ISMI PROBE CARD COST OF OWNERSHIP MODEL LICENSE AGREEMENT

This License Agreement is by and between ISMI, Inc. (referred to hereinafter as “ISMI” or “Licensor”) and the recipient of the downloaded software offered on this web site ("Licensee").

RECITALS

ISMI is a consortium organized to conduct research and development in advanced semiconductor manufacturing technology and to transfer the resulting technology to its member companies for their use. ISMI has developed and owns the ISMI Probe Card Cost of Ownership Model (“Software”) Licensee wants to download from the ISMI website.

THEREFORE, in consideration of Licensor providing the Software by a download from Licensor’s web site, and for the further consideration of the premises and the mutual covenants herein contained, ISMI and Licensee agree as follows:

1. DEFINITIONS

Unless otherwise provided herein, the terms listed in quotation marks below shall have the following meanings:
(a) "Documentation" shall mean all manuals, user guides and other documentation relating to the Product.
(b) "Product" shall mean the ISMI Probe Card Cost of Ownership Model and Documentation developed by or for ISMI as it now exists and as it may be modified, corrected, derived, enhanced or updated by ISMI.
(c) "Source Code" shall mean the Product, or any portion thereof, in source code form, including any Documentation or instructions provided therewith.
(d) "Internal Use" shall mean that Licensee may use the Product inside its company.

2. LICENSE

ISMI hereby grants to Licensee and Licensee hereby accepts a personal, non-transferable, revocable, worldwide, royalty-free, and non-exclusive license to the Product for Licensee’s Internal Use. This license includes the right to make copies, enhancements, modifications, or corrections to, and derivative works from, the Product, and title thereto shall vest as provided in paragraph 4. Licensee may not grant, assign, sublicense, or otherwise transfer the license granted to it for the Product to any third party.

3. UPDATE, VERSION RELEASES AND SUPPORT

This Agreement does not include the right to receive updates, upgrades, other enhancements, or support of the Product, and ISMI expressly disclaims any such responsibility.

4. TITLE TO PRODUCT

All title to the Product, including the media upon which it resides, remains with ISMI and no title to the Product or the media is transferred to Licensee. Title to any enhancements, modifications, corrections or derivative works (collectively, “Product Changes”) made to Product by Licensee will vest in Licensee, but the conditions and use restrictions of Section 2 applicable to the underlying Product shall continue to apply. Licensee is further obligated, upon request, to disclose to ISMI any Product Changes made to Product. Licensee now grants to ISMI and ISMI now accepts a royalty free, paid up, non-exclusive, worldwide license to the Product Changes made by Licensee to the Product to use, make copies, enhancements, modifications or corrections to, and prepare derivative works from the Product Changes. This license includes the right to sublicense these Product Changes to ISMI’s member companies.

5. DISCLAIMERS OF WARRANTIES; LIMITATION OF LIABILITY

ISMI FURNISHES THE PRODUCT TO LICENSEE "AS IS" AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE EXPRESSLY AGREES THAT ISMI WILL HAVE NO LIABILITY WITH RESPECT TO ANY FAILURE OF THE PRODUCT. LICENSEE ACKNOWLEDGES THAT THE PRODUCT MAY CONTAIN ERRORS AND THAT SOME ERRORS CANNOT BE CORRECTED. ISMI WILL NOT BE LIABLE FOR ANY LOSS OF PROFIT, LOSS OF USE, INTERUPTION OF BUSINESS, DIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING UNDER THIS LICENSE.

6. TERM AND TERMINATION

The Agreement may be terminated at any time by written notice from ISMI to Licensee. Upon termination of this Agreement, the license and all other rights granted hereunder to Licensee shall immediately cease.

7. EXPORT COMPLIANCE

In order to comply with the United States Bureau of Industry and Security (“BIS”) Export Administration Regulations (“EAR”), the parties agree as follows. Without a BIS license or License Exception, neither party will:

(i) Reexport or release the technology, software or the source code for the software disclosed or released by the other party under this Agreement to a location or a national of a “Restricted Country”. Restricted Countries include EAR Country Groups D:1, E:1 or E:2; or
(ii) Export to a Restricted Country the direct product of the technology or software if such foreign produced direct product is subject to national security controls as identified on the Commerce Control List (“CCL”) (See General Prohibition Three, §736.2(b)(3) of the EAR); or
(iii) If the direct product of the technology is a complete plant or any major component of a plant, export to a Restricted Country the direct product of the plant or major component thereof, if such foreign produced direct product is subject to national security controls as identified on the CCL or is subject to State Department controls under the U.S. Munitions List (22 CFR part 121); or
(iv) Designate personnel who are citizens or residents of Restricted Countries (unless granted U.S. permanent residence or protected status) to directly interact with or otherwise receive information that is not “publicly available” (as defined by the EAR) from the other party.

The obligations set forth above are independent of and will survive the end of this and any other agreements between Licensee and ISMI.

8. PROPRIETARY RIGHTS

Except as otherwise provided, ISMI retains title to the Product and any related information and data furnished to Licensee.

9. MISCELLANEOUS

9.1 GOVERNING LAW AND FORUM

This Agreement is governed by and interpreted under the laws of the State of Texas, excluding its choice of law rules. The parties submit to the jurisdiction of the courts of the State of Texas and the United States District Court for the Western District of Texas to resolve any disputes arising under this Agreement that cannot be resolved by the parties.

9.2 WAIVER

Any waiver of any right or remedy under this Agreement must be in writing and signed by the party to be bound. No delay or omission in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy.

9.3 ASSIGNMENT

Licensee may not assign or otherwise transfer its rights and obligations under this Agreement without the prior written consent of ISMI. However, the transfer of a party's interest in this Agreement by operation of law in connection with a merger, consolidation or other business combination will not be deemed to be an assignment in violation of this Section, provided that such successor shall be subject to all of the terms and conditions of this Agreement.

9.4 CAPTIONS

All Section captions are for reference only and shall not be considered in construing this Agreement.

9.5 SEVERABILITY

If any term of this Agreement is held to be unenforceable or invalid, the remaining terms shall be given full force and effect, and the Agreement as a whole shall be interpreted in a way which most nearly affects the parties' intent in entering into this Agreement.

9.6 ENTIRE AGREEMENT

This Agreement, together with the provisions incorporated by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, superseding any prior or contemporaneous written or oral agreements or understandings. No subsequent alterations, amendments, or additions hereto shall be binding and valid unless reduced to writing and signed by each party.

9.7 PUBLICITY

LICENSEE WILL NOT ATTRIBUTE ANY RESULTS FROM THE USE OF THIS PRODUCT OR USE ISMI’S NAME IN ANYWAY IN CONNECTION WITH THIS PRODUCT (INCLUDING THE PUBLICATION OF TECHNICAL PAPERS) WITHOUT ISMI’S PRIOR WRITTEN CONSENT.