EXHIBIT 99.2
CONFIDENTIAL TREATMENT REQUESTED - REDACTED COPY
CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED IS OMITTED AND NOTED WITH "***." AN UNREDACTED VERSION OF
THIS DOCUMENT HAS BEEN SUBMITTED SEPARATELY TO THE SECURITIES AND EXCHANGE
COMMISSION.
INTEL CORPORATION PURCHASE AGREEMENT -
CAPITAL EQUIPMENT AND SERVICES
AGREEMENT NUMBER: C-57066
EFFECTIVE DATE: OCT 1, 2004
CNDA #: 19156
BUYER:
Intel Corporation (and all divisions and wholly-owned subsidiaries, hereinafter
"BUYER" OR "INTEL").
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SELLER:
Delta Design, Inc. (hereinafter "SELLER").
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ADDENDA ATTACHED HERETO AND [X] General Terms and Conditions of Purchase
Agreement -
INCORPORATED HEREIN BY REFERENCE Capital Equipment and Services
(▇▇▇▇ "X" WHERE APPLICABLE):
[X] A Additional Terms and Conditions
Applicable to all Equipment
Models, Spare Parts, and Services
[X] B Alcohol and Drug Free Workplace
Directive
[X] C Protection of Buyer's Information
Assets
[X] D Equipment Specific Terms and
Conditions
[X] E Training and Documentation
Requirements
[X] F Additional Software Terms and
Conditions
[X] G Pricing for Services and Training
[X] H Third Party Technology Escrow
[X] I Spare Parts Consigned Inventory
Program
[X] J FSE Curriculum Summary
[X] K Supplemental Provisions
[X] L Limitation of Liability
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During the term of this Agreement and any extension thereto, Buyer may purchase
and Seller shall accept all Releases for Items and Services in accordance with
the prices and the terms and conditions contained in this Agreement. Any and all
Releases, as may be issued by the Buyer, shall reference this Agreement and be
governed solely by the terms and conditions of this Agreement notwithstanding
any preprinted terms and conditions on Seller's acknowledgment or Buyer's
Release. Any additional or different terms as may be contained in Seller's
documents are hereby deemed to be material alterations, and Buyer hereby gives
notice of objection to and rejection of such material alterations.
INTEL CORPORATION SELLER
Signed: Signed:
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By: ▇▇▇▇▇ Song By: ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------- ---------------------------
Title: Commodity Manager Title: Account Manager
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Date: Date:
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GENERAL TERMS AND CONDITIONS OF PURCHASE AGREEMENT - CAPITAL EQUIPMENT AND
SERVICES
1. DEFINITIONS.
A. "CONSUMABLE" means a Spare Part whose life expectancy and mode of
failure is known or predictable during the normal operation of the
Equipment and that should meet the normal attributes of schedulable and
predictable demand and life expectancy of less than three (3) months
with the exception of heat sinks.
B. "CUSTOM ITEMS" mean those Items manufactured by Seller for sale
exclusively to Buyer for which a minimum of twenty-five percent (25%)
of Seller's cost pertaining to the Items is directly attributable to
the customization for Buyer as set forth in the Purchase Spec.
C. "CONSIGNMENT" means any spare part owned by the Seller which Buyer
chooses to hold on-site, or Seller holds off-site, at Buyer's
discretion, to help Seller meet the Equipment availability requirements
or productivity as defined in the Purchase Spec.
D. "Component" means any library, tool, class, etc. to support
calibration, diagnostics, configuration, classes, development
programming syntax, pattern management, STL, SECS/GEM libraries, etc.
E. "Documentation" means any and all user documentation and training
materials necessary to instruct Buyer in the proper installation, use
and operation of the Software and Items or Items which accompany either
Software or Items.
F. "EQUIPMENT" means whole systems that produce the required output per
the applicable Equipment configuration and system performance
specifications set forth in the Purchase Spec for each Equipment model
or as otherwise agreed in writing by the parties.
G. "FACILITIZATION" means placement and rough hook-up of electrical, gas,
and vacuum utilities to the Items.
H. "FORECAST(S)" means the quantity of Items or Services that Buyer
reasonably anticipates it may purchase during a specified time.
I. "HAZARDOUS MATERIALS" mean dangerous goods, chemicals, contaminants,
substances, pollutants or any other materials that are defined as
hazardous by relevant local, state, national, or international law,
regulations and standards.
J. "ITEMS" means either singly or collectively, as the context indicates:
Equipment; Equipment components; software; hardware; Spare Parts;
upgrades, retrofits, modifications (including all beta releases), and
enhancements to any of the foregoing purchased separately; or other
goods which Seller is to sell to Buyer as set forth in this Agreement.
K. "LEAD-TIME" means the agreed number of calendar weeks or days from the
date a Release is issued for an Item to the date the Item is to be
shipped by the Seller.
L. "NON-CONSUMABLE" means a Spare Parts that is not replaced routinely and
has an unpredictable life expectancy and that is typically replaced or
repaired due to failures or deteriorating performance (quality and
output).
M. "OTD" or "ON-TIME DELIVERY" means a percentage computed for each Buyer
site for each (Buyer work week calendar) month equal to: the number of
Releases for Items received by such
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site which are (i) complete and (ii) delivered to the FCA point by the
date specified, divided by the total number of Releases received by
such site.
N. "PURCHASE SPEC" means the agreed Equipment Purchase Specification as
set forth in Addendum D for each Equipment model purchased or to be
purchased pursuant to this Agreement.
O. "RELEASE" means Buyer's purchase order or change order to ship a
definite quantity of Items or to provide Services to a specified
schedule.
P. "SERVICES" means the work to be performed by Seller including, but not
limited to: installation, process qualification, maintenance, warranty
repair, service call, continuous improvement, Equipment
upgrades/modification, and extended service contracts as set forth in
Addendum A and/or any Buyer factory specific Scope Of Work ("Scope of
Work" or "SOW").
Q. "Software" means any Component and/or firmware provided with, embedded
in or that is necessary, required or normally provided by the Seller
for the use and/or operation of Items, in object and/or Source Code
form.
R. "SPARE PART(S)" mean Consumable and/or Non-Consumable Items that are
used as a means to maintain, sustain, or otherwise enable Equipment to
meet or exceed its performance, availability and production
requirements.
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2.TERM OF AGREEMENT.
A. This Agreement shall be effective for ***) years from the Effective
Date.
B. At Buyer's option, Items for which a Release has been issued prior the
expiration of this Agreement may be scheduled for delivery up to six
(6) months following such expiration or for such longer period as may
be required to complete delivery.
3. PRICING.
A. Prices for Items, Training and Services set forth herein shall remain
fixed for the duration of this Agreement unless agreed otherwise in
writing by the parties.
B. Throughout the term of this Agreement and any extensions thereto,
Seller warrants to Buyer that the prices set forth in this Agreement or
any addendum, in conjunction with the discounts offered herein for any
Item or equivalent Service, reflect the Seller's lowest price charged
any customer of Seller for that Item or equivalent Service regardless
of any special terms, conditions, rebates or allowances of any nature.
If Seller sells any Item or provides equivalent Service to any other
customer, at a price less than the price set forth in this Agreement or
any addendum, Seller shall adjust its price to the lower price for all
future invoices for such Item or Service and rebate to Buyer an amount
equal to the difference in the price paid by Buyer and the lower price
for any invoices already paid by Buyer for such Item or Service. In
addition, Buyer may adjust the prices for any Item or Service invoiced
by Seller and unpaid by Buyer to reflect the lower price. Each of the
above adjustments and the rebate shall be calculated from the date the
Seller first sells the Item or Service at the lower price. In the event
the Seller offers a lower price either as a general price drop or to
specific customer(s) for any reason, Seller shall immediately notify
Buyer of this price and adjust Buyer's pricing to meet the new pricing
structure.
C. Buyer reserves the right to have Seller's records inspected and audited
to ensure compliance with this Agreement. At Buyer's option, or upon
Seller's written request, such audit will be performed by an
independent third party at Buyer's choice and expense. The audit will
assume all Items sold under this Agreement are standard Items unless
otherwise specified in this Agreement.
(i) Seller shall have the option to review the auditor's report prior
to the release of such report to Buyer. If Seller disagrees with the
auditor's report for any reason, Seller shall have the right to
issue a letter in response, which will be included with the
auditor's report to the Buyer.
(ii) If discrepancies are found during the audit and price adjustments
are required to be paid by the Seller to the Buyer, Seller shall
reimburse Buyer for all costs associated with the audit, along with
a single payment covering the price adjustments within thirty (30)
days after the completion of the audit. The results of such audit
shall be kept confidential by the auditor and, if conducted by a
third party, only Seller's failures to abide by the obligations of
this Agreement shall be reported to Buyer.
D. All applicable taxes, including but not limited to sales/use taxes,
transaction privilege taxes, gross receipts taxes, and other charges
such as duties, customs, tariffs, imposts, and government imposed
surcharges shall be stated separately on Seller's invoice. Seller shall
remit all such charges to the appropriate tax authority unless Buyer
provides sufficient proof of tax exemption.
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(i) In the event that Buyer is prohibited by law from making payments
to the Seller unless Buyer deducts or withholds taxes therefrom and
remits such taxes to the local taxing jurisdiction, then Buyer shall
duly withhold such taxes and shall pay to the Seller the remaining
net amount after the taxes have been withheld. Buyer shall not
reimburse Seller for the amount of such taxes withheld. When
property is delivered and/or services are provided or the benefit of
services occurs within jurisdictions in which Seller collection and
remittance of taxes is required by law, Seller shall have sole
responsibility for payment of said taxes to the appropriate tax
authorities. In the event Seller does not collect tax from Buyer,
and is subsequently audited by any tax authority, liability of Buyer
will be limited to the tax assessment, with no reimbursement for
penalty or interest charges. Each party is responsible for its own
respective income taxes or taxes based upon gross revenues,
including but not limited to business and occupation taxes.
(ii) To the extent this Agreement includes transfers of licenses for
software to be used in Web-based E-Commerce and/or E-Business
solutions, or Web-related service fees, including but not limited to
hosting fees, data and/or storage fees, and application services,
and such services are determined to be taxable or to become taxable
at some future point in time, Seller will collect such taxes as
determined to be due from Buyer, or Buyer's resellers if applicable,
and will remit same to the appropriate taxing jurisdictions. In the
case of taxes imposed on the gross revenues resulting from the
provision of said services, Seller will remit such taxes to the
taxing jurisdiction before any deduction for Buyer's share of any
business service fees. Seller will separately invoice and state
separately thereon each type of service and applicable taxes
provided under the Agreement.
E. Additional costs, except those provided for herein or specified in a
Release, will not be reimbursed without Buyer's prior written approval.
No services will be rendered prior to the receipt of a purchase order.
F. All prices are in U.S. dollars.
G. Seller shall provide annual and quarterly audited financial statements
and independent auditors' opinion to Buyer in accordance with
securities regulations or within three (3) months of the period closing
date if Seller is a private company. If applicable, these statements
must include details on the semiconductor equipment
division/subsidiary, and a signed management letter, which states that
the financial statements are in conformity with generally, accepted
accounting principles
4. INVOICING AND PAYMENT.
A. Prompt payment discounts will be computed from the latest of: (i) the
scheduled delivery date; (ii) the date of actual ship date; or (iii)
the date a properly filled out original invoice or packing list is
received. Payment is made when Buyer's check is mailed or EDI funds
transfer initiated.
B. Original hard-copy invoices shall be mailed or delivered by U.S. Mail.
Invoices shall include: Purchase Agreement number from the Release,
purchase order number, line item number, Release number, part number,
complete ▇▇▇▇ to address, description of Items, quantities, Buyer part
number, listing of and dates of Services provided, unit prices and
extended totals in U.S. dollars. Payment of an invoice shall not
constitute acceptance of the Item or Service.
C. Seller shall be fully responsible for, indemnify and hold Buyer
harmless from any and all payments to its vendors or subcontractors
utilized in the performance of Services.
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D. On each Equipment model that Buyer purchases for the first time,
payment shall be *** days computed from date of shipment *** days
computed from date of final acceptance. On all subsequent Equipment
purchases, payments shall be *** computed from date of shipment ***
days computed from date of final acceptance. If final acceptance of the
Equipment is delayed beyond *** days from the date of shipment due to
no fault of the Seller, Buyer will pay the balance of *** days from the
date of shipment. Payment of invoices on all Equipment shall be ***
days. For payments computed from date of shipment, Buyer may, at its
option, make payment within *** days and receive a *** discount from
the total invoice.
E. Payments on Equipment upgrades requiring acceptance certificates will
be subject to the percentage payment breakouts described in D. above.
F. Payment of invoices on all Items and Services except Equipment shall be
*** days.
G. Seller shall be fully responsible for, indemnify and hold Buyer
harmless from any and all payments to its vendors or subcontractors
utilized in the performance of Services.
5. TERMINATION FOR CONVENIENCE.
A. Buyer may terminate any Release placed hereunder, in whole or in part,
at any time for its sole convenience by giving written notice of
termination to Seller. Upon Seller's receipt of such notice, Seller
shall, unless otherwise specified in such notice, immediately stop all
work hereunder, give prompt written notice to and cause all of its
vendors or subcontractors to cease all related work and, at the request
of Buyer, return any materials provided to Seller by Buyer.
B. There shall be no charges for termination of orders for standard Items
or for Services not yet provided. Buyer will be responsible for ***.
Paragraphs C through E of this Section 5 shall govern Buyer's payment
obligation for Custom Items. Notwithstanding anything to the contrary,
Seller shall not be compensated in any way for any work done after
receipt of Buyer's notice, nor for any costs incurred by Seller's
vendors or subcontractors after Seller receives the notice *** working
days for proliferation to subcontractors or vendors), nor for any costs
Seller could reasonably have avoided, nor for any indirect overhead and
administrative charges or profit of Seller.
C. Any claim for termination charges for Custom Items must be submitted to
Buyer in writing within ***) days after receipt of Buyer's termination
notice along with a summary of all mitigation efforts.
D. Seller's claim may include the net cost of Custom Items work in process
scheduled to be delivered within *** days and which must be scrapped
due to the cancellation. Seller shall, wherever possible, place such
custom work in process in its inventory and sell it to other customers.
Claim shall be limited to the percent of lead-time reference in
Addendum A per schedule below.
*** of the lead-time remains prior to scheduled delivery date in the
release of Equipment.*** and *** of the lead-time remains prior to
scheduled delivery date in the release of the Equipment.*** of the
lead-time remains prior to the scheduled delivery date in the release
of the Equipment.
Upon payment of Seller's claim, Buyer shall be entitled to all such
work and materials paid for.
E. Before assuming any payment obligation under this section, Buyer may
inspect Seller's work in process and audit all relevant documents prior
to paying Seller's invoice.
F. Notwithstanding anything else in this Agreement, the failure to meet
the delivery date(s) in the Release shall be considered a material
breach and shall allow Buyer to terminate the order for
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the Item and/or any subsequent Releases without any liability whether
the Release was for standard or Custom Items.
6. CONTINGENCIES.
Neither party shall be responsible for its failure to perform due to
causes beyond its reasonable control such as acts of God, fire, theft,
war, riot, embargoes or acts of civil or military authorities. If delivery
of Items or the performance of Services is to be delayed by such
contingencies, Seller shall immediately notify Buyer in writing. If the
delay is greater than thirty (30) days from the date of the notice, Buyer
will have the option, in its sole discretion, to either (i) extend time of
delivery or performance, or (ii) terminate the uncompleted portion of the
order at no cost of any nature to Buyer.
7. DELIVERY, RELEASES AND SCHEDULING.
A. Any Forecasts provided by Buyer are for planning purposes only and do
not constitute a Release or other commitment by Buyer. Buyer shall have
no obligation to and may, at its sole discretion, issue Releases under
this Agreement. Buyer shall be responsible only for Items or Services
for which it has issued Releases hereunder.
B. Seller shall notify Buyer's purchasing agent, (as noted on the
Release), within twenty-four (24) hours if Seller is unable to make any
scheduled delivery of Items or perform Services as scheduled and state
the reasons. Such notification by Seller shall not affect Buyer's
termination rights under Section 5.
C. Buyer may place any portion of a Release on hold by notice that will
take effect immediately upon receipt. Releases placed on hold will be
rescheduled or cancelled within *** days. Any Release cancelled shall
be subject to the terms and conditions of Section 5.
D. Seller will give Buyer most-favored customer lead-time as specified in
Addendum D for each Equipment model.
F. Seller agrees that all Items will be delivered ready for shipment to
the FCA point on the exact date specified in the Release ("Ship Date").
Late deliveries of any Items except Spare parts (as measured by
adherence to the Ship Date on the most recent Release or contractual
committed lead-time, whichever is earlier) will result in, at Buyer's
option, a price reduction (or debit to Seller's account) on such late
Items *** for each calendar day late with a cap of ***. In addition,
Seller shall deliver, at its sole cost and expense, any late shipment
of Items by expedited freight as instructed to Buyer's site. If Seller
is unable to commit to the lead-times as defined in the Equipment
Specific Terms and Conditions, the price reduction for late deliveries
shall apply to the earlier of the committed Ship Date or the lead-time
date calculated in accordance with Equipment Specific Terms and
Conditions. Early deliveries (> *** days) of Items (as measured by
adherence to the Ship Date on the most recent Release) will result in a
price reduction of *** for each calendar day that an Item is delivered
early. Partial deliveries are counted as late shipments and will only
be considered complete when all Items, (and other Spare parts required
to install and qualify Equipment, if applicable) have been shipped.
Equipment shipments will not be considered complete until the
Environmental Health and Safety documentation outlined in Sections 1.14
and 1.16 has been completed and provided to Buyer. Buyer shall have the
option to terminate the Release, in whole or in part, with no
cancellation charge for any Equipment not delivered to FCA point on the
Ship Date. Seller will be responsible for mutually agreed costs
incurred by Buyer in obtaining cover in the event of such termination.
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G. Seller agrees to reserve production capacity equal to Buyer's delivery
Forecasts until the contractual lead-time established in Addendum D or
as otherwise agreed in writing by the parties. Thirty (30) days prior
to the contractual leadtime, Seller shall submit written notification
of its intent to allocate such capacity to other customers. Such
capacity must either be taken or released by Buyer within thirty (30)
days of the written notification.
H. Beginning the effective date of the contract and for the remaining term
of this Agreement, Seller will notify Buyer of Seller's capacity 9
months in advance. At Buyer's discretion, Seller will make available up
to *** of annual forecasts of equipment purchases (as measured in units
of equipment, and rounded up) for shipment within *** of contractual
lead-time (rounded up to the next week) of Release date. This provision
may be applied once every *** days for each type/configuration of
equipment for which Buyer has provided a forecast. No penalty will be
assessed for allocated equipment not purchased.
I. Seller will, as required by Buyer, participate in Buyer's forecasting
process, and Buyer will supply a rolling Forecast of required delivery
dates to the Seller at such times and for such periods as may be
determined by Buyer.
J. Configuration and other Buyer-requested or Buyer-approved changes that
result in Ship Date changes will be reflected on a change order to the
Release showing the revised ship and delivery dates subject to Section
7F.
K. Seller will notify Buyer in writing of the planned obsolescence of any
Item or part revision and will make that Item available to the Buyer
for a minimum of *** days after the notice, during which time Buyer
will have the option to place a final Release for such Items for
delivery after the ***day notice. Buyer may return obsolete Items
within *** days after written notification of part revision or
obsolescence, at no cost. No credit will be allowed for any parts that
are obsoleted by Buyer that met original purchase specification
requirements for tools. If any warranty return claims are made for such
discontinued Items, then such returns will be subject to the warranty
provisions in Section 8.
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8. ACCEPTANCE AND WARRANTIES.
A. All Items purchased by Buyer are subject to inspection and test (source
inspection) before being allowed to ship from Seller's factory. Source
inspection requirements are described in the Purchase Spec unless
agreed otherwise in writing by the parties. Seller shall be responsible
for source inspections and shall provide Buyer with written
certification that Items tested have passed source inspection and
comply in all respects with the requirements described in the Purchase
Spec. Buyer may participate, as it deems necessary, in source
inspections. If any inspection or test is made on Seller's premises,
Seller shall provide Buyer with reasonable facilities and assistance at
no additional charge.
(i) Notwithstanding any source inspection or testing at Seller's
premises, all Items purchased by Buyer are subject to Buyer's
inspection and test (qualification) before final acceptance at
Buyer's premises. Final acceptance requirements are described in the
Purchase Spec unless agreed otherwise in writing by the parties.
Items, other than Equipment, rejected by Buyer as not conforming to
the Purchase Spec may be returned to Seller at Seller's risk and
expense and, at Buyer's option, such Item shall be immediately
repaired or replaced
(ii) If Equipment does not pass final acceptance criteria, due to no
fault of Buyer, within *** days of delivery, then Buyer will give
written or verbal notice to Seller of failure to meet final
acceptance criteria on time. If Equipment does not meet final
acceptance criteria within ***days of such notice, Buyer may, at
Buyer's option; (a) return the Equipment for *** or (b) have the
Equipment replaced with new Equipment within ***%) percent of the
equipment LT of Buyer's written election of option, or (c) initiate
Buyer's escalation procedures per part 3 (Services) section 7
(escalation) of Addendum A.
(iii)Acceptance and/or inspection by Buyer shall in no event constitute
a waiver of Buyer's rights and remedies with regard to any
subsequently discovered defect or nonconformity.
B. Seller warrants to Buyer that all Items provided by Seller for delivery
hereunder shall conform in all respects to the Purchase Spec; be free
from defects in material and workmanship and be new, of the grade and
quality specified.
(i) If an Item delivered hereunder does not comply with any of the
above warranties, Buyer shall notify Seller as soon as
practicable and at Buyer's option, Seller shall repair or
replace the defective Item, at its sole cost and expense, or
refund the purchase price. Seller shall also be responsible for
and pay the cost of shipping of all Items not conforming to the
warranties and will bear the risk of loss of such Items while in
transit and any other costs reasonably associated with a
nonconforming Item, such as, the cost to deinstall the Item. ***
(ii) The warranty period for Equipment shall apply for *** years for
legacy and ***years for new development (both Spare Parts and
Service) starting from the date the tool meets key performance
indicator metrics as defined by Buyer in Appendix D of the
respective purchase specification. The warranty for additional
Service, Equipment conversion kits, Equipment upgrades or
Equipment modifications shall apply for ***year from the date of
installation of the Item or for the Item's remaining warranty
period, whichever is longer. The warranty for additional Spare
Parts shall apply for *** year for non-consumables beginning
from the date of installation and *** from date of receipt for
consumables. Seller shall work according to SOW for warranties.
Seller shall perform warranty work twenty-four (24) hours per
day, seven (7) days per week. Seller will offer and Buyer may
purchase additional periods of warranty.
(iii) In conjunction with the warranty period, Seller shall perform all
preventative maintenance on a mutually agreeable schedule.
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(iv) At Buyer's option the labor value of the warranty, or the purchase
price of an extended warranty (if purchased with the Equipment), can
be credited against a Service contract prior to the end of the
warranty period. All warranty terms will continue to apply
throughout the term of any Service contract or extended warranty
period.
(v) Seller shall send Buyer notices at one hundred eighty (180) days
and sixty (60) days prior to the warranty expiration date for an
Item explaining the extended warranty options and costs.
C. Seller further warrants that all Items furnished hereunder will not
infringe any third party's intellectual property rights, and that
Seller has the necessary right, title, and interest to provide said
Items and Services to Buyer free of liens and encumbrances.
D. All of the above warranties shall survive any delivery, inspection,
acceptance, payment, or reuse of the Items within Intel.
E. Seller warrants that all Services provided shall be performed in
accordance with good workmanlike standards and shall meet the
descriptions and specifications provided on Addendum A or a SOW. Seller
shall guarantee workmanship for ***after Services are provided unless
agreed otherwise in writing by the parties. Seller shall promptly
correct any non-conforming or defective workmanship at no additional
cost to Buyer.
9. PURCHASE SPECIFICATIONS, IDENTIFICATION AND ERRATA.
A. Seller shall not modify the purchase specifications for any Item or
Services without the prior written approval of the Buyer.
B. Seller shall cooperate with Buyer to provide configuration control and
traceability systems for Items and Services supplied hereunder.
C. Seller shall provide Buyer with an errata list for each Item and shall
promptly notify Buyer in writing of any new errata with respect to the
Items.
10. PACKING AND SHIPMENT.
A. All Items shall be prepared for shipment in a manner which: (i) follows
good commercial practice, (ii) is acceptable by common carriers for
shipment at the lowest rate, and (iii) is adequate to ensure safe
arrival. If Buyer requests, Seller will package Items for cleanroom
delivery, per Buyer specification. Seller shall ▇▇▇▇ all containers
with necessary lifting, handling, unpacking and shipping information,
Release number, Buyer's Item Identification number or part number,
description, Line item number, date of shipment and the names of the
Buyer and Seller. Cleanroom delivery packaging and marking containers
with necessary lifting , handling, unpacking are billable items and
will be negotiated upon request.
B. All Items Equipment shall be shipped Free Carrier, Seller's Dock (FCA:
Seller's Dock, Incoterms 2000)*** Buyer shall notify Seller of the
method of shipment. If no instructions are given, Seller shall select
the most cost effective carrier based upon Buyer's required delivery
date. Title and risk of loss to Items shall pass to Buyer upon delivery
to the FCA point.
11. OWNERSHIP AND BAILMENT RESPONSIBILITIES.
A. Any specifications, drawings, schematics, technical information, data,
tools, dies, patterns, masks, gauges, test equipment and other
materials furnished to Seller or paid for by Buyer shall
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(i) remain or become Buyer's property, (ii) be used by Seller
exclusively for Buyer's orders, (iii) be clearly marked as Buyer's
property, (iv) be segregated when not in use, (v) be kept in good
working condition at Seller's expense, and (vi) be shipped to Buyer
promptly on Buyer's demand or upon termination or expiration of this
Agreement, whichever occurs first. Any such property furnished by Buyer
to Seller that is marked or otherwise noted by Buyer as being
confidential information will be treated by Seller in accordance with
Section 12 hereafter.
B. Seller shall be liable for any loss of or damage to Buyer's property
while in Seller's possession or control, ordinary wear and tear
excepted.
12. CONFIDENTIALITY AND PUBLICITY.
A. During the course of this Agreement, either party may have or may be
provided access to the other's confidential information and materials.
Provided information and materials are marked in a manner reasonably
intended to make the recipient aware, or the recipient is sent written
notice within forty-eight (48) hours of disclosure, that the
information and materials are "Confidential", each party agrees to
maintain such information in accordance with the terms of this
Agreement and the CNDA referenced on the signature page of this
Agreement and any other applicable separate nondisclosure agreement
between Buyer and Seller. At a minimum each party agrees to maintain
such information in confidence and limit disclosure on a need to know
basis, to take all reasonable precautions to prevent unauthorized
disclosure, and to treat such information as it treats its own
information of a similar nature, until the information becomes
rightfully available to the public through no fault of the
non-disclosing party. Seller's employees who access Buyer's facilities
may be required to sign a separate access agreement prior to admittance
to Buyer's facilities. Furthermore, Seller will furnish a copy of
Addendum C to each of its employees, agents and subcontractors who
perform work or Services on Buyer's premises or facilities or otherwise
has access to Buyer's classified and proprietary information, networks
or software, and will take reasonable steps to assure Buyer that all
such have read and understood Addendum C. Seller shall not use any of
the confidential information created for Buyer other than for Buyer.
B. If access is necessary and directly related to Seller's scope of work
or duties, Seller's employees, agents or subcontractors may be granted
authorization to use or access Intel information, software, or
telecommunications by Buyer's information owner. Unless specifically
authorized, Seller, its employees, agents or subcontractors may not use
or access Intel classified or proprietary information that may be
happened upon or inadvertently discovered while performing work under
this Agreement. Neither may Seller, its employees, agents or
subcontractors control an Intranet web site at Intel. Without limiting
the obligations contained in Paragraph A above, if Seller's employees,
agents or subcontractors perform work or Services on Buyer's premises
or facilities or otherwise have access to Intel's classified and
proprietary information, (regardless of the medium (Buyer's or
Seller's) in or on which it is retained or communicated), software, or
Buyer's computer networks or systems, (including, but not limited to,
NT, Novell, Pathworks, VAX, Unix,omets, Workstream, IWCS, and IBM
computer systems, application programs, and databases), Seller shall
ensure that any such employee, agent, or subcontractor shall not modify
such classified or proprietary information, software, hardware, or
telecommunications without the prior written consent of the Buyer
employee responsible for the resource, with the exception of
contract-related requirements or resources that allow for individual
customization (e.g., Microsoft Windows user features). For Seller's
employees, agents or subcontractors who are granted access Buyer's
computer networks or systems, as referenced above, Seller shall also
ensure that any such employees, agents, or subcontractors shall treat
all Intel data and information accessed from such system(s) in the same
manner as Intel's confidential information designated in paragraph A
above. In addition, Seller, its employees, agents, or subcontractors
may not: (i) use or disclose for any purpose any aspect or portion of
third party data or information which it may access from Buyer's
premises, computers,
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or electronic networks unless it first obtains the third party's
written consent; or (ii) make electronic or hard copies of Intel's
information extracted from Buyer's computer system(s) confidential
information or obtained in other forms on Buyer's premises, unless it
clearly marked and treated as Intel's confidential information. Except
with Buyer's prior written consent, no such copies may be removed from,
transmitted out of, Buyer's facility or networks or given to Seller's
other employees or representatives except those employees or
representatives within Buyer's facility with a need to know
C. Neither party may use the other party's name in advertisements, news
releases, publicity statements, financial statement filings (unless in
areas specifically required to meet General Accepted Accounting
Principles (GAAP) or Securities Exchange Commission (SEC) filing
requirements or disclose the existence of this Agreement, nor any of
its details or the existence of the relationship created by this
Agreement, to any third party without the specific, written consent of
the other. If disclosure of this Agreement 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: (i) the parties
shall use all legitimate and legal means available to minimize the
disclosure to third parties of the content of the Agreement, including
without limitation seeking a confidential treatment request or
protective order; (ii) the disclosing party shall inform the other
party at least ten (10) business days in advance of the disclosure; and
(iii) the disclosing party shall give the other party a reasonable
opportunity to review and comment upon the disclosure, and any request
for confidential treatment or a protective order pertaining thereto,
prior to making such disclosure. The parties may disclose this
Agreement in confidence to their respective legal counsel, accountants,
bankers, and financing sources as necessary in connection with
obtaining services from such third parties. The obligations stated in
this section shall survive the expiration or termination of this
Agreement.
D. Neither party may use the other party's name or trademarks in
advertisements, brochures, banners, letterhead, business cards,
reference lists, or similar advertisements without the other's written
consent.
13. INTELLECTUAL PROPERTY INDEMNITY.
A. Seller shall indemnify and hold Buyer and its customers harmless from
any and all costs, expenses (including reasonably attorneys' fees),
losses, damages or liabilities incurred because of actual or alleged
infringement of any patent, copyright, trade secret, trademark,
maskwork or other intellectual right arising out of the use or sale by
Buyer or Buyer's customers of Items or Buyer's products manufactured
using the Item(s). Buyer shall notify Seller of such claim or demand
and shall permit Seller to participate in the defense or settlement
thereof.
B. If an injunction issues as a result of any claim or action, Seller
agrees, at its sole cost and expense, and Buyer's option to either: (i)
procure for Buyer the right to continue using Items, (ii) replace the
Items with non-infringing Items or (iii) modify the Items so they
become non-infringing. If, despite Seller's best efforts, none of the
foregoing options are available, Buyer may at its option return the
Item at Seller's sole cost and expense, and Seller shall refund to
Buyer the purchase price of the Item.
C. Seller's obligations pursuant to this Section 13 shall not apply where:
(i) custom Items are manufactured to Buyer's detailed design and such
design is the cause of the claim; or (ii) Items are used in combination
with Equipment, software or other products not supplied, required or
recommended by Seller and such infringement would not have occurred but
for such combination.
D. THE FOREGOING STATES THE ENTIRE OBLIGATIONS AND REMEDIES FLOWING
BETWEEN BUYER AND SELLER ARISING FROM ANY INTELLECTUAL PROPERTY CLAIM
BY A THIRD PARTY.
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14 SUPPLY LINE PROTECTION
Seller's sole remedy for any infringement of Seller's patents arising from
products or services (hereafter "infringing products") used by Buyer in
the manufacture, testing or assembling of Buyer's products shall be
compensatory damages, which Seller will seek solely from the
manufacturer(s) and/or distributor(s) of such infringing products. Nothing
in this Section shall prevent Seller from seeking an injunction against
infringing products not used by or for Buyer in the manufacture, testing
or assembling of Buyer's products.
15. HAZARDOUS MATERIALS.
A. If Items or Services provided hereunder include Hazardous Materials,
Seller represents and warrants that Seller and its employees, agents,
and subcontractors providing Services to Buyer understand the nature of
and hazards associated with the handling, transportation, and use of
such Hazardous Materials, as applicable to Seller.
B. Prior to causing Hazardous Materials to be on Buyer's premises, Seller
shall provide Buyer with Material Safety Data Sheets (MSDS) and any
other documentation reasonably necessary to enable Buyer to comply with
the applicable laws and regulations, and obtain written approval from
Buyer's Site Environmental, Health, and Safety (EHS) organization.
Buyer will not grant approval without Seller's agreement to comply with
Buyer's Hazardous Materials management requirements.
C. Seller will be fully responsible for, defend, indemnify and hold Buyer
harmless from any claim or liability arising in connection with (1)
providing such Hazardous Materials to Buyer, or (2) the use of such
Hazardous Materials by Seller, its agents or subcontractors in
providing Services to Buyer.
D. Seller hereby certifies that Items supplied to Buyer do not "contain"
any Class I ozone-depleting substances, as those terms are defined by
law.Seller hereby certifies that Items supplied to Buyer comply with
all applicable requirements of Buyer's Environmental Product Content
Specification for Suppliers and Outsourced Manufacturers (available at
▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
E. Seller hereby certifies that Items supplied to Buyer do not "contain"
any Class I ozone depleting substances, as those terms are defined by
law.
F. Except as provided hereafter, Items returned to Seller by Buyer will be
decontaminated from Hazardous Materials to the degree practical,
reasonable, and as required by applicable law or regulation. Upon
request, Buyer shall provide appropriate documentation to Seller that
the returned Items have been decontaminated. If Seller is financially
responsible for shipping the return Items, Seller will be responsible
for their decontamination, and Buyer shall make Buyer's facilities
available to Seller for the decontamination.
16. CUSTOMS CLEARANCE.
Upon Buyer's request, Seller will promptly provide Buyer with a statement
of origin for all Items and with applicable customs documentation for
Items wholly or partially manufactured outside of the country of import.
17. COMPLIANCE WITH LAWS AND RULES
A. Throughout the term of this Agreement and any extension thereto, Seller
shall comply, at its sole cost and expense, with all applicable
statutes, regulations, rules, ordinances, codes and standards
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(Laws) governing the manufacture, transportation, import, export or
sale of Items or the performance of Services covered by this Agreement
anywhere in the world. Without limiting the foregoing, in the United
States (U.S.) this includes all applicable commerce, environmental,
occupational safety, transportation and securities Laws and all
employment and labor and immigration Laws governing Seller's personnel
providing Services to Buyer. Neither Seller nor any of its subsidiaries
will export/re-export any technical data, process, product, or service,
directly or indirectly, to any country for which the United States
government or any agency thereof requires an export license or other
government approval without first obtaining such license. In addition,
Seller agrees not to provide foreign nationals from controlled
countries as employees or contractors for work on any Buyer site..
B. While on Buyer's premises or performing Services, Seller, it employees,
agents and subcontractors agrees to abide by all Buyer's rules and
regulations that are provided to the Seller in writing; posted
conspicuously or easily observed while on Buyer's premises or
customarily followed or known by third party invitee, including, but
not limited to security, heath, safety, environmental and hazardous
material management rules and rules prohibiting the use of physical
aggression against persons or property, harassment and theft.
C. Unless exempted or inapplicable, Seller represents and agrees that it
is in compliance with U.S. Executive Order 11246 and implementing
Employment Opportunity regulations, the Vietnam Era Veterans'
Readjustment Assistance Act as amended by the Veterans Employment
Opportunities Act of 1998 (to include: Vietnam-era Veterans and other
Veterans who served on active duty during a war or campaign or
expedition for which a campaign badge has been authorized), and the
Immigration Reform and Control Act of 1986. Seller shall comply with
all applicable laws regarding employment of underage or child labor and
shall not employ children under the age of 16.
18. INSURANCE.
A. Without limiting or qualifying Seller's liabilities, obligations or
indemnities otherwise assumed by Seller pursuant to this Agreement,
Seller shall maintain, at its sole cost and expense, with companies
acceptable to Buyer, Commercial General Liability and Automobile
Liability Insurance with limits of liability not less than
$1,000,000.00 per occurrence and including liability coverage for
bodily injury or property damage (1) assumed in a contract or agreement
pertaining to Seller's business and (2) arising out of Seller's
product, Services or work. Seller's insurance shall be primary, and any
applicable insurance maintained by Buyer shall be excess and
non-contributing. The above coverages shall name Buyer as additional
insured, and shall contain a severability of interest clause.
B. Seller shall also maintain statutory Workers' Compensation coverage,
including a Broad Form All States Endorsement in the amount required by
law, and Employers' Liability Insurance in the amount of $1,000,000.00
per occurrence. Such insurance shall include an insurer's waiver of
subrogation in favor of Buyer.
C. If Seller is providing any professional service to Buyer, Seller shall
maintain Professional Liability Insurance (including errors and
omissions coverage) with liability limits not less than $1,000,000.00.
D. Seller shall provide Buyer with properly executed Certificate(s) of
Insurance prior to commencement of any operation hereunder and shall
notify Buyer, no less than 30 days in advance, of any reduction or
cancellation of the above coverages. Such certificates shall be sent to
the attention of Buyer's Commodity Manager at the address forth in the
Notices section of this Agreement
19. GENERAL INDEMNIFICATION.
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Seller agrees to protect, defend, indemnify and hold Buyer harmless from
and against any and all claims, liabilities, demands, penalties,
forfeitures, suits, judgments and the associated costs and expenses
(including reasonable attorney's fees), which Buyer 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 (a) Seller's breach of any term or
provision of this Agreement, (b) any negligent or willful acts, errors or
omissions by Seller, its employees, officers, agents, representatives or
sub-contractors in the performance of Services under this Agreement; or
(c) dangerously defective Items.
20. RETENTION AND AUDITS
Seller will maintain complete and accurate records of the billable
Services performed under this Agreement for a period of three (3) years
after the completion of these Services. Records relating to the
performance of this Agreement shall be made available to Buyer upon
reasonable notice.
21. INDEPENDENT CONTRACTOR
In performing Services under this Agreement, Seller shall be deemed an
independent contractor. Its personnel and other representatives shall not
be deemed agents or employees of Buyer. As an independent contractor,
Seller will be solely responsible for determining the means and methods
for performing the required Services. Seller shall have complete charge
and responsibility for personnel employed by Seller. However, Buyer
reserves the right to instruct Seller to remove from Buyer's premises
immediately any of Seller's personnel who are in breach of Section 16 or
21 of this Agreement. Such removal shall not affect Seller's obligation to
provide Services under this Agreement.
22. SECURITY.
Seller confirms that, to the best of its knowledge, employees of Seller
performing work at Buyer's facilities have no record of criminal
convictions involving drugs, assaultive or combative behavior or theft
within the last five (5) years. Seller understands that such employees may
be subject to criminal history investigations by Buyer at Buyer's expense
and will be denied access to Buyer's facilities if any such criminal
convictions are discovered. In addition, when Buyer has a reasonable
suspicion to believe that any of employee, agent or subcontractor of
Seller is under the influence of alcohol or drugs; has breached this
Section 22 or Section 17, Buyer reserves the right to instruct Seller to
immediately remove such employee agent or subcontractor from Buyer's
premises. Such removal shall not affect Seller's obligation to provide
Services under this Agreement.
***23. DRUG TESTING
Seller shall ensure, unless prohibited by applicable law, that any
employee, agent or subcontractor assigned to provide Services on Buyer's
premises shall have passed a pre-employment drug screen test (urine
analysis) for at least the substances listed in the Drug Schedule set
forth below within two (2) years prior to such assignment. If the
employee, agent or subcontractor was not subject to a pre-employment drug
screen test or the test was administered beyond the two (2) year period,
the employee, agent or subcontractor shall pass a drug screen test within
seventy-two (72) hours after that employee, agent or subcontractor has
been identified for assignment to Intel.. Seller will be responsible for
all drug screen testing to be conducted by laboratories federally
certified to conduct urine drug testing. Seller shall also be responsible
for the maintenance of testing records for its employees, agents and
subcontractors, which shall be subject to audit on reasonable notice by
Buyer to ensure compliance with this Section.
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DRUG SCHEDULE
DRUG SCREENING METHOD CUTOFF CONFIRMATION METHOD CUTOFF
(IMMUNOASSAY) (GC/MS)
------------- -------
AMPHETEMINES 1000 NG/ML 500NG/ML
CANNABINOIDS 50 NG/ML 15 NG/ML
COCAINE 300 NG/ML 150 NG/ML
OPIATES 300 NG/ML 300 NG/ML
PHENCYCLIDINE 25 NG/ML 25 NG/ML
24. NEW DEVELOPMENTS.
If development Services are to be provided pursuant to this Agreement or
if at any time during the term of this Agreement, Buyer pays any fee to
the Seller for development Services, the following terms and conditions
shall apply unless agreed otherwise in writing by the parties. For the
avoidance of doubt, any research, development, or engineering services
performed by Seller for which the parties do not enter into a separate
written addendum, amendment or agreement or for which Buyer does not pay
to Seller a separately identifiable fee shall not be "Development
Services."
A. All intellectual property associated with any ideas, concepts,
techniques, inventions, processes, or works of authorship developed,
created or conceived by Seller, its employees, subcontractors or agents
while performing the development Services for Buyer or from proprietary
and/or confidential information or materials belonging to Buyer
(collectively, "Developments") shall belong exclusively to Buyer and be
deemed the confidential information of Buyer. Seller agrees to assign
(or cause to be assigned) and does hereby assign fully to Buyer all
such Developments.
B. Buyer acknowledges and agrees that Seller shall retain sole and
exclusive ownership of any invention, improvement, development,
concept, discovery, or other proprietary information owned or
controlled by Seller prior to performing the development Services for
Buyer ("Pre-existing Seller IP"). Notwithstanding the foregoing, Seller
agrees that if in the course of performing the Services, Seller
incorporates any Pre-existing Seller IP into any Development developed
hereunder, Buyer is hereby granted and shall have a nonexclusive,
royalty free, perpetual, irrevocable, worldwide license, under any such
Pre-existing Seller IP, to make, have made, use, import, prepare
derivative works of, reproduce, have reproduced, perform, display,
offer to sell, sell, or otherwise distribute such invention,
improvement, development, concept, discovery, or other proprietary
information as part of or in connection with such Development.
C. Seller shall assist Buyer, at Buyer's expense, in obtaining,
registering, perfecting and enforcing all patents, trademarks, mask
work rights or copyrights necessary to protect Buyer's interest in the
Developments assigned to Buyer pursuant to Paragraph (a) above. This
includes the disclosure of all pertinent information, the execution of
applications, specifications, oaths and assignments and any other
papers by Seller necessary to ensure said protection for Buyer. Upon
Buyer's request, Seller shall execute an Assignment of Copyright to
Buyer covering any copyrightable deliverable accepted by Buyer
hereunder.
D. All documentation connected with the development Services or associated
with Developments assigned to Buyer pursuant to Paragraph A above,
shall be the exclusive property of Buyer. Upon Buyer's request, Seller
shall make all such documentation available to Buyer.
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E. Except for Developments Service provided pursuant to this Agreement
or for which Buyer pays a fee as provided herein in Section 24,
Buyer and Seller agree that any intellectual property rights
associated with any ideas, concepts, techniques, inventions,
processes, or works of authorship jointly developed, created,
conceived or reduced to practice jointly by the Seller and Buyer as
those terms are defined in the U.S. Copyright Act and the Patent Act
the Developments shall be owned jointly by the parties. Each party
shall protect any such jointly owned intellectual property rights to
the same extent as it protects its own intellectual property. Any
such jointly owned intellectual property rights may be used without
the consent of and without restriction by the either party for any
purpose without accounting or royalties, including disclosure to
third parties, provided that, a party does not disclose any
Confidential Information of the other party.
25. SOFTWARE AND DOCUMENTATION LICENSE.
A. DEFINITIONS:
"SOFTWARE" means any software and/or firmware provided with,
embedded in or that is necessary, required or normally provided by
the Seller for the use and/or operation of Items, in object code
form, including bug fixes, updates, enhancements, and new releases
developed by Seller during the term of the Agreement including any
extension or renewal thereof.
"DOCUMENTATION" means any and all user documentation and training
materials necessary to instruct Buyer in the proper installation,
use and operation of the Software or Items which accompany either
Software or Items.
B. LICENSE GRANT: Seller grants to Buyer a fully paid, worldwide,
transferable, non-exclusive, perpetual license, under all
intellectual property rights owned or licensed by Seller and
embodied in the Software and/or Documentation to install, copy and
use the Software and use and distribute the Documentation internally
in the operation of the Software or Items. Buyer may make a
reasonable number of archived copies of Software and/or
documentation for internal use/back-up purposes. Buyer may copy the
Documentation or portions thereof, for internal use purposes. Buyer
may not reverse engineer the Software.
C. RIGHT TO TRANSFER: Buyer may transfer the Software, Documentation
and copies prepared in accordance paragraph 23 B, and all rights
associated therewith, as part of the sale, lease or other transfer
of all rights in Items for which the Software and Documentation were
provided or required, provided that the Buyer retains no copies
Software, Documentation and the transferee agrees to the terms and
conditions of this Software and Documentation License,
D. OWNERSHIP. Seller shall retain all ownership interest in and to
Software and Documentation, and except for the express rights and
license set forth herein, Buyer receives no other rights or license,
whether by implication, estoppels or otherwise.
E. WARRANTIES: Seller makes the following representations and
warranties to Buyer regarding the Software:
(1) The Software will perform in conformance with the Purchase
Spec;
(2) The Software does not contain any viruses at the time of
delivery to Buyer;
(3) Seller has all necessary rights, title and interest to grant
the rights set forth herein to Buyer, free of any claims,
liens or conflicting rights in favor of any third party; and
(4) The Software (i) will function without error or interruption
related to Date Data from more than one century; (ii) requires
all Date Data (whether received from users, systems,
applications or other sources) and all date output and
results, in any form, to include an
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indication of century in each instance. As used herein, "Date
Data" means any data or input, whether generated within the
Item or communicated to it, which includes an indication of or
reference to date. The foregoing is in addition to all other
representations and warranties of Seller.
26. MERGER, MODIFICATION, WAIVER, REMEDIES AND SEVERABILITY.
A. This Agreement and any Releases issued hereunder contains the entire
understanding between Buyer and Seller with respect to the subject
matter hereof and merges and supersedes all prior and
contemporaneous agreements, dealings and negotiations. No
modification, alteration or amendment shall be effective unless made
in writing, dated and signed by duly authorized representatives of
both parties.
B. No waiver of any breach hereof shall be held to be a waiver of any
other or subsequent breach.
C. Buyer's and Seller's rights and remedies herein are in addition to
any other rights and remedies provided by law or in equity.
D. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal, or unenforceable,
such determination shall not affect the validity of the remaining
provisions unless Buyer determines in its discretion that the
court's determination causes this Agreement to fail in any of its
essential purposes.
27. ASSIGNMENT.
Neither party may assign or factor any rights in, nor delegate any
obligations under this Agreement or any portion thereof, without the
written consent of the other party, which consent shall not be
unreasonably withheld. For purposes of this Section 27, the acquisition,
merger, consolidation or change in control of Seller or any assignment by
operation of law shall be deemed an assignment that requires Buyer's
written consent. Any assignment without such prior written consent shall
be null and void and of no legal effect. If such assignment is permitted,
the assignee shall be responsible for and perform all obligations and
duties of the assignor pursuant to and in accordance with the terms and
conditions of this Agreement.
28. APPLICABLE LAW
This Agreement shall be construed and interpreted in accordance with the
laws of the State of Delaware, excluding Delaware's conflicts of law
provisions. The provisions of the United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this Agreement. The
parties agree that the predominance of this Agreement is the sale of
goods, and agree that the Delaware version of the Uniform Commercial Code,
Article 2, shall be applicable to this Agreement.
29. HEADINGS.
The headings provided in this Agreement are for convenience only and shall
not be used in interpreting or construing this Agreement.
30. SPECIFIC PERFORMANCE.
Notwithstanding anything to the contrary contained in this Agreement, the
parties agree that the failure of the Seller to deliver an Item or perform
a Services in accordance with the terms and conditions contained in this
Agreement after the acceptance of a Release would cause irreparable damage
to Buyer for which monetary damages would not provide an adequate remedy.
Accordingly, it is agreed that, in addition to any other remedy to which
Buyer may be entitled, at law or in equity, Buyer shall be entitled to
injunctive relief to prevent breaches of the provisions of this Agreement
by
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Seller, and an order of specific performance to compel performance of such
obligations in any action instituted in any court of the United States or
any state thereof having subject matter jurisdiction.
31. NOTICE
Unless otherwise agreed in writing by the parties, all notices to Intel
regarding this Agreement shall be sent to Buyer TME General Counsel and to
the Intel TME's Commodity Manager at the address on the signature page of
this Agreement.
32. PRIVACY
If Buyer transmits any personal information to Seller, or if Seller
obtains personal information in the course of performing Services for
Buyer, Seller shall: (i) take all measures necessary to ensure the
security of the personal information; (ii) not transfer any personal
information to any third party; (iii) not use any personal information for
any purpose other than as described in this Agreement; and (iv) comply
with the current online Privacy Alliance's privacy guidelines (available
at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), and any and all updates as they may be
issued.
33 ELECTRONIC TRANSACTIONS
A. Subject to the terms and conditions of this section, the parties
agree to accept electronic records and electronic signatures (as
such terms are defined in the U.S. Electronic Signatures in Global
and National Commerce Act) relating to transactions contemplated by
this Agreement.
B. In connection with system-to-system implementations:
(i) The parties will implement the particular transaction sets
and/or message specifications mutually agreed upon by the
parties. Each party's implementation will comply with
applicable standards (e.g., applicable ANSI standards or
RosettaNet PIPs), except as otherwise mutually agreed.
(ii) Where applicable standards require that the receiving party
issue a notice to the other confirming message receipt, such
notice will not constitute a binding acceptance or
acknowledgement of anything more than mere receipt. In the
event that any element of an applicable standard conflicts
with a provision of this Agreement, the provision of this
Agreement will control.
(iii) If a party has adopted an electronic identifier (e.g. a
digital signature), the other party is entitled to rely on the
authenticity of messages signed by or otherwise associated
with such electronic identifier unless and until notified
otherwise by the adopter.
C. Either party may use a third party service provider in connection
with e-business activities (e.g., to route or translate EDI or XML
messages, or to host web based services). The party contracting with
a service provider must require that such service provider (a) use
information disclosed to or learned by such service provider in
connection with providing services solely for the purpose of
providing the applicable services, and (b) not disclose such
information to any third party. Either party may begin to use or may
change a service provider upon reasonable prior written notice. Each
party will be liable for the acts or omissions of its service
provider in connection with activities contemplated by this
Agreement.
34 USE OF WEB SITES
When one party uses the other party's web-based services, the then-current
Terms of Use or similar legal terms associated with the web-based services
(the "Terms") will govern such party's use of such web-based services,
provided that:
A. This Agreement, including without limitation all provisions relating
to sales or purchase transactions, confidentiality, liability
limitations, damage waivers, liability caps, indemnification,
dispute resolution, intellectual property indemnification, and
choice of law or venue, will supercede and control over any
conflicting provisions found in the Terms. Any
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provision of either party's Terms that would materially alter a
provision of this Agreement will have no effect.
B. The Terms will apply exclusively to a party's use of the applicable
web-based services and any provisions purporting to apply to other
activities will have no effect.
C. Each party will be obligated only to use commercially reasonable
efforts to meet any security and access control obligations set
forth in the Terms, notwithstanding any contrary provisions in the
Terms.
D. All personally-identifiable information that one party learns about
the other party's individual users in connection with usage of the
web-based services must be protected by the recipient in accordance
with the Privacy section of the Agreement.
35. SURVIVAL.
The rights and obligations of the parties as contained in Sections 1, 3,
5, 6, 8, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22, 23, 24, 25, 26, 28, 29,
30, 31, 32, 33, 34, 35 and 36 shall survive the termination or expiration
of this Agreement along with any other right or legal obligation of a
party created by a term or condition in any Addendum, SOW or Purchase
Spec, which term or condition by its nature would survive the termination
or expiration of the Agreement.
36. ORDER OF PRECEDENCE.
In the event of a conflict or inconsistency between the Terms and
Conditions of this Agreement and its Addenda, a Release or Purchase Spec
the following order of precedence shall govern:
1. Any supplemental terms or instructions on the face of a Release
accepted by Seller.
2. The Terms and Conditions of this Agreement and its Addenda and
Amendments.
3. Purchase Spec.
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ADDENDUM A
ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO ALL EQUIPMENT MODELS,
SPARE PARTS AND SERVICES
PART I. EQUIPMENT
1. EQUIPMENT PERFORMANCE GUARANTEES
For purposes of this section 1 of Part 1 addendum A only, the term
"Availability Requirement" means the lesser of the Equipment availability
requirement (or "utilization capability" or "100% uptime" requirement) as
set forth in the Purchase Spec per SEMI E10-96. The warranty on a unit of
Equipment will be extended *** for each month that such Equipment performs
below the MCBI, MCBF, UPH and the Availability requirements as defined in
purchase specifications listed in Addendum D. Seller has the right to
request a mutual review process, to review equipment performance data, at
which Seller will exclude downtime caused by the Buyer in the availability
calculations. This provision for warranty extensions does not apply until
***months after Equipment final acceptance. If the Availability
Requirement is not met for more than ***consecutive months during the
warranty period, Buyer may, at Buyer's option: (a) return Equipment for
***; (b) obtain replacement parts, including major components, at no cost
to Buyer; or (c) have the non-complying Equipment replaced with new
Equipment within ***days. Warranty extensions may be reduced by ***month
for every ***months that the Equipment performs better than ***above the
Availability Requirement. Buyer must be in compliance with Seller's
recommended or a mutually agreed upon preventative maintenance schedule
and procedures for warranty extensions to be invoked. Extensions will be
agreed upon within forty-five (45) days after the month in which the
Equipment performance dictated the extension.
2. MODIFICATIONS AND UPGRADES
A. Buyer may require and Seller agrees to make any Equipment
modifications needed to bring the Equipment into conformance with
the Purchase Spec or, in the case of performance-based pricing (if
such a pricing structure has been agreed to) to meet the Expected
Improvement Rate (EIR).
B. Such modifications will be performed at no cost to Buyer. Prices for
upgrades and modifications that exceed the Purchase Spec (current at
time of installation) will be negotiated at the time Buyer grants
authorization.
C. Seller offers to add Items currently offered or developed over the
term of the Agreement, which Buyer does not currently purchase, to
this Agreement, with any appropriate exception mutually agreed,
should Buyer choose to purchase such Items.
3. CHANGE CONTROL
A. Buyer may require and Seller agrees to make any Equipment
modifications needed to bring the Equipment into conformance with
the Purchase Spec or, in the case of performance-based pricing (if
such a pricing structure has been agreed to) to meet the Expected
Improvement Rate (EIR). Such modifications will be performed at no
cost to Buyer. Prices for upgrades and modifications that exceed the
Purchase Spec (current at time of installation) will be negotiated
at the time Buyer grants authorization. If the parties are unable to
agreed a negotiated agree.
i. Seller shall not make changes to Items without prior written
approval from Buyer.
ii. Changes include all hardware or software assembly
modifications that affect the manufacturing environment,
impact/require recipe alteration to match outputs, impact
equipment installations/facilities hookup, affect the
ergonomic or safety characteristics of
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the Equipment, and/or affect existing Equipment software. They
may also include modifying Equipment, modules, software,
subassemblies, parts associated with the manufacturing
environment or process chemicals/consumables.
iii. Seller must request approval for such changes by notifying
Buyer of the proposed change by sending an Equipment change
request notice to Buyer a minimum of ninety (90) days prior to
any proposed change. This notice shall include the specific
change requested, reason for the change, specific change
details, Items affected, and the impact to Equipment in the
field. Buyer will respond in writing within thirty (30) days.
Failure of Buyer to respond does not indicate Buyer's
approval, with the exception of component obsolescence.
iv. Seller shall provide rev-level control and traceability
systems for Items supplied to Buyer hereunder.
v. In the case of Equipment on order but not yet shipped, formal
modification of the Release is required for any change to the
model, configuration, variance to the price, performance,
acceptance specifications, or delivery schedule. No Equipment
will be accepted or paid for that is in variance to what is
shown on the Release unless formally authorized by a written
change order. Seller will not be penalized on delivery OTD for
delays caused by Buyer.
4. TRAINING & DOCUMENTATION
A. The drawings, documentation, and training materials must conform to
the Intel specification 20-254 Rev 15 "DOCUMENTATION AND TRAINING
REQUIREMENTS" defined in Addendum E. Training must be developed
using either Performance-Based Equipment Training (PBET) or
Criterion-Referenced Instruction (CRI) methodology and delivered by
PBET certified instructors.
B. Buyer may purchase and Seller will make available training and
documentation as defined in ADDENDUM E.
C. Buyer will review all supplied training and documentation and has
authority to accept or reject it. Buyer will not give final approval
until Seller has delivered all documentation referenced 20-254 REV
15 "DOCUMENTATION AND TRAINING REQUIREMENTS " defined in Addendum E.
Training will be free of charge until the requirements of this
specification have been satisfactorily completed unless
pre-arrangements have been established and negotiated regarding
payment.
5. SAFETY REVIEW AND NOTIFICATION
A. Seller warrants that the Equipment complies with SEMI S2 Safety
Guidelines for Semiconductor Manufacturing Equipment OR be listed by
a Nationally Recognized Testing Laboratory (NRTL) using the
applicable standards AND comply with SEMI S8 Safety Guideline for
Ergonomics/Human Factors Engineering of Semiconductor Manufacturing
Equipment. Seller shall document conformance through an agreed upon
third party at Seller's expense. Documentation of compliance listed
in the Purchase Spec shall be provided to the Buyer three months
prior to the date the Equipment is being shipped. Modifications
necessary to bring the Equipment into compliance will be provided by
Seller at no charge. Seller must have management and control systems
for the effective management of product safety compliance. Clause is
applicable to RFS, Summit and all future purchased tools
B. Seller will notify Buyer's Commodity Manager and Corporate
environmental health & safety representative immediately upon
discovery of any actual or potential environmental, health or safety
hazard with the Equipment, upon discovery. Determination of the
scope and any containment and corrective actions required to cure
such a hazard will be performed by Seller at
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no cost to Buyer. Should Seller not be able to cure, Seller shall
provide a full refund of the Equipment purchase price to Buyer.
6. EQUIPMENT RELIABILITY
A. Reliability Demonstration
Seller agrees to use "Reliability Qualification Test" (RQT) plans
(MIL-HDBK-781) to demonstrate, with 80% confidence, that the
Equipment's reliability meets or exceeds the performance
specification for reliability, based on testing of production
systems and/or field data. This will be used to substantiate the
claims of Equipment performance for each design. Testing will be
performed by Seller on as many machines as required to establish the
required confidence. If subsystems are tested individually, the
subsystem goals must be apportioned from the systems goal.
B. Failure Modes and Effects Analysis
Seller agrees it will complete Failure Modes and Effects Analysis
(FMEA) studies on at least three of the most critical subsystems
and/or those systems that contain new design concepts.
C. Fault Tree Analysis
At least annually, Seller will perform Fault Tree Analysis (FTA) on
no fewer than the top three known failure modes associated with each
type of Equipment under warranty. This will document the largest
limiters to the Equipment's reliability, and will be the foundation
for developing a comprehensive plan for reducing or eliminating each
of the failure modes.
D. Continuous Improvement/Upgrades
With all continuous improvement projects and upgrade programs,
Seller will:
(i) Perform FTA's on the existing problem or issue to verify that
the most important root causes are understood and corrective
actions are generated.
(ii) Model and provide rationale for the design goals for the
proposed solution.
(iii) Perform FMEA's on the solution design.
(iv) Execute an RQT to objectively verify the reliability of the
solution.
7. BUYER SPECIFIC PROCESS RECIPE DEVELOPMENT.
If during the term of the Agreement, Buyer is required to develop Buyer
specific process recipes ("Recipes") for Items at Seller's site, the
parties agree as follows:
A. Seller shall designate a secured area at Seller's site for the use
of Buyer's employees for the purpose of such process development
work. During this development, Seller's employees will have no
access to the area and at the conclusion of the development work,
Buyer may delete any and all memory pertaining to the Recipes from
the Items.
B. Seller acknowledges and agrees that all Recipes are the sole and
exclusive property of Buyer and any information relating to Recipes
disclosed to Seller by Buyer shall be deemed to be the Confidential
Information of the Buyer and governed by the terms of the CNDA
referenced on the signature page of this Agreement.
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C. Seller may use the Confidential Information solely in conjunction
with Items and agrees not to disclose the Confidential Information
to any third parties, including any affiliates, subsidiaries, parent
or sister companies, without the prior written approval of Buyer.
D. Seller acknowledges and agrees that no license under any Buyer
patent, copyright, trade secret or other intellectual property right
is granted to or conferred upon Seller by the disclosure of any
Confidential Information by Buyer to Seller as contemplated
hereunder, either expressly, by implication, inducement, estoppel or
otherwise, and that any license under such intellectual property
rights must be express and in writing.
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ADDENDUM A
PART 2
SPARE PARTS.
ADDITIONAL SPARE PARTS TERMS AND CONDITIONS
1. SPARE PARTS DELIVERY
A. For emergency (e.g. down Equipment) Spare Parts, Seller will accept
orders 24 hours per day, seven days per week and will ship such
emergency orders to Buyer's facilities immediately during normal
business hours by the most expedient method possible. Seller may
maintain an emergency 24-hour PO system by manned or electronic
means and will ensure that Buyer sites have contact/escalation
lists, and will in each case confirm shipment date by the next
business day.
B For non-emergencies, Seller guarantees spare parts will be shipped
to Buyer's facilities after receipt of order no later than the
following schedule (exclusive of transit time):
TYPE OF PART LEADTIME ***
Consumables ***
Non-Consumables-Common ***
Assemblies ***
Device-specific ***
Replenishment and Repair Exchanges ***
Delta Repairs ***
Third-party Repairs ***
C. In any month (as defined by Buyer's work week calendar), if the OTD
at any Buyer site falls below goals listed below, all Spare Parts
ordered by that site during that month will be given an additional
discount (beyond that in 2.A.) according to the schedule below:
Year 1 OTD ADDITIONAL DISCOUNT
*** ***
Year 2 OTD ADDITIONAL DISCOUNT
*** ***
Y3-OTD ADDITIONAL DISCOUNT
*** ***
Regardless of any discount, Seller shall ship any past due spare
part within twenty-four (24) hours of availability.
2. SPARE PARTS TERMS
A. Spare parts will be discounted ***off of the Seller's published
price list, or lowest price charged by Seller to other customers,
whichever is lower, as referenced in Addendum F Spare Parts Price
List.
B. Seller shall supply Buyer with a complete list of spare parts and
spare parts kits written in Excel spreadsheet format, which will be
attached as 4.A. Spare Parts Price List below. The list will include
the following:
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Seller's part number Description
-------------------- -----------
Intel's discounted new-buy price Intel's discounted repair price (as applicable)
New-buy lead time Repair lead time (as applicable)
Typical consumption per year per machine Recommended stocking level
Seller shall also identify which parts are consumable/non-consumable
(C/N) and repairable/non-repairable (R/N).
C. Seller shall provide Buyer with a list of second/direct sources for
all parts. This list will cross reference Seller's part number with
the original manufacturer and part and shall be provided six (6)
months prior to delivery of the first HVM tool. The warranty on each
existing tool(s) will be extended for one additional month for every
month that this list is late as required above. Seller shall provide
OEM Part Numbers and shall include in a Business Continuity Plan,
available to Buyer at such time as the continuity plan should be
called into effect.
D. Unused, non-obsolete, non-device specific custom spares over ***.
may be returned for up to 24 months after purchase date, with ***
re-stocking charge, *** months after purchase date @ *** restocking
charge. Return lists will be submitted by individual Intel site to
encourage "right-sized" inventories. Buyer and Seller shall agree to
returns list content in a timely manner prior to restocking.
E. Spare parts will be supplied by Seller for at least seven years
beyond the last Equipment purchase or end of product manufacturing,
whichever is later. If Seller can no longer supply parts beyond
seven years, Seller will furnish drawings and specifications for the
parts with all the rights required to have such parts made by a
second source supplier without compensation of any nature to Seller.
F. Each Buyer site will have the option to stock consignment spares per
terms referenced in Spare Parts Consigned Inventory Process.
G. Seller will support Buyer's internal repair capability for items
purchased under this agreement. At Buyer's request, Seller shall
provide technical information (drawings, schematics, failure
analysis report, etc.) enabling Buyer with this repair capability.
3. SPARE PARTS COST CONTROL
If Buyer and Seller agree to implement cost reduction programs, such as
spare parts reliability improvements, alternate sourcing, value
engineering, or re-specification of quality requirements, the fixed costs
of parts shall be adjusted by the agreed upon amount of cost reduction due
to such programs.
4. SPARE PARTS PRICE LIST TEMPLATE
Seller to identify the applicability of all spares to each Tool Type that
Buyer procures from Seller under this Agreement.
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CUSTOM INTEL'S
MADE DISCOUNTED
UNIT OF CONSUMABLE/ FOR INTEL'S PRICE -- LEADTIME --
SELLER INTEL MEASURE NON- INTEL DISCOUNTED REPAIR REPAIR
PART PART (EACH/SET/ CONSUMABLE REPAIRABLE ONLY LIST PRICE -- (N/A IF NOT LEADTIME -- (N/A IF NOT
NUMBER NUMBER DESCRIPTION KIT/ETC) (C/N) (Y/N) (Y/N) PRICE NEW BUY REPAIRABLE) NEW BUY REPAIRABLE)
------ ------ ----------- ---------- ----------- ---------- ------ ----- ---------- ----------- ----------- -----------
------ ------ ----------- ---------- ----------- ---------- ------ ----- ---------- ----------- ----------- -----------
------ ------ ----------- ---------- ----------- ---------- ------ ----- ---------- ----------- ----------- -----------
------ ------ ----------- ---------- ----------- ---------- ------ ----- ---------- ----------- ----------- -----------
CONSUMPTION RECOMMENDED PM KIT
PER YEAR STOCKING MANUFACTURER'S MANUFACTURER'S PM KIT CHANGE-OUT MACHINE MACHINE
PER MACHINE LEVELS NAME PART NUMBER LEVEL FREQUENCY TYPE #1 TYPE #2
----------- ----------- -------------- -------------- ------ ---------- ------- -------
----------- ----------- -------------- -------------- ------ ---------- ------- -------
----------- ----------- -------------- -------------- ------ ---------- ------- -------
----------- ----------- -------------- -------------- ------ ---------- ------- -------
5. SPARES KITS TEMPLATE
List the top *** (by dollar volume) of spare parts to be used over the
life of the Equipment as Kit Level 1. Remaining spares should be listed as
Kit Level 2.
COMPONENT
KIT SELLER INTEL'S SELLER
LEVEL PART DISCOUNTED PART
DESCRIPTION NUMBER PRICE LEADTIME NUMBERS
----------- ------ ---------- -------- ---------
----------- ------ ---------- -------- ---------
----------- ------ ---------- -------- ---------
----------- ------ ---------- -------- ---------
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ADDENDUM A
PART 3.
ADDITIONAL SERVICES TERMS AND CONDITIONS
1. APPLICABILITY
The terms and conditions in this ADDENDUM D shall apply to all Services
performed by Seller at Buyer's facilities. In the case of extended service
contracts, a separate scope of work for each service contract will be
negotiated and will become a supplement to this Agreement.
2. PRICING
Seller will decrease rates when they are determined not to be competitive
with geographical labor rates.
3. ALTERNATE USE OF SCOPE OF WORK PERSONNEL
If, after receiving Buyer's approval, Seller utilizes personnel assigned
under any factory-specific Scope of Work (SOW) to perform installation,
warranty, or other work not included in such factory-specific SOW, Seller
will credit to Buyer the value of all such work. The amount of any such
installation, warranty, or other credits will be mutually agreed in
advance. Buyer shall have the right to accept or reject any Seller
requests to utilize personnel assigned under a factory-specific SOW to do
any such work.
4. EQUIPMENT PRE-DELIVERY AND START UP
Prior to Equipment installation, Seller shall participate in Buyer's
installation design reviews.
After Buyer has completed Equipment facilitization, Seller shall work the
required amount of hours in order to ensure Equipment is installed and
started up to meet Purchase Specification acceptance criteria and
production ramp requirements. Buyer and Seller shall co-develop plans,
▇▇▇▇▇ charts or other tools that are necessary to ensure Equipment is
ready for each phase of Buyer's production ramp.
5. PROCESS MODULE QUALIFICATION
Seller shall participate, as needed, in process, equipment and module
qualification and in integrating the Equipment into the manufacturing
process by using Buyer's procedures, practices and methodologies.
6. FIELD SERVICE SUPPORT
A. If equipment does not meet performance requirements and
specifications as detailed in the Purchase Specification, Seller
shall provide service engineer on Buyer's site. Should problems
persist, additional field service engineers will be dedicated to
provide 24 hours x 7 days on-site coverage at no additional cost
until Equipment consistently meets Purchase Spec.
B. Seller will provide worldwide field service support to ensure that
the equipment meets or exceeds the performance specifications.
C. Buyer sites shall have the option of extending on-site coverage at a
rate in accordance with Section 12 Pricing for Services provided
Purchase Specifications have been achieved.
7. CONTINUOUS IMPROVEMENT
Seller shall work with Buyer to collect and analyze data through Buyer's
automated data collection system and recommend corrections or improvements
to Equipment.
8. ESCALATION
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A. Seller will provide telephone Technical Support on a 24 hours per
day, 7 days per week, 365 days per year with a 30-minute pager
telephone response basis. Seller will also provide an escalation
list with the phone numbers of at least three senior technical
personnel. If a problem occurs with a piece of Seller's Equipment,
Buyer shall immediately call Seller's Technical Support (or
escalation list, if necessary).
B. If a problem with Equipment cannot be resolved by Buyer's personnel
within 1 hour of such a call, Seller will have service personnel on
Buyer's site within 4 hours or within 2 hours if an extended service
contract is in place.
C. If the problem is still unresolved 24 hours after the initial call,
Seller shall dispatch at least one additional senior (Level III)
field service engineer to the site.
D. If the problem is still unresolved 36 hours after the initial call,
Seller Management shall update Buyer with repair status every 4
hours until equipment is returned to production. The previously
agreed plan of action is reviewed, updated and modified as required.
If the problem is still unresolved, the Seller shall dispatch a team
of Process, Hardware, and Software experts from Seller Engineering /
Design group. Such persons shall travel by the most expeditious
route at Seller's expense.
E. A post mortem report is required for all equipment down over 24
hours. Seller's Field Service Manager is responsible for scheduling
a post mortem meeting with the Buyer after the "Escalated" problem
is resolved
F. These levels of escalation will be provided at no cost during the
warranty period.
9. TECHNICAL EXPERTISE
A. All Seller personnel who work on equipment (including installation
or relocation) at Buyer's sites must be Level III certified per
Section 11 Field Service Engineer Skills and Expectations. Seller
will inform Buyer when such personnel do not meet Level III
certification criteria, and will be subject to remedies described
below
B. On Site Field Service Engineer (OSFSE) - The OSFSE shall be
responsible for resolving any Seller personnel-related discipline
issues. However, Buyer reserves the right to request the immediate
removal of any Seller personnel who are in breach of any laws,
regulations, or provisions of this Agreement. The OSFSE will be a
primary communication link from Buyer's factory to Seller, and will
participate in Buyer's various equipment improvement teams, and
management reviews as requested. As requested by Buyer, the OSFSE
will deliver informal on-the-job-training, working with team members
from the Buyers Technical Staff.
C. Off Site Field Service Engineer (OFSFSE) - FSE's must maintain and
repair the equipment listed in this contract or factory specific
Scope of Work. The work of FSE's on shift will be coordinated
through Buyer's Shift Technical Supervisor or Manager.
D. Upon request, Seller shall furnish evidence of any and all Field
Service Engineers (FSEs) credentials with respect to being Level III
certified, as defined in this section. Buyer shall have the right to
audit any such evidence, including, but not limited to, the right to
interview any of Seller's personnel designated for the performance
of applicable factory-specific service Scope of Work or equipment
associated as noted in this agreement.
E. Buyer must maintain all training and certification records for all
Field Service Engineers. As part of Buyer's ISO 9001 certification
process, Seller may be requested to provide information regarding
Buyer in-house training or current calibration records for all
applicable hand tools, and current listing of all manuals, including
revision number.
F. If any of Seller's personnel assigned to any factory-specific
service Scope of Work, upon commencement of work at Buyer's factory,
are not Level III as defined in this Section, Buyer may choose from
one of the remedies listed below. Such remedies will apply only to
the
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individual personnel in question and will be in effect only until
such time as Seller can prove that such personnel have met the
requirements to be "Level III."
i. The individual is removed from Buyer's factory and replaced by
a "Level III." Or,
ii. The individual shall be paid-for at 50% of the rate
established in this Agreement and an agreed Seller-developed
training plan will be established for that individual. Or,
iii. The individual may remain but shall be supplemented at no
charge by an additional Seller personnel who is Level III
certified. Or,
iv. Buyer may cancel the portion of the applicable
factory-specific service Scope of Work equal to the number of
individuals who are not Level III, with no cancellation
liability. Or,
v. Withhold 20% of final equipment payment, until Field Service
Engineer is Level III certified.
10. OTHER SELLER RESPONSIBILITIES
A. If multiple PM procedures exist, Buyer's procedures will be executed
by default.
B. Seller will provide documented and demonstrated equipment
maintenance, troubleshooting and repair procedures. These Best Known
Method (BKM), Response Flow Checklist (RFC) or Copy Exactly (CE)
established procedures must be designed or intended to minimize
equipment downtime and parts consumption. The Buyer, using Buyer
validation approval systems, must approve all Seller BKM or CE
procedures.
C. Seller will adhere to all Buyer safety and ergonomic requirements
identify tool-related safety and ergonomic issues (both actual and
potential) and work on solutions to resolve identified issues.
D. Seller is responsible for FSE training, tracking and competency in
all Buyers safety requirements, as per Section 11 FSE Skills and
Expectations. This is inclusive of any and all work performed by the
Sellers FSE, at the Buyer's sites.
E. Should Seller have non-English speaking FSE's on site, Seller will
provide adequate bi-lingual support for translation.
11. FIELD SERVICE ENGINEER SKILLS AND EXPECTATIONS
Qualifications for Level III certification include, but are not limited to
the skills or activities listed below. Skills and expectations are generic
and may vary depending upon tool applicability.
A. At least six months experience working with the model(s) of
equipment being supported under this Agreement.
B. The ability to demonstrate proficiency in all of the tasks listed in
applicable factory-specific service Scopes of Work and any other
factory-specific requirements as agreed to in writing.
C. Safety:
1. Apply appropriate equipment specific safety procedures
rigorously.
2. Suggest and maintain safety improvements.
3. Perform tasks according to safety system requirements.
4. Identify and describe hazards and safety procedures for acids,
solvents, pressurized and inert gases, cryogenics related to
the equipment set.
5. Describe the mechanical, electrical (EEW), vacuum, pneumatic,
hydraulic, and thermal hazards and the associated safety
procedures for the equipment set.
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6. Apply ergonomically correct methods for lifting and handling
of equipment and equipment components.
7. Recognize and describe the use of emergency shut off switches,
interlocks and valves for the machines in the equipment
cluster/set.
8. Describe the correct hot work safety procedures.
9. Correctly handle reactive gases, acids, solvents, pressurized
and inert gases at point of use, specific to the equipment
set.
10. Describe MDA and safety system leak detection.
11. Certified to perform CPR and First Aid, has received
Electrical Safety Training, (if in U.S. must meet OSHA
Requirements), has read and understands Intel Electrical
Safety Procedures, understands Control of Hazardous Energies
and Lock Out Tag Out (LOTO) procedures.
D. Overall equipment knowledge
1. Display knowledge of software and controls specific to the
process tools in the equipment set.
2. Ensure machine quality standards are met before returning
machine back to production by performing appropriate monitors.
3. Use simple measurement tools in a documented procedure.
4. Use basic hand tools properly as defined for the equipment
group.
5. Perform automatic system alignments/adjustments per
specifications.
6. Run standard machine monitors.
7. Operate optical measurement equipment.
8. Attain basic theoretical knowledge of the equipment in the
set.
9. Demonstrate knowledge of facilities and sub-systems of the
process tools in the equipment set.
10. Understand the impact of the equipment variables on the
process.
11. Assist with improvements and upgrades.
12. Work with supplier and facilities to install new equipment.
E. Maintenance/ Troubleshooting
1. Perform daily, weekly, monthly, quarterly, semi-annual, and
annual PMs as defined for equipment set.
2. Assist in major PMs.
3. Perform weekly maintenance based on data.
4. Recognize and react accordingly to alarms and error codes.
5. Troubleshoot basic transport problems i.e. shuttle cassette
not sitting on elevator properly.
6. Troubleshoot standard station controller problems (if
required).
7. Maintain equipment as certified from supplier operations,
maintenance, and troubleshooting classes.
8. Troubleshoot using complex Response Flow Checklists (RFC) and
schematics. Know how all sub-systems are integrated.
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9. Participate in RFC development.
10. Apply advanced troubleshooting methods.
11. Participate as the experts in the implementation of equipment
improvements.
12. Demonstrate proficiency in electrical skills with regard to
working within EEW procedures.
F. Documentation/ Systems
1. Write PM specifications and RFCs.
2. Use PM checklists correctly and update PM checklist with
expert supervision.
3. Enter necessary equipment data into Buyer's data collection
database, correctly, including sub-assembly and repair data.
4. Generate status reports and interpret data from Buyer's data
collection database to solve problems.
G. Supplier Interface
1. Work with suppliers and facilities to install new equipment.
2. Interact with suppliers and factory support groups.
H. Tool specific requirements
12. SERVICE PRICING
SERVICE PRICING FOR OUT-OF-WARRANTY OR ADDITIONAL SERVICE
SERVICES ***
Dedicated FSE (terms subject to negotiation) *** *** *** ***
Hourly:
Monday-Sunday, 8:00a-5:00p *** *** *** ***
Hourly:
Monday-Sunday, Holidays, Overtime
(40+ hours per week and/or 8+ hours per day)
5:00p-8:00a *** *** *** ***
Minimum billing *** *** *** ***
Travel time *** *** *** ***
Transportation/Lodging *** *** *** ***
Per Diem *** *** *** ***
On-call Support:
7x16 (1st and 2nd shift) *** *** *** ***
On-call Support:
7x24 *** *** *** ***
Training: @ Delta ▇▇▇▇▇▇▇
▇▇ ▇▇▇ (▇▇▇▇▇ 1,2) *** *** *** ***
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Training: @ Delta Factory
80 hrs (Level 3) *** *** *** ***
Training: On-site
40 hrs (Level 1,2) *** *** *** ***
Training: On-site
80 hrs (Level 3) *** *** *** ***
**** TRAVEL/RELATED EXPENSES: Travel/Related Expenses to be quoted separately:
Where applicable, no reimbursement for travel and travel-related expenses will
be made by Intel for such expenses in excess of Intel's Travel Service
guidelines. Travel arrangements and /or guidelines will be furnished to Supplier
upon request
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ADDENDUM B
ALCOHOL/DRUG-FREE WORKPLACE DIRECTIVE
Intel is committed to fulfilling its legal and ethical responsibility to
maintain a safe and efficient working environment on Intel premises. Supplier's
drug and alcohol program shall be at least as stringent as Intel's. This means
that at a minimum, Supplier shall ensure that all Contractors assigned to Intel
premises shall pass a screen test (urine analysis) for drugs per the schedule
outlined below within seventy-two (72) hours after the Supplier has identified
the Contractor to be assigned to Intel.. For purposes of this Addendum B, the
term "Contractor" refers to Supplier's employees or subcontractors providing
Services to Buyer under the Agreement. Any Contractor who does not successfully
pass the screen test within such seventy two (72) hour period will be barred
access to all Intel facilities. In addition, when Intel has a reasonable
suspicion that a Contractor is under the influence of alcohol or drugs in
violation of Intel's standards, Supplier shall, at Intel's request, either
perform immediate drug and alcohol testing of any Contractor so assigned, or
shall remove the Contractor from the Intel premises.
If a Contractor tests positive, that Contractor will be denied access to Intel
premises and Intel will require return of that Contractor's security badge
immediately. In addition, a corporate-wide "no-access" notation will be placed
in the Intel corporate security database and no Application for Waiver will be
considered by Intel.
Supplier will be responsible for all testing and for maintaining of records for
its Contractors. Supplier will also be responsible for prompt notification and
removal of any Contractor found to be in violation of Buyer's Alcohol and
Drug-Free Workplace Directive. This includes retrieving the Contractor's badge
(including duplicate picture badges, Fab, AT, or other specialty access or
permit badges and other property movement badges) and other Intel property, and
depositing same at the nearest Intel security post.
Also, Intel may, at its option, exercise its right to audit Supplier's personnel
records related to compliance with Intel's Drug and Alcohol Directive to ensure
that federally certified laboratories are being used and appropriate procedures
are adhered to.
DRUGS SCREENING METHOD CUTOFF (IMMUNOASSAY) CONFIRMATION METHOD CUTOFF (GC/MS)
Amphetemines 1000 ng/ml 500ng/ml
Cannabinoids 50 ng/ml 15 ng/ml
Cocaine 300 ng/ml 150 ng/ml
Opiates 300 ng/ml 300 ng/ml
Phencyclidine 25 ng/ml 25 ng/ml
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ADDENDUM C
PROTECTION OF INTEL'S ASSETS
Supplier agrees to safeguard Intel's classified (i.e., Intel Confidential, Intel
Secret, Intel Restricted Secret and Intel Top Secret) and proprietary
information set out in the body of the parties' Agreement and relevant
Unescorted Access Application forms for badges. Supplier also agrees to use and
apply Intel's information protection methods stated below in this Addendum in
the performance of Supplier's work. Supplier agrees that this performance
standard applies to all Intel classified and proprietary information, regardless
of the medium (Intel's or Supplier's) in or on which it is retained or
communicated and to software that is licensed by Intel for its internal use.
Supplier is not automatically granted access to Intel classified and proprietary
information, networks or software. However, authorization to use or access Intel
information, software, or telecommunications may be granted by the Intel
information owner if access is necessary and directly related to Supplier's
scope of work or duties. Unless specifically authorized, Supplier may not use or
access Intel classified or proprietary information that may be happened upon or
inadvertently discovered while performing work under this Agreement. Neither may
a Supplier or Supplier's employee control an Intranet web site at Intel.
Supplier shall not modify Intel classified or proprietary information, software,
hardware, or telecommunications without the explicit permission of the Intel
employee responsible for the resource, with the exception of contract-related
requirements or resources that allow for individual customization (e.g.,
Microsoft Windows user features). The Supplier's employees, agents, or
subcontractors may not disclose Intel classified or proprietary information to
their co-workers, except for disclosure to those similarly bound to protect
Intel's intellectual property with a need to know to fulfill this Agreement.
INTEL INFORMATION PROTECTION METHODS
This section outlines the Intel's minimum requirements for protection methods
for all Intel classified or proprietary information and software that the
Supplier's personnel may come in contact with. Intel recognizes that the correct
and proper protection of its information rests with its employees and Suppliers
who have been authorized access. FAILURE TO COMPLY WITH THESE REQUIREMENTS WILL
PROVIDE GROUNDS FOR IMMEDIATE TERMINATION OF THIS AGREEMENT BY INTEL. Periodic
updates to these protection methods can be found on Intel's internal web at:
URL ▇▇▇▇://▇▇▇-▇▇▇▇▇▇▇.▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/
Upon reaching the above web site, refer to Policies for Employees and Procedures
for Employees. These protection methods may also be obtained through your
purchasing representative.
For further information or questions, contact your Intel management sponsor.
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ADDENDUM D
EQUIPMENT SPECIFIC TERMS AND CONDITIONS - ALSO SEE THE COMMERCIAL HANDBOOK
1. MODEL, DESCRIPTION, SPEC, AND LEAD-TIME INFORMATION
DESCRIPTION MODEL # SPEC # PRICE LEADTIME
----------- ------- ------ ----- --------
*** *** 06-705 REV 0 *** ***
*** *** 06-705 REV 0 *** ***
*** *** 06-705 REV 0 *** ***
*** *** 06-705 REV 0 *** ***
*** *** 06-705 REV 0 *** ***
*** *** 06-705 REV 0 *** ***
*** *** 06-705 REV 0 *** ***
*** *** 06-705 REV 0 *** ***
*** *** *** ***
*** *** *** ***
*** *** *** ***
*** *** *** ***
*** *** ***
***TABLE 1: MODEL, DESCRIPTION, SPEC, AND LEAD-TIME INFORMATION. FOR BLU, RFS,
ORION, PTC, AND ETC, REFER TO THE COMMERCIAL HANDBOOK.
A. Tiered pricing schedule for ***:
Systems 1-15 ***
Systems 16-30 ***
Systems 31-45 ***
Systems 46-65 ***
Systems 66-95 ***
Systems 96-125 ***
Systems >125 ***
2. ***
3. ***
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TOTAL SUMMIT AND RFS HANDLERS UNDER WARRANTY AT SITE
YEAR 1 YEAR 2 YEAR 3 FSE SUPPORT PROVIDED UNDER WARRANTY
1-9 1-11 1-12 1 FSE (40 hrs/wk each, or 80 hrs/2 wks each for compressed work week)
10-20 12-22 13-24 2 FSE (40 hrs/wk each, or 80 hrs/2 wks each for compressed work week)
21-30 23-33 25-36 3 FSE (40 hrs/wk each, or 80 hrs/2 wks each for compressed work week)
31+ 34+ 37+ 4 FSE (40 hrs/wk each, or 80 hrs/2 wks each for compressed work week)
4. CAPITAL EQUIPMENT PRICE LISTS - SEE ADDENDUM D SECTION 1 ABOVE. ALSO
REFER TO THE COMMERCIAL HANDBOOK
*REFER TO THE COMMERCIAL HANDBOOK FOR RFS, ORION, BLU, AND OTHER SURVIVING
AMENDMENTS 1-13 FROM CONTRACT #***.
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ADDENDUM E
TRAINING AND DOCUMENTATION REQUIREMENTS
(a) Intel Governing Specification 20-254 revision 15 is incorporated by
reference. It can be found at ▇▇▇▇://▇▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇
in the table "BKM Name" entitled "20-254 Spec".
1. The governing specification 20-254 revision 15 can be obtained by
Commodity Manager or a representative from TMG-T.
2. TRAINING
(a) Buyer's training and documentation representative may audit
each class once per year as described in 20-254 rev 15 at no
cost.
(b) Seller will provide one (1) pilot delivery for each new
training class described in 20-254 to the Buyer for up to six
(6) students at no cost.
(c) Seller will provide a Training Tool during all training
sessions that will reside in North America.
(d) Seller will deliver On-Buyer site classes to meet factory
shift requirements as required per site.
(e) One (1) day equals eight (8) hours of instruction time.
(f) Buyer is responsible for all travel, lodging expenses, and per
diem for Seller's instructor.
(g) Course cancellation policy
(i) Buyer has the right to cancel any confirmed class up
to "5" business days prior to class start date in the
US, "10" days at non-US site, without penalty. If the
Buyer cancels the confirmed class within "5/10" days
prior to class start date, the Buyer will pay actual
documented incurred cost.
(ii) Seller has the right to cancel any confirmed class up
to "10" business days prior to class start date
without penalty. If the Seller cancels the confirmed
class within "10" business days or misses the
confirmed class date, the Seller will deliver the
next class at no cost.
(h) Assembly/Test Course Training Cost N/A
(i) On Buyer's site cost per class (containing up to six
(6) students) equals X multiplied by the number of
course days.
(iii) On Seller's site cost per class (containing up to six
(6) students) equals X multiplied by the number of
course days.
(i) Seller to work with Buyer on jointly agreed internalized
Assembly/Test Course Training classes per buyer request.
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ADDENDUM F
REFER TO THE LATEST COMMERCIAL HANDBOOK - SPARES PRICE LIST
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ADDENDUM G
SERVICES AND TRAINING PRICING
13. SERVICE PRICING
Service pricing for out-of-warranty or additional service
SERVICES *** *** *** ***
-------- --- --- --- ---
Dedicated FSE (terms subject to negotiation) *** *** *** ***
Hourly: *** *** *** ***
Monday-Sunday, 8:00a-5:00p
Hourly: *** *** *** ***
Monday-Sunday, Holidays, Overtime (40+ hours
per week and/or 8+ hours per day)
5:00p-8:00a
Minimum billing *** *** *** ***
Travel time *** *** *** ***
Transportation/ *** *** *** ***
Lodging
Per Diem *** *** *** ***
On-call Support: *** *** *** ***
7x16 (1st and 2nd shift)
On-call Support: *** *** *** ***
7x24
Training: @ Delta Factory *** *** *** ***
40 hrs (Level 1,2)
Training: @ Delta Factory *** *** *** ***
80 hrs (Level 3)
Training: On-site *** *** *** ***
40 hrs (Level 1,2)
Training: On-site *** *** *** ***
80 hrs (Level 3)
*TRAVEL/RELATED EXPENSES: Travel/Related Expenses to be quoted separately: Where
applicable, no reimbursement for travel and travel-related expenses will be made
by Intel for such expenses in excess of Intel's Travel Service guidelines.
Travel arrangements and /or guidelines will be furnished to Supplier upon
request.
2. Training - Refer to Addendum E
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ADDENDUM H
THIRD PARTY TECHNOLOGY ESCROW
A. Buyer shall have the option to exercise the provisions of this addendum
only if, during at least one fiscal quarter, Seller's operating results
yield a score of 3.0 or less in the ▇▇▇▇▇▇ Z-Score Bankruptcy Predictor
model.
B. Upon the request of Buyer, Seller will, at its sole cost and expense,
deposit copies in electronic format of any and all engineering
drawings, proprietary information, technical documentation, know how,
specifications and the like, as may be required by Buyer for the
support, operation, maintenance and manufactured of all Items by Buyer,
or a third party contractor of Buyer, ("Deposit") with a third party
escrow holder ("Escrow Holder") approved in advance by Buyer. As a
condition to approval by Buyer, the Escrow Holder must be generally
engaged in the business of acting as an Intellectual property escrow
holder and if required by law, licensed to act in such capacity. The
escrow agreement for the Deposit shall name Buyer as beneficiary and
shall provide for the release of the Deposit to Buyer upon the
occurrence of any of the following release conditions ("Release
Conditions"):
(1) Any bankruptcy, reorganization, debt arrangement, or other
case or proceeding under any bankruptcy or insolvency law, or
any dissolution or liquidation proceeding is commenced by or
against Seller, and if such case or proceeding is not
commenced by Seller, it is not dismissed within sixty (60)
days from the filing thereof; or
(2) Seller fails to continue to do business in the ordinary
course, as such business relates to the goods and services to
be provided under this Agreement; or -
(3) Seller becomes insolvent or generally fails to pay, or admits
in writing its inability to pay, its debts as they become due;
or
(4) Seller applies for or consents to the appointment of a
trustee, receiver or other custodian for Seller, or makes a
general assignment for the benefit of its creditors; or
(5) Seller is unable or unwilling to perform its obligations under
the Agreement due to a condition set forth above for a period
of sixty (60) days or more ; or .
(6) Seller breaches any of its service obligations under the
Agreement including, but not limited to, maintenance, repair,
continuous improvement, upgrades and modifications of Items
and does not cure such breach within sixty (60) days after
receiving written notice thereof by Buyer.
C. Upon the release of the Deposit to Buyer, Seller grants to Buyer a
non-exclusive, world-wide, irrevocable, fully paid up, royalty-free,
perpetual license under Seller's Intellectual Property (including trade
secrets, copyrights and patents, if any) embodied in the Deposit to:
(i) use, reproduce, display, perform, make derivative works of,
incorporate in Items and distribute internally but solely in
conjunction with the maintenance, repair, improvement, upgrade and
modification of Items by Buyer, or a third party contractor of Buyer,
and (ii) to make, have made, use, sell, offer to sell or import Items
which employ or incorporate Seller's Intellectual Property for use
internally by Buyer. Buyer shall be required to maintain the
confidentiality of the released materials while in its possession. Upon
written request of Seller, at such time as Seller shall have remedied
the Release Conditions under which the Deposit was released to Buyer,
Buyer shall promptly return the Deposit to the Escrow Holder. At such
time, the license granted above shall terminate, except for any license
granted to a third party by Buyer for the unexpired portion of any
existing agreement with the third party or any use or right exercised
by Buyer during the period that Buyer was in possession of the Deposit.
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ADDENDUM I
SPARE PARTS CONSIGNED INVENTORY PROGRAM
* * *
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ADDENDUM J
FSE CURRICULUM SUMMARY AND PRICING
(INCLUDES BUT NOT LIMITED TO THE SKILLS OR ACTIVITIES LISTED BELOW)
(SKILLS AND EXPECTATIONS ARE GENERIC AND MAY VARY DEPENDING UPON TOOL
APPLICABILITY)
FIELD SERVICE ENGINEER SKILLS AND EXPECTATIONS:
Apply appropriate equipment specific safety procedures
rigorously. Identify and describe hazards and safety procedures for acids,
solvents, pressurized and inert gases, cryogenics related to the equipment set.
Describe the mechanical, electrical (EEW), vacuum, pneumatic, hydraulic, and
thermal hazards and the associated safety procedures for the equipment set.
Apply ergonomically correct methods for lifting and handling of equipment and
equipment components. Recognize and describe the use of emergency shut off
switches, interlocks and valves for the machines in the equipment cluster/set.
Describe the correct hot work safety procedures. Correctly handle reactive
gases, acids, solvents, pressurized and inert gases at point of use, specific to
the equipment set. Describe MDA and safety system leak detection. Use PM
checklists correctly. Enter necessary equipment data into CEPT, or equivalent
system, correctly including sub-assembly and repair data. Generate CEPT status
reports. Use MS Word to edit specs. Use station controller appropriately to
handle PMs and software. Access stores ordering system to obtain necessary
spares and other parts. Perform daily and weekly PMs as defined for equipment
set. Recognize and react accordingly to alarms and error codes. Display
knowledge of software and controls specific to the process tools in the
equipment set. Ensure machine quality standards are met before returning machine
back to production by performing appropriate monitors. Use simple measurement
tools in a documented procedure. Use basic hand tools properly as defined for
the equipment group. Perform automatic system alignments/adjustments per
specifications. Run standard machine monitors. Operate optical measurement
equipment. Assist in major PMs. Perform scheduled preventative maintenance.
Demonstrate knowledge of facilities and sub-systems of the process tools in the
equipment set. Attain basic theoretical knowledge of the equipment in the set.
Understand the impact of the equipment variables on the process. Certified to
perform CPR and First Aid, has received Electrical Safety Training, (if in U.S.
must meet OSHA Requirements), has read and understands Intel Electrical Safety
Procedures, understands Control of Hazardous Energies and Lock Out Tag Out
(LOTO) procedures.
Update PM checklists with expert supervision. Demonstrate
proficiency in electrical skills with regard to working within EEW procedures.
Troubleshoot basic transport problems i.e. shuttle cassette not sitting on
elevator properly. Make decisions involving interactions of facility and
sub-assembly. Perform monthly and quarterly PMs as defined for equipment.
Perform tasks according to safety system requirements. Use data acquisition
station controllers. Interpret CEPT data to solve problems. Use spreadsheets and
operating systems. Troubleshoot standard station controller problems (if
required). Maintain equipment as certified from supplier operations and
maintenance classes. Troubleshoot using complex RFCs and schematics. Know how
all sub-systems are integrated. Assist with improvements and upgrades.
Participate in RFC development.
Suggest and maintain safety improvements. Maintain equipment
as certified by supplier and maintenance and troubleshooting classes. Interact
with suppliers and support groups. Write PM specifications and RFCs. Apply
advanced troubleshooting methods. Participate as the experts in the
implementation of equipment improvements. Work with suppliers and facilities to
install new equipment. Perform semi-annual and annual PMs.
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ADDENDUM K
SUPPLEMENTAL PROVISIONS
EXCLUSIVITY
In consideration for Buyer's contribution to the design and
development of the (insert Tool description or project name), Seller
agrees not to sell, offer to sell or sample the (insert Tool
description or name) or any other equipment that uses the design or
developments in the (insert Tool description or project name) to any
3rd party without Intel's express written consent for a period of X
months (insert time duration TBD mutually agreed upon depending on
the project) from the Effective Date of the Amendment (the
"Exclusivity Period").
ROYALTY
In consideration for Buyer's contributions to the design and
development of the (insert Tool description or project name), the
Seller agrees to pay Buyer a running royalty equal to X% (mutually
agree upon depending on the project) X percent of the gross revenues
(excluding sales to Buyer) generated by Seller from the sale (insert
Tool description or project name) after the Exclusivity Period.
Royalties shall accrue quarterly and be payable within thirty (30)
days after the end of each quarter. Buyer has the option to receive a
credit for the royalties for application to future orders, extended
warranties, or other options selected at Buyers discretion.
RIGHT OF FIRST REFUSAL
After the Exclusivity Period, Seller agrees that Buyer shall have the
right of first refusal ("ROFR") on Seller's manufacturing capacity to
purchase (insert Tool description or project name). In each case,
Seller will notify Buyer in writing in advance of the delivery
timeframes for the (insert Tool description or name) available to
Buyer under the ROFR, and Buyer will have thirty (30) days after the
receipt of the notification to issue a Release for such (insert Tool
description or project name). The ROFR for any (insert Tool
description or project name) for which Buyer does not issue a Release
within the thirty (30) days shall expire.
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ADDENDUM L
LIMITATION OF LIABILITY
Except as expressly provided hereafter, Seller shall not be liable to Intel for
any punitive, special, incidental, or consequential damages (including any
damages resulting from loss of use, loss of data, loss of profits, or loss of
business) arising out of or in connection with this Agreement, even if Seller
has been advised of the possibility of such damages, and regardless whether such
damages arise in contract, tort, or otherwise. Notwithstanding the foregoing,
nothing herein shall be construed to limit Seller's liability in any way for
bodily injury or death to any person, physical damage to property or for any and
all claims, demands or damages of any third party arising from the indemnity
obligations of the Seller provided in this Agreement.
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