2 above, each Party receiving such information
shall use the same efforts to avoid its publication or dissemination to Third Parties as it
employs with respect to information of its own which it does not desire to be published or
disseminated. For clarity, a Participating Party is authorized to disclose such confidential
information only to the entities identified in Section 7.5 of these Master Terms and such
other authorized recipients identified in the Project Agreement and that Participating Party’s
Participation Agreement. For Specific Results and Background Know-How, the obligations of
confidentiality shall terminate at the end of the Confidentiality Period; and for all other
confidential information this obligation of confidentiality shall terminate five (5) years
after its disclosure by the disclosing Party. This obligation of confidentiality shall not,
however, apply to any information that is:






	 	7.3.1	 	already in or comes into the possession of the receiving Party or its
Subsidiaries without obligation of confidence;
	 
	 	7.3.2	 	now, or hereafter becomes, publicly available without breach of the Agreement;
	 
	 	7.3.3	 	intentionally disclosed to Third Parties by the disclosing Party without
obligation of confidence or rightfully received from Third Parties without obligation
of confidence;
	 
	 	7.3.4	 	independently developed by the receiving Party or its Subsidiaries;
	 
	 	7.3.5	 	approved for release by written agreement of the disclosing Party; or
	 
	 	7.3.6	 	inherently disclosed in the use, lease, sale, or other distribution of any
available product or service or publicly available supporting documentation therefor by
the receiving Party or any of its Subsidiaries.






	7.4	 	The receiving Party’s obligation with respect to Specific Results and Background Know-How or
any other confidential information of the disclosing Party as specified in Section 7.3 above
shall not apply to any disclosure that is:






	 	7.4.1	 	in response to a valid order of a court or other governmental body of any
country or group of countries or any political subdivision thereof; provided, however,
that the receiving Party shall first have notified the disclosing Party and made a good
faith effort to obtain a protective order requiring that the information and/or
documents so disclosed be used only for the purposes for which the order was issued;
	 
	 	7.4.2	 	otherwise required by law or securities regulations to which the receiving
Party is subject; or





			
	 	 	 
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	 	7.4.3	 	reasonably necessary in order to establish the receiving Party’s rights,
provided that such receiving Party shall provide the disclosing Party with prior
written notice, except notice shall not be required where the receiving Party is
attempting to establish rights in a lawsuit under the Agreement against the disclosing
Party or is filing a patent application under Section 11 of these Master Terms.






	7.5	 	Each Party shall have the right to disclose Specific Results and Background Know-How to any
of its Wholly Owned Subsidiaries at any time; provided, however, that such Wholly Owned
Subsidiaries shall agree to be bound by substantially the same terms as are applicable to said
Party in Sections 7.2, 7.3, and 7.4 and the survival of same pursuant to Section 12. Further,
each Party may authorize its Wholly Owned Subsidiaries to whom such Party has disclosed
Specific Results or Background Know-How pursuant to this Section 7.5 to exercise some or all
of its rights to disclose Specific Results or Background Know-How under and in accordance with
the Agreement.
	 
	7.6	 	Intentionally Omitted.
	 
	7.7	 	Intentionally Omitted.
	 
	7.8	 	Notwithstanding any other provision of the Agreement, a Participating Party shall not be
prevented from furnishing or disclosing to any Third Party the technical information developed
solely by such Participating Party outside of the Development Project, or jointly developed by
such Participating Party and Third Parties outside of the Development Project, whether or not
such technical information is also included in Specific Results and/or Background Know-How.
Further, disclosure of such technical information shall not be prevented even if a minor
portion of Specific Results and/or Background Know-How is commingled with and constitutes an
inseparable element of such technical information. If any dispute arises with regard to the
definition of a “minor portion”, then the Management Committee shall promptly resolve such
dispute.
	 
	7.9	 	IBM shall have the right to disclose Specific Results, Background Know-How, or both to any
Subsidiary or any Third Party, at any time and for any purpose, and such recipients shall have
the same right to disclose the same to their Subsidiaries,, provided that such disclosures
shall be subject to appropriate confidentiality terms and conditions that, at a minimum, shall
have a term of confidentiality no shorter than the Agreement requires of IBM.
	 
	7.10	 	With respect to information that does not relate to the Development Project and which is
considered confidential by any Party, it is not the intention of any Party to disclose to or
obtain from the other Parties any such information. In particular, the Parties acknowledge
that IBM has other development projects and relationships being conducted in the Development
Facilities, and the Parties shall take reasonable precautions to limit the disclosure and
receipt of information unrelated to the Development Project. In the event that a
Representative of one Party obtains any such information of another Party or that is
designated as confidential or which should from its nature be understood to be confidential,
the Technical Coordinators of all Parties shall be informed, and any such





			
	 	 	 
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	 	 	information in tangible form shall promptly be returned to said originating Party. Nothing
in the Agreement shall convey any right to said Party to use said tangible information for
any purpose. However, any non-tangible information related to said information which is
retained in the minds of the Party’s employees will be treated pursuant to Section 9.1.
	 
	7.11	 	Notwithstanding any other terms of the Agreement, the Parties shall be permitted to disclose
a summary of pertinent Sections of the Agreement as provided in Section 18.1.









SECTION 8 — LICENSES TO BACKGROUND KNOW-HOW 





	8.1	 	IBM hereby grants to each Participating Party, and each Participating Party hereby grants to
all other Participating Parties, under their respective trade secret and know-how rights in
and to Background Know-How, a XXXXX (subject to all the terms and conditions of the Agreement)
license, to use such Background Know-How for the purpose of researching, developing,
engineering, manufacturing, using, marketing, selling, servicing, and otherwise disposing of
Licensed Products and to make derivatives of such information for such uses.
	 
	8.2	 	IBM hereby grants to each Participating Party and each Participating Party hereby grants to
all other Participating Parties, under their respective copyright rights in and to Background
Know-How a XXXXX (subject to all the terms and conditions of the Agreement) license to copy
Documentation and other written expression, to make derivative works of such written
expression, to distribute such documentation and derivatives as set forth elsewhere in the
Agreement, and to execute, display, and perform to the extent consistent with the provisions
of Section 7; provided, however, that each Participating Party shall make only such numbers of
copies and create such derivative works as are reasonably necessary for them to carry out the
license rights set forth in the Agreement.
	 
	8.3	 	IBM hereby grants to each Participating Party, and each Participating Party hereby grants to
all other Participating Parties, under their respective mask work rights in and to Background
Know-How, a XXXXX (subject to all the terms and conditions of the Agreement) license to use
any process-related mask design information provided to a Development Project and create
derivative works thereof, as reasonably necessary for the licensed Parties to carry out the
license rights set forth in the Agreement. Unless otherwise authorized, this right shall not
include any rights to utilize any product design information in such masks
	 
	8.4	 	Each Participating Party hereby grants to IBM, under such Participating Party’s trade secret
and know how rights, copyright, and mask work rights in and to Background Know-How, a XXXXX
(subject to all the terms and conditions of the Agreement), license to use such Background
Know-How for the purpose of researching, developing, engineering, manufacturing, using,
marketing, selling, servicing, and otherwise disposing of Integrated Circuits and/or
Semiconductor Products and to make derivatives of such information for such uses. In the case
of copyrights, such license is to copy





			
	 	 	 
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	 	 	Documentation and other written expression, to make derivative works of such written
expression, to distribute such Documentation and derivatives as set forth elsewhere in the
Agreement, and execute, display, and perform to the extent consistent with the provisions of
Section 7; provided, however, that IBM shall make only such numbers of copies and create
such derivative works as are reasonably necessary for it to carry out the license rights set
forth in the Agreement. In the case of mask work rights, such license is to use any
process-related mask design information provided to a Development Project (e.g. kerf test
structures) and create derivative works thereof, as reasonably necessary for IBM to carry
out the license rights set forth in the Agreement. Unless otherwise authorized, this right
shall not include any rights to utilize any product design information in such masks.
	 
	8.5	 	The licenses granted in Sections 8.1 through 8.4 shall include the right for each Party to
sublicense consistent with its respective disclosure rights as set forth in Section 7 of the
Master Terms and the rest of the Agreement, and subject to the terms and conditions set forth
therein and as may be applicable pursuant to this Section 8. Each Party agrees to not
unreasonably withhold the granting, upon request by a recipient to whom disclosure has been
made pursuant to the Agreement, including Sections 7.5 and 7.9 of the Master Terms, of a XXXXX
license under such Party’s patents, under reasonable and non-discriminatory terms and
conditions, to the extent necessary for such recipient to utilize the disclosed information
for the purposes set forth in the applicable clause of the Agreement, including Section 7 of
the Master Terms, provided such recipient otherwise respects the intellectual property rights
of the granting Party.
	 
	8.6	 	(a) Each Participating Party shall, upon joining the Development Project, designate whether
it is a Patent Participating Party for such Development Project and such designation is
applicable for the entire Project Term. Each Patent Participating Party hereby grants to one
another and to their respective Wholly Owned Subsidiaries a XXXXX license under their Licensed
Patents to make, have made, use, lease, sell, import, and offer for sale Integrated Circuits
and Semiconductor Products, solely to the extent such Licensed Patents have claims that are
necessarily infringed by the grantee utilizing all or any aspect of the Specific Results and
Background Know-How of the Development Project to the extent otherwise licensed to do so
elsewhere in this Section 8. For the avoidance of doubt, such patent license shall not extend
to claims of patents that claim Specific Results Exclusions and/or Background Know-How
Exclusions. For clarity, this Section 8.6(a) does not affect any patent license agreements
between the Patent Participating Parties currently existing, but may confer rights on the
Patent Participating Parties in addition to the rights they may have under such existing
agreements.
	 
	 	 	(b) No license or other right is granted in the Agreement by any Party to the other
Parties, directly or indirectly, by implication, estoppel or otherwise, with respect to any
trade secrets, know-how, copyrights, mask works, patents, patent applications, utility
models, or design patents except as expressly set forth in the Agreement, and no such
license or other right shall arise from the consummation of this Agreement or from any acts,
statements or dealings leading to such consummation. All Parties, other than Patent
Participating Parties, expressly understand and acknowledge that any patent license rights





			
	 	 	 
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	 	 	that may be required to carry out the licenses set forth in the Agreement are not set forth
in the Agreement and may be set forth in separate patent cross-license agreements between
them.









SECTION 9 —  LICENSE TO RESIDUALS AND PROPRIETARY TOOLS 





	9.1	 	Notwithstanding any other provisions of the Agreement, to the extent that such use does not
infringe the valid patents, patent applications, registered designs, or copyrights of another
Party, and subject to the provisions of Section 7, each Party shall be free to use the
residuals of Specific Results, another Party’s Background Know-How, Proprietary Tools, if any,
and other confidential information received pursuant to Section 7.2, above, for any purpose,
including use in the development, manufacture, marketing, and maintenance of any products and
services. The term “residuals” means that information in non-tangible form which is mentally
retained by those Representatives of a Party who have had access to Specific Results, the
Background Know-How, and/or Proprietary Tools, if any, of another Party, pursuant to the
Agreement. The Parties agree that the receipt of Specific Results, the Background Know-How,
and/or Proprietary Tools, if any, of another Party shall not create any obligation in any way
limiting or restricting the assignment and/or reassignment of a Party’s Representatives within
that Party.
	 
	9.2	 	Each Party grants to the other Parties under the Proprietary Tools provided by that Party for
use in the Development Project, an XXXXX license to use, execute, display, and perform such
Proprietary Tools in the Development Facilities for the purpose of the Development Project.
Any Proprietary Tools that are introduced into the Development Facilities for the purpose of
the Development Project may not be transferred from the Development Facilities or used by a
Party outside the Development Facilities without the express written consent of the Party
introducing the Proprietary Tool(s). Any Party providing Proprietary Tools used in the
Development Project that are not available from another source or for which there is no
reasonable substitute, will, to the extent it has the right to do so, and on reasonable terms
and conditions (including reasonable fees) to be negotiated, grant a XXXXX license to the
other Parties to use such Proprietary Tools outside the Development Project in furtherance of
their respective license rights set forth in Section 8.









SECTION 10 — OWNERSHIP OF SPECIFIC RESULTS





	10.1	 	Except with respect to Designated Inventions, as set forth in Section 11 of these Master
Terms, and except with respect to Background Know-How, Specific Results (whether developed
solely by one Party or jointly by two or more Parties) shall be the property of all the
Parties under the Project Agreement, and all such Parties shall own the mask works, copyright,
trade secret, know-how, and similar rights in all such material jointly without accounting to
the other Parties or obligation to obtain the consent of one another for the exploitation
thereof or granting of licenses (including the right of licensees to grant sublicenses) with
respect thereto consistent with its respective disclosure rights as set forth in Section 7 and
the rest of the Agreement, and subject to the terms and





			
	 	 	 
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	 	 	conditions set forth therein and as may be applicable pursuant to Section 8. For the
avoidance of doubt, only companies that have agreed to the Project Agreement are owners for
purposes of this Section 10.1, and no other entity, including entities that participate in
other development projects with one or more of the Parties, is granted any ownership in the
Specific Results pursuant to the Project Agreement. For the further avoidance of doubt,
such joint ownership shall include Inventions other than Designated Inventions. Moreover,
for the avoidance of doubt, the Agreement shall constitute written consent of such joint
owner(s) for the disclosing Party to make the disclosures set forth in the Agreement, to the
extent such joint consent is required in a given jurisdiction; provided, however, that such
assent is subject to the terms and conditions of the Agreement. Before applying to register
or record in any country any of the rights or material to which this Section 10 relates, the
Parties shall hold consultations and agree on whether this is appropriate and, if so, which
of them shall make such application and in which countries. To the extent required to
perfect the joint ownership rights of two or more Parties, each such Party hereby agrees to
assign to the other such Parties an equal, undivided ownership of all right, title, and
interest (including, without limitation, all intellectual property rights) in and to all
Specific Results other than patent rights in and to Designated Inventions.






	10.2	 	The joint ownership by the Parties of all copyright and similar rights in and to Specific
Results shall be subject to information transfer and licensing provisions of the Agreement;
the Parties understand and agree that their status as joint owners of Specific Results shall
be subject to their respective disclosure rights as set forth in the Agreement.










SECTION 11 —  OWNERSHIP OF DESIGNATED INVENTIONS





	11.1	 	Each Designated Invention made solely by one or more Representatives or contractors of one
Party, and title to all patent applications filed thereon and all patents issued thereon,
shall be solely the property of the inventing Party, subject to a patent license granted in
Section 11.3 below. It shall be in the sole discretion of the inventing Party to determine
whether or not to file a patent application on an Invention, thereby creating a Designated
Invention.
	 
	11.2	 	Designated Inventions made jointly by one or more Representatives or contractors of one
Party with one or more Representatives or contractors of any other Party, and title to all
patent applications filed thereon and all patents issued thereon, shall be jointly owned by
the inventing Parties. Each inventing Party shall have the right to grant licenses (including
the right of any licensee to grant sublicenses) to the inventing Party’s Subsidiaries and/or
to Third Parties under any patent issued on such a joint Designated Invention without
compensation to the other inventing Party(ies) and/or its or their Representatives or
contractors, which hereby give any necessary consent for granting such licenses as may be
required by the law of any country. All expenses, other than internal patent department
expenses of the inventing Parties, incurred in obtaining and maintaining such patents shall be
equally shared by the inventing Parties (except as provided hereinafter). Prior to filing any
patent application in respect of any such joint Designated Inventions the inventing Parties
shall hold consultations and agree on whether





			
	 	 	 
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	 	 	this is appropriate and, if so, which of them shall file and prosecute such application and
in which countries corresponding applications shall be filed and by whom. With respect to
any joint Designated Invention, where one inventing Party elects not to seek or maintain
such protection thereon in any particular country or not to share equally in the expenses
thereof, the other inventing Parties shall have the right to seek or maintain such
protection in said country at its or their own expense and shall have full control over the
prosecution and maintenance thereof even though title to any patent issued thereon shall be
joint.
	 
	11.3	 	With respect to Designated Inventions under Sections 11.1, the owning Party hereby grants the
other Parties the same rights and obligations with respect to the relevant Specific Results
provided for in the Agreement to carry out the activities set forth in the Agreement
(including, but not limited to, Sections 7, 8, and 9 of these Master Terms). With respect to
patents issued on said Designated Inventions, the license granted by the owning Party(ies) to
the other Parties shall be an irrevocable (subject to the terms and conditions of the
Agreement), worldwide, non-exclusive, royalty-free, paid-up license to make, have made, use,
lease, sell, offer to sell, import and otherwise transfer any products and to practice and
have practiced any process and shall include the right of such licensed Party to sublicense
its Subsidiaries of the same or within the scope of the foregoing license.
	 
	11.4	 	With respect to Designated Inventions under Sections 11.2, each Party shall give the other
Parties all reasonable assistance in connection with the preparation or prosecution of any
patent application filed by said other Parties and shall cause to be executed all assignments
and other instruments and documents as said other Parties may consider necessary or
appropriate to carry out the intent of this Section 11.
	 
	11.5	 	Nothing in the Agreement shall affect any patent license agreements between one or more of
the Parties, but may confer rights on one or more Parties in addition to the rights they may
have under such existing agreements.
	 
	11.6	 	Intentionally Omitted.
	 
	11.7	 	The Project Leaders shall establish a procedure for reviewing Invention disclosures in order
to determine which Inventions are subject to the provisions of Section 11.2 of these Master
Terms relating to joint Inventions.










SECTION 12 — TERM AND TERMINATION





	12.1	 	The Project Agreement provides the Project Term for the Development Project.
	 
	12.2	 	At expiration of the Project Agreement, the following Sections of these Master Terms survive
and continue to bind the Parties and their legal representatives, successors, and assigns: 1;
4.9 — 4.13, inclusive; 6; 7.1, 7.4-7.10 inclusive; 8; 9; 10; 11; 12; 13; 15; 16; 17; and 18;
provided, however, a Participating Party’s surviving license and disclosure





			
	 	 	 
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	 	 	rights pursuant to the Agreement (including those contained in Sections 7, 8, 9, 10, and 11
of these Master Terms) only apply to confidential information, Background Know-How,
Proprietary Tools, Specific Results, and Designated Inventions, as each existed at the end
of such Participating Party’s participation in the Development Project. In addition,
certain terms of the Project Agreement and the Participation Agreement survive such
expiration, as detailed in such agreements, respectively. The Parties agree that failure to
list any sections as surviving does not prejudice any Party’s remedies with respect thereto.
	 
	12.3	 	Any non-breaching Party shall have the right to immediately terminate the breaching Party’s
participation in the Development Project by giving written notice of termination to the
breaching Party, if such breaching Party 1) permanently ceases doing business; 2) is adjudged
bankrupt or insolvent or files a petition for bankruptcy; or 3) goes into liquidation.
	 
	12.4	 	(a) If IBM fails to perform or violates any material obligation of the Agreement, then, upon
thirty (30) days written notice to IBM specifying such failure or violation (the “Default
Notice”), any Party who is not in breach of the Agreement shall have the right to immediately
cease such Party’s participation in the Development Project without liability by giving
written notice of such cessation to IBM, unless: (i) the failure or violation specified in
the Default Notice has been cured within that thirty (30) day period; or (ii) the failure or
violation reasonably requires more than thirty (30) days to correct (specifically excluding
any failure to pay money), and IBM has begun substantial corrective action to remedy the
failure or violation within such thirty (30) day period and diligently pursues such action, in
which event, termination shall not be effective unless ninety (90) days has expired from the
date of the Default Notice without such corrective action being completed and the failure or
violation remedied.
	 
	 	 	(b) If any Participating Party fails to perform or violates any material obligation of the
Agreement, then, upon thirty (30) days written notice from any non-breaching Party (with a
copy to IBM) to such Participating Party specifying such failure or violation (the “Default
Notice”), then IBM shall have the sole and exclusive right to immediately terminate the
breaching Party’s participation in the Development Project without liability, unless: (i)
the failure or violation specified in the Default Notice has been cured within that thirty
(30) day period; or (ii) the failure or violation reasonably requires more than thirty (30)
days to correct (specifically excluding any failure to pay money), and such Party has begun
substantial corrective action to remedy the failure or violation within such thirty (30) day
period and diligently pursues such action, in which event, termination shall not be
effective unless ninety (90) days have expired from the date of the Default Notice without
such corrective action being completed and the failure or violation remedied. IBM may
exercise or waive its rights pursuant to this Section 12.4(b) in IBM’s sole and absolute
discretion, and IBM assumes no liability to the other Parties for any injury or damage as a
result of this Section or IBM’s exercise or waiver of such rights.





			
	 	 	 
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	 	 	(c) Notwithstanding Section 12.4(b), IBM shall, at the request of a non-breaching Party,
exercise IBM’s termination right, if any, pursuant to Section 12.4(b) if such non-breaching
Party provides IBM with a final, non-appealable judgment/decision (e.g. a declaratory
judgment or permanent injunction) from a court of competent jurisdiction under Section 18.2,
finding that the breaching Party breached the Agreement as described in the Default Notice.
	 
	 	 	(d) Although IBM reserves the sole and exclusive right to terminate the breaching Party’s
participation in the Development Project pursuant to Section 12.4(b), nothing in this
Section 12 prevents a non-breaching Party from pursuing any other equitable and legal
remedies it may have against the breaching party.
	 
	 	 	(e) In addition to Section 12.4(d), any non-breaching Party may cease its participation in
the Development Project upon sixty (60) days written notice to IBM if (i) IBM does not elect
to, at the request of such non-breaching Party, terminate such breaching Party’s
participation in the Development Project during such period; and (ii) the breaching Party
(A) engaged in gross and/or willful misconduct that resulted in a material breach of the
Agreement and such material breach resulted in substantial harm to such non-breaching Party,
or (B) materially breached the confidentiality obligations of Section 7 with respect to the
confidential information of such non-breaching Party. The survival terms of Section 12.2
shall apply to any such withdrawal by a non-breaching Party and such withdrawal shall not be
considered a breach of this Agreement by the non-breaching Party.
	 
	12.5	 	Intentionally Omitted.
	 
	12.6	 	Notwithstanding any provision to the contrary elsewhere in the Agreement, each non-breaching
Party shall have the right to terminate all licenses and disclosure rights it granted to the
breaching Party pursuant to the Agreement, including those contained in Sections 7, 8, 9, 10,
and 11 of these Master Terms, if the breaching Party’s participation in the Development
Project is terminated pursuant to Sections 12.3, 12.4(b), or 12.4(c) of these Master Terms.
If such licenses and disclosure rights are terminated, the breaching Party shall immediately
return to the applicable non-breaching Party, or destroy, any documentation or materials
embodying Specific Results and/or Background Know-How, and such return or destruction shall be
certified to each applicable non-breaching Party, in writing, by an officer of the breaching
Party. Other than any such termination of licenses and disclosure rights to the breaching
Party, Sections 1; 4.9 — 4.13, inclusive; 6; 7.1, 7.3-7.10 inclusive; 8; 9; 10; 11; 12; 13;
15; 16; 17; and 18 shall survive and remain in full force and effect; provided, however, a
breaching Party’s surviving license and disclosure rights pursuant to the Agreement (including
those contained in Sections 7, 8, 9, 10, and 11 of these Master Terms) only apply to
confidential information, Background Know-How, Proprietary Tools, Specific Results, and
Designated Inventions, as each existed at the end of such Participating Party’s participation
in the Development Project. In addition, the breaching Party shall continue to be bound by
the limitations and obligations set forth in Sections: 1; 4.9 and 4.10; inclusive; 6; 7.1,
7.3, 7.4; 8.6; and 9.2.





			
	 	 	 
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SECTION 13 —  NOTICES AND OTHER COMMUNICATIONS



Any notice or other communication required or permitted to be given to a Party pursuant to the
Agreement shall be sent to such Party by facsimile or electronic scan or by registered airmail,
postage prepaid, addressed to the receiving Party’s Notice Address. Any such notice or other
communication shall be effective on the date of receipt.








SECTION 14 — TERMS OF NEGOTIATION 



If one or more of the Parties seek to expand the Development Project or seek to discuss additional
development projects or licensing opportunities, then the following terms apply without the need
for a separately signed letter of negotiation or the like: any Party may end such discussions at
any time, and for any reason, and each Party remains free to negotiate or enter into similar
relationships with others. Other than the rights and obligations of the Parties as specifically
set forth in the Agreement, these discussions are entirely non-binding and do not establish any
other rights and obligations as to any of the Parties. Such other rights and obligations, if any,
would be set forth solely in one or more separate, definitive written agreements. None of the
Parties will rely on the successful conclusion of any such definitive written agreements. Any
business decision a Party makes in anticipation of such definitive written agreements is at such
Party’s sole risk, even if another Party is or both other Parties are aware of, or indicated
approval of, such decision. All information disclosed pursuant to such discussions, and not
otherwise governed by a separate confidential disclosure agreement/supplement, is deemed “other
confidential information” pursuant to Section 7.3.








SECTION 15 — FORCE MAJEURE





	15.1	 	Each Party shall be excused from the fulfilment of any obligation related to the Development
Project, except for payment obligations, under the Agreement for so long as such fulfilment
may be hindered or prevented by any circumstances of force majeure such as, but not limited
to, acts of God, war, riot, strike, lockout, labor unrest, fire, flood, other natural
catastrophe, shortage of materials or transportation, national or local government regulations
(including, but not limited to, export regulations, but only to the extent such export
regulations do not allow for appropriate dual-use export licenses or such dual-use export
licenses are not granted despite the affected Parties having exercised good faith efforts to
obtain such export licenses) or any other circumstance outside its control, provided that the
Party seeking to be excused shall make every reasonable effort to minimize the hindrance of
such fulfilment; and provided further that, if such force majeure continues to prevent or
delay performance of such Party for more than one-hundred eighty (180) days and has a material
impact on the Development Project, then within one-hundred eighty (180) days thereafter, (i)
IBM may immediately terminate the participation of the Participating Party who seeks to be
excused, and (ii) each Participating Party may immediately cease its participation in the
Development Project if IBM is seeking to be excused. Such actions do not constitute a
termination for breach pursuant to the Agreement, and Section 12.2 applies to any such action.





			
	 	 	 
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	15.2	 	Upon the ending of such circumstance, without the other Party or Parties having
terminated the Agreement with respect to the affected Party as provided in Section 15.1, the
Party excused shall, without undue delay, resume the fulfilment of obligations affected.









SECTION 16 — TAXES



Each Party shall bear and pay all taxes (including, without limitation, sales and value added
taxes but excluding income tax as specified below) applicable to such Party, including those imposed by
its own national government and any political subdivision thereof, as the result of the existence
of the Agreement or the exercise of rights hereunder. If any Party (“Payer”) is required by its
national government to pay income tax in respect of the payments and/or royalties made by it to
either or any of the other Parties, Payer shall pay such income tax on behalf of said other Party.
Payer may deduct such income tax from said payments and/or royalties otherwise due and shall
furnish said other Party, within a reasonable time after its receipt of tax certificates from the
applicable government entity, such certificates and other evidence of deduction and payment thereof
as said Party may properly require. Payer and IBM shall provide each other with reasonable
assistance in seeking all exemptions, rebates, and similar reimbursements related to such income
tax. In addition, each Party may independently pursue any applicable tax credit for its share of
expenses related to the Development Project.








SECTION 17 — LIMITATION OF LIABILITY





	17.1	 	In no event shall any Party (or its Subsidiaries) be liable to another Party for incidental
damages, punitive damages, lost profits, lost savings, or any other such damages, including
consequential damages, regardless of whether the claim is for breach of contract, breach of
warranty, tort (including negligence), failure of a remedy to accomplish its purpose or
otherwise, even if such Party (or any Subsidiary) has been advised of the possibility of such
damages.
	 
	17.2	 	In no event shall any Party’s (or its respective Subsidiaries’) aggregate liability to
another Party for actual direct damages in connection with any claim or claims relating to the
Development Project exceed the Limitation Amount, regardless of the form of action, provided
that this limitation will not apply to: i) any claim for payment of a sum or sums properly
due under the Agreement for the Development Project (for which the maximum amount of liability
shall not exceed the total amount of payments referenced in Section 5 plus interest on such
payments); ii) breach of confidentiality or license; or iii) death, personal injury, or
physical damage to real property or tangible personal property resulting from a Party’s own
negligence, or that of its employees, agents, or subcontractors.
	 
	17.3	 	Nothing contained in the Agreement limits any Party’s right to seek a preliminary injunction,
temporary restraining order, or any other equitable relief in order to avoid material harm to
its property, rights, or other interests. The Parties agree that for breaches of
confidentiality or license provisions the Party whose license grant or confidential
information has been breached (“non-breaching Party”) may suffer





			
	 	 	 
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	 	 	irreparable harm and that remedies at law may be insufficient; therefore, the non-breaching
Party may seek any remedy at law or in equity, including but not limited to, preliminary
injunction, injunction, and/or a temporary restraining order.
	 
	17.4	 	In no event shall any Party (or its respective Subsidiaries) be liable for any damages
claimed by another Party based on any Third Party claim, except as specifically set forth in
Section 17.2 (iii) above.









SECTION 18 —  GENERAL





	18.1	 	Nothing contained in the Agreement shall be construed as conferring any right to use in
advertising, publicity, or other promotional activities any name, trade name, trademark, or
other designation of any Party (including any contraction, abbreviation or simulation of any
of the foregoing); and each Participating Party agrees not to disclose to other than its
Subsidiaries the terms and conditions of the Agreement, except as may be required by law or
government rule or regulation, having provided the other Party or Parties with prior written
notice of such disclosure and having made a reasonable effort to limit such disclosure to the
minimum required and obtaining a protective order requiring that the information and/or
documents so disclosed be used only for the purposes for which such disclosure is required
without the express written consent of the applicable Party. Notwithstanding the foregoing,
1) the Parties shall be permitted to disclose a summary of pertinent Sections of the Agreement
that are reasonably necessary for disclosing and/or licensing under the Agreement, 2) each
Party shall be permitted to disclose pertinent Sections of the Agreement to such Party’s
independent accounting firm and outside attorneys, and 3) each Party shall be permitted to
disclose pertinent Sections of the Agreement to such Party’s banks and financing sources and
other similar business advisors and to appropriate regulatory authorities for purposes of
seeking tax exemptions and applying for research grants; provided, however, that any such
disclosure pursuant to the foregoing items 1), 2), or 3) is under a written agreement
containing restrictions of confidentiality at least as stringent as those contained in these
Master Terms
	 
	18.2	 	The Agreement shall be construed, and the legal relations created therein between the Parties
shall be determined exclusively, in accordance with the laws of the United States of America
and, specifically, the State of New York, without regard to conflicts of law, as if said
Agreement were executed in, and fully performed within the State of New York. Any proceeding
to enforce, or to resolve disputes relating to, the Agreement shall be brought before a court
of competent jurisdiction in the State of New York, including a Federal District Court,
sitting within New York State. The Parties hereby expressly waive any right to a jury trial
and agree that any proceeding hereunder shall be tried by a judge without a jury. In any
proceedings no Party shall assert that such court lacks jurisdiction over it or the subject
matter of the proceeding or assert that the Agreement is not an enforceable contract between
and among all Parties.
	 
	18.3	 	In the event of any dispute under the Agreement, and as a condition precedent to any Party
filing suit, instituting a proceeding or seeking other judicial or governmental resolution in
connection therewith, the Parties will attempt to resolve such dispute by





			
	 	 	 
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	 	 	negotiation in accordance with the following dispute resolution process. Excepting only
that a Party may institute a proceeding seeking an order for payment of any sum properly due
and unpaid, a preliminary injunction, temporary restraining order, or other equitable relief,
if necessary in the opinion of that Party to avoid material harm to its property, rights, or
other interests, before commencing or at any time during the course of, the dispute procedure
in this Section 18.3.






	 	18.3.1	 	Such negotiations shall first involve the individuals in the Management Committee.
These individuals will exercise reasonable efforts to resolve such dispute.
	 
	 	18.3.2	 	If such negotiations do not result within thirty (30) calendar days of their receipt
of a written referral to them in a resolution of the dispute, the dispute will be
referred in writing to the Designated Executives which Designated Executives shall
discuss and meet in person, if necessary, in order to attempt to negotiate a resolution
to the dispute.
	 
	 	18.3.3	 	Except as set forth above, no Party shall file suit, institute a proceeding, or seek
other judicial or governmental resolution of the dispute until at least sixty (60) calendar
days after the first meeting between the Designated Executives.






	18.4	 	In the event that any litigation occurs between or among the Parties pertaining to the
Agreement and any technical issues arise in the course thereof, the Parties shall make good
faith efforts to select one or more neutral mutually acceptable technical experts with
expertise in the pertinent technical issues to assist the court in understanding and
evaluating such issues.
	 
	18.5	 	Nothing contained in the Agreement shall be construed as conferring on any Party any license
or other right to copy the exterior design of any product of another Party.
	 
	18.6	 	Intentionally Omitted.
	 
	18.7	 	No actions, regardless of form, arising out of the Agreement, except for intellectual
property actions, may be brought by any Party more than two (2) years after the cause of
action has arisen.
	 
	18.8	 	Each Party shall be responsible for compliance with all applicable laws, regulations and
ordinances. In addition, no Party and none of its agents or employees acting on behalf of
said Party will, unless authorized by applicable governmental license or regulation, directly
or indirectly, export or re-export any technical information or software subject to the
Agreement (including direct products of such technical information or software) to any
prohibited destination or country (including release to nationals, wherever they may be
located, of any prohibited country) as specified in such applicable export laws, regulations
and ordinances. The Parties agree to consult with each other prior to both applying for an
export license related to work under this Agreement and accepting government conditions on
such export license. Parties shall provide each other with a





			
	 	 	 
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	 	 	copy of any such export license obtained by a Party or its agent. IBM shall not be required
to accept any conditions in any such export license which IBM considers detrimental to its
business interests.






	18.9	 	All monetary amounts specified in the Agreement are in lawful money of the United States of
America. Any action required by the Agreement to be taken by a specified calendar month shall
be taken by the last day of said month, unless otherwise specified in the Agreement.
	 
	18.10	 	Neither the Agreement nor any activities thereunder shall impair any right of any Party to
design, develop, manufacture, sell, market, service, or otherwise deal in, directly or
indirectly, manufacturing processes, products, or services developed by such Party completely
independently of the Agreement, including those which are competitive with those offered by
any Party. Subject to the confidentiality and license limitations set forth in the Agreement,
each Party may pursue activities independently with any Third Party even if similar to the
activities under the Agreement.
	 
	18.11	 	Each Party is an independent contractor and not an agent, employee, or fiduciary of any
other Party for any purpose whatsoever. No Party shall make any warranties or representations
on any other’s behalf, nor shall it assume or create any other obligations on any other’s
behalf. Nothing in the Agreement shall be taken to constitute a partnership or joint venture
between or among the Parties hereto.
	 
	18.12	 	The Parties agree to explore the possibility of issuing press releases relating to the
Development Project, the relationship established by a Project Agreement, and the subsequent
addition of Participating Parties. The text of such press releases will be unanimously agreed
to by the Parties, which agreement will not be unreasonably withheld. If all Parties are
unable to agree upon a press release, then IBM and certain Participating Parties may elect to
issue such press release without referencing the objecting Participating Party. Any other
press releases and other like publicity or advertising relating to the Agreement and/or which
mentions any other Party by name shall be agreed upon by IBM and the named Party, which
agreement not to be unreasonably withheld.
	 
	18.13	 	If any section or subsection of the Agreement is found by competent judicial authority to be
invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability
of any such section or subsection in every other respect and the remainder of the terms of the
Agreement shall continue in effect so long as the amended Agreement still expresses the intent
of the Parties. If the intent of the Parties cannot be preserved, the Agreement shall be
renegotiated with the Parties substituting for any invalid or unenforceable provision a valid
or enforceable provision that achieves to the greatest extent possible the same effect as
would have been achieved by the invalid or unenforceable provision.
	 
	18.14	 	Any waiver by a Party of any breach of, or failure to enforce at any time, any of the
provisions of any of the Agreement, shall not be construed as or constitute a continuing





			
	 	 	 
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	 	 	waiver of such provision, or a waiver of any other provision of the Agreement, nor shall it
in any way affect the validity of any of the Agreement or any part thereof, or the right of
any Party thereafter to enforce each and every provision of any of the Agreement, as
provided in the Agreement.
	 
	18.15	 	The Agreement is binding upon each Participating Party with respect to the Development
Project if and once that party executes with IBM a Participation Agreement referencing the
Development Agreement and these Master Terms. Except for the Participation Agreement, which
provides certain governing terms and conditions between IBM and that Participating Party only,
these Master Terms, together with the Project Agreement, constitute the entire agreement
between the Parties with respect to that Development Project and supersede all previous
communications, representations, understandings, and agreements, whether oral or written, made
in the course of discussions and/or negotiations between the Parties or any officer or
representative thereof with respect to the Development Project. No Participating Parties are
third party beneficiaries of a Participation Agreement between IBM and any other Participating
Party. No amendment or modification of the Project Agreement shall be valid or binding upon
the Parties unless made in writing and signed on behalf of such Parties by their respective
representatives thereunto duly authorized. The requirement of written form may only be waived
in writing. Notwithstanding anything in these Master Terms to the contrary (i) the addition
or removal/withdrawal of one or more Participating Parties is not deemed an amendment or
modification of the Project Agreement; (ii) the selection of one or more options in accordance
with the requirements of Section 3.2 of these Master Terms is not deemed an amendment or
modification of the Project Agreement; and (iii) if an updated Exhibit A (e.g. Strategic
Technology Objectives) or Exhibit B (e.g. Development Schedule) to a Project Agreement
circulated by IBM Project Leader following a Management Committee meeting and received by the
other Management Committee Members without objection within thirty (30) business days of
receipt, shall, provided such updated Exhibit reasonably reflects the agreement of the
Management Committee as shown in the Management Committee meeting minutes, be deemed (a) a
binding Management Committee change to such Exhibit, and (b) a written amendment to the
Agreement that satisfies this Section 18.15 of these Master Terms. IBM shall update the
Project Database to reflect such updated Exhibit.
	 
	18.16	 	If there is a conflict between these Master Terms and the Project Agreement (without these
Master Terms incorporated), then the order of precedence between all Parties is as follows:
(i) the Project Agreement (without these Master Terms incorporated), and (ii) these Master
Terms. In addition, if there is a conflict between these Master Terms, the Project Agreement
(without these Master Terms incorporated), and a Participation Agreement between IBM and a
Participating Party, then the order of precedence between IBM and such Participating Party is
as follows: (i) such Participation Agreement, (ii) the Project Agreement (without these
Master Terms incorporated), and (ii) these Master Terms.
	 
	 
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EXHIBIT A: RESPONSIBILITIES OF THE MANAGEMENT COMMITTEE




EXHIBIT B: RESPONSIBILITIES OF THE IBM PROJECT LEADER




EXHIBIT C: RESPONSIBILITIES OF THE PROJECT LEADERS FOR PARTICIPATING PARTIES




EXHIBIT D: VISITATION GUIDELINES FOR REPRESENTATIVES




			
	 	 	 
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EXHIBIT A




RESPONSIBILITIES OF THE MANAGEMENT COMMITTEE





	—	 	Approve changes in Strategic Technology Objectives as set forth in the
Project Agreement*
	 
	—	 	Approve changes of the Development Schedule for the Development
Project provided in the Project Agreement*
	 
	—	 	Establish a regular review process on no more than a quarterly basis
with business executives of each of the Parties of at least the level
of Vice President or other comparable level.
	 
	—	 	Approve external communications about the goals of the Development
Project and external publications*
	 
	—	 	Resolve such other items as the Management Committee deems appropriate
or as indicated elsewhere in the Project Agreement as requiring the
agreement of the Management Committee.






 




* Items marked require unanimous approval of the Management Committee



All other responsibilities, including day-to-day management responsibility for the results to be
achieved under the Agreement, shall reside with the IBM Project Leader with the help of the other
Party Project Leaders.




			
	 	 	 
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EXHIBIT B




RESPONSIBILITIES OF THE IBM PROJECT LEADER



Project organization and coordination





	 	—	 	Responsible for implementation of directives from the Management Committee (or other
oversight committee established by the Management Committee) for the Development Project
	 
	 	—	 	Responsible for identification and presentation to Management Committee (or other
oversight committee established by the Management Committee) of those items which need such
committee’s approval
	 
	 	—	 	Responsible for Development Project reporting at Management Committee reviews
	 
	 	—	 	Responsible for quarterly reports (technology status, milestones)
	 
	 	—	 	Responsible for allocation of Development Project resources
	 
	 	—	 	Responsible for review and approval of technical publications
	 
	 	—	 	Responsible for determining the organizational structure of the Development Project
team and appointing key technical leaders and project managers to execute the Development
Project
	 
	 	—	 	Responsible for managing the IBM infrastructure to support the Development Projects
	 
	 	—	 	Responsible for Development Project schedule planning
	 
	 	—	 	Responsible for management of IBM Representatives
	 
	 	—	 	Responsible for completion of Documentation for the Development Project





			
	 	 	 
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Table of Contents






MASTER IBM JOINT DEVELOPMENT TERMS AND CONDITIONS —
DECEMBER 15, 2006 VERSION




EXHIBIT C




RESPONSIBILITIES OF THE PROJECT LEADER FOR EACH PARTICIPATING PARTY





	—	 	Responsible for implementation of directives from the Management Committee (or other
oversight committee established by the Management Committee) for the Development Project
	 
	—	 	Responsible for identification and presentation to Management Committee (or other
oversight committee established by the Management Committee) of those items which need
Management Committee’s approval
	 
	—	 	Responsible for Development Project reporting at Management Committee reviews
	 
	—	 	Responsible for quarterly reports (technology status, milestones)
	 
	—	 	Responsible for allocation of Development Project resources
	 
	—	 	Responsible for review and approval of technical publications
	 
	—	 	Responsible for Development Project schedule planning
	 
	—	 	Responsible for management of respective Party’s Representatives
	 
	—	 	Responsible for completion of Documentation for each Development Project





			
	 	 	 
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Table of Contents






MASTER IBM JOINT DEVELOPMENT TERMS AND CONDITIONS —
DECEMBER 15, 2006 VERSION




EXHIBIT D




IBM DEVELOPMENT FACILITY VISITATION GUIDELINES FOR REPRESENATIVES





	1.0	 	IBM shall issue security badges to Participating Party Representatives. Security badges must
be returned by Representatives at the end of each assignment. Security badges must be visibly
displayed at all times by Representatives while on IBM premises. If the security badge is
lost or stolen, the IBM Technical Coordinator shall be immediately advised. Security badges
shall not be loaned or interchanged.
	 
	2.0	 	Representatives shall only enter those buildings, departments, or areas which are
specifically designated by the IBM Technical Coordinator and for which entry is required under
the Agreement.
	 
	3.0	 	Representatives shall comply with all log-in/log-out requirements when entering or leaving
IBM buildings and/or designated work areas.
	 
	4.0	 	Representatives shall comply with all security, safety and regulatory guidelines which are
posted on IBM premises and/or are otherwise specified by IBM.
	 
	5.0	 	IBM copying equipment and/or other IBM equipment (such as data processing equipment and word
processing equipment) shall not be used by Representatives except with prior approval of the
IBM Technical Coordinator.
	 
	6.0	 	Representatives shall not disturb materials lying on IBM desks, mounted on easels or
displayed on chalkboards.
	 
	7.0	 	Representatives shall promptly leave buildings and department areas after completing work
assignments.
	 
	8.0	 	Representatives shall not leave IBM external doors propped open. No IBM materials shall be
removed from buildings without prior written approval.
	 
	9.0	 	Alcoholic beverages, illegal drugs, guns and ammunition, cameras, and recording devices
(excluding cellular phones with camera or recording features) are not permitted on IBM
premises. Representatives are not permitted to use the camera or recording features of
cellular phones on IBM premises.





			
	 	 	 
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