Foundry Mutual Non-Disclosure Agreement

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Mutual Non-Disclosure Agreement

THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement“) is made and entered into as of MM/DD/YYYY (the “Effective Date“), by and between:

COMPANY NAME, a STATE OF INCORPORATION corporation with its principal office at COMPANY ADDRESS (“Company“),

and

Taiwan Semiconductor Manufacturing Company Limited, a Taiwanese corporation with its principal office at No. 8, Li-Hsin Rd. 6, Hsinchu Science Park, Hsinchu 300-78, Taiwan, R.O.C. (“Foundry“).

Company and Foundry may be referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, the Parties wish to explore a potential business relationship in connection with BRIEF DESCRIPTION OF PROJECT (the “Purpose“); and

WHEREAS, in connection with the Purpose, each Party may disclose to the other Party certain confidential and proprietary information that the disclosing Party desires the receiving Party to treat as confidential.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. DEFINITIONS

1.1 “Confidential Information” means any and all information disclosed by or on behalf of one Party (the “Disclosing Party“) to the other Party (the “Receiving Party“), whether orally, in writing, or in any other form, that:

(a) is marked or identified as “confidential,” “proprietary,” or with a similar legend or designation at the time of disclosure;

(b) if disclosed orally or visually, is identified as confidential at the time of disclosure and summarized in writing and delivered to the Receiving Party within thirty (30) days after such disclosure; or

Confidential Information includes, but is not limited to, technical data, trade secrets, know-how, research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information.

1.2 Exclusions. Confidential Information shall not include information that:

(a) was in the Receiving Party’s possession or was known to the Receiving Party, without an obligation to keep it confidential, before such information was disclosed to the Receiving Party by the Disclosing Party;

(b) is or becomes public knowledge through no fault of the Receiving Party;

(c) is or becomes rightfully available to the Receiving Party from a source other than the Disclosing Party, without breach of any obligation to the Disclosing Party; or

(d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as evidenced by the Receiving Party’s written records.

2. OBLIGATIONS

2.1 Use Restriction. The Receiving Party shall use the Confidential Information solely for the Purpose and shall not use the Confidential Information for any other purpose without the prior written consent of the Disclosing Party.

2.2 Non-Disclosure. The Receiving Party shall:

(a) hold the Confidential Information in strict confidence;

(b) protect the Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but in no case less than reasonable care;

(d) limit access to the Confidential Information to those of its employees, officers, directors, agents, contractors, and advisors who:
(i) have a need to know such information for the Purpose; and
(ii) are bound by written obligations of confidentiality at least as restrictive as those contained in this Agreement.

2.3 Responsibility for Agents. The Receiving Party shall be responsible for any breach of this Agreement by any of its employees, officers, directors, agents, contractors, or advisors.

2.4 Notification of Unauthorized Use. The Receiving Party shall promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information, and will cooperate with the Disclosing Party to regain possession of the Confidential Information and prevent its further unauthorized use.

2.5 Required Disclosure. If the Receiving Party is required by law, regulation, or court order to disclose any Confidential Information, the Receiving Party shall:

(a) promptly notify the Disclosing Party in writing of such requirement before making the disclosure;

(b) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate remedy; and

(c) disclose only that portion of the Confidential Information that is legally required to be disclosed, while using commercially reasonable efforts to ensure that confidential treatment will be accorded to the disclosed information.

3. TERM AND TERMINATION

3.1 Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect for a period of five (5) years thereafter, unless earlier terminated as provided herein.

3.2 Termination. Either Party may terminate this Agreement by providing thirty (30) days’ prior written notice to the other Party.

3.3 Survival. Notwithstanding the expiration or termination of this Agreement, the obligations of confidentiality and non-use with respect to Confidential Information disclosed prior to such expiration or termination shall survive for a period of five (5) years from the date of expiration or termination of this Agreement.

3.4 Return or Destruction. Upon the Disclosing Party’s request, or upon expiration or termination of this Agreement, the Receiving Party shall promptly, at the Disclosing Party’s option:

(a) return to the Disclosing Party all tangible forms of Confidential Information, including all copies, summaries, and extracts thereof; or

(b) destroy all tangible forms of Confidential Information, including all copies, summaries, and extracts thereof, and provide the Disclosing Party with written certification of such destruction.

Notwithstanding the foregoing, the Receiving Party may retain one copy of the Confidential Information in its confidential files solely for the purpose of monitoring its obligations under this Agreement, or as required by applicable law or regulation.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 No License. Nothing in this Agreement shall be construed as granting any right, title, or interest in or to any intellectual property rights (including, without limitation, any patent, copyright, trademark, or trade secret rights) in any Confidential Information, except the limited right to use such Confidential Information for the Purpose.

4.2 No Obligation. Nothing in this Agreement shall obligate either Party to:

(a) disclose any particular Confidential Information to the other Party;

(b) enter into any further agreement or negotiation with the other Party; or

(c) refrain from entering into similar agreements with third parties, provided that such agreements do not result in a breach of this Agreement.

5. WARRANTIES AND DISCLAIMER

5.1 Warranties. Each Party represents and warrants that it has the right to disclose the Confidential Information that it discloses to the other Party under this Agreement.

5.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND THE DISCLOSING PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

6. LIMITATION OF LIABILITY

6.1 No Liability for Certain Damages. EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. MISCELLANEOUS

7.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of GOVERNING LAW STATE/JURISDICTION, without regard to its conflict of laws principles. For Foundry entities outside the United States, the Parties may choose to apply the laws of ALTERNATIVE JURISDICTION by mutual agreement.

7.2 Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement shall be resolved by binding arbitration in ARBITRATION LOCATION, in accordance with the rules of ARBITRATION AUTHORITY, by one or more arbitrators appointed in accordance with said rules. The language of the arbitration shall be English.

7.3 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may cause irreparable harm for which monetary damages would not be an adequate remedy. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek injunctive relief to enforce the terms of this Agreement.

7.4 Export Controls. The Parties acknowledge that the Confidential Information may be subject to U.S. and other countries’ export control and sanctions laws and regulations, including without limitation the U.S. Export Administration Regulations (collectively, “Export Controls”). Each Party agrees to comply with all applicable Export Controls in connection with this Agreement and the Confidential Information, and shall not export, re-export, transfer, or make available, whether directly or indirectly, any Confidential Information to any person or entity in violation of Export Controls.

7.5 Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party, except that either Party may assign this Agreement without consent to a successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

7.6 Notices. All notices required or permitted under this Agreement shall be in writing and shall be delivered personally, sent by certified mail (return receipt requested), sent by a nationally recognized overnight courier service, or sent by electronic mail (with confirmation of receipt), to the addresses set forth below:

If to Company:
COMPANY NAME
COMPANY ADDRESS
Attention: CONTACT PERSON/TITLE
Email: EMAIL ADDRESS

If to Foundry:
Taiwan Semiconductor Manufacturing Company Limited
No. 8, Li-Hsin Rd. 6, Hsinchu Science Park, Hsinchu 300-78, Taiwan, R.O.C.
Attention: Legal Department
Email: legal@tsmc.com

7.7 Amendments. No modification of or amendment to this Agreement shall be effective unless in writing and signed by the Parties.

7.8 Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.

7.9 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions shall not be affected or impaired.

7.10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the Parties regarding the subject matter hereof.

7.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed to be original signatures for all purposes.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

COMPANY NAME

By: AUTHORIZED SIGNATORY NAME

Title: TITLE

Date: MM/DD/YYYY

TSMC

By: [Authorized Representative Name]

Title: Vice President, Legal