— Indicates confidential information. Confidential treatment requested. Portion omitted filed separately with the Securities and Exchange Commission. FormFactor – Electroglas PAT Tool Program Memorandum of Understanding
EXHIBIT 10.8
[***]
— Indicates confidential information. Confidential treatment
requested.
Portion
omitted filed separately with the Securities and Exchange
Commission.
FormFactor
– Electroglas
▇▇▇
Tool Program Memorandum of Understanding
This ▇▇▇ Tool Program Memorandum of
Understanding (“MOU”) is entered into
on February 4, 2009, between FormFactor, Inc., a Delaware corporation
headquartered at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇ ▇▇ (“FFI”), and
Electroglas, Inc., a Delaware corporation headquartered at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ (“EG”). (FFI and EG are
also referred to jointly as the “Parties” and individually as a
“Party”.) The purpose of this MOU is to memorialize the Parties’
agreements relating to (1) EG’s development of [***] (“▇▇▇ Tools”) for use
by FFI [***] (the “▇▇▇ Tool Program”),
(2) FFI’s right to exclusive use of the ▇▇▇ Tools in certain fields of use (the
“▇▇▇
Tool Exclusivity”), (3) the milestones and deliverables for
the ▇▇▇ Tool Program, including the delivery of the ▇▇▇ Tools, and (4) FFI’s and
EG’s respective rights and obligations in relation to the ▇▇▇ Tool
Program.
FFI and
EG hereby agree as follows:
|
1. ▇▇▇ Tool Program
Deliverables
|
1.1
The ▇▇▇ Tool Program is anticipated to span eleven months beginning at the
execution of this MOU. The milestones, deliverables, and
associated payments in the ▇▇▇ Tool Program are set forth in Appendix
1:
1.2
The FFI Milestone Payments associated with EG Deliverables (2) through (7)
shall be due 30 days after FFI confirms the Deliverable meets the
applicable specification / technical requirements.
1.3
Changes to Appendices 2 and/or 3 shall be effective only upon the written,
mutual agreement of FFI and EG, who shall meet to discuss any requested
change(s) and the appropriate adjustment, if any, in the associated
payment and delivery date.
|
|
2.
Support Fee Engagement; Continuous
Improvement
|
2.1
EG shall use its commercially reasonable best effort to implement a
continuous improvement program for all ▇▇▇ Tools 1 through 3 and the
Engineering ▇▇▇ Tool Upgrade. If after delivery of ▇▇▇ Tools 1
and 2 EG is able to upgrade the ▇▇▇ Tool performance to achieve an
improved placement accuracy and time performance that meets the next level
identified in the Milestone and Deliverable Table, FFI shall pay the
difference between the improved performance tool price and the last
purchase price upon delivery and FFI’s verification of the ▇▇▇ Tool
upgrade (e.g., [***]).
2.2
After delivery of ▇▇▇ Tools 1 and 2, FFI and EG shall mutually agree on a
service and support contract for ▇▇▇ Tools 1 and 2, and future ▇▇▇ Tools,
on such terms and conditions as are fair and reasonable between
them.
|
|
3.
Additional Engineering Efforts
|
FFI,
in its sole discretion, may elect to co-fund a development effort with EG
and [***] to develop
a [***] system for
application to the ▇▇▇ Tool Program. It is understood that
FFI’s contribution will not exceed $275K and that EG and FFI will mutually
agree upon terms and conditions of the engagement that are fair and
reasonable as between them and will in all events fall within the ▇▇▇ Tool
Exclusivity.
|
|
4.
Technology Reviews and
Assistance
|
4.1
The Parties shall hold a technology review meeting at least once a month
to be attended by the ▇▇▇ Tool Program leaders and by at least one member
of senior management from each Party. FFI shall identify a
single point of contact for the ▇▇▇ Tool Program.
4.2
FFI and EG will each use their commercially reasonable best efforts to
perform under this MOU. Except for FFI deliverables, EG shall
have final decision-making authority on building the ▇▇▇ Tool
deliverables. In the event that EG engages a third party to assist in the
development efforts, EG shall confirm that the third party:
a)has
written obligations of confidentiality running at least as strict as those
in the CNDA;
b)assigns
all rights, title and interests in and to all inventions, patentable or
otherwise, know-how, developments and improvements to EG, in order that EG
may grant to FFI the rights and exclusivity contained in this MOU;
and
c)will
only look to EG for compensation and fees and will have no right or
ability to receive compensation or fees for any services or deliverables
from FFI.
4.3
In the event EG or FFI does not timely deliver an identified Deliverable,
EG and FFI shall meet in person within 7 days to discuss the delinquency
and agree on a roadmap to cure the deficiency as quickly as possible, but
in all events within 60 days of the original delivery date. If
the deficiency is not cured within the 60 day period, or EG and FFI can
not agree on a roadmap to cure then, if applicable, the escrow provisions
of §8 shall apply and this MOU shall terminate.
|
|
5. Non-Disclosure and No
Publicity:
|
5.1
The terms and conditions of the Corporate Non-Disclosure Agreement
executed on October 10, 2007 by and between FFI and EG (and [***]) (the “CNDA”) shall apply to this MOU as if fully
set forth herein. Without limiting the foregoing, the existence
of this MOU, the development efforts contemplated by this MOU and the ▇▇▇
Tool Program in general shall be treated as confidential under the CNDA, a
copy of which is attached as Appendix 4.
5.2
Upon successful completion of Milestone 5, FFI and EG will issue a
mutually agreeable press release regarding their engagement. No
prior or other public statements may be made and neither Party may use the
other Party’s name in any earnings call or financial statement (unless in
areas specifically required to meet Generally Accepted Accounting
Principles (GAAP) or U.S. Securities and Exchange Commission (SEC) filing
requirements) or otherwise disclose the existence of this MOU, or any of
its details to any third party without the specific written consent of the
other Party. If disclosure of this MOU or any of the terms
hereof is required by applicable law, rule or regulation, or is compelled
by a court or governmental agency, authority or body, the Party having the
disclosure obligation shall use all legitimate and legal means available
to minimize the disclosure, including without limitation seeking and
submitting a confidential treatment request or protective
order. The disclosing Party shall give the other Party at least
3 days advance notice of the disclosure and the Parties shall cooperate to
minimize the scope and extent of disclosure.
|
|
6.
IP Ownership:
|
6.1
Subject to the Confidentiality provisions of §5 and to the Field of Use
restrictions of §7:
a)FFI
will retain ownership of all Intellectual Property technology and rights
(“IP”) created by its employees,
contractors or consultants during the course of the ▇▇▇ Tool Program
(unless based on EG confidential information or know-how) and reserve all
rights to this IP.
b)EG
will retain ownership of all IP created by its employees, contractors or
consultants during the course of the ▇▇▇ Tool Program (unless based on FFI
confidential information or know-how) and reserve all rights to this
IP.
c)FFI
and EG will jointly own the IP created by collaboration of employees,
contractors and consultants of FFI and EG (“Jointly Owned IP”).
6.2
In no event does the right in and to Jointly Owned IP include the right to
use any patents, trade secrets, confidential information or know-how of
the other Party without such other Party’s prior written
consent. Development by a Party of IP in reliance on or with
reference to the confidential information of the other Party shall be
deemed to be Jointly Owned IP.
6.3
As between FFI and EG, it as agreed that FFI owns all right, title and
interest in the Engineering ▇▇▇ Tool (and the upgrade to that tool, if
any), including as to any developments, improvement, modifications,
hardware or software incorporated therein, and EG will execute any and all
documents as may be requested by FFI to confirm such right, title and
interest. The provisions of this §6.3 shall apply to all
work performed by EG as part of the ▇▇▇ Tool Program, even if the work was
performed prior to execution of this MOU.
|
|
7.
Use Restrictions; Non
-Solicit:
|
7.1
Except as may be required for EG to meet its Milestone Deliverables, in no
event does this MOU grant to EG any license or right in or to FFI
IP.
7.2
Subject to the use restrictions of this MOU (including but not limited to
those found in §6 and this §7), each Party may freely exercise its rights
in and to its IP and to any Jointly Owned IP developed during the course
of the ▇▇▇ Tool Program.
7.3
Under the ▇▇▇ Tool Exclusivity, EG agrees that it will not make, use or
sell ▇▇▇ Tools, and components thereof or use any Jointly Owned IP, for
the [***]
(collectively, the “FFI Field of
Use”) for a period of 5 years after signing this
MOU. Thereafter, ▇▇▇ Tool Exclusivity will automatically renew
for consecutive 1 year periods if FFI has purchased at least one (1) ▇▇▇
Tool during the 12 months immediately preceding the end of the
then-current exclusivity period. If no ▇▇▇ Tool purchase was
made, FFI may pay EG $500K for the 1 year renewal of the ▇▇▇ Tool
Exclusivity.
7.4
For a period of eighteen (18) months commencing on the signing of this
MOU, FFI agrees to not directly solicit any of EG’s employees to leave
their employment and accept employment at FFI, and EG agrees to not
directly solicit any of FFI’s employees to leave their employment and
accept employment at EG.
|
|
8.
Escrow Account
|
8.1
Within 30 days of signing this MOU, EG and FFI shall enter into an escrow
account consistent with §§ 8.2-8.6.
8.2
EG shall, within 30 days after signing this MOU, deposit into a
beneficiary escrow account with a mutually agreeable escrow company the
following materials that are used in the ▇▇▇ Tool Program: 1) complete set
of solid works parts, assemblies and detailed drawings, 2) assembly
drawings and procedures, 3) ECOs for core [***], 4) test procedures
(as developed), 5) OEM parts specifications, and 6) source code + pseudo
code for platform and any and all components. EG and FFI shall
share the initial escrow company costs of setting up the escrow account
under this §8.2 and the escrow company costs associated with the deposits
consistent with §8.3.
8.3
EG shall not less frequently than every 30 days, update the escrow deposit
materials to reflect the most current version of all of the deposited
items and to deposit any new items falling within the scope of
§8.2. The failure to update completely shall trigger release of
all materials in favor of FFI.
8.4
The following events shall trigger an automatic release
condition (“Release Trigger”) of
EG’s deposit in favor of FFI: 1) EG’s filing of Bankruptcy, voluntary or
otherwise, 2) a change in control of EG, and 3) EG’s miss of a Milestone /
Success Criteria delivery by more than 60 days and both a) FFI and EG are
unable to agree on a corrective plan, and b) the EG miss is not caused by,
or the result of, FFI’s failure to timely deliver the FFI deliverables
identified in Appendix 2.
8.5
In the event of a Release Trigger, in addition to the release of all
deposited materials to FFI under §8.4, EG shall execute any and all
additional documents necessary to confirm 1) the grant of a pre-paid,
royalty-free license to FFI of all Intellectual Property Rights in and to
the deposited materials and all technology necessary to enable FFI to
make, have made, use and/or sell up to 10 ▇▇▇ Tools within the FFI Field
of Use, 2) FFI’s ownership and title of all hardware and components
(including work in progress), 3) an express right to purchase the [***] system (or any
similar prior or future systems) and any and all components of the same,
from any EG current or prior system / component supplier, all to enable
FFI to build, or have built, ▇▇▇ Tools and/or components thereof for use
within the FFI Field of Use, and 4) its grant to FFI, upon FFI’s request
and on terms that are fair, reasonable and non-discriminatory, the right
to make, have made, use and sell ▇▇▇ Tools within the FFI Field of Use in
excess of the 10 ▇▇▇ Tools identified in subsection 1) of this
§8.5. In the event that the Release Trigger is the filing of a
dissolution proceeding related to EG, as opposed to a re-organization
proceeding, then FFI’s surviving licenses and rights under §7 and §8 shall
be expanded such that they are not limited to a certain number of ▇▇▇
Tools or internal FFI use.
|
|
9.
Expenses and UCC
Filings:
|
9.1
Except for those fees, costs and expenses expressly provided in this MOU,
FFI and EG will each be responsible for their own fees, costs and expenses
related to the development, manufacture and delivery of the Deliverables
and all other aspects of the ▇▇▇ Tool Program.
9.2
If during the ▇▇▇ Tool Program a one-time, extraordinary capital or
facilities expense exceeding US$25,000 arises, which 1) could not have
been reasonably contemplated by EG, and 2) is for tooling or equipment
utilized to build and/or test the ▇▇▇ Tools, but is not shipped as a part
of the ▇▇▇ Tool, then EG and FFI shall meet in good faith and discuss the
appropriate sharing or allocation of the expense (and ownership of any
material).
9.3
FFI shall be entitled to file a UCC Form-1 Statement confirming its
rights, interest and ownership in all Milestone Deliverables (2) through
(7) and EG shall cooperate in all respects with this filing and enter into
no documents or agreement inconsistent therewith.
|
|
10.
Purchase Agreements:
|
10.1
The Parties agree that, except as provided otherwise in this MOU, the
terms and conditions for EG’s delivery and FFI’s purchase of the Milestone
Deliverables (2) through (7) shall be as set forth in the Terms &
Conditions found in Appendix 5; and, further, to the extent the Milestone
Deliverables (4) through (7) incorporate software of EG, then the
EGCommander Software License found in Appendix 6 shall apply.
10.2
Notwithstanding any language within Appendices 5 and/or 6, for a period of
one year after delivery and acceptance of each of the Milestone
Deliverables (2), (3), (4), (5), (6)and (7), EG will, at no cost to FFI,
support, service and repair those Deliverables provided that the
Deliverables are present in the US. Thereafter, the Parties
shall mutually agree as to a service and support fee, which shall be fair
and reasonable as between them. The Parties shall mutually
agree to a service and support fee for ▇▇▇ Tools located outside the US,
which shall be fair and reasonable as between them.
10.3
FFI will, at all times, receive most favorable pricing as compared to
systems that are sold by EG outside of the FFI Field of Use. Pricing for
any systems beyond ▇▇▇ Tool 3 and the Engineering ▇▇▇ Tool Upgrade shall
be negotiated in good faith on such terms as are fair and reasonable
between FFI and EG.
|
|
11.
Limitation of Liability;
Indemnity:
|
11.1
With the exception of claims based upon breach of confidentiality,
misappropriation of trade secrets or infringement of intellectual property
rights, in no event shall either party be liable for any special,
incidental, direct or consequential damages of any kind in connection with
this MOU, or the ▇▇▇ Tool Program, whether in tort, contract or otherwise,
and even if the party has been advised in advance of the possibility of
such damages.
11.2
Neither Party shall have an indemnification obligation or liability to the
other, whether express or implied, except for that associated with the
Milestone Deliverables (2) through (7) consistent with §10.
11.3
All confidential information and all IP provided or disclosed by either
Party hereunder are provided and disclosed “AS IS” without warranty of any
type or kind. Subject to the §10.1 warranty to run from EG to FFI, each
Party specifically disclaims any and all other warranties, whether express
or implied or statutory, including, but not limited to, the implied
warranties of noninfringement, fitness for a particular purpose or
merchantability.
|
|
12.
Procedural Provisions
|
12.1
This MOU shall be governed and construed in accordance with the laws of
the State of California, excluding its conflicts of law
principles.
12.2
The Parties will make reasonable best efforts to resolve amicably any
disputes or claims under this MOU. Any dispute relating to this
MOU shall be brought before a State Court of California having
jurisdiction over the matter and Parties.
12.3
The Parties hereto are independent contractors. Nothing in this
MOU will be construed to make the Parties partners or joint venture or to
make either Party liable for the obligations, acts, or activities of the
other.
12.4
Neither this MOU, nor any rights or obligations hereunder, may be assigned
or otherwise transferred by EG without the prior written consent of the
FFI. Any purported assignment by EG shall be and is null and
void and of no effect.
12.5
The following provisions shall survive any expiration, termination or
cancellation of this MOU: § 5. Non-Disclosure and No
Publicity; §6. IP Ownership; §7.
Use Restrictions;
Non-Solicit; §8. Escrow Account
(until execution of terms of the account are met); §10. Purchase Agreements;
§11. Limitation of Liability;
Indemnity; and §12. Procedural
Provisions.
12.6
This MOU, including the Appendices hereto, contains the entire
understanding between FFI and EG with respect to the subject matter hereof
and merges and supersedes all prior and contemporaneous agreements,
dealings and negotiations. Any modification, alteration, or
amendment to this MOU, or any additional or different terms in any other
document, will not be effective unless made in writing, dated and signed
by duly authorized representatives of both
Parties.
|
|
For: FormFactor,
Inc.
|
For: Electroglas,
Inc.
|
|
/s/
▇▇▇ ▇▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇
|
|
By:
▇▇▇ ▇▇▇▇▇▇▇▇
|
By:
▇▇▇ ▇▇▇▇▇▇▇
|
|
Title:
CTO/SUP
|
Title:
CFO
|
|
Date:
2/4/09
|
Date:
2/5/2007
|
Appendices:
Appendix
1
………... Milestone
and Deliverable Table
Appendix
2
………… Full
Specification for ▇▇▇ Tool
Appendix
3
……….. ▇▇▇
Tool 1 Engineering Exceptions
Appendix
4
……….. CNDA
Appendix
5
……….. Terms
& Conditions
Appendix
6
……….. EGCommander
Software License
1
EXHIBIT
10.8
APPENDIX
1
Milestone
and Deliverable Table
|
Milestone
|
Deliverable(s)
|
Date
|
FFI
Payment
|
|
(1)
Engagement
|
è FFI
Engagement Fee to cover ▇▇▇ Tool background work, pre-execution advisory
assistance
|
2/04/09
|
US$300K (due 5 days after signing MOU)
|
|
(2)
First [***] Delivery
|
è EG to deliver to
FFI [***] on the engineering ▇▇▇ Tool (“Engineering ▇▇▇ Tool”) [***] per the
definitions and Table 4.1 in the EPS ▇▇▇ Specification (Appendix 2) and
have [***], and that FFI, in its discretion, deems to pass its outgoing
specification and [***].
|
On
or before 3/15/09
|
US$ [***]
|
|
(3)
Second [***] Delivery
|
è EG to deliver to
FFI [***] on the Engineering ▇▇▇ Tool [***] per the definitions and Table
4.1 in the EPS ▇▇▇ Specification (Appendix 2) and [***], and that FFI, in
its discretion, deems to pass its outgoing specification and
[***].
|
On
or before 4/15/09
|
US$[***]
|
|
(4)
▇▇▇ Tool 1
|
è EG to deliver a
first ▇▇▇ Tool, which is a different ▇▇▇ Tool than the Engineering ▇▇▇
Tool, which will not be built by taking actual components or subparts from
the Engineering Tool, that meets all specifications set forth in Appendix
2 (▇▇▇ Tool 1); subject to the ▇▇▇ Tool 1 Engineering Exceptions
documented in Appendix 3
|
5/15/09
|
US$[***]
US$[***]
US$
[***] and meets the Appendix 2 specification without reference to the
Appendix 3 Engineering Exceptions
|
|
(5)
▇▇▇ Tool 2
|
è EG to
deliver a second ▇▇▇ Tool that meets all specifications set forth in
Appendix 2
|
9/15/09
|
US$[***]
US$
[***]
|
|
(6)
▇▇▇ Tool 3
|
è EG to
deliver a third ▇▇▇ Tool that meets all specifications set forth in
Appendix 2
|
12/1/09
|
US$[***]
|
|
(7)
Engineering ▇▇▇ Tool Upgrade to 2/2/3
|
è EG to
upgrade the Engineering ▇▇▇ Tool to a fourth ▇▇▇ Tool that meets all
specifications set forth in Appendix 2
|
12/30/09
|
US$[***]
|
2
EXHIBIT
10.8
APPENDIX
2
[xxx]
3
EXHIBIT
10.8
APPENDIX
3
[xxx]
4
EXHIBIT
10.8
APPENDIX
4
CORPORATE
NON-DISCLOSURE AGREEMENT
This
Corporate Non-Disclosure Agreement (this "Agreement") is entered into and made
effective as of the date set forth above, by and between:
FormFactor,
Inc., a Delaware corporation having a principal place of business at:7005
Southfront Road, Livermore, CA, USA 94551 (FFI”); and
AJI Co.,
Ltd., a Japanese corporation headquartered at ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇-▇-▇,
▇▇▇▇▇▇▇,▇▇▇▇-▇▇, ▇▇▇▇▇▇▇▇, Kanagawa, ▇▇ ▇-▇▇▇ ▇, ▇▇▇▇▇ ("▇▇▇"); and
Electroglas,
Inc., a Delaware corporation having a principal place of business at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇ 95 13 8-1 0 15 ("EG”).
FFI, AJI
and EG (also referred to individually as a "Party” with respect
to two or more collectively as the "Parties") desire to engage in activities
related to the design and development of pick and place technology and the
manufacture of related systems ("Purpose"), and in the course of the Purpose
activities each Party anticipates it will disclose to the other Parties certain
proprietary information which it regards as confidential. Accordingly, the
Parties agree as follows:
1. Confidential
Information.
1.1
"Confidential Information" means any confidential or proprietary information;
technical data, or know-how relating to the disclosing Party's business,
including, but not limited to, that which relates to research, products,
services, customers, markets, software, developments, formulas, ideas,
inventions (patentable or otherwise), processes, designs, drawings, engineering,
marketing, finances, customers and/or to technical, business, financial or
product development plans, forecasts or strategies.
1.2 All
Confidential Information received from the disclosing Party will be in tangible
form or reduced to a tangible form thereafter. A summary of intangible
disclosures of Confidential Information shall be reduced to writing, marked
"Confidential" and delivered to the receiving Party within thirty (30) days of
the disclosure. No Party has an obligation to disclose any particular or
specific Confidential Information.
1.3
Confidential Information does not include information, technical data or
know-how which:
(a) Is
rightfully in the possession of the receiving Party at the time of disclosure as
shown by the receiving Party’s files and records immediately prior to the time
of disclosure;
(b)
Is or becomes part of the public knowledge or literature, not as a result of any
inaction or action of the receiving Party:
(c) Is
approved for release by the disclosing Party;
(d) Is
rightfully received from a third party without any obligation of
confidentiality; or
(e) Is
independently developed by employees of the receiving Party without reliance or
reference to the Confidential Information of the disclosing Party.
1.5 Each
Party acknowledges and agrees that all Confidential Information is provides “AS
IS” and without any warranty of any kind, whether express or implied. Any
liability or indemnification for claims in connection with use of Confidential
Information running from one Party to another or between the Parties is
excluded.
2. Non-Disclosure
of Confidential Information.
2.1 The
Parties and each of them agree not to use the Confidential Information disclosed
by the other Parties for any purpose other than (a) for its internal evaluation
in relation to the Purpose or actual business relationship related to the
Purpose, as the case may be and, then, (b) solely with respect to those specific
activities mutually proposed or contemplated by the Parties.
2.2 Each
Party will disclose another Party's Confidential Information only to those of
its own employees and contractors who are required to have the information in
order to carry out the Purpose. All employees and contractors to whom
Confidential Information of another Party is disclosed shall have signed or
otherwise be subject to a non-disclosure agreement or restrictions
on
5
EXHIBIT
10.8
disclosures
to third parties that binds such employees and contractors to confidentiality
obligations at least as
restrictive as those set forth herein. No Party shall use Confidential
Information of another Party for the benefit of any other entity or a third
party, or disclose, publish, disseminate or copy Confidential Information or any
part thereof, to any other person, corporation or other organization without, in
each case, obtaining the prior written consent of the disclosing
Party.
2.3 Each
Party agrees to notify the other Party/ies in writing of any misuse or
misappropriation of such Confidential Information which may come to its
attention. If any Party (the "Requested Party") receives notice of a request by
any court, regulatory agency or tribunal for production of any Confidential
Information of the other Party, the Requested Party shall promptly notify the
other Party and shall use reasonable efforts to limit disclosure and to obtain
confidential treatment or a protective order and shall allow the disclosing
Party to participate in the proceeding. If requested, the disclosing Party shall
assist (at the Requested Party's expense) in resisting the request for
production.
3. Return of
Materials. Any materials or documents that have been furnished by one
Party will be returned, along with all copies of such documentation, promptly
upon request. Upon demand, any materials prepared by a Party containing the
Confidential Information of another Party shall be destroyed and an officer of
that Party shall confirm such destruction in writing.
4. Intellectual
Property Rights. Nothing in this
Agreement is intended to grant or does grant, either expressly or by
implication, estoppel or otherwise to a Party any rights or licenses in or to
another Party's Confidential Information or any intellectual property rights,
except the limited right to review Confidential Information and engage in
activities solely consistent with and limited to the Purpose. In no event shall
this Agreement, or any disclosure of Confidential Information made hereunder,
obligate or require a Party to enter into any other business relationship. Any
license under intellectual property rights and any business relationship must be
express and in a separate document, mutually agreed to by the
Parties.
5. Term.
This Agreement shall apply to Confidential Information disclosed during the
period commencing on the date of full execution and ending five (5) years
thereafter. All obligations of confidentiality and restrictions on
use of Confidential Information created under and by this Agreement shall remain
in force and effect for five (5) years from the dated any Confidential
Information is or was disclosed by a Party to another Party. All
other terms and conditions of this Agreement that are necessary to enforce the
surviving obligations of confidentiality and restriction on use shall remain in
place and effective.
6. Remedies:
Each Party agrees that its obligations hereunder are necessary and reasonable in
order to protect the other Parties and the other Parties' business, and
expressly agrees that monetary damages would be inadequate to compensate the
other Party for any breach of any covenant or agreement set forth herein.
Accordingly, each Party agrees and acknowledges that any such violation or
threatened violation will cause irreparable injury to the other
Party.
7.
Miscellaneous.
7.1 This Agreement may not be
assigned by a Party without the express written consent of the other Parties,
which may be given or withheld at the sole discretion of the other
Parties.
7.2 Each Party agrees that it
will not in any form export, re-export, resell, ship or divert or cause to be
exported, re-exported, resold, shipped or diverted, directly or indirectly, any
Confidential Information to any country for which the United States Government
or any agency thereof at the time of export or re-export requires an export
license or other government approval without first obtaining such license or
approval.
7.3 Failure to enforce any
provision of this Agreement shall not constitute a waiver of any term
hereof.
7.4 This Agreement shall be
governed by and construed under the laws of the State of California, without
regard to its conflict of laws principles. All disputes arising out of or in
connection with this Agreement shall be resolved by arbitration before three
arbitrators under the Rules of Arbitration of the International Chamber of
Commerce, Paris.
7.5 This Agreement constitutes
the entire agreement, written or verbal, between the Parties with respect to the
disclosures(s) of information between them.
7.6 This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which, taken together, shall constitute one and the same
instrument.
FormFactor,
Inc.
Signature:/s/ ▇▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇
▇▇▇▇▇▇▇▇
Title:
CTO
Date:
10/10/2007
AJI
Co., Ltd.
Signature:/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Date:
10/10/2007
Electroglas,
Inc.
Signature: /s/ ▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇
▇▇▇▇▇▇▇
Title:
CFO
Date:
10/10/2007
6
EXHIBIT
10.8
APPENDIX
5
Terms &
Conditions
1. ORDERS,
PRICE AND SCHEDULING.
1.1 Order
Pricing. EG shall furnish to FFI the products (“Products”) stated on
one or more purchase orders issued by FFI and accepted in writing by EG (each,
an “Order”) in accordance with the prices and delivery schedule stated on the
Order. The purchase prices are exclusive of any applicable taxes. FFI
will be responsible for all sales, use or other similar taxes or duties that may
be levied on the Products (except for taxes on EG’s net income). When
EG has the legal obligation to collect such taxes, the appropriate amount will
be added as a separate item to the invoice sent from EG to FFI, and paid by
FFI. EG shall not collect an otherwise applicable tax if FFI’s
purchase is exempt for collection of such tax and valid tax exemption
certificate is furnished by FFI in a timely manner. For purposes of
this Section 1.1 and the responsibility for taxes and other charges, “Products”
includes precision pick & place assembly tools, but does not include probe
cards built utilizing pick & place assembly tools or services provided in
relation to the manufacture, service or development of pick & place assembly
tools or probe cards.
1.2 Forecasts. Any
forecasts provided by FFI are for planning purposes only and do not constitute
an order or other commitment to purchase by FFI. FFI shall have no
obligation to issue any Order. FFI shall be responsible only for
Products for which it has issued an Order.
2. PACKING;
SHIPPING; DELIVERY.
2.1 Packing. The
Products shall be prepared for shipment in a manner which: (i) follows good
commercial practice, (ii) is acceptable by common carriers for shipment at a
commercially rate, and (iii) is adequate to ensure safe arrival. If
FFI requests, EG will package the Products for clean room delivery, per FFI’s
specification. EG shall ▇▇▇▇ all containers with necessary lifting,
handling, unpacking and shipping information.
2.2 Delivery. The
Products shall be delivered EXW (Incoterms 2000) EG’s facility.
2.3 Lead
Times. FFI and EG (also referred to collectively as the “Parties”)
agree that the lead times for the Products ordered from EG shall be in
accordance with the applicable lead time agreed to by the Parties in
writing.
2.4 Late
Deliveries. EG shall notify FFI within twenty-four (24) hours of
learning EG will be unable to make any scheduled delivery of the Products and
shall state the reasons for the delay and identify the steps being taken to
minimize the length of the delay. Such notification by EG shall not
affect FFI’s termination rights hereunder.
2.5 Statement
of Origin. Upon FFI’s request, EG will promptly provide FFI with a
statement of origin for the Products and with applicable customs documentation
for any Products wholly or partially manufactured outside of the country of
import.
3. PRODUCT
SPECIFICATIONS; INSPECTION.
3.1 Product
Specifications All Products delivered to FFI shall conform to the
specifications for the Products stated on the Order. EG shall not modify
specifications for any Products, including but not limited to, material
composition, performance range and dimensions, without the prior written
approval of FFI.
3.2 Outgoing
Inspection. EG shall inspect and test the Products prior to
delivery. All inspection records relating to the Products covered by
an Order shall be available to FFI.
3.3 FFI
Inspection. The Products, once delivered to FFI, may be inspected and
tested by FFI or its designee, at reasonable times and places and at FFI’s sole
cost. EG shall provide, without additional charge, all reasonable
assistance for such inspections and tests.
3.4 Non-Conforming
Products. If any Products are defective or otherwise not in
conformity with the requirements of the applicable Order (“Non-Conforming
Products”), EG and FFI shall meet in person with 7 days to discuss the reasons
the Product is a Non-Conforming Product and agree on a roadmap to cure the
Non-Conforming Product as quickly as possible, but in all events within 60 days
of the original delivery date. If the Non-Conforming Product is not
cured within the 60 day period, or EG and FFI can not agree on a roadmap to
cure, FFI may terminate the respective Order (or portion thereof) for default.
No inspection (including source inspection), tests, approval (including design
approval), or acceptance of any Products shall relieve EG from responsibility
for defects or other failures to meet the requirements of the
Order. Rights granted to FFI in this Article 3 are in addition to any
other rights or remedies provided elsewhere under these Terms & Conditions
or by law.
4. INVOICING;
PAYMENT.
5.
4.1 Invoices. After
or contemporaneous with each shipment of Products, EG shall send a separate
invoice, including item numbers. Invoices shall include: the Order number, part
number(s), complete ▇▇▇▇ to address, description of the Products, quantities,
unit prices and extended totals in U.S. dollars; all of which must match
information on the Order.
4.2 Invoice
Payment. Payment of invoices shall be one hundred percent (100%) net
thirty days (30) days after FFI confirms the Deliverable meets the applicable
specification / technical requirements.
4.3 No
Acceptance. Payment of an invoice shall not constitute acceptance of
the Products. Payment of the invoice shall be subject to appropriate
adjustment for failure of EG to meet the Order requirements.
5. CANCELLATION
AND TERMINATION.
5.1 Standard
Product. There shall be no charges for termination or cancellation of
an unshipped Order for any Product that is a “standard” product, i.e., a product
that is not designed to FFI’s unique specifications, even if the Order is
“accepted” by EG.
5.2 Custom
Product. Any claim by EG for cancellation charges for any Product
that is a “custom” product must be submitted to FFI in writing within fifteen
(15) days after receipt of FFI’s termination notice along with a summary of all
mitigation efforts (“Cancellation Claim”). A Cancellation Claim may
include the net cost of custom work in process scheduled to be delivered within
sixty (60) days. EG shall, wherever possible, place such custom work
in process in its inventory and sell it to other customers; provided, however,
that such actions may not, in any way, serve to furnish or provide to a third
party: (i) FFI’s confidential information or intellectual property,
or (ii) a product that is manufactured or designed using or relying upon FFI’s
confidential information or intellectual property, or (iii) a license right or
grant under any FFI confidential information or intellectual property right,
whether expressly, by implication or otherwise.
5.3 Non-Recoverable
Charges. In no event shall EG be compensated in any way for any work
done after receipt of FFI’s termination notice, nor for any costs incurred by
EG’s vendors or subcontractors after EG receives the termination notice, nor for
any costs EG could reasonably have avoided, nor for any indirect overhead and
administrative charges or profit of EG.
5.4 Failure
to Deliver. If (i) EG fails to make any delivery in accordance with
specified delivery dates or otherwise fails to materially comply with the Order,
and does not remedy such failure within ninety days (90) after receipt of
written notice thereof from FFI, or (ii) any proceeding is filed by or against
EG in bankruptcy or insolvency, or for appointment for the benefit of creditors,
then FFI may (in addition to any other rights or remedies provided elsewhere
under these Terms & Conditions or by law) terminate all or any part of an
unshipped Order by written notice to EG without any liability, except
Cancellation Claims. If an Order is terminated or cancelled by
FFI consistent with this Section 5.4, FFI, in addition to any other rights
provided in this section, may require EG to transfer title in and deliver to FFI
any completed Products and such partially completed Products or components
thereof, and all drawings and plans necessary to use or complete the Products or
components thereof, which EG has specifically produced or specifically acquired
for the performance of such terminated Order (or part thereof), and a
non-exclusive, fully-paid up, royalty-free license under all intellectual
property rights necessary to use or complete the Products or components thereof
(to the extent EG can grant such rights), provided that FFI will pay for the
reasonable value of all such items transferred within 90 days of receipt of the
same, unless a partial payment under the Order was already
made.
6. CHANGES;
SUBCONTRACTING; CESSATION.
6.1 Change
Orders. FFI may, without penalty, at any time, by written change
order, suspend EG’s performance under the Order in whole or in part, make
changes in drawings, designs, specifications, method of shipment or packing,
alter the time or place of delivery, or require additional or diminished
work. In the event that such change results in additional costs to EG
or an increase in the price of the Products, FFI and EG shall mutually agree on
a modified price that is fair and equitable as between them. FFI’s
engineering and technical personnel may from time to time, in FFI’s discretion,
render assistance to EG concerning the Products to be furnished pursuant to the
Order. Such assisting FFI personnel are not authorized to
change Products ordered or the terms and conditions of the Order. No
change order will be binding on FFI and EG unless issued in writing by an
authorized representative of FFI. Any suspension of an Order (or
portion thereof) for a period of more than 90 days shall entitle EG to submit to
FFI a Cancellation Claim pursuant to Section 5.2 of these Terms and
Conditions.
6.2 Subcontracting. EG
shall not subcontract for complete or substantially complete parts of Products
called for by the Order without FFI’s prior written approval. Should
FFI grant such approval, EG shall at all times remain fully responsible for the
obligations and duties associated with the Order. EG shall be fully responsible
for, indemnify and hold FFI harmless from any and all payments to EG’s vendors
or subcontractors relating to the Order.
6.3 Assured
Quantity. EG acknowledges that a reliable and continuing source of
Products is essential to FFI.
7
EXHIBIT
10.8
6.4 Final
Orders. EG shall give FFI at least one hundred eighty (180) days
prior written notice of the temporary or permanent discontinuance of production
of the Products covered by the Order during which time EG shall accept orders
from FFI for a commercially reasonable quantity of such items. In the
event that at the end of the one hundred eighty (180) day period EG has not
fulfilled all of FFI’s orders, EG shall nonetheless be obligated to meet the
requirements of all such orders.
7. PROPRIETARY
INFORMATION AND PUBLICITY.
7.1 Confidential
Information. All written information obtained by EG from FFI in
connection with the Order shall remain the property of FFI, and shall be used
and disclosed by EG only to the extent necessary for fulfilling the
Order. The terms and conditions of the Corporate Non-Disclosure
Agreement, or other confidentiality agreement, as executed by FFI and EG are
incorporated by reference as if fully set forth herein. In the event
of any inconsistency between these Terms & Conditions and those of the
executed confidentiality agreement, these Terms & Conditions shall
control.
7.2. No
Publicity. Neither Party shall make or authorize any news release,
advertisement, or other disclosure which shall deny or confirm the existence of
an Order or which shall make use of the other Party’s name without the prior
written consent of such other Party.
7.3. No
License. The
manufacture and/or sale by EG of the Products hereunder to FFI does not convey
any license to EG under any patent, copyright, trade secret, trademark or other
intellectual property right with respect to which FFI can grant licenses, except
and solely to the extent such a license is necessary to, or implicit in, the
manufacture and sale of the Products to FFI. FFI expressly reserves
all of its rights with respect to such patent, copyright, trade secret,
trademark and/or other intellectual property rights. Further, it is
agreed that in no event may EG offer for sale, sell or otherwise transfer (for
payment or otherwise) any products incorporating FFI’s confidential information
or intellectual property, to a third party, even after fulfillment or
termination of an Order, without FFI’s prior written consent. The
purchase of any Products under this Agreement shall confer, at no additional
cost, upon FFI all rights, interests and licenses in any patents, copyright,
trademark, mask work rights or other intellectual property rights necessary for
FFI to use the Products and to have the Products serviced and repaired by itself
or a third party, and to sell or otherwise transfer the
Products.
8. WARRANTIES.
8.1 Express
Warranties. In addition to any other express or implied warranties,
EG warrants that the Products furnished pursuant to the Order for a period of
twelve months from the date of shipment will be substantially: (i)
free from defects in workmanship and material if stored, handled, installed,
maintained and operated under proper use and normal conditions, (ii) free from
defects in design except to the extent that such designs were provided by FFI,
(iii) in conformity with all other requirements of the Order; and (iv) designed,
manufactured and delivered in compliance with all Federal, state and local laws,
rules and regulations for violation of which FFI may be liable, including
particularly all applicable requirements of the Fair Labor Standards Act. The
warranties specified in this Section will not apply to defects attributable
to: (i) products not furnished by EG, (ii) modification of Products
without EG’s prior written approval, or (iii) accident, neglect, misuse or
abuse. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE AND THE EXPRESS WARRANTIES
SET FORTH IN THE SOFTWARE LICENSE AGREEMENT, EG DISCLAIMS ALL WARRANTIES
(WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) RELATING TO THE PRODUCTS AND
SERVICES PROVIDED BY EG, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE (EVEN IF THE PARTICULAR
USE OR PURPOSE IS DISCLOSED TO EG IN ADVANCE), OR NON-INFRINGEMENT, AND ANY
WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE
IN TRADE.
8.2 Breach
of Warranty. Defective hardware Products may be returned to EG
freight prepaid only after obtaining a Return Material Report Number from
EG. If after testing and inspection any such returned hardware
Product is determined by EG to breach the warranty set forth in Section 8, EG
shall, at its option, repair or replace such hardware Product and return it to
FFI freight prepaid. THE REMEDIES SET FORTH IN THIS SECTION
CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF FFI, AND THE SOLE AND EXCLUSIVE
OBLIGATION OF EG, FOR BREACH OF THE WARRANTIES SET FORTH IN THIS
SECTION.
9. HAZARDOUS
MATERIALS. If any Product includes hazardous materials, EG represents and
warrants to FFI that EG and its employees, agents, and subcontractors understand
the nature of and hazards associated with the handling, transportation, and use
of such hazardous materials, as applicable to EG. Prior to causing
hazardous materials to be on FFI’s premises, EG shall provide FFI with
applicable material safety data sheets and any other documentation reasonably
necessary to enable FFI to comply with applicable laws and regulations, and
obtain written approval from FFI’s environmental, health and safety
department. EG will be fully responsible for, defend, indemnify and
hold FFI harmless
from any
claim or liability arising in connection with providing such hazardous materials
to FFI in violation of this Section. EG hereby certifies that
Products supplied to FFI do not “contain” any Class I ozone-depleting
substances, as those terms are defined by law.
10. INTELLECTUAL
PROPERTY.
10.1 Notice
of Infringement. EG shall promptly advise FFI in writing and FFI
shall promptly advise EG in writing in the event that either
party receives notice or otherwise learns that the manufacture, use,
offer to sell or sale of the Products constitutes an infringement, or allegedly
constitutes an infringement of the intellectual property rights of a third
party.
10.2. Indemnification
by FFI. FFI shall defend EG against (a) any claims that are based upon any
subsequent resale of any Product by FFI or upon any sale by FFI of any of its
products that contain the Products, and (b) any claims of infringement arising
out of or related to: (i) use of the Products by or on behalf of FFI
not in accordance with the documentation for such Products; (ii) modification of
the Products by anyone other than EG; (iii) combination of the Products with any
third party products, processes or materials, but only to the extent that the
alleged infringement is caused by such combination; (iv) any continued use after
receiving notice of such claim of infringement; or (v) use of a version of a
software Product other than the then-current version if infringement would have
been avoided by the use of the then-current version (a) gives FFI prompt written
notice of any such claim; (b) gives FFI control over the defense and settlement
of any such claim; (c) provides reasonable cooperation for the defense of any
such claim, at FFI’s expense; and (d) does not enter into any settlement or
compromise of any such claim without FFI’s prior written approval, not to be
unreasonably withheld or delayed. FFI shall pay all damages and costs
finally awarded against EG by a court of competent jurisdiction for such
claims.
10.3. Indemnification
by EG. EG shall defend FFI against third party claims that the
Products infringe a US patent held by such third party (excluding processes,
acts or methods claimed by such US patent), and shall pay all damages and costs
finally awarded against FFI by a court of competent jurisdiction for such
claims; provided that FFI: (a) gives EG prompt written notice of any
such claim; (b) gives EG control over the defense and settlement of any such
claim; (c) provides reasonable cooperation for the defense of any such claim, at
EG’s expense; and (d) does not enter into any settlement or compromise of any
such claim without EG’s prior written approval, not to be unreasonably withheld
or delayed. EG’s foregoing obligation shall not extend to any claims
of infringement subject to FFI’s indemnification of EG. EG’s obligations
pursuant to this section shall not apply where custom Products are manufactured
to FFI’s detailed design and such design is the sole cause of the
claim.
10.4. Injunction. If
an injunction issues as a result of any claim or action, EG agrees, at its
option and sole cost and expense, either: (i) procure for FFI the right to
continue using the Products, (ii) replace the Products with non-infringing
Products or (iii) modify the Products so they become non-infringing, provided
that such modified Products continue to have the same functionality and if
applicable, performance specifications as the infringing
Products. If, despite EG’s best efforts, none of the foregoing
options are available, FFI may at its option return the Products at EG’s sole
cost and expense, and EG shall refund the unamortized portion of the purchase
price paid by FFI to EG (as amortized on a straight line basis over four years)
in exchange for the return of such Products to EG. THIS SECTION SETS
FORTH EG’S (AND FFI’S) SOLE AND EXCLUSIVE LIABILITY AND FFI’S (AND EG’S) SOLE
AND EXCLUSIVE REMEDIES FOR INFRINGEMENT BY THE PRODUCTS.
10.5 Literature. FFI
shall have the right at no additional charge to use and/or reproduce EG’s
applicable literature, such as operating and maintenance manuals, technical
publications, prints, drawings, training manuals and other similar supporting
documentation and sales literature, for its internal use only.
11. LIABILITY
FOR INJURY.
11.1. Defects. EG
agrees to defend, indemnify and hold FFI harmless from any and all claims,
damages, liabilities and costs (including reasonable attorneys’ fees and
litigation costs) based on any Product that is sold or licensed by EG is
defective in design or manufacture.
11.2. Personal
and Physical Property Injury. EG agrees to protect, defend, indemnify
and hold FFI harmless from and against any and all claims, liabilities, demands,
penalties, forfeitures, suits, judgments and the associated costs and expenses
(including reasonable attorneys’ fees), which FFI may hereafter incur, become
responsible for or pay out as a result of death bodily injury to any person,
destruction or damage to any property, contamination of or adverse effects on
the environment and any clean up costs in connection therewith, or any violation
of governmental law, regulation, or orders, caused, in whole or in part, by the
Products (except to the extent the harm is solely caused by a component provided
by FFI and incorporated into the Products) or EG’s breach of any term or
provision hereof EG shall carry and maintain insurance coverage and
upon FFI’s request, shall furnish to FFI appropriate evidence of such
insurance.
8
EXHIBIT
10.8
12.
LIMITATION ON LIABILITY AND EXCLUSION OF CERTAIN DAMAGES. To the
maximum extent permitted by law, in no event shall (a) FFI or EG be liable for
any incidental, indirect, special, punitive or consequential damages of any
nature or kind whatsoever, including but not limited to, loss of profits or
other economic loss arising out of the sale or delivery of the Products to FFI,
EG’s manufacture of the Products, or FFI’s incorporation of the Products into
FFI products, even if FFI (or EG) has been advised of the possibility of such
damages, and (b) FFI’s or EG’s liability arising in connection with the Products
exceed the total amount of payments set forth in the Order. The limitations and
exclusions of this article form an essential basis of the bargain between the
parties and shall survive and apply even if any remedy specified in these terms
& conditions is found to have failed of its essential purpose.
13. MISCELLANEOUS.
13.1. Force
Majeure. Neither FFI nor EG shall be liable for any delay in
performance or for non-performance, in whole or in part, caused by the
occurrence of any contingency beyond its control, including but not limited to,
war (whether an actual declaration thereof is made or not), terrorism, sabotage,
insurrection, riot or other act of civil disobedience, act of a public enemy,
act of any government or any agency or subdivision thereof affecting the terms
hereof or otherwise, judicial action, labor dispute, accident, fire, explosion,
flood, storm or other act of God; provided, however, that (i) when an actual or
threatened event delays or is anticipated to delay the timely performance of
obligations under an Order, the affected Party shall immediately notify the
other Party in writing of all relevant information and the anticipated date
performance will be completed; and (ii) the other shall have the right to
terminate without penalty if the delay is more than sixty (60)
days.
13.2 Independent
Parties. FFI and EG are independent contractors, and their
relationship is not one of principal and agent. No act or obligation
of either party is any way binding upon the other party.
13.3 Severability. If
any provision of these Terms & Conditions is determined by any court or
arbitrator of competent jurisdiction to be invalid, illegal or unenforceable in
any respect, such provision will be enforced to the maximum extent possible
given the intent of the parties hereto. If such provision cannot be
so enforced, such provision shall be stricken from these Terms & Conditions
and the remainder of these Terms & Conditions shall be enforced as if such
invalid, illegal or unenforceable provision had (to the extent not enforceable)
never been contained in these Terms & Conditions.
13.4 Notices. Unless
otherwise agreed in writing by FFI and EG, all notices regarding these Terms
& Conditions shall be in writing and sent to (i) the attention of FFI’s Vice
President, Supply, at the address set forth in the Order, and (ii) the attention
of EG’s CFO (or other individual designated by EG in writing), at the
address set forth in EG’s acceptance of the Order. .
13.5 No
Waiver. Any delay or failure by either Party to pursue any and all of
its remedies upon a breach by the other Party is not to be construed as a waiver
of its rights under, these Terms & Conditions and applicable law. Any waiver
of either Party’s rights or claims under these Terms & Conditions must be in
writing, given in exchange for valuable consideration and signed by an
authorized officer of such Party.
13.6 Equitable
Relief. EG agrees and acknowledges that any breach of its agreements
in Article 7 will cause irreparable injury to FFI and that, in addition to any
other remedies that may be available in law, in equity or otherwise, FFI shall
be entitled to obtain injunctive relief against the threatened breach of any
such provision or the continuation of any such breach, without the necessity if
proving actual damages.
13.7. Governing
Law. These Terms & Conditions shall be construed under and
controlled in all respects by the law of the State of California, without regard
to its conflict of laws provisions. In no event shall any provision of the
United Nations Convention on Contracts for the International Sale of Goods
govern the terms and conditions between FFI and EG. Any legal suit,
action or proceeding arising out of or relating to these Terms & Conditions
shall be commenced in a federal court in the Northern District of California or
in state court in Alameda County, California.
13.8. Assignment. Neither
these Terms & Conditions, nor any right or interest in these Terms &
Conditions may be assigned by EG without FFI’s prior written
consent; except that if EG is involved in a Change of Control, EG may assign
these Terms & Conditions upon giving FFI no less than fifteen (15) days
prior written notice of the Change of Control and providing to FFI, to its
reasonable satisfaction, that the Change in Control will not impact EG’s (or the
new entities’) ability to perform. A purported assignment in
violation of this Section shall be null and void.
13.9 Export
Administration. FFI will comply fully with all relevant export laws
and regulations of the United States, including without limitation the U.S.
Export Administration Regulations (collectively “Export
Controls”). Without limiting the generality of the foregoing, FFI
will not and shall require its representatives not to, export, direct, or
transfer Products, or any direct product thereof, to any destination, person, or
entity restricted or prohibited by the Export Controls.
13.10 MOU
Shall Control. In the event of any inconsistency between these Terms
and Conditions and the FormFactor – Electroglas ▇▇▇ Tool Program Memorandum of
Understanding (the “MOU”), the terms and conditions of the main body of the MOU
and the Appendix 2 (Full Specification for the ▇▇▇ Tool) to the MOU shall
prevail and control.
9
EXHIBIT
10.8
APPENDIX
6
EGCOMMANDER SOFTWARE LICENSE
AGREEMENT
This is a
legal agreement between you, either an individual or an entity (“Licensee”) and
Electroglas, Inc. (“EG”). By installing or using the pre-installed
EGCommander software (together with any updates or upgrades provided by EG, the
“EG Software”), you agree to be bound by the terms of this Software License
Agreement (“Agreement”). If you do not agree to the terms of the
Agreement, promptly return the EG Software materials and accompanying items
(including printed materials and binders) to the place you obtained them for a
full refund.
1. GRANT OF
LICENSE. Subject to the terms and conditions of this Agreement
and the terms and conditions of the MOU (including all of its Appendices), EG
hereby grants to Licensee and Licensee hereby accepts from EG a personal,
non-transferable and non-exclusive license to use one copy of the EG Software
(in object code form only) and related documentation provided to Licensee by EG
(the “Documentation”) for Licensee’s own internal business operations solely on
the EG equipment on which the EG Software was pre-installed, or if not
pre-installed, the EG equipment on which the EG Software was first installed for
production operation. Such license is conditioned upon payment by
Licensee to EG of (i) the license fee for each item of EG Software, or (ii) if
the license fee is included in the aggregate price for the EG equipment on which
such item of EG Software is pre-installed, such aggregate price.
2. UPGRADES. If the EG
Software is an upgrade from another EG product, Licensee may use the upgraded EG
Software only in accordance with this Agreement. Upon use of the
upgraded EG Software, Licensee must return to EG or destroy the previous version
of the EG product.
3. ADDITIONAL COPIES AND
LICENSES. Licensee may purchase additional copies and licenses
of the EG Software for an additional fee.
4. PROPRIETARY RIGHTS
NOTICES. Licensee agrees not to remove, destroy or conceal
from view any copyright, trademark, restricted rights or confidentiality notices
appearing on or contained within the EG Software, the Documentation and all
copies thereof.
5. RESTRICTIONS. Licensee
agrees not to copy or use the EG Software and the Documentation except as
expressly permitted by this Agreement. Licensee further agrees not to
lend, rent, lease, sublicense, distribute or otherwise transfer the EG Software
in any form to any person, or use the EG Software for hosting, commercial
time-sharing or service bureau use, without the prior written consent of
EG. Licensee agrees not to, and agrees not to permit any third party
to, modify, adapt, translate or prepare derivative works of the EG Software or
decompile, disassemble, or otherwise reverse engineer the EG Software, except to
the extent expressly permitted by applicable law, and then only after Licensee
has notified EG in writing of Licensee’s intended
activities. Licensee acknowledges and agrees that the EG Software
contains confidential information of EG. Accordingly, Licensee agrees
to treat the EG Software as confidential and not to disclose all or any portion
of the EG Software to any third party or entity, except to Licensee’s employees
or contractors or suppliers (who have contractual confidentiality obligations
running to Licensee in place) with a need to know in the course of their
employment or performing duties for Licensee. Licensee will use its
commercially reasonable best efforts to protect the EG Software and any copies
or any portion thereof from unauthorized reproduction, publication, disclosure,
or distribution. Because of the unique proprietary nature of the EG
Software, it is understood and agreed that EG’s remedies at law for a breach by
Licensee of its obligations under this Section 5 will be inadequate and that EG
shall, in the event of such breach, be entitled to equitable relief without any
requirement to post bond as a condition of such relief. Such relief
is in addition to all other remedies provided under this Agreement or otherwise
available to EG.
6. PROPRIETARY
RIGHTS. The EG Software and the Documentation are licensed,
not sold, to Licensee. Licensee acknowledges that, subject only to
the limited license granted to Licensee in Section 1 of this Agreement, (a) EG
retains all right, title and interest in and to the EG Software and the
Documentation, including all rights under, in and to all patents, copyrights,
trademarks, trade secrets and other intellectual property therein, and (b)
Licensee does not acquire any other rights, express or implied, in or to the EG
Software or the Documentation. In the event that any part of the EG
Software is modified or upgraded with reference to or reliance upon Licensee
confidential information, EG shall have no right to implement the same in EG
Software provided to any third party.
7. NO SUPPORT. EG has
no obligation to provide support, maintenance, upgrades, modifications or new
releases under this Agreement; except that 1) EG will provide any and all
support as set forth in any appendix to the FormFactor – Electroglas ▇▇▇ Tool
Program Memorandum of Understanding (“MOU”), and 2) if EG issues an upgrade or
modification or new release of the EG Software (“Upgrade”) and does not provide
the Upgrade to Licensee, EG will provide all necessary support and maintenance
to the prior version until the Upgrade is installed by Licensee.
8. TERM AND
TERMINATION. This Agreement is effective upon the earlier of
Licensee’s installation or use of the EG Software, and continues unless and
until terminated in accordance with the provisions of this Section
8. If Licensee transfers the EG Software or any copy, portion or
merged portion thereof to another party or otherwise violates any provision of
this Agreement, this Agreement shall automatically
terminate. Licensee shall be entitled to terminate this Agreement
upon mutual agreement in writing between EG and Licensee. Either
party may terminate this Agreement by written notice to the other party in the
event that the other party (a) becomes or is insolvent; (b) makes an assignment
for the benefit of its creditors; (c) applies for or consents to the appointment
of a receiver, trustee or liquidator for substantially all of its assets, or
such a receiver, trustee or liquidator is appointed for the other party; (d)
files a voluntary petition or proceeding under any statute of any state or
country relating to insolvency or the protection of the rights of creditors; or
(e) has filed against it an involuntary petition or proceeding under any statute
of any state or country relating to insolvency or the protection of the rights
of creditors that has not been dismissed within sixty (60) days
thereof. Except as provided in the MOU, upon termination of this
Agreement, (i) all licenses granted hereunder shall immediately terminate, (ii)
Licensee shall cease all use of the EG
Software, and (iii) Licensee shall, within ten (10) days after termination of
this Agreement, destroy or return to EG the EG Software, the Documentation and
all copies thereof. Sections 11-19 shall survive any termination of
this Agreement.
10
EXHIBIT
10.8
9. LIMITED WARRANTY; EXCLUSIVE
REMEDY. EG warrants that the media upon which the EG Software
is delivered (excluding any EG equipment on which the EG Software is
pre-installed) will be free from defects in materials and workmanship under
normal use for thirty (30) days commencing from the date of shipment by
EG. The warranties specified in this Section 9 will not apply to
defects attributable to: (i) media not furnished by EG, (ii)
modification of the media without EG’s prior written approval, or (iii)
accident, neglect, misuse or abuse. EG’s entire liability, and
Licensee’s sole and exclusive remedy, for any breach of the warranty contained
in this Section 9 shall be to replace the defective media which is returned to
EG with a copy of Licensee’s receipt, invoice or other proof of
purchase.
10. DISCLAIMER OF
WARRANTIES. EXCEPT FOR (1) THE EXPRESS WARRANTY SET FORTH IN
SECTION 9, and (2) THE WARRANTY FOUND WITHIN THE MAIN BODY OF THE MOU OR THE EPS
APPENDIX THERETO, EG DISCLAIMS ALL WARRANTIES (WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE), RELATING TO THE EG SOFTWARE AND THE DOCUMENTATION,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR USE OR PURPOSE (EVEN IF THE PARTICULAR USE OR PURPOSE IS
DISCLOSED TO EG IN ADVANCE), TITLE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT
MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN
TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EG DOES NOT
WARRANT THAT THE EG SOFTWARE IS FREE OF ERRORS OR “BUGS,” OR THAT THE EG
SOFTWARE WILL OPERATE UNINTERRUPTED OR IN COMBINATION WITH ANY HARDWARE,
SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY EG.
11. LIMITATIONS OF
LIABILITY. NEITHER EG NOR LICENSEE SHALL BE LIABLE FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY
LOSS OF BUSINESS, SALES, PROFITS OR DATA (WHETHER IN CONTRACT, TORT OR OTHER
LEGAL THEORY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
LOSS. IN NO EVENT WILL EG’S OR LICENSEE’S TOTAL LIABILITY ARISING
FROM OR RELATED TO THIS AGREEMENT, THE EG SOFTWARE OR THE DOCUMENTATION (WHETHER
IN CONTRACT, TORT OR OTHER LEGAL THEORY) EXCEED THE LICENSE FEE RECEIVED BY EG
FROM LICENSEE FOR THE EG SOFTWARE THAT IS THE BASIS FOR THE
LIABILITY.
12. APPLICABLE LAW; VENUE. This Agreement
and all matters arising out of or relating to this Agreement shall be governed
by the laws of the State of California, without giving effect to any choice of
law rule. This Agreement will not be governed by the United Nations
Convention on Contracts for the International Sale of Goods. Any
legal suit, action or proceeding arising out of or relating to this Agreement
shall be commenced in a federal court in the Northern District of California or
in state court in Alameda County, California.
13. SEVERABILITY. If
any provision of this Agreement is held to be illegal, invalid or otherwise
unenforceable, such provision will be enforced to the extent possible consistent
with the stated intention of the parties, or, if incapable of such enforcement,
will be deemed to be severed and deleted from this Agreement, while the
remainder of this Agreement will continue in full force and effect.
14. EXPORT
ADMINISTRATION. Licensee will comply fully with all relevant
export laws and regulations imposed by the United States government or by any
other governmental entity, including, without limitation, the U.S. Export
Administration Regulations. Without limiting the generality of the
foregoing, Licensee will not, and Licensee will require Licensee’s
representatives not to, export, direct or transfer the EG Software to any
destination, person or entity restricted or prohibited thereby.
15. ASSIGNMENT. Neither
these Terms & Conditions, nor any right or interest in these Terms &
Conditions may be assigned by EG without FFI’s prior written consent; except
that if EG is involved in a Change of Control, EG may assign these Terms &
Conditions upon giving FFI no less than fifteen (15) days prior written notice
of the Change of Control and providing to FFI, to its reasonable satisfaction,
that the Change in Control will not impact EG’s (or the new entity’s) ability to
perform. A purported assignment in violation of this Section shall be
null and void.
16. AMENDMENT;
WAIVER. No modification, amendment or waiver of any provision
of this Agreement shall be effective except pursuant to a writing signed by a
duly authorized representative of each party. No other act, document,
usage, or custom will be deemed to modify, amend or waive any provision of this
Agreement. The waiver by either party of a breach of or a default
under any provision of this Agreement shall not be construed as a waiver of any
subsequent breach of or default under the same or any other provision of this
Agreement, nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy that it has or may have
hereunder operate as a waiver of any right or remedy.
17. CONSTRUCTION. This
Agreement shall be deemed to have been drafted by all parties and, in the event
of a dispute, neither EG nor Licensee shall be entitled to claim that any
provision should be construed against the other party by reason of the fact that
it was drafted by the other party.
18. GOVERNMENT USE. If
Licensee is an agency or instrumentality of the United States Government, the EG
Software and the Documentation are “commercial computer software” and
“commercial computer software documentation”, and pursuant to FAR 12.212 or
DFARS 227.7202 and their successors, as applicable, the use, reproduction and
disclosure of the EG Software and the Documentation are governed by the terms of
this Agreement.
19. ENTIRE AGREEMENT. This
Agreement constitutes the entire agreement between EG and Licensee with respect
to the EG Software and supersedes any and all prior or contemporaneous oral or
written communications with respect to the subject matter hereof, except to the
extent that a different or conflicting term is provided within the main body of
the MOU or the EPS Appendix thereto, in which case the terms and conditions of
the main body of the MOU and the Appendix 2 (Full Specification for the ▇▇▇
Tool) to the MOU shall prevail and control.
11