University of Southern California/Information Sciences Institute MOSIS CUSTOMER AGREEMENT This Agreement is made and entered into by and between the University of Southern California, a California corporation, acting through its Information Sciences Institute, located at 4676 Admiralty Way, Marina del Rey, California, 90292-6695 (hereinafter referred to as "USC/ISI"), and: The University of Kansas Department of Electical & Computer Engineering 1013 Learned Hall Lawrence, Kansas 66045-2228 (913) 864-4615 (HEREINAFTER referred to as "Customer".) RECITALS WHEREAS, USC/ISI has developed a computerized system to provide integrated circuit fabrication services through third party vendors to commercial users (hereinafter referred to as "MOSIS") and, WHEREAS, Customer desires to enter into this Agreement with USC/ISI for the provision of such services, NOW, THEREFORE, in consideration of the covenants and conditions hereinafter contained, the parties agree as follows: 1. TERM a. Customer shall submit to USC/ISI a purchase order(s) for MOSIS services which shall be subject to written acceptance by USC/ISI and be effective upon such acceptance; such purchase order(s) shall specify the dollar amount of services desired by Customer. 2. SERVICE a. USC/ISI shall utilize the MOSIS service to: (1) check that syntax is correct (but not including design validation) and deliver wafers or a set of bonded and packaged integrated circuits (chips) containing the design as submitted by Customer and (2) provide fabrication of prototype quantities of integrated circuits. b. Circuits shall either be bonded per Customer instructions or Customer shall be provided with a diagram showing how bonding was done. Individual parts shall be inspected but shall not be tested. Spice parameters, which have been extracted from USC/ISI devices on the same run, will be provided to Customer. c. Each fabrication run shall have passed the vendors' quality assurance and shall have been tested to ensure that it has conformed to MOSIS fabrication requirements. Details are technology specific and are available on request. 3. RATES a. Rates shall be as set forth in Attachment A ("Price Schedule"). 4. NO WARRANTIES a. Customer expressly recognizes that the ability of the MOSIS services to provide working parts in a consistent manner is speculative. USC/ISI expressly disclaims any warranty that use of the MOSIS services will provide working or usable parts, and Customer is not relying on any warranty or on any understanding or belief that use of the MOSIS services will provide working or usable parts, and understands and accepts that each fabrication using the MOSIS services provided by USC/ISI shall be on "as is" basis. USC/ISI EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. USC/ISI SHALL NOT BE RESPONSIBLE FOR ANY DIRECT, INDIRECT INCIDENTAL OR CONSEQUENTIAL DAMAGES CUSTOMER MAY SUFFER RELATING TO THE USE OF ANY MOSIS FABRICATION. USC/ISI MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE FABRICATION, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. USC/ISI shall not be liable for, and Customer hereby assumes the risk of, and will release and forever discharge USC/ISI, its agents, officers, and employees, either in their individual capacities or by reason of their relationship to USC/ISI, in respect to any expense, claim, liability, loss or damage (including any incidental or consequential damage) either direct or indirect whether incurred, made or suffered by Customer or by third parties, in connection with or in any way arising out of the furnishing or use of the MOSIS fabrication. In any event, USC/ISI's liability to Customer on any ground shall not exceed a sum equal to the fee paid to USC/ISI by Customer hereunder. 5. CONFIDENTIALITY AND PROPRIETARY RIGHTS a. Both parties recognize that the information exchanged hereunder is of a confidential and proprietary nature. USC/ISI shall maintain all such confidential and proprietary information provided by Customer hereunder in confidence. As this Agreement envisions transfer of such information to third party vendors, USC/ISI agrees that it shall require each such vendor to execute a Nondisclosure Agreement which shall extend to the information provided by Customer and which shall provide for an obligation of confidentiality commensurate with the obligation called for in this Agreement. USC/ISI further agrees that it shall treat Customer's confidential and proprietary information with the same care with which it treats its own confidential and proprietary information. The obligation of confidentiality shall extend for a period of five (5) years from the date of disclosure and, to that extent, shall survive termination of this Agreement. b. Customer recognizes, however, that because of circumstances beyond the direct control of USC/ISI, there may be disclosure of the material to third parties. USC/ISI, however, will not be liable for any negligent disclosure of Customer's material by any USC/ISI employee or agent, or by any third party vendor, except for as otherwise provided for herein. c. Notwithstanding the provisions of paragraph 5 (a), USC/ISI shall not be obligated with respect to any information which: (i) at the time of disclosure has been published or otherwise is in the public domain, (ii) after disclosure is published or otherwise becomes a part of the public domain through no fault of USC/ISI, or (iii) is or has been rightfully disclosed to USC/ISI, by a party that has no obligation to Customer directly or indirectly with respect thereto to the extent that such third party disclosure is received by USC/ISI without an obligation of confidentiality. d. Customer specifically agrees that it shall not disclose any material which may be considered proprietary or confidential material of USC/ISI or of vendors to any third parties. Proprietary material shall include but not be limited to, proprietary vendor information such as yield and parametric data, whether it was provided to Customers or extracted by them. e. Customer shall be furnished with a list of vendors; if Customer wishes, Customer shall have the opportunity to prohibit certain vendors from working on its fabrication. Vendors shall have been provided with a list of Customers and shall also have the opportunity to refuse to work on the fabrications of certain Customers. f. Nothing in this Agreement shall serve to convey to USC/ISI any proprietary rights in any design submitted by Customer pursuant to this Agreement or in any semi-conductor chip fabricated therefrom. All rights, titles and interests in and to designs for integrated circuits submitted by Customer pursuant to this Agreement as well as all mask works fixed or embodied in any semi-conductor chip fabricated pursuant to this Agreement shall belong entirely to Customer to the extent that Customer has such rights, titles and interests prior to submission to USC/ISI. USC/ISI shall not be responsible for securing any form of statutory protection, whether by patent, copyright, registration under the Semi-Conductor Chip Protection Act or otherwise. g. Customer Customer agrees that it would be difficult and impractical, if not impossible to calculate the dollar amount of damages which might result from the disclosure by USC/ISI, or any employee or agent thereof, or by any third party of Customer's thereof, of Customer's confidential and/or proprietary information. CUSTOMER THEREFORE AGREES THAT USC/ISI'S TOTAL LIABILITY FOR SUCH DISCLOSURE SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO USC/ISI UNDER THE TERMS OF THIS AGREEMENT AND THAT THIS AMOUNT IS REASONABLE COMPENSATION FOR SUCH DAMAGES. 6. LEGAL EXPENSES a. In the event that legal action is taken by either party to enforce this Agreement, all costs and expenses, including reasonable attorney's fees, incurred by the prevailing party in exercising any of its rights or remedies hereunder or in enforcing any of the terms, conditions or provisions hereof, shall be paid by the other party. 7. SEVERABILITY a. If any part, term or provision of this Agreement shall be held illegal, unenforceable or in conflict with any law of a federal, state or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected thereby. 8. GOVERNING LAW a. This Agreement shall be construed and enforced according to the laws of the State of California. 9. MISCELLANEOUS a. Customer warrants that the services provided under this Agreement are for the use of Customer, and not for any parent, subsidiary or third party entity. Customer further warrants that it is not acting as an agent for another party in entering into this Agreement. b. Customer hereby discloses all parent or subsidiary organizations with which Customer is associated: c. The parties agree to abide by all applicable federal, state and local laws and regulations which regulate the activities envisioned by this Agreement. d. This Agreement contains all the agreements, representations, and understanding of the parties hereto and supersedes any previous understandings, commitments, or agreements, oral or written. Any modification to this Ageement must be in writing and signed by both parties. IN WITNESS WHEREOF, the parties hereto have set their hand. UNIVERSITY OF SOUTHERN CALIFORNIA THE UNIVERSITY OF KANSAS INFORMATION SCIENCES INSTITUTE ELECTRICAL & COMPUTER ENGINEERING By By LYN HUTTON JAMES A. ROBERTS Senior Vice President, Chairman Administration (Date) (Date)