EXHIBIT 2.12
EXHIBIT G TO SEPARATION AGREEMENT
MASTER TRANSITIONAL SERVICES AGREEMENT
BETWEEN
MILLIPORE CORPORATION
AND
MILLIPORE MICROELECTRONICS, INC.
EFFECTIVE AS OF ________________
MASTER TRANSITIONAL SERVICES AGREEMENT
This Master Transitional Services Agreement (the "Agreement") is
effective as of ____________________ (the "Effective Date"), between Millipore
Corporation, a Massachusetts corporation ("Millipore"), having an office at ▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Millipore Microelectronics, Inc., a Delaware
corporation ("MMI"), having an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇.
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms
shall have the following meanings. Other capitalized terms defined elsewhere in
this Agreement shall have the respective meanings assigned to them at the
location of their definition. Capitalized terms used in this Agreement without
definition which are defined in the Master Separation and Distribution Agreement
shall have the meaning ascribed thereto in the Master Separation and
Distribution Agreement.
1.1 ADDITIONAL SERVICES. "Additional Services" shall have the
meaning set forth in Section 3.5.
1.2 ANCILLARY AGREEMENTS. "Ancillary Agreements" shall have the
meaning set forth in the Master Separation and Distribution Agreement.
1.3 DISTRIBUTION DATE. "Distribution Date" shall have the meaning
forth in the Master Separation and Distribution Agreement.
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1.4 IMPRACTICABLE. "Impracticable" shall have the meaning set forth
in Section 3.3.
1.5 MASTER SEPARATION AND DISTRIBUTION AGREEMENT. "Master
Separation and Distribution Agreement" shall mean that certain Master Separation
and Distribution Agreement between Millipore and MMI.
1.7 SERVICE(S). "Service(s)" shall have the meaning set forth in
Section 3.1.
1.8 SERVICE PROVIDER. "Service Provider" means Millipore when it is
providing a Service to MMI hereunder in accordance with a Transition Service
Schedule and MMI when it is providing a Service to Millipore hereunder in
accordance with a Transition Service Schedule
1.9 SERVICE RECIPIENT. "Service Recipient" means MMI when it is
receiving a Service from Millipore hereunder in accordance with a Transition
Service Schedule and Millipore when it is receiving a Service from MMI hereunder
in accordance with a Transition Service Schedule
1.10 SOFTWARE. "Software" means Millipore's software program(s), in
object code only, listed and described in the relevant Transition Service
Schedule.
1.11 SOURCE CODE. "Source Code" means any human readable code,
including interpreted code, of Millipore, listed and described in the relevant
Transition Service Schedule.
1.12 SOURCE CODE DOCUMENTATION. "Source Code Documentation" means
the manuals and other documentation that are reasonably necessary to use the
Source Code licensed herein, including those items listed and described in the
relevant Transition Service Schedule hereto.
ARTICLE 2
TRANSITION SERVICE SCHEDULES
This Agreement will govern individual transitional services as
requested by MMI and provided by Millipore, the details of which are set forth
in the Transition Service Schedules attached to and made a part of this
Agreement. This Agreement will also govern individual transitional services as
requested by Millipore and provided by MMI, the details of which are set forth
in the Transition Service Schedules attached to and made a part of this
Agreement. Each Service shall be covered by this Agreement upon execution of a
transition service
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schedule in the form attached hereto (each transition service schedule, a
"Transition Service Schedule").
For each Service, the parties shall set forth in a Transition Service
Schedule substantially in the form of Annex A hereto, among other things, the
time period during which the Service will be provided if different from the term
of this Agreement determined pursuant to Article 4 hereof, a summary of the
Service to be provided; and the estimated charge, if any, for the Service and
any other terms applicable thereto on the Transition Service Schedule.
Obligations regarding each Transition Service Schedule shall be effective upon
the later of execution of this Agreement or of the applicable Transition Service
Schedule. This Agreement and all the Transition Service Schedules shall be
defined as the "Agreement" and incorporated herein wherever reference to it is
made.
ARTICLE 3
SERVICES
3.1 SERVICES GENERALLY. Except as otherwise provided herein, for the
term determined pursuant to Article 4 hereof, Millipore shall provide or cause
to be provided to MMI (or MMI shall provide, or cause to be provided to
Millipore) the service(s) described in the Transition Service Schedule(s)
attached hereto. The service(s) described on a single Transition Service
Schedule shall be referred to herein as a "Service." Collectively, the services
described on all the Transition Service Schedules (including Additional
Services) shall be referred to herein as "Services."
3.2 SERVICE BOUNDARIES. Except as otherwise provided in a Transition
Service Schedule for a specific service: (i) a Service Provider shall be
required to provide the Services only to the extent and only at the locations
such Services are being provided by the Service Provider for the Service
Recipient immediately prior to the Effective Date; and (ii) the services will be
available only for purposes of conducting the business of the Service Recipient
substantially in the manner it was conducted prior to the Effective Date.
3.3 IMPRACTICABILITY. A Service Provider shall not be required to
provide any Service to the extent the performance of such Service becomes
"Impracticable" as a result of a cause or causes outside the reasonable control
of the Service Provider including unfeasible technological requirements, or to
the extent the performance of such Services would require the Service Provider
to violate any applicable laws, rules or regulations or would result in the
breach of any software license or other applicable contract.
3.4 ADDITIONAL RESOURCES. Except as provided in a Transition Service
Schedule for a specific service, in providing the Services, a Service Provider
shall not be obligated to: (i) hire any additional employees; (ii) maintain the
employment of any specific employee; (iii) purchase, lease or license any
additional equipment or software; or (iv) pay any costs related to the transfer
or conversion of the Service Recipient's data to the Service Recipient or any
alternate supplier of Services.
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3.5 ADDITIONAL SERVICES. From time to time after the Effective Date,
the parties may identify additional services that one party will provide to the
other party in accordance with the terms of this Agreement (the "Additional
Services"). Accordingly, the parties shall execute additional Transition
Service Schedules for such Additional Services pursuant to Article 2. Subject to
the standards set forth in Section 3.6, the parties may agree in writing on
Additional Services during the term of this Agreement.
3.6 OBLIGATIONS AS TO ADDITIONAL SERVICES. Except as set forth in
the next sentence, a Service Provider shall be obligated to perform, at a charge
determined using the principles for determining fees under Section 5.1, any
Additional Service that: (a) was provided by the Service Provider immediately
prior to the Separation Date and that the Service Recipient reasonably believes
was inadvertently or unintentionally omitted from the list of Services, or (b)
is essential to effectuate an orderly transition under the Master Separation and
Distribution Agreement unless such performance would significantly disrupt the
Service Provider's operations or materially increase the scope of its
responsibility under this Agreement. If a Service Provider reasonably believes
the performance of Additional Services required under subparagraphs (a) or (b)
would significantly disrupt its operations or materially increase the scope of
its responsibility under this Agreement, the Service Provider and the Service
Recipient shall negotiate in good faith to establish terms under which the
Service Provider can provide such Additional Services, but the Service Provider
shall not be obligated to provide such Additional Services if, following good
faith negotiation, the Service Provider is unable to reach agreement on such
terms with the Service Recipient.
ARTICLE 4
TERM
The term of this Agreement shall commence on the Effective Date and
shall remain in effect until one (1) year after the Effective Date (the
"Expiration Date"), unless earlier terminated under Article 7. This Agreement
may be extended by the parties in writing, either in whole or with respect to
one or more of the Services; provided, however, that such extension shall only
apply to the services for which the Agreement was extended. The parties shall
be deemed to have extended this Agreement with respect to a specific Service if
the Transition Service Schedule for such Service specifies a completion date
beyond the aforementioned Expiration Date. The parties may agree on an earlier
expiration date respecting a specific Service by specifying such date on the
Transition Service Schedule for that Service. Services shall be provided up to
and including the date set forth in the applicable Transition Service Schedule,
subject to earlier termination as provided herein.
ARTICLE 5
COMPENSATION
5.1 CHARGES FOR SERVICES. The Service Recipient shall pay the Service
Provider the charges, if any, set forth on the Transition Service Schedules for
each of
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the Services listed therein as adjusted, from time to time, in accordance with
the processes and procedures established under Section 5.4 and Section 5.5
hereof. Unless specifically indicated otherwise on a Transition Service
Schedule, such fees shall include the direct and indirect costs of providing the
Services and shall be calculated by using the same procedures used by Millipore
prior to the Effective Date. If there is any inconsistency between the
Transition Service Schedule and this Section, the terms of the Transition
Service Schedule shall govern. The parties also intend for charges to be easy to
administer and justify and, therefore, they hereby acknowledge it may be
counterproductive to try to recover every cost, charge or expense, particularly
those that are insignificant or de minimus. The parties shall use good faith
efforts to discuss any situation in which the actual cost for a Service exceeds
the charge, if any, set forth on a Transition Service Schedule for a particular
Service; provided, however, that the incurrence of charges in excess of any such
cost on such Transition Service Schedule shall not justify stopping the
provision of, or payment for, Services under this Agreement.
5.2 PAYMENT TERMS. The Service Provider shall ▇▇▇▇ the Service
Recipient monthly for all charges pursuant to this Agreement. Such bills shall
be accompanied by reasonable documentation or other reasonable explanation
supporting such charges. The Service Recipient shall pay the Service Provider
for all Services provided hereunder within forty-five (45) days after receipt of
an invoice therefor. Late payments shall bear interest at the lesser of 12% or
the maximum rate allowed by law.
5.3 PERFORMANCE UNDER ANCILLARY AGREEMENTS. Notwithstanding
anything to the contrary contained herein, a Service Recipient shall not be
charged under this Agreement for any obligations that are specifically required
to be performed under the Master Separation and Distribution Agreement or any
other Ancillary Agreement and any such other obligations shall be performed and
charged for (if applicable) in accordance with the terms of the Master
Separation and Distribution Agreement or such other Ancillary Agreement.
5.4 ERROR CORRECTION; TRUE-UPS; ACCOUNTING. The parties shall agree
to develop mutually acceptable reasonable processes and procedures for
conducting internal audits and making adjustments to charges as a result of the
movement of employees and functions between parties, the discovery of errors or
omissions in charges, as well as a true-up of amounts owed. In no event shall
such processes and procedures extend beyond two (2) years after completion of a
Service.
5.5 PRICING ADJUSTMENTS. If in order to comply with any non-U.S.
legal requirement, some of the services provided outside the U.S. need to be
performed on a basis other than cost, adjustments shall be made between the
parties to make the pricing for such services consistent with the intention of
this Agreement.
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ARTICLE 6
GENERAL OBLIGATIONS; STANDARD OF CARE
6.1 PERFORMANCE METRICS: Millipore. Subject to Section 3.4 and any
other terms and conditions of this Agreement, Millipore shall maintain
sufficient resources to perform its obligations hereunder. Specific performance
metrics for Millipore for a specific Service may be set forth in the
corresponding Transition Service Schedule. Where none is set forth, Millipore
shall use reasonable efforts to provide Services in accordance with the
policies, procedures and practices in effect before the Effective Date and shall
exercise the same care and skill as it exercises in performing similar services
for itself. In addition Millipore shall provide MMI with information and
documentation sufficient for MMI to perform the Services it is obligated to
provide hereunder as they were performed before the Effective Date and shall
make available, as reasonably requested by MMI, sufficient resources and timely
decisions, approvals and acceptances in order that MMI may accomplish its
obligations hereunder in a timely manner.
6.2 DISCLAIMER OF WARRANTIES. NEITHER MILLIPORE NOR MMI MAKES ANY
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH
RESPECT TO THE SERVICES; SOFTWARE OR OTHER DELIVERABLES PROVIDED BY IT
HEREUNDER.
6.3 PERFORMANCE METRICS: MMI. Subject to Sections 3.4 and any other
terms and conditions of this Agreement, MMI shall maintain sufficient resources
to perform its obligations hereunder. Specific performance metrics for MMI for
a specific Service may be set forth in the corresponding Transition Service
Schedule. Where none is set forth, MMI shall use reasonable efforts to provide
Services in accordance with the policies, procedures and practices in effect
before the Effective Date and shall exercise the same care and skill as it
exercises in performing similar services for itself. In addition MMI shall
provide Millipore with information and documentation sufficient for Millipore to
perform the Services it is obligated to provide hereunder as they were performed
before the Effective Date and shall make available, as reasonably requested by
Millipore, sufficient resources and timely decisions, approvals and acceptances
in order that Millipore may accomplish its obligations hereunder in a timely
manner.
6.4 TRANSITIONAL NATURE OF SERVICES; CHANGES. The parties
acknowledge the transitional nature of the Services and that a Service Provider
may make changes from time to time in the manner of performing the Services if
the Service Provider is making similar changes in performing similar services
for itself and if the Service Provider furnishes to the Service Recipient sixty
(60) days written notice regarding such changes.
6.5 RESPONSIBILITY FOR ERRORS; DELAYS. A Service Provider's sole
responsibility to a Service Recipient:
(a) for errors or omissions in Services, shall be to furnish correct
information, payment and/or adjustment in the Services, at no additional cost or
expense to the Service Recipient; provided, the Service Recipient must promptly
advise the Service Provider of any such error or omission of which it becomes
aware after having used reasonable efforts to
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detect any such errors or omissions in accordance with the standard of care set
forth in Section 6.1; and
(b) for failure to deliver any service because of Impracticability,
shall be to use reasonable efforts, subject to Section 3.3, to make the Services
available and/or to resume performing the Services as promptly as reasonably
practicable.
6.6 GOOD FAITH COOPERATION; CONSENTS. The parties will use good
faith efforts to cooperate with each other in all matters relating to the
provision and receipt of Services. Such cooperation shall include exchanging
information, performing true-ups and adjustments, and obtaining all third party
consents, licenses, sublicences or approvals necessary to permit each party to
perform its obligations hereunder (including by way of example, not by way of
limitation, rights to use third party software needed for the performance of
Services). The costs of obtaining such third party consents, licenses,
sublicenses or approvals shall be borne by the Service Recipient. The parties
will maintain in accordance with its standard document retention procedures,
documentation supporting the information relevant to cost calculations contained
in the Transition Service Schedules and cooperate with each other in making such
information available as needed in the event of a tax audit, whether in the
United States or any other country.
6.7 ALTERNATIVES. If a Service Provider reasonably believes it is
unable to provide any service because of a failure to obtain necessary consents,
licenses, sublicenses or approvals pursuant to Section 6.6 or because of
Impracticability, the parties shall cooperate to determine the best alternative
approach. Until such alternative approach is found or the problem otherwise
resolved to the satisfaction of the parties, the Service Provider shall use
reasonable efforts subject to Section 3.3 and Section 3.4, to continue providing
the Service. To the extent an agreed upon alternative approach requires payment
above and beyond that which is included in the Service Provider's charge for the
service in question, the parties shall share equally in making any such payment
unless they otherwise agree in writing.
ARTICLE 7
TERMINATION
7.1 TERMINATION. A Service Recipient may terminate this Agreement,
either with respect to all or with respect to any one or more of the Services
provided to the Service Recipient hereunder, for any reason or for no reason, at
any time upon sixty (60) days prior written notice to the Service Provider,
unless the specific Transition Service Schedule requires otherwise. In such
case, the payment obligations shall be as set forth in the particular Transition
Service Schedule. In addition, subject to the provisions of Article 16 below,
either party may terminate this Agreement with respect to a specific Service if
the other party materially breaches a material provision with regard to that
particular Service and does not cure such breach (or does not take reasonable
steps required under the circumstances to cure such breach going forward) within
sixty (60) days after being given notice of the breach; provided,
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however, that the non-terminating party may request that the parties engage in a
dispute resolution negotiation as specified in Article 16 below prior to
termination for breach.
7.2 SURVIVAL. Notwithstanding the foregoing, in the event of any
termination with respect to one or more, but less than all Services, this
Agreement shall continue in full force and effect with respect to any Services
not terminated.
7.3 USER IDS, PASSWORDS. The parties shall use good faith efforts at
the termination or expiration of this Agreement or any specific Service hereto
to ensure that all applicable user IDs and passwords are cancelled.
ARTICLE 8
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the parties established under this Agreement
is that of independent contractors and neither party is an employee, agent,
partner, or joint venturer of or with the other. Millipore will be solely
responsible for any employment-related taxes, insurance premiums or other
employment benefits respecting its personnel's performance of Services under
this Agreement. Each Service Recipient agrees to grant the Service Provider
personnel access to sites, systems and information (subject to the provisions of
confidentiality in Article 13 below) as necessary for the Service Provider to
perform its obligations hereunder. Each Service Provider agrees to cause its
personnel to agree to obey any and all security regulations and other published
policies of the Service Recipient.
ARTICLE 9
SUBCONTRACTORS
A Service Provider may engage a "Subcontractor" to perform all or any
portion of the Service Provider's duties under this Agreement, provided that any
such Subcontractor agrees in writing to be bound by confidentiality obligations
at least as protective as the terms of Article VI of the Master Separation and
Distribution Agreement regarding confidentiality below, and provided further
that the Service Provider remains responsible for the performance of such
Subcontractor. As used in this Agreement, "Subcontractor" will mean any
individual, partnership, corporation, firm, association, unincorporated
organization, joint venture, trust or other entity engaged to perform hereunder.
ARTICLE 10
INTELLECTUAL PROPERTY
10.1 ALLOCATION OF RIGHTS BY ANCILLARY AGREEMENTS. This Agreement
and the performance of this Agreement will not affect the ownership of any
patent,
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trademark or copyright or other intellectual property rights allocated in the
Ancillary Agreements.
10.2 EXISTING OWNERSHIP RIGHTS UNAFFECTED, Neither party will gain,
by virtue of this Agreement, any rights of ownership of copyrights, patents,
trade secrets, trademarks or any other intellectual property rights owned by the
other.
10.3 OWNERSHIP OF DEVELOPED WORKS. Except as set forth in Section
10.2, Millipore will own all copyrights, patents, trade secrets, trademarks and
other intellectual property rights subsisting in the Software Deliverables (as
defined in Section 11.1 below) and other works developed by Millipore for
purposes of this Agreement. Likewise, MMI will own all copyrights, patents,
trade secrets, trademarks and other intellectual property rights subsisting in
works developed by MMI for purposes of this Agreement
10.4 CROSS LICENSE TO PREEXISTING WORKS. MMI grants Millipore a non-
exclusive, worldwide, royalty-free license to use, copy, and make derivative
works of, distribute, display, perform and transmit MMI's pre-existing
copyrighted works or other intellectual property rights solely to the extent
necessary to perform its obligations under this Agreement. Millipore grants MMI
a non-exclusive, worldwide, royalty-free license to use, copy, and make
derivative works of, distribute, display, perform and transmit Millipore's pre-
existing copyrighted works or other intellectual property rights solely to the
extent necessary to perform its obligations under this Agreement.
ARTICLE 11
SOFTWARE LICENSE
11.1 SOFTWARE DELIVERABLE/LICENSE, Unless otherwise agreed by the
parties under the Ancillary Agreements or any separate license or technology
agreement, if Millipore supplies MMI with a deliverable that in whole or in part
consists of software, firmware, or other computer code (referred to as a
"Software Deliverable") as indicated in a Transition Service Schedule, such
Software Deliverables will be supplied in object code form, and, if so requested
by MMI, Source Code, and will be subject to the terms of this Article 11. In
the event that such Software Deliverables are licensed to Millipore by third
parties, MMI agrees to be bound by any different or additional conditions that
are required by such third parties, and shall bear the responsibility of
obtaining the rights to possess and use such Software Deliverables.
11.2 DELIVERY AND ACCEPTANCE.
(a) DELIVERY. Millipore agrees to deliver to MMI one (1) : (i)
master copy of the Software in object code form only (and one copy of the Source
Code, if requested by MMI) on the media described on the relevant Transition
Service Schedule and (ii) Documentation for the Software on the media described
in the relevant Transition Service Schedule ((i) and (ii) collectively a
"Complete copy") as listed in the relevant Transition Service Schedule no later
than ten (10) days after the Effective Date (or any other start date as
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specifically indicated in the relevant Transition Service Schedule). If Source
Code is licensed under this Agreement, Millipore agrees to deliver one (1) copy
of such Source Code no later than ten (10) days after the Effective Date (or any
other start date as specifically indicated in the relevant Transition Service
Schedule). Additional Software or Source Code may be added to this Agreement
from time to time by execution by the parties of a Transition Service Schedule.
(b) ACCEPTANCE OF SOFTWARE (NON SOURCE CODE) MMI will have thirty
(30) days from the date of receipt of a Complete Copy of the Software to
evaluate the Software for conformity with the manuals and other documentation,
if any, that Millipore makes available with the Software to end users or which
are reasonably necessary to use the software licensed herein, including those
items listed and described in the relevant Transition Service Schedule hereto
(the "Documentation") and specifications, and either accept, return for rework
or reject the Software. MMI shall accept the Software if it substantially
conforms with Documentation and specifications. MMI will be entitled to test
and evaluate the Software and Millipore hereby grants to MMI the right to use
and reproduce the Software only to the extent necessary for MMI to perform its
evaluation. Such license will include the right of MMI to use third party
subcontractors bound by the relevant restrictions herein solely as necessary to
achieve the foregoing. If MMI returns the Software for rework, Millipore will
use its best efforts to correct the identified defects in Software designated on
a Transition Service Schedule as being "Mission Critical" and will use
reasonable commercial efforts to correct the identified defects in all other
Software and resubmit the Software for re-evaluation under the same acceptance
procedure.
(c) ACCEPTANCE OF SOURCE CODE. The Source Code is provided subject to
the limitations below in Section 11.3. The Source Code may not be accepted or
rejected according to the provisions above in Section 11.2(b). If MMI rejects
the Source Code, MMI must destroy all copies of such rejected Source Code and
promptly furnish evidence of such rejection and destruction to Millipore.
11.3 RIGHTS GRANTED AND RESTRICTIONS.
(a) LICENSE TO SOFTWARE. Subject to the terms and conditions of this
Agreement, Millipore hereby grants to MMI, under Millipore's intellectual
property rights in and to the Software, a non-exclusive, nontransferable (except
with respect to Subsidiaries of MMI), royalty free worldwide license to (a) use
and display the Software for its own internal information processing services
and computing needs (including, without limitation, to operate MMI's Web page
and to interface with visitors to MMI's Web page), and to make sufficient copies
as necessary, for such use, (b) use the Documentation in connection with the
permitted use of the Software and make sufficient copies as necessary for such
use, and (c) modify the software, and to use such modified software for MMI's
internal use as specified in clause (a) above so long as such modification is
permitted by any and all third parties who control such software.
(b) LICENSE TO SOURCE CODE. Subject to the terms and conditions of
this Agreement, Millipore hereby grants to MMI, under Millipore's intellectual
property rights in
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and to the Software, a nonexclusive, nontransferable (except with respect to
Subsidiaries of MMI), royalty free worldwide license to (a) use and reproduce
(for archival and back-up purposes only), and prepare derivative works of the
Source Code, for the purpose of supporting the object code version of the
software (if such object code exists), or, if no object code exists, for the
sole purpose of its own internal information processing services and computing
needs and (b) to use Source Code Documentation in connection with the permitted
use of the Source Code and make copies for archival and back-up purposes. MMI
shall also have the right to modify the Source Code, so long as such
modification is permitted by any or all third parties that control such Source
Code.
(c) RESTRICTIONS. MMI shall not itself, or through any Subsidiary,
affiliate, agent or third party: (a) sell, lease, license or sublicense (except
to a Subsidiary of MMI) the Software, the Source Code, the Documentation or the
Source Code Documentation; (b) other than as contemplated by paragraphs (a) and
(b) above, allow access to the Software or Source Code by any user other than
MMI and its Subsidiaries; (c) use the Software or Source Code to provide
processing services to third parties (except to operate MMI's Web page and to
interface with visitors to MMI's Web page), or (d) otherwise use the Software or
Source Code on a "service bureau" basis; or provide, disclose, divulge or make
available to, or permit use of the Software or Source Code by any third party
without Millipore's prior written consent.
(d) CONFIDENTIALITY. The Source Code and Source Code Documentation
are hereby deemed "Confidential Information" and subject to the terms of
confidentiality set forth in Section 13. The period of disclosure shall be one
(1) year from the Effective Date of this Agreement, and the period of
confidentiality shall be perpetual.
(e) TRADEMARKS. Neither party is granted any ownership in or
license to the trademarks, marks or trade names (collectively, "Marks") of the
other party with respect to this Software.
(f) OWNERSHIP. Millipore hereby reserves all rights to the Software,
Source Code and Documentation, and any copyrights, patents, or trademarks,
embodied therein or used in connection therewith, except for the rights
expressly granted herein.
(g) COPYRIGHT NOTICES. MMI agrees that it will not remove any
copyright notices, proprietary markings, trademarks or trade names from the
Software, Source Code, Documentation, or Source Code Documentation.
(h) TECHNICAL ASSISTANCE AND TRAINING. Millipore agrees to provide
technical assistance and training to MMI personnel as specified in the relevant
Transition Service Schedule.
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11.4 AS-IS WARRANTY.
(a) AS-IS WARRANTY. THE SOFTWARE AND SOURCE CODE PROVIDED HEREUNDER
IS LICENSED ON AN "AS-IS" BASIS ONLY, WITHOUT ANY EXPRESS WARRANTIES OF ANY
KIND.
(b) IMPLIED WARRANTY DISCLAIMER. MILLIPORE MAKES NO WARRANTIES
WHATSOEVER, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE OR SOURCE CODE
(INCLUDING DOCUMENTATION AND SOURCE CODE DOCUMENTATION), ITS MERCHANTABILITY OR
TITLE OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.
11.5 MISCELLANEOUS.
NON-RESTRICTIVE RELATIONSHIP. Nothing in this Agreement will be
construed to preclude MMI from independently developing, acquiring or marketing
computer software packages which may perform the same or similar functions as
the Software provided by Millipore.
ARTICLE 12
NO OBLIGATIONS
NO OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITY OR
OBLIGATIONS WHATEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY
SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN THE PARTIES.
IN ADDITION, WITH RESPECT TO ANY OF THE SOFTWARE LICENSED HEREUNDER, IF ANY
THIRD PARTY CLAIMS THAT MMI BREACHED THE RIGHTS OF ANY THIRD PARTY IN ITS
POSSESSION, USE, OR MODIFICATION OF THE SOFTWARE, THE DEFENSE OF SUCH CLAIM
SHALL BE THE SOLE RESPONSIBILITY OF MMI; PROVIDED, HOWEVER, IN THE EVENT OF ANY
SUCH THIRD PARTY CLAIM, MILLIPORE AGREES TO PROVIDE AT MMI'S REQUEST AND EXPENSE
REASONABLE CO-OPERATION AND ASSISTANCE WITH MMI'S DEFENCE AGAINST SUCH CLAIM.
ARTICLE 13
CONFIDENTIALITY
The terms of the Confidentiality provision set forth in Article VI of
the Master Separation and Distribution Agreement shall apply to any and all
Confidential Information disclosed in the course of the parties' interactions
under this Agreement.
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ARTICLE 14
LIMITATION OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS
OF DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER
ANY THEORY OF LIABILITY, ARISING FROM THE PERFORMANCE OF, OR RELATING TO, THIS
AGREEMENT.
ARTICLE 15
FORCE MAJEURE
Each party will be excused for any failure or delay in performing any
of its obligations under this Agreement, other than the obligations of a Service
Recipient to make payments to a Service Provider pursuant to Article 5 hereof
for services rendered, if such failure or delay is caused by Force Majeure.
"Force Majeure" means any act of God or the public enemy, any accident,
explosion, fire, storm, earthquake, flood, or any other circumstance or event
beyond the reasonable control of the party relying upon such circumstance or
event.
ARTICLE 16
DISPUTE RESOLUTION
If a dispute, controversy or claim arises under this Agreement it shall be
settled in accordance with the provisions of Article IX of the Master Separation
and Distribution Agreement.
ARTICLE 17
MISCELLANEOUS
17.1 ENTIRE AGREEMENT. This Agreement, the Master Separation and
Distribution Agreement and the other Ancillary Agreements and the Exhibits and
Schedules referenced or attached hereto and thereto constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof.
17.2 GOVERNING LAW. This Agreement shall be construed in accordance
with and all Disputes hereunder shall be governed by the laws of the
Commonwealth of Massachusetts, excluding its conflict of law rules and the
United Nations Convention on Contracts for the international sale of Goods. The
State and Federal Courts of Massachusetts shall have jurisdiction and venue over
all Disputes between the parties that are permitted to be brought in a court of
law pursuant to Article 16 above.
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17.3 DESCRIPTIVE HEADINGS. The headings contained in this Agreement,
in any Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Exhibit or
Schedule but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
17.4 NOTICES. Notices, offers, requests, or other communication
required or permitted to be given by either party pursuant to the terms of this
Agreement shall be given in writing to the respective parties to the following
addresses:
if to Millipore:
Millipore Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax:
if to MMI:
Millipore Microelectronics, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States may also be
sent via certified mail, return receipt requested. All other notices may also
be sent by fax, confirmed by first class mail. All notices shall be deemed to
have been given and received on the date of actual delivery.
17.5 NONASSIGNABILITY. Except as specifically permitted under Article
10 above, neither party may, directly or indirectly, in whole or in part,
whether by operation of law or otherwise, assign or transfer this Agreement,
without the other party's prior written consent, and any attempted assignment,
transfer or delegation without such prior written consent shall be voidable at
the sole option of such other party. Notwithstanding the foregoing, each party
(or its permitted successive assignees or transferees hereunder) may assign or
transfer this Agreement as a whole without consent to an entity that succeeds to
all or substantially all of the business or assets of such party. Without
limiting the foregoing, this Agreement will be binding upon and inure to the
benefit of the parties and their permitted successors and assigns.
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17.6 SEVERABILITY. If any term or other provision of this Agreement
is determined by a court, administrative agency or arbitrator to be invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement will nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby, are fulfilled to the fullest extent possible.
17.7 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. If any
term or other provision of this Agreement or the Exhibits or Schedules attached
hereto is determined by a court, administrative agency or arbitrator to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the fullest
extent possible.
17.8 AMENDMENT, No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
such agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed in duplicate originals by its duly authorized representatives.
MILLIPORE CORPORATION MILLIPORE MICROELECTRONICS, INC.
By: By:
------------------------- -------------------------
Its: Its:
------------------------- -------------------------
Date: Date:
------------------------- -------------------------
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List of Transition Service Schedules as of the Effective Date
TRANSITION SERVICE SCHEDULE # FUNCTIONAL AREA
----------------------------- ---------------
1-A...................... Facilities Sharing Services Millipore to MMI
1-B...................... Facilities Sharing Services MMI to Millipore
2........................ Central Engineering
3........................ Plastics Engineering
4........................ MIS
5........................ Analytical Services
6........................ Millipore Information Center
7........................ Financial Services
8........................ Distribution and Warehouse Services
9........................ Legal Services
10....................... Human Resource Services
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