EXHIBIT 10.25
CONFIDENTIAL TREATMENT REQUESTED
INTEL CORPORATION PURCHASE AGREEMENT --
CAPITAL EQUIPMENT AND SERVICES
AGREEMENT NUMBER: C-05673
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EFFECTIVE DATE: 1-8-01
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CNDA #: 43059
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BUYER:
Intel Corporation (and all divisions and wholly-owned subsidiaries, hereinafter
"BUYER" OR "INTEL").
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SELLER:
FormFactor Inc. (hereinafter "SELLER").
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▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Livermore, CA 94550
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ADDENDA ATTACHED HERETO AND [X] General Terms and Conditions of
INCORPORATED HEREIN BY REFERENCE Purchase Agreement - Capital
Equipment and Services
(MARK "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
[ ] D Equipment Specific Terms and
Conditions
[ ] E Training and Documentation
Requirements
[ ] F Spare Parts Price List
[ ] G Pricing for Services and
Training
[ ] H Third Party Technology Escrow
[ ] I Spare Parts Consigned Inventory
Program
[ ] J FSE Curriculum Summary
[X] K Negotiated Changes
[X] L Pricing and Lead-time
[X] M Procurement Specification
[X] N Subassembly/Electrical
Specification
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 ▇▇▇▇▇ hereby gives
notice of objection to and rejection of such material alterations.
INTEL CORPORATION SELLER
Signed: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Signed: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Commodity Manager Title: Director U.S. Sales
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Date: 1-8-01 Date: 1-14-01
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
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 * * *.
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. "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.
E. "FACILITIZATION" means placement and rough hook-up of electrical, gas, and
vacuum utilities to the Items.
F. "FORECAST(s)" means the quantity of Items or Services that Buyer reasonably
anticipates it may purchase during a specified time.
G. "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.
H. "ITEMS" means either singly or collectively, as the context indicates:
Equipment; Equipment components; software; hardware; Spare Parts; upgrades,
retrofits, modifications, 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.
I. "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 received by
the Seller.
J. "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).
K. "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 site which are (i) complete and (ii) delivered
to the * * *.
L. "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.
M. "RELEASE" means Buyer's purchase order or change order to ship a definite
quantity of Items or to provide Services to a specified schedule.
N. "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").
O. "SPARE PART(s)" mean Consumable and/or Non-Consumable Spare Parts.
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
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2. TERM OF AGREEMENT.
A. This Agreement shall be effective for three (3) 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 or decline 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 or amendment, 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 or amendment, 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.
▇. ▇▇▇▇▇ 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 ▇▇▇▇▇▇'s failures to abide by
the obligations of this Agreement shall be reported to Buyer.
D. Applicable taxes and other charges such as duties, customs, tariffs,
imposts, and government imposed surcharges shall be paid for by Seller
without reimbursement from Buyer as part of the purchase price for
Items and Services. In the event that ▇▇▇▇▇ is prohibited by law from
remitting payments to the Seller unless Buyer deducts or withholds
taxes therefrom on behalf of the local taxing jurisdiction, then Buyer
shall duly withhold such taxes and shall remit the remaining net
invoice amount to the Seller. Buyer shall not reimburse Seller for the
amount of such taxes withheld.
E. Additional costs, except those provided for herein or specified in a
Release, will not be reimbursed without ▇▇▇▇▇'s prior written
approval.
F. All prices are in U.S. dollars.
G. Seller shall provide Seller's annual audited financial statements and
independent auditors' opinion to Buyer within three (3) months of the
Seller's fiscal year-end date. Seller shall provide Seller's annual
financial statements for
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Seller's equipment division/subsidiary and a signed management letter
to Buyer within three (3) months of the Seller's fiscal year-end date.
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 delivery; 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 courier.
Invoices shall include: Purchase Agreement number from the Release,
purchase order number, line item number, Release number, part number,
complete bill 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. Any applicable taxes or other charges
such as duties, customs, tariffs, imposts and government imposed
surcharges shall be stated separately on Seller's invoice. 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.
D. Except for each new Equipment model, payment on Equipment shall be as
follows: * * * percent (* * * %) net * * * (* * *) days from ship date;
* * * percent (* * * %) net * * * (* * *) days from the final
acceptance date. 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 * * * percent (* * * %) net * * *
(* * *) days from the date of shipment. On each Equipment model that
Buyer purchases for the first time, payment shall be * * * percent (* *
*%) net * * * (* * *) days from shipment; * * * percent (* * *%) net *
* * (* * *) days from the final acceptance date. Seller shall submit
Buyer acceptance certificate or non-acceptance certificate at
completion of final acceptance tests.
E. Payment on all Items and Services other than Equipment shall be * * *
percent (* * *%) net * * * (* * *) days after * * *.
▇. ▇▇▇▇▇▇ agrees to invoice Buyer no later than * * * (* * *) days after
completion of Services or the delivery of Item(s) to the FCA point.
Buyer will not be obligated to make payment against any invoices
submitted after such period. In addition, if Seller exceeds * * *
(* * *) * * * without providing written documentation with the purpose
to collect payment on any invoice, Buyer shall not be obligated to make
payment against such invoice regardless of initial invoice submittal.
5. TERMINATION FOR CONVENIENCE.
▇. ▇▇▇▇▇ 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 ▇▇▇▇▇▇'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 payment
of authorized Services and Items already provided by Seller but not yet
invoiced. 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, nor for any
costs Seller could reasonably have avoided, nor for any indirect
overhead and administrative charges or profit of Seller.
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
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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.
▇. ▇▇▇▇▇▇'s claim may include the net cost of custom 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. In no event shall such claim exceed the following
cancellation schedule for Equipment .
* * *
Upon payment of ▇▇▇▇▇▇'s claim, ▇▇▇▇▇ 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, failure to meet the
delivery date(s) in the Release shall be considered a material breach
of contract and shall allow Buyer to terminate the order for 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 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 ▇▇▇▇▇'s purchasing agent, (as noted on the
Release), within * * * (* * *) 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.
▇. ▇▇▇▇▇▇ agrees to acknowledge each Release to ▇▇▇▇▇ (as noted on the
Release) within * * * (* * *) hours after receipt of the Release.
▇. ▇▇▇▇▇ 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.
E. * * *
▇. ▇▇▇▇▇▇ 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 of * * * percent (* * *%) for each calendar day late.
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 ▇▇▇▇▇▇ 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 of
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
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Items (as measured by adherence to the Ship Date on the most recent
Release) will result in a price reduction of * * * dollars ($* * *)
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 any costs incurred by ▇▇▇▇▇ in
obtaining cover in the event of such termination.
G. * * *
▇. ▇▇ ▇▇▇▇▇'s discretion, * * *.
I. Seller will, as required by ▇▇▇▇▇, * * *, and Buyer will * * * 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.
▇. ▇▇▇▇▇▇ 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 one hundred eighty (180) days after the notice,
during which time Buyer will have the option to place a final Release
for such Items for delivery after the one hundred eighty (180) day
notice. Buyer may return obsolete Items within ninety (90) days after
written notification of part revision or obsolescence, at no cost. If
any warranty return claims are made for such discontinued Items, then
such returns will be subject to the warranty provisions in Section 8.
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 may give written 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 full
credit or (b) have the Equipment replaced with new Equipment
within * * * (* * *) days 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.
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
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(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 (both Spare Parts and Service) starting from the date of
final acceptance of the Equipment. The warranty for additional
Spare Parts, 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.
Seller shall perform warranty work * * * (* * *) hours per day,
* * * (* * *) 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.
(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 * * * (* * *) days and * * *
(* * *) days prior to the warranty expiration date for an Item
explaining the extended warranty options and costs.
▇. ▇▇▇▇▇▇ 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 resale of the Items.
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.
F. Notwithstanding anything to the contrary contained in this Agreement,
Seller represents and warrants that there will be no disruption in the
delivery of Items or Services under this Agreement as a result of or
due to the date change from and between December, 1999, and January,
2000, nor due to the year 2000 being a leap year.
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 mark 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.
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
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B. All Equipment shall be delivered FCA (Seller's dock) according to July
1990 Incoterms. 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 Equipment shall pass to Buyer upon delivery to the FCA
point.
C. All Items other than Equipment shall be Delivered Duty Paid ["DDP";
July 1990 Incoterms] Buyer's dock for Non-Free Trade zone factory
sites or Delivery Duty Unpaid ["DDU"; July 1990 Incoterms] Buyer's
dock for Free Trade zone factory sites as specified in the Release.
Title and risk of loss for all Items other than Equipment shall pass
to Buyer upon delivery of Items to Buyer's dock.
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 (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 ▇▇▇▇▇'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.
Additionally, Seller may be engaged to develop new information for
Buyer, or may develop such information during the performance of
Services, which information will become, upon creation, ▇▇▇▇▇'s
confidential information unless otherwise agreed in writing. 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. 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.
8
C. 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 ▇▇▇▇▇'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 ▇▇▇▇▇▇'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.
14. 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.
E. 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.
15. CUSTOMS CLEARANCE.
Upon ▇▇▇▇▇'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.
16. COMPLIANCE WITH LAWS AND RULES
9
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 (Laws)
governing the manufacture, transportation 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 Laws governing Seller's personnel providing Services to Buyer.
In complying with the Laws, it is understood and agreed that the
Equipment shipped to all Buyer sites worldwide must be of a common
configuration ("Copy Exactly) for use by all Buyer sites worldwide and
comply with any and all product safety requirements described in the
Purchase Spec or elsewhere in this Agreement. Any Copy Exactly
exception must be mutually agreed to and documented in a configuration
specification as a site specific option.
B. While on Buyer's premises or performing Services, ▇▇▇▇▇▇ 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. Seller will perform only those
Services identified on Addendum A and will work only in areas
designated for such Services. Seller shall take all reasonable
precautions to ensure safe working procedures and conditions for
performance on Buyer's premises and shall keep Buyer's site neat and
free from debris.
▇. ▇▇▇▇▇▇ represents and agrees that it is in compliance with U.S.
Executive Order 11246 and implementing EEO regulations, unless
exempted or inapplicable, and that it has complied and will continue
to comply with the U.S. Immigration Reform and Control Act of 1987.
Seller shall indemnify and hold Buyer harmless from any penalties
assessed against Buyer because of its violations of said laws due to
its relationship with Seller under this Agreement.
17. 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 $* * * 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 $* * * per
occurrence. Such insurance shall include an insurer's waiver of
subrogation in favor of ▇▇▇▇▇.
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 $* * *.
▇. ▇▇▇▇▇▇ 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.
18. GENERAL INDEMNIFICATION.
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
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
10
Seller, its employees, officers, agents, representatives or sub-contractors
in the performance of Services under this Agreement; or (c) dangerously
defective Items.
19. RETENTION AND AUDITS
Seller will maintain complete and accurate records of the 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.
20. 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, ▇▇▇▇▇ reserves
the right to instruct Seller to remove from ▇▇▇▇▇'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.
21. SECURITY.
Seller confirms that, to the best of its knowledge, employees of ▇▇▇▇▇▇
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 ▇▇▇▇▇ at ▇▇▇▇▇'s expense
and will be denied access to Buyer's facilities if any such criminal
convictions are discovered. ▇▇▇▇▇▇ also agrees to comply with ▇▇▇▇▇'s
Alcohol and Drug-free Workplace Directive set forth in Addendum B.
22. 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:
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.
▇. ▇▇▇▇▇ acknowledges and agrees that Seller shall retain sole and
exclusive ownership of any invention, improvement, development,
concept, discovery, or other proprietary information owned by Seller
or in which Seller has an interest ("Seller IP"). Notwithstanding the
foregoing, Seller agrees that if in the course of performing the
Services, Seller incorporates any Seller IP into any Development
developed hereunder, Buyer is hereby granted and shall have a
nonexclusive, royalty free, perpetual, irrevocable, worldwide license,
including the right to sublicense, under any such 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.
▇. ▇▇▇▇▇▇ shall assist ▇▇▇▇▇, at ▇▇▇▇▇'s expense, in obtaining,
registering, perfecting and enforcing all patents, trademarks, mask
work rights or copyrights necessary to protect ▇▇▇▇▇'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
▇▇▇▇▇'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 ▇▇▇▇▇'s request,
Seller shall make all such documentation available to Buyer.
11
23. 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.
"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 for 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, ▇▇▇▇▇ receives no other rights or license,
whether by implication, estoppel 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 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.
24. MERGER, MODIFICATION, WAIVER, REMEDIES AND SEVERABILITY.
A. This Agreement and any Releases issued hereunder contains the entire
understanding between ▇▇▇▇▇ 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.
▇. ▇▇▇▇▇'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.
25. ASSIGNMENT.
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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. For purposes of this Section 25, the
acquisition, merger, consolidation or change in control of Seller or any
assignment by operation of law shall be deemed an assignment that requires
▇▇▇▇▇'s written consent. Buyer may cancel this Agreement for cause should
Seller attempt to make an unauthorized assignment of any right or
obligation arising hereunder.
26. 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.
27. HEADINGS.
The headings provided in this Agreement are for convenience only and shall
not be used in interpreting or construing this Agreement.
28. 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 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.
29. 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 and 30
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.
30. ORDER OF PRECEDENCE.
In the event of a conflict or inconsistency between the Terms and
Conditions of this Agreement and its Addenda, Amendments, 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 one (1) month for each month that such Equipment
performs below the Availability Requirement. Seller has the right to
request a mutual review process, to review equipment performance data, at
which Seller may exclude downtime caused by the Buyer in the availability
calculations. This provision for warranty extensions does not apply until
three (3) months after Equipment final acceptance. If the Availability
Requirement is not met for more than six (6) consecutive months during the
warranty period, Buyer may, at Buyer's option: (a) return Equipment for
full credit; (b) obtain replacement parts, including major components, at
no cost to Buyer; or (c) have the non-complying Equipment replaced with new
Equipment within ninety (90) days. Warranty extensions may be reduced by
one (1) month for every two (2) months that the Equipment performs better
than three percent (3%) above the Availability Requirement. Buyer must be
in general compliance with Seller's recommended or a mutually agreed upon
preventative maintenance schedule for warranty extensions to be invoked.
Extensions will be agreed upon within ninety (90) 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, 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 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 * * * (* * *) days prior to any
proposed change. This
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
14
notice shall include the specific change requested, reason for
the change, specific change details, Items affected, and the
impact to Equipment in the field.
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.
4. TRAINING & DOCUMENTATION
A. The drawings, documentation, and training materials must conform to
the Intel specification 20-254 "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 G.
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
"DOCUMENTATION AND TRAINING REQUIREMENTS " defined in Addendum E.
Final equipment payment will not be made until the requirements of
this specification have been satisfactorily completed.
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.
▇. ▇▇▇▇▇▇ will notify Buyer's corporate purchasing representative,
corporate technical representative, 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 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
15
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. 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, ▇▇▇▇▇▇'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.
▇. ▇▇▇▇▇▇ acknowledges and agrees that all Recipes are the sole and
exclusive property of ▇▇▇▇▇ 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.
C. Seller may use the Confidential Information solely in conjunction with
Items and agrees not disclose the Confidential Information to any
third parties, including any affiliates, subsidiaries, parent or
sister companies, without the prior written approval of Buyer.
▇. ▇▇▇▇▇▇ 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 ▇▇▇▇▇ 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.
16
PART 2. SPARE PARTS.
1. PARTS DEFINITIONS
A. "LEAD-TIME" means the number of calendar days from the date a Release
is issued for an Item to the date the Item is to be shipped by the
Seller.
B. "AVERAGE LEAD TIME" means the average of Lead Times for all Items
delivered to Buyer within the Buyer's calendar month.
2. SPARE PARTS DELIVERY
A. For emergency (e.g. down Equipment) Spare Parts, Seller will accept
Releases eight (8) hours per day, Monday through Friday, fifty two
(52) weeks per year and will ship such emergency Spare Part Releases
within four (4) hours, and by the most expedient method possible. At
Buyer's option, Seller will arrange shipment of such Spare Part or
Buyer will arrange for pickup.
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 LEAD TIME YEARS 1-2 LEAD TIME YEARS 3
------------ ------------------- -----------------
CONSUMABLES * * * * * *
NON-CONSUMABLES * * * * * *
CONSIGNMENT REPLENISHMENT * * * * * *
REPAIRS * * * * * *
REPAIR EXCHANGE POOLS * * * * * *
Seller shall report on a quarterly basis to ▇▇▇▇▇'s purchasing
representatives Lead Time performance to commitment for parts shipped.
C. In any month (as defined by ▇▇▇▇▇'s work week calendar), if the OTD at
any Buyer site falls below 98% ("Non-Conforming Month"), all spare
parts ordered by that site during the calendar month measured will be
given an additional discount (beyond that in Section 3.3 a.)
according to the schedule below:
OTD ADDITIONAL DISCOUNT
--- -------------------
85% -- 97.9% * * *%
75% -- 84.9% * * *%
60% - 74.9% * * *%
less than 60% * * *%
These additional discounts per this section, shall be applied via a
debit memo with ▇▇▇▇▇'s Accounts Payable (AP) department. Buyer's AP
department shall begin applying the debit amount on the next Seller
invoice received. Regardless of any discount, Seller shall ship any
past due spare part within twenty-four (24) hours of availability.
3. SPARE PARTS TERMS
A. Spare parts will be discounted twenty percent (20%) off of the
Seller's published price list, or 20% off of lowest price charged by
Seller to other customers, whichever is lower, as referenced in
Addendum "Parts".
B. Within thirty (30) days after the Effective Date, Seller shall provide
Buyer with a complete list of spare parts written in Excel spreadsheet
format, which will be included in Addendum "Parts". The spare parts
list will include Seller's
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
17
part number, manufacturer's part number and name (if different than
Seller's part number), Lead-time per schedule in section 3.2b, unit
price (repair and/or new), part description, discounted price to
Buyer, and estimated consumption per year per machine and/or
application. Seller shall also identify in the list those spare parts
that are covered and not covered under Equipment warranties, or
extended warranties, and are consumable or repairable. This list will
also cross reference Intel part numbers, where applicable. Seller
agrees to discount spare parts pricing by an additional 20% for
non-compliance with 3.3b thirty days after the Effective Date.
▇. ▇▇▇▇▇▇ and Buyer shall jointly develop and manage a copy exactly spare
parts list in order to stock the optimal level of spare parts at each
Buyer site.
▇. ▇▇▇▇▇▇▇▇▇▇ and Non-Consumable parts provided under warranty and/or
service contracts will be provided by Seller at no cost to Buyer.
Seller will pay all shipping costs including duty and insurance for
warranty replacement parts. The name of a carrier and account number
will be provided by Seller for warranty returns.
▇. ▇▇▇▇▇▇ will notify Buyer in writing 30 days prior to obsolescence of
any part number or part revision and will make that part available to
the Buyer for a minimum of 180 days after the notice. Buyer may return
obsolete parts within 180 days after written notification of part
revision or obsolescence for 100% of the original purchase value.
▇. ▇▇▇▇▇ may return any parts up to 24 months after receipt of part for a
full refund or credit of the original purchase value against any
outstanding or future Seller invoices.
G. 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.
H. Parts delivered to Buyer must be pre-cleaned and bagged in accordance
with Buyer's current Purchase Spec requirements, if any.
I. Seller will have a tracking system to collect failure analysis data on
high usage parts, and will make such data available upon request.
J. Each Buyer site will have the option to stock consignment spares per
terms referenced in Spare Parts Consigned Inventory Program Addendum
I.
K. Cost of refurbished parts will not exceed 50% of new part cost without
written notice from Seller and approval from Buyer.
4. SPARE PARTS COST CONTROL
A. Adjustments to fixed costs of parts (either consumable or
non-consumable) will be made under the following conditions:
(i) 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.
18
PART 3. SERVICES.
1. APPLICABILITY
The terms and conditions in this section apply to all Service work
(installation, warranty, service call, extended service contract, etc.)
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
A. Prices set forth in Addendum G and specific scopes of work (for
extended service contracts) shall remain firm for the duration of this
Agreement except as provided below.
B. Seller will decrease rates when they are determined not to be
competitive with geographical labor rates.
C. If Seller decreases prices for Services furnished hereunder, the
prices of any and all remaining Services under this Agreement shall be
decreased.
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
A. Prior to Equipment installation, Seller shall participate in Buyer's
installation design reviews, identify any flaws in the designs that
would impair the successful installation of Seller's Equipment, and
shall approve final design revisions.
B. After Buyer has completed Equipment Facilitation, 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. At a minimum, this shall include final
connection, pre-safety certification hookup work, mechanical,
electrical, software functionality testing, chemical functionality
testing, acceptance to Purchase Spec criteria, and process module
qualification (final acceptance). 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
A. Seller shall participate as needed in process and module qualification
and in integrating the Equipment into the manufacturing process.
B. Seller shall use mutually agreed procedures, practices and methodology
for ensuring that the Equipment being installed matches the
performance of similar Equipment installed in Buyer's facility.
C. Equipment matching shall include, but is not limited to, process
matching, gauge matching, statistical and Equipment to Equipment
matching in the same facility or in any of Buyer's facilities, subject
to any limitation defined in the purchase Spec.
▇. ▇▇▇▇▇ shall provide Seller with training to assist in Equipment,
process and module characterization procedures.
E. Seller shall assist Buyer in streamlining the process within critical
parameter requirements to achieve greater machine effectiveness and
higher output volume.
6. FIELD SERVICE SUPPORT
19
A. If equipment does not meet performance requirements and specifications
as detailed in the Purchase Specification, Seller shall provide during
the warranty period service engineer on Buyer's site during the first
year at each of the new Buyers site installations. At no additional
cost, should chronic problems persist, additional field service
engineers will be dedicated to provide * * * on-site coverage, until
Equipment consistently meets Purchase Specifications. Sites shall have
the option of extending on-site coverage at a rate in accordance with
Addendum "Service," provided Purchase Specifications have been
achieved
B. Seller will provide worldwide field service support to ensure that the
equipment meets or exceeds the performance specifications. Seller will
(i) monitor and report data on performance to plan (by work week) at
the required service contract, warranty and management reviews, (ii)
actively participate in continuous improvement forums, such as, users
groups, (iii) continuously improve their process capability,
application knowledge, and support, (iv) train and certify their field
service personnel so that they meet the requirements identified in
this agreement, and (v) develop the appropriate escalation procedures
for problem resolution and Equipment down situations.
7. CONTINUOUS IMPROVEMENT
A. After the first Equipment is installed at a site, Buyer may require
Seller to participate in a joint program to baseline and improve the
performance of Seller's Equipment in Buyer's production applications.
At the end of six months, Buyer and Seller shall review this baseline
performance and establish long range continuous improvement goals. In
no case shall baseline Equipment performance be less than parameters
defined in the Purchase Specifications. Seller commits to a
continuously improving Equipment Cost of Ownership (CoO).
▇. ▇▇▇▇▇ shall administer and Seller support the use of performance
report cards, continuous improvement programs such as Supplier
Continuous Quality Improvement (SCQI), Sematech Standard Quality
Assessment (SSQA), Supply Chain Risk Assessment (SCRA), or other
quality improvement programs, along with management review meetings to
monitor Seller's performance towards continuous improvement goals.
C. Seller shall work with Buyer to collect and analyze data through
Buyer's automated data collection system and/or other data available
to Seller and recommend corrections or improvements to Equipment.
8. ESCALATION
A. Seller will provide telephone Technical Support on a * * * hours per
day, * * * days per week, * * * per year with a * * * 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 * * * of such a call, Seller will have service personnel on
Buyer's site within * * * or within * * * if an extended service
contract is in place.
C. If the problem is still unresolved * * * 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 * * * after the initial call,
Seller Management updates Buyer with repair status every * * * 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 * * *.
Seller's Field Service Manager is responsible for scheduling a post
mortem meeting with the Buyer after the "Escalated" problem is
resolved. The Seller report will include, but is not limited to,
documenting the root cause , plan of action, any future preventive
actions, a summary of the daily activities noting parts used, their
effect on the problem, and any change to the plan of action.
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
20
F. These levels of escalation will be provided at no cost during the
warranty period.
9. TECHNICAL EXPERTISE
A. In order to be considered a Level III Field Service Engineer (FSE),
the individual must meet all of the following requirements:
i. At least six months experience working with the model(s) of
equipment being supported under this Agreement. Experience levels
short of six months will result in the Seller providing the
individual at no cost to Buyer. Seller will work with ▇▇▇▇▇'s
training and documentation representative to develop and produce
a training plan, which will raise this individual to Level III
status.
ii. The ability to demonstrate proficiency in all of the tasks listed
in applicable factory-specific service Scopes of Work.
iii. Any other factory-specific requirements as agreed to in writing.
iv. Seller personnel used to install new equipment or relocate
existing equipment must be Skill Certified Level III.
v. ON SITE and OFF SITE Field Service Engineers must be Skill
Certified LEVEL III, as per Curriculum Section Addendum J.
vi. ON SITE FIELD SERVICE ENGINEER (OSFSE) - The OSFSE will be
responsible for the management and supervision of Seller's team
of Field Service Engineer (FSE's) and other personnel utilized in
the performance 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. The OSFSE must be a certified
Level III (as per Section Addendum J of this Agreement) and will
deliver on-the-job training and formal training per Specification
20-254 section 4.7 to maintain and improve the skills of the
FSE's and Buyer's factory personnel assigned to Seller's
equipment. The OSFSE must report equipment performance MTBA,
MTBF, Utilization, Outs per system, Spares usage, and PM PAS,
weekly to responsible Process/Equipment Engineer, Site Supplier
Management Team and Buyer, as well as performance against
schedule (PAS) for any agreed to service objectives or issues and
plans. The OSFSE shall be responsible for resolving any Seller
personnel-related discipline issues. However, ▇▇▇▇▇ 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.
vii. OFF SITE FIELD SERVICE ENGINEER (OFSFSE) - OFSFSE must be Level
III certified as per Section Addendum J of this agreement. FSE's
must maintain and repair the equipment listed with in this
contract or factory specific Scope of Work. The FSE's on shift
will be coordinated through ▇▇▇▇▇'s Shift Technical Supervisor or
Manager
B. Upon request, Seller shall furnish evidence of any and all On Site
Field Service Engineer (OSFSE) or Off Site Field Service Engineer
(OFSFSE) credentials with respect to being a Level III, as defined in
this section. Buyer shall have the right to audit any such evidence,
including, but not limited to, the right to interview and 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.
▇. ▇▇▇▇▇ must maintain all training and certification records for all
Field Service Engineers. As part of Buyer's ISO 9002 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.
D. 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 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,
21
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.
v. Withhold 20% of final equipment payment, until Field Service
Engineer is Level III certified.
10. OTHER SELLER RESPONSIBILITIES
A. Seller must provide both Preventive Maintenance (PM) and Corrective
Maintenance (CM) support to mutually agreed procedures, which are
defined in Buyer's PM Specifications. Should a situation arise where
multiple procedures exist, ▇▇▇▇▇'s procedures will be executed by
default.
B. FSE's must participate and contribute to Buyer factory support teams.
C. FSE must be Performance Base Equipment Training (PBET) certified.
D. FSE will provide training described in 20-254 Training Requirements to
support Buyer's maintenance capability.
E. Modifications and/or procedural changes recommended by Seller will be
implemented only as defined by ▇▇▇▇▇'s Change Control Procedures.
▇. ▇▇▇▇▇▇ must work with Buyer to develop, test, and proliferate
Continuous Improvement Projects (CIP) needed to meet or exceed the
Corporate Purchase Agreement and Corporate Purchase Specification
requirements.
G. Seller will provide documented and demonstrated Response Flow
Checklists (RFCs) for equipment troubleshooting and repair of the
common failures from the reliability growth testing.
H. Seller will provide documented and demonstrated equipment maintenance
and repair procedures. These Best Known Method (BKM) 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.
I. Seller must 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.
▇. ▇▇▇▇▇▇ is responsible for FSE training, tracking and competency in all
Buyers safety requirements, as per Section Addendum J. This is
inclusive of any and all work performed by the Sellers FSE, at the
Buyers sites.
K. Seller must help develop and execute activities to reduce scrap and
unit losses and unscheduled downtime incidents.
L. Seller must provide an effective communication link between Buyer and
Seller's factory.
M. Seller shall generate Predictive Maintenance schedules and metrics to
measure their impact as applicable.
N. Should Seller have non-English speaking FSE's on site, Seller shall
provide adequate bi-lingual support for translation.
O. As team member, Seller personnel shall function as proficient
maintenance technicians, to comply with Buyers in-house procedures,
while at the same time utilizing Seller knowledge to maintain
equipment and offering suggestions on improved methodology for
achievement of cost effective output increases.
P. Seller shall provide Buyer with all Equipment-specific tools (one set
per site).
11. BUYER RESPONSIBILITIES
22
A. Buyer shall provide work area for Seller's contracted on site FSE
employees in the maintenance shop Additional Office space shall be
determined by local factory conditions.
B. Buyer shall provide access to Equipment for preventative maintenance
or repair.
▇. ▇▇▇▇▇ shall provide factory contacts to define priorities and assist
in resolving disputes and disciplinary issues.
D. Buyer shall provide access to facility and Equipment documentation.
E. Buyer shall provide a schedule of holidays and shutdowns.
23
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.
SCREENING METHOD CUTOFF CONFIRMATION METHOD CUTOFF
DRUGS (IMMUNOASSAY) (GC/MS)
----- ----------------------- --------------------------
Amphetamines 1000 ng/ml 500 ng/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
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.
25
ADDENDUM D
EQUIPMENT SPECIFIC TERMS AND CONDITIONS
--------------------------- ----------- ---------- ---------------- ------------ ----------------
DESCRIPTION MODEL # SPEC # VOLUME PRICE LEADTIME
--------------------------- ----------- ---------- ---------------- ------------ ----------------
--------------------------- ----------- ---------- ---------------- ------------ ----------------
--------------------------- ----------- ---------- ---------------- ------------ ----------------
26
ADDENDUM E
TRAINING AND DOCUMENTATION REQUIREMENTS
(a) The governing specification 20-254 revision XX can be found at
▇▇▇▇://▇▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇ in the table "BKM Name"
entitled "20-254 Spec".
27
ADDENDUM F
SPARE PARTS PRICE LIST
List the top 80% (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.
1. NON-CONSUMABLE PARTS LIST
-------------------------------------------------------------------------------------------------------------
Repair cost
Leadtime (NA if not Repair Kit
Description Intel Part # Supplier Part # Price (days) repairable Leadtime Level OEM Part #
----------- ------------ --------------- ----- -------- ----------- -------- ----- ----------
----------- ------------ --------------- ----- -------- ----------- -------- ----- ----------
----------- ------------ --------------- ----- -------- ----------- -------- ----- ----------
2. CONSUMABLE PARTS LIST
----------- ------------ --------------- ----- -------- ----------- ----- ----------
Leadtime Annual Kit
Description Intel Part # Supplier Part # Price (days) consumption Level OEM Part #
----------- ------------ --------------- ----- -------- ----------- ----- ----------
----------- ------------ --------------- ----- -------- ----------- ----- ----------
----------- ------------ --------------- ----- -------- ----------- ----- ----------
3. SPARES KIT PRICE
--------------------- ------------ --------------- --------
Leadtime
Kit Level Description Intel Part # Supplier Part # Price
--------------------- ------------ --------------- --------
--------------------- ------------ --------------- --------
--------------------- ------------ --------------- --------
28
ADDENDUM G
PRICING FOR SERVICES AND TRAINING
1. SERVICES
-------------------------------------------------------------------------------------
Service level US Ireland Malaysia Philippines Costa Rica
-------------------------- ----------- ---------- ----------- ------------ ----------
24x7 w 4hr response
-------------------------- ----------- ---------- ----------- ------------ ----------
8x5 w 4hr response
-------------------------- ----------- ---------- ----------- ------------ ----------
Onsite FSE (40 hours/wk)
-------------------------- ----------- ---------- ----------- ------------ ----------
Hourly Rate FSE
-------------------------- ----------- ---------- ----------- ------------ ----------
Warranty Extension
(24x7 w 4 hour response
and parts repair)
-------------------------- ----------- ---------- ----------- ------------ ----------
Onsite Applications
Engineer (40hrs/wk)
-------------------------- ----------- ---------- ----------- ------------ ----------
Hourly Rate Applications
Engineer
-------------------------- ----------- ---------- ----------- ------------ ----------
TRAVEL/RELATED EXPENSES: 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
(a) ▇▇▇▇▇'s training and documentation representative may audit each class once
per year as described in 20-254 at no cost.
(b) Seller will provide one (1) pilot delivery for each 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, or Europe, or East Asia.
(d) Seller will deliver On-Buyer site classes to meet factory shift
requirements 7 days per week.
(e) One (1) day equals eight (8) hours of instruction time.
(f) Seller is responsible for all travel, lodging expenses, and per diem for
Seller's instructor.
(g) Course cancellation policy
- Buyer has the right to cancel any confirmed class up to "5" business
days prior to class start date without penalty. If the Buyer cancels
the confirmed class within "5" days prior to class start date, the
Buyer will pay actual documented incurred cost.
- 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) A/T Course Training Cost:
- On Buyer's site cost per class (containing up to six (6) students)
equals $500.00 multiplied by the number of course days.
- On Seller's site cost per class (containing up to six (6) students)
equals $500.00 multiplied by the number of course days.
29
ADDENDUM H
THIRD PARTY TECHNOLOGY ESCROW
A. Upon the request of ▇▇▇▇▇, 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 ▇▇▇▇▇,
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 ▇▇▇▇▇.
B. 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 ▇▇▇▇▇▇, 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 ▇▇▇▇▇ 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.
30
ADDENDUM I
SPARE PARTS CONSIGNED INVENTORY PROGRAM
1. SCOPE
1.1. Purpose: The purpose of the Consignment Program is to give each of
Buyer's Sites ("Site or Sites") the option to maintain a Consignment
Inventory of Non-consumable Spare Parts ("Parts"), both repairable and
non-repairable, in order to improve Parts support and reduce response
time for replacement of Parts.
1.2. Election to Participate: If a Site elects to participate in the
Consignment Program, it shall provide written notice to Seller of the
Site's election to participate. Such notice shall reference the
Agreement and this Amendment.
2. CONSIGNED INVENTORY
2.1. For purposes of this Addendum, "Consigned Inventory" shall mean
inventory owned by Seller and delivered to a Site for Buyer's specific
use.
2.2. The parties shall agree in writing to the Parts that will be included
in the Consigned Inventory and appropriate stocking levels.
2.3. Title to all Parts in the Consignment Inventory is and shall remain in
Seller until the Parts are issued from the Consignment Inventory to
the Buyer.
3. METHODOLOGY
3.1. CONSIGNED INVENTORY PREREQUISITE
3.1.1. Consigned Inventory will be stocked at the Site.
3.1.2. Buyer shall provide a perpetual inventory system for record
keeping and internal control of the Consigned Inventory,
offering a continuous check and control over inventories as
well as immediate data concerning inventory position.
3.1.3. At Buyer's discretion, all preventative maintenance (PM)
kits/Parts shall be included in Consigned Inventory.
3.1.4. All Parts in the Consigned Inventory will be set-up with
auto-order status.
3.2. PROCEDURE FOR ADDING PARTS TO CONSIGNED INVENTORY
3.2.1. In order to add new Parts to Consigned Inventory and Buyer's
inventory system, or to change descriptions and/or Part numbers
of Parts in the Consigned Inventory already existing in Buyer's
inventory system, changes must be agreed in writing by the
parties.
3.2.2. Seller will coordinate with Buyer to create an inventory stores
location for newly added Parts with excessive space
requirements and for any consigned Parts that require special
handling characteristics, i.e. items to remain in original
shipping containers, chemicals, special unit of measure items,
etc.
3.2.3. The Buyer's stocking and perpetual inventory system will be the
definitive system of record.
3.2.4. Consigned Inventory will be coded as "consignment" within the
Buyer's inventory system.
3.3. SHIPMENT PURCHASE ORDER AND INVOICE PROCESS
3.3.1. Seller will ship Consigned Inventory to the address specified
on the Purchase Order in packages clearly marked with Purchase
Order number, Purchase Order line item number and quantity
shipped.
31
3.3.2. As Consigned Inventory is consumed by Buyer, a replenishment
Purchase Order will be generated. Seller will ship
replenishment consigned Parts to Buyer against that
replenishment Purchase Order. Seller will invoice for consumed
consigned Parts against the replenishment Purchase Order.
3.3.3. Seller will mail invoices for consumed consigned Parts to
Buyer's accounts payable.
3.3.4. Seller will ship Consigned Inventory replenishment Parts
according to Purchase Order specifications. Seller will pay all
shipping, freight, customs, and related charges ("shipping
charges") associated with delivering the Parts to the Site.
▇▇▇▇▇ will pay all shipping charges associated with returning
the Parts to Seller. Seller will pay all shipping charges
associated with returning any excess Parts that Seller
requested or otherwise caused in an excess of target stocking
levels.
3.3.5. Door to Door shipments will be used in the case of machine
downs. Seller will notify Buyer with expedited shipping
details.
3.3.6. Incoming Consigned Inventory shall be received and shelved into
inventory by ▇▇▇▇▇'s stockroom.
3.3.7. Seller must be notified immediately when ▇▇▇▇▇ discovers any
material receipt discrepancies on a shipment from Seller
3.3.8. Lead-time and OTD requirements as agreed in the Agreement shall
apply in all respects to Part replenishment orders.
3.4. ISSUE REPORTS AND TRACKING PROCESS
3.4.1. Buyer shall issue a Consigned Inventory usage report upon
request from Seller but not more than once per week or as
agreed in writing by the parties.
3.4.1.1. The usage report will include Seller Part number,
description, date issued, quantity consumed (by part
number), quantity on-hand and outstanding Purchase
Orders.
3.5. RETURNS TO STOCK
3.5.1. Returns to stock of Parts deemed in like new condition shall be
separated from Consigned Inventory and will continue to be
Buyer owned. ▇▇▇▇▇ owned inventory of Parts will be consumed
prior to issuing Consigned Inventory.
3.5.1.1. ▇▇▇▇▇'s inventory management system does not permit
"any" returns to Consigned Inventory.
3.5.2. It is the responsibility of the Buyer and Seller to research
any specific discrepancies with returns to stock.
3.5.3. It is the responsibility of the Buyer to inform all stores
personnel of proper procedures in the Consigned Inventory
program and intervene as issues arise.
3.6. AUDITS AND CYCLE COUNTS
3.6.1. Buyer and Seller will jointly conduct an initial audit to
verify receipt of the Parts and prepare an accurate list of
the Parts which comprise the initial Consignment Inventory. If
the initial audit reveals discrepancies between the inventory
received and the target stocking level, such discrepancies
will be resolved promptly.
3.6.2. Seller has the right to audit Consigned Inventory with thirty
(30) days advance notice to Buyer, on a mutually agreed to
date, and shall perform a complete audit at least once per
calendar year. Buyer reserves the right to participate in
these audits. The financial responsibility resulting in any
discrepancies of the Consigned Inventory shall be negotiated
in good faith by the parties. Audit results will be published
within 3 business days to the Buyer.
32
3.7 PHYSICAL PROTECTION OF INVENTORY
3.7.1. Buyer will take reasonable precautions to protect Consigned
Inventory. Buyer shall be responsible for loss of and damage to
Parts physically located at a Site except for (1) loss or
damages caused by Seller's personnel or representatives or (2)
normal deterioration of the Parts or components of such Parts.
3.8. RETURNING CONSIGNED INVENTORY TO SELLER
3.8.1. Unused Consigned Inventory may be returned to Seller at any
time.
3.8.2. Buyer will return to Seller any defective Consigned Inventory.
Seller will replace defective part at no cost to Buyer.
4. PRICING
4.1. Spare Part pricing shall follow the pricing agreement specified in the
Agreement. Non-consumable spares for equipment under warranty will be
stocked at no charge to Buyer.
4.2. ▇▇▇▇▇ will issue a debit memo for any mutually agreed to Parts where
ownership is transferred from Buyer to Seller.
5. TERMINATION OF CONSIGNMENT PROGRAM
5.1 Buyer may, upon ninety (90) days written notice terminate all or
entire system platform type of the Consignment Program (including
eliminating specific Parts from the consignment inventory) at its sole
convenience. Prior to returning Parts relating to the terminated
portion of the Consignment Program, the parties will jointly conduct a
final audit. Any discrepancies found during the final audit will be
corrected in accordance with the Site's then-current cycle count and
stock correction procedures.
33
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 weekly maintenance based on data. 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.
34
ADDENDUM K
NEGOTIATED CHANGES
GENERAL TERMS AND CONDITIONS OF PURCHASE AGREEMENT
1. DEFINITIONS
DELETE
A. "CONSUMABLE" means a 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 * * *.
CHANGE
B. "CUSTOM ITEMS" means semiconductor device probe cards (Sort Interface
Units) that incorporate MicroSpring(TM) contacts and which
substantially meet the requirements set forth in Addendums M and N
hereto and that are designed to test microprocessors or microprocessor
chip sets or flash memory products.
DELETE
C. "CONSIGNMENT" means any spare part owned by the Seller which ▇▇▇▇▇
chooses to hold on-site, or Seller holds offsite, at Buyer's
discretion, to help Seller meet the Equipment availability
requirements or productivity as defined in the Purchase Spec.
CHANGE
D. "Equipment" = "Custom Items".
DELETE
E. "FACILITIZATION" means placement and rough hook-up of electrical, gas,
and vacuum utilities to the Items.
CHANGE
F. "FORECAST(s)" means the quantity of Items that Buyer reasonably
anticipates it may purchase during a specified time on a per-Design
basis.
CHANGE
H. "Items" = "Custom Items".
CHANGE
I. "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
received by the BUYER.
DELETE
J. "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).
CHANGE
L. "PURCHASE SPEC" means the agreed Custom Item Procurement Specification
as set forth in Addendums M and N for each Custom Item model to be
purchased pursuant to this Agreement.
CHANGE
M. "RELEASE" means Buyer's purchase order or change order to deliver a
definite quantity of Custom Items or to provide Services to a
specified schedule which is accepted in accordance with the terms of
this Agreement. Technical specifications of Custom Items ordered under
a Release are set forth in the Procurement and Subassembly/Electrical
Specifications of Addendum M and N.
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
35
DELETE
O. "SPARE PART(s)" mean Consumable and/or Non-Consumable Spare Parts.
ADD
P. "BUYER'S DESIGNS" means the layout(s) of MicroSpring(TM) contacts on
Custom Items provided by Buyer.
ADD
Q. "MICROSPRING(TM) "CONTACTS" means Seller's proprietary resilient
contact structures.
ADD
R. "SIU" ( SORT INTERFACE UNIT) means the Custom Item.
ADD
S. "TRAINING" means training described in the 20-254 Training
Requirements.
ADD
T. "F.C.A." means free carrier as defined in the January 1, 2000
Incoterms.
3. PRICING
CHANGE
A. Prices for Items, Training and Services set forth herein shall remain
fixed or decline THROUGH 12-31-01 unless agreed otherwise in writing by the
parties.
CHANGE
B. Through the term of this Agreement and any extensions thereto, Seller
warrants to Buyer that the prices set forth in this Agreement or any
addendum or amendment, in conjunction with the discounts offered herein for
Items and Services reflect the Seller's lowest price charged any customer
of Seller for products with similar complexities and volumes as the Items
("Comparable Items") or services equivalent to Services ("Comparable
Services"), except for Promotional Offers. "Promotional Offers" means, in
aggregate, Seller's disposal of up to * * * Comparable Items per customer
or prospective customer. If Seller sells any Comparable Item or provides
Comparable Services to any other customer at a price less than the price
set forth in this Agreement or any addendum or amendment, except
Promotional Offers, Seller shall adjust the prices for any Item or Service
invoiced by Seller and unpaid by Buyer within the payment period set forth
in Section 4E of this Agreement to reflect the lower price. In the event
the Seller offers a lower price either as a general price drop or to
specific customer(s) for reasons other than Promotional Offers, Seller
shall immediately notify Buyer of the lower price and adjust Buyer's
pricing in future invoices or invoices issued but unpaid invoices within
the payment period set forth in Section 4E of this Agreement to meet the
new pricing structure. Each of the above adjustments and the rebate shall
be calculated from the date a third party auditor determines the Comparable
Item or Comparable Service were sold at a lower price, in accordance with
the procedures of Section 3C below.
CHANGE
▇. ▇▇▇▇▇ reserves the right to have Seller's records inspected and
audited to ensure compliance with this Agreement. Such audit will be
performed by an independent third party, selected by mutual agreement
AND SHALL BE ONE OF THE BIG 8 ACCOUNTING FIRMS, at ▇▇▇▇▇'s expense.
SHOULD BUYER AND SELLER NOT AGREE ON WHICH OF THE BIG 8 FIRMS, TO
PERFORM THE AUDIT, THEN ONE SHALL BE RANDOMLY PICKED OUT OF A HAT. The
audit shall not be performed more than ONE (1) TIME PER YEAR and
should be conducted during Seller's normal business hours. Buyer will
provide Seller with reasonable advance notice prior to the audit.
Seller will provide auditor with information necessary for Buyer to
verify Seller's compliance with Section 3B of this Agreement. The
audit will assume all Items sold under this Agreement are custom Items
unless otherwise specified in this Agreement.
(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, * * *
covering the price adjustments
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
36
* * *. The results of such audit shall be kept confidential by the
auditor and, if conducted by a third party, only ▇▇▇▇▇▇'s failures to
abide by the obligations of this Agreement shall be reported to Buyer.
DELETE
D. Applicable taxes and other charges such as duties, customs, tariffs,
imposts, and government imposed surcharges shall be paid for by Seller
without reimbursement from Buyer as part of the purchase price for
Items and Services. In the event that ▇▇▇▇▇ is prohibited by law from
remitting payments to the Seller unless Buyer deducts or withholds
taxes therefrom on behalf of the local taxing jurisdiction, then Buyer
shall duly withhold such taxes and shall remit the remaining net
invoice amount to the Seller. Buyer shall not reimburse Seller for the
amount of such taxes withheld.
CHANGE
F. All prices are in U.S. dollars AND ARE QUOTED F.C.A. SELLER'S DOCK IN
LIVERMORE, CA. However, notwithstanding anything else set forth in
Incoterms 2000 or elsewhere, prices for Items are exclusive of, and Buyer
shall pay, all shipping costs, taxes and other charges such as duties,
customs, tariffs, imposts, and government imposed surcharges.
CHANGE
G. Seller shall provide Seller's annual audited financial statements and
independent auditors' opinion to Buyer within * * * (* * *) months of
the Seller's fiscal year-end date, UNTIL SUCH ▇▇▇▇ ▇▇▇▇▇▇ BECOMES A
PUBLIC CORPORATION
4. INVOICING AND PAYMENT.
DELETE:
A. Prompt payment discounts will be computed from the latest of: (i) the
scheduled delivery date; (ii) the date of actual delivery; 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.
CHANGE
B. Original hard-copy invoices shall be mailed or delivered by OTHER
DELIVERY METHOD. Invoices shall include: Purchase Agreement number from the
Release, purchase order number, line item number, Release number, part
number, complete bill 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. Any applicable taxes or other charges such
as duties, customs, tariffs, imposts and government imposed surcharges
shall be stated separately on Seller's invoice. Payment of an invoice shall
not constitute acceptance of the Item or Service.
DELETE
B. (i) * * *, BUYER ASSUMES ALL RISK AFTER ITEMS ARE PICKED UP FOB
SELLER'S DOCK BY BUYER DESIGNATED CARRIER.
DELETE
D. Except for each new Equipment model, payment on Equipment shall be as
follows: * * * percent (* * *%) net * * * (* * *) days from ship date;
* * * percent (* * *%) net * * * (* * *) days from the final
acceptance date. 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 * * * percent (* * *%) net
* * * (* * *) days from the date of shipment. On each Equipment model
that Buyer purchases for the first time, payment shall be * * *
percent (* * *%) net * * * (* * *) days from shipment; * * * percent
(* * *%) net * * * (* * *) days from the final acceptance date.
Seller shall submit Buyer acceptance certificate or non-acceptance
certificate at completion of final acceptance tests.
CHANGE:
E. CUSTOM ITEMS AND SERVICES (INCLUDING * * * CHARGES) WILL BE INVOICED
AT * * *% NET * * * FROM DATE OF SHIPMENT OR DATES OF SERVICE.
SHIPMENT OF CUSTOM ITEMS TAKES EFFECT ON THE DAY THEY ARE COLLECTED BY
BUYER'S AUTHORIZED CARRIER.
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
37
CHANGE
▇. ▇▇▇▇▇▇ agrees to invoice Buyer no later than * * * (* * *) days after
completion of Services or the delivery of Item(s) FCA SELLER'S DOCK.
Buyer will not be obligated to make payment against any invoices
submitted after such period. In addition, if Seller exceeds * * *
without providing written documentation with the purpose to collect
payment on any invoice, Buyer shall not be obligated to make payment
against such invoice regardless of initial invoice submittal.
5. TERMINATION FOR CONVENIENCE.
CHANGE
▇. ▇▇▇▇▇ 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 ▇▇▇▇▇▇'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.
CHANGE
B. BUYER ACKNOWLEDGES THAT ALL PRODUCTS AND SERVICES PROVIDED BY SELLER
ARE CUSTOM ITEMS. * * * 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, nor for any costs Seller could reasonably have avoided,
nor for any indirect overhead and administrative charges or profit of
Seller * * * .
CHANGE:
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.
Seller will make any claims for termination charges in the form of an
invoice within 30 days thereof.
CHANGE
▇. ▇▇▇▇▇▇'s claim may include the cost of 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. Upon
payment of ▇▇▇▇▇▇'s claim, ▇▇▇▇▇ shall be entitled to all such work
and materials paid for.
CHANGE
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. IF BUYER CHOOSES TO AUDIT SELLER'S
WORK IN PROCESS AND RELEVANT DOCUMENTS, BUYER MUST MAKE EVERY
REASONABLE EFFORT TO COMPLETE THIS WITHIN * * * WORKING DAYS OF SELLER
PROVIDING TERMINATION CHARGES.
CHANGE
F. Notwithstanding anything else in this Agreement, failure to meet the
delivery date(s) in the Release (* * *) shall be considered a material
breach of contract and shall allow Buyer to terminate the order for
the Item and/or any subsequent Releases without any liability.
7. DELIVERY, RELEASES AND SCHEDULING.
CHANGE
A. Any Forecasts provided by Buyer are for planning purposes only and do
not constitute a Release or other commitment by ▇▇▇▇▇. 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. IF BUYER DOES NOT
OFFER ANY RELEASE WITHIN ANY CONSECUTIVE * * * (* * *) MONTH
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
38
PERIOD, THEN SELLER SHALL PROVIDE NOTICE OF SUCH AND MAY TERMINATE
THIS AGREEMENT IF BUYER DOES NOT OFFER A RELEASE WITHIN * * * (* * *)
DAYS FOLLOWING THE NOTICE.
CHANGE
B. Seller shall notify ▇▇▇▇▇'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. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER SHALL NOT
INCUR ANY LIABILITY AS A RESULT OF SUCH NOTICE.
CHANGE
C. SELLER AGREES TO * * *. FOR NEW PRODUCT DESIGNS, SELLER ACCEPTANCE
SHALL BE DETERMINED BY NOT REJECTING THE ORDER WITHIN 1 BUSINESS DAY
FROM RECEIPT OF PURCHASE ORDER.
CHANGE:
▇. ▇▇▇▇▇ 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.
CHANGE
E. BUYER RECOGNIZES THAT THEY ARE PURCHASING CUSTOM DESIGNED AND
MANUFACTURED ITEMS, AND SELLER WILL * * *.
CHANGE
F. SELLER AGREES THAT ALL ITEMS WILL BE DELIVERED (F.C.A. SELLER'S DOCK) ON
THE EXACT DATE SPECIFIED IN THE RELEASE (OR EARLY WITH BUYER'S APPROVAL).
FAILURE TO MAKE THE ITEMS AVAILABLE FROM SELLER'S DOCK ON THE EXACT DATE
SPECIFIED IN THE RELEASE SHALL * * *.
CHANGE:
G. Seller agrees to * * *, until the contractual lead-time established in
Addendum L or as otherwise - agreed in writing by the parties.
DELETE:
▇. ▇▇ ▇▇▇▇▇'s discretion, * * *.
CHANGE
▇. ▇▇▇▇▇▇ will, as reasonably required by ▇▇▇▇▇, use commercially
reasonable efforts to * * *.
CHANGE
J. Configuration and other Buyer-requested or Buyer-approved changes that
result in DELIVERY Date changes will be reflected on a change order to
the Release showing ANY AGREED TO PRICE and delivery dates WHICH ARE
MUTUALLY AGREED TO BY BUYER AND SELLER.
CHANGE
▇. ▇▇▇▇▇▇ 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 NINETY (90) days after the notice, during which time
Buyer will have the option to place a final Release for such Items for
delivery after the NINETY (90) day notice. If any warranty return
claims are made for such discontinued Items, then such returns will be
subject to the warranty provisions in Section 8.
8. ACCEPTANCE AND WARRANTIES.
CHANGE:
A. All Items purchased by Buyer are subject to inspection and test source
inspection. ACCEPTANCE REQUIREMENTS ARE DESCRIBED IN THE PURCHASE AND
SUBASSEMBLY/ELECTRICAL SPECS., ADDENDUMS M AND N, UNLESS OTHERWISE
SPECIFIED BY BUYER AND AGREED TO BY SELLER. Buyer may participate, as
it deems necessary, in source inspections.
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
39
If any inspection or test is made on Seller's premises, Seller shall
provide Buyer with reasonable facilities and assistance at no additional
charge.
CHANGE
(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 and
Subassembly/Electrical Specifications of Addendum M and N unless
agreed otherwise in writing by the parties. Buyer may reject an Item
for not conforming to the applicable acceptance requirements. Items
rejected by ▇▇▇▇▇ as not conforming to the acceptance requirements
will be (i) returned to Seller at Seller's expense and Seller shall
bear the risk of loss during return to Seller or (ii) repaired by
Seller at Buyer's premises, subject to mutual agreement. Such returned
Item(s) shall be repaired or replaced within a commercially reasonable
time, subject to the requirements of Section 8A(ii) below.
CHANGE
ii) If ITEMS DO not pass final acceptance criteria, due to no fault of
Buyer, within * * * (* * *) days of delivery, then Buyer may give
written notice to Seller of failure to meet final acceptance criteria.
If Items do not substantially meet final acceptance criteria within
* * * (* * *) days of such notice, Buyer may, at Buyer's option; (a)
return the Items for full credit or (b) have the Items replaced with
new Items within * * * (* * *) days of Buyer's written election of
option, or (c) have the Items repaired by Seller within * * * (* * *)
days of Buyer's written election of option. Seller shall pay best way
shipping, and be responsible for loss, for returns of rejected Items
when Seller-authorized carriers are used. Return shipments via
unauthorized carriers and loss in transit by such carriers are the
responsibility of Buyer. Buyer shall be responsible for packaging,
export/import authorization, and customs clearance. Seller reserves
the right to charge-back to Buyer shipping costs incurred on those
Items which were returned as rejected and with respect to which no
fault of Seller was found.
CHANGE:
B. Seller warrants to Buyer that all Items provided by Seller for
delivery hereunder shall conform in all respects to the Purchase AND
SUBASSEMBLY/ELECTRICAL SPECS OF ADDENDUMS M AND N; be free from
defects in material and workmanship and be new OR EQUIVALENT TO NEW,
of the grade and quality specified.
CHANGE
(i) Following final acceptance, if an Item delivered hereunder does
not comply with any of the warranties recited. 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. However, prior to any
return of an Item, ▇▇▇▇▇ must receive authorization from Seller,
which authorization will not be unreasonably withheld or delayed.
Buyer shall be responsible for packaging, export/import
authorization and customs clearance. Seller reserves the right to
charge-back to Buyer shipping and related costs incurred on those
Items which were returned as defective and with respect to which
no fault of Seller was found.
CHANGE
(ii) The warranty period for CUSTOM ITEMS shall apply for THE EARLIER
OF * * * MONTHS OR * * * FOR ITEMS WITH * * *, AND THE EARLIER OF
* * * MONTHS OR * * * FOR ITEMS WHICH USE * * *, UNTIL SUCH TIME
WHERE SUPPLIER HAS GAINED SUFFICIENT MANUFACTURING EXPERIENCE
WITH FOR ITEMS WHICH USE * * *, (AS DEFINED BY THE DELIVERY OF
(* * *) * * * SIUS AND * * * DESIGNS) AT WHICH TIME THE WARRANTY
WILL BE EXTENDED TO THE EARLIER OF * * * MONTHS OR * * *. THE
WARRANTY IS VALID UNDER NORMAL USE AND CONDITIONS AND WHEN ITEMS
ARE BEING USED UNDER SPECIFIED OPERATING CONDITIONS AS DEFINED IN
THE ATTACHED SUB-ASSEMBLY/ELECTRICAL SPECIFICATION. THE WARRANTY
SHALL COVER BOTH PARTS AND LABOR, STARTING FROM THE DATE OF
DELIVERY OF THE ITEM.
DELETE:
(iii) In conjunction with the warranty period, Seller shall perform
all preventative maintenance on a mutually agreeable schedule.
DELETE:
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
40
(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.
DELETE:
(v) Seller shall send Buyer notices at * * * (* * *) days and * * *
(* * *) days prior to the warranty expiration date for an Item
explaining the extended warranty options and costs.
ADD
(vi) Buyer hereby expressly accepts any item if (i) Buyer does not
reject such Item within * * * (* * *) days from delivery,
however, the warranties defined in this agreement shall still
apply.
CHANGE
▇. ▇▇▇▇▇▇ further warrants, THAT TO THE BEST OF ITS KNOWLEDGE, 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.
CHANGE:
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.
DELETE
F. Notwithstanding anything to the contrary contained in this Agreement,
Seller represents and warrants that there will be no disruption in the
delivery of Items or Services under this Agreement as a result of or
due to the date change from and between December, 1999, and January,
2000, nor due to the year 2000 being a leap year.
ADD 8G
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, SELLER FURNISHES,
AND BUYER ACCEPTS, THE ITEMS AND SERVICES AS-IS, WITH NO
WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED
THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM
COURSE OF CONDUCT OR DEALING. THE STATED EXPRESS WARRANTIES ARE
IN LIEU OF ALL OTHER OR DIFFERENT WARRANTIES, ON THE PART OF
SELLER ARISING OUT OF, OR IN CONNECTION WITH, ANY ITEMS OR
SERVICES PURCHASED UNDER THIS AGREEMENT. TO THE EXTENT THAT
SELLER MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY
WARRANTY RELATING TO INDEMNIFICATION, THE SCOPE AND DURATION OF
SUCH WARRANTY RELATING TO INDEMNIFICATION SHALL BE THE MINIMUM
PERMITTED UNDER APPLICABLE LAW.
CHANGE:
9. PURCHASE SPECIFICATIONS, IDENTIFICATION AND ERRATA.
CHANGE
A. Seller OR BUYER shall not modify the purchase AND
SUBASSEMBLY/ELECTRICAL specifications for any Item or Services without
the prior written approval of the Buyer OR SELLER.
CHANGE
C. Seller shall provide Buyer with an errata list for NONCONFORMING ITEMS
and shall promptly notify Buyer in writing of any new errata with
respect to the Items.
10. PACKING AND SHIPMENT.
CHANGE
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 when the sensitivity of the
shipped contents are considered, and
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
41
(iii) is adequate to ensure safe arrival. If Buyer requests, Seller
will package Items for cleanroom delivery, per Buyer specification and
any additional costs will be negotiated. Seller shall mark 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.
CHANGE:
B. All ITEMS shall be delivered F.C.A. (Seller's dock). 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 Equipment shall pass
to Buyer upon COLLECTION BY BUYER'S AUTHORIZED CARRIER.
DELETE
C. All Items other than Equipment shall be Delivered Duty Paid ["DDP";
July 1990 Incoterms] Buyer's dock for Non-Free Trade zone factory
sites or Delivery Duty Unpaid ["DDU"; July 1990 Incoterms] Buyer's
dock for Free Trade zone factory sites as specified in the Release.
Title and risk of loss for all Items other than Equipment shall pass
to Buyer upon delivery of Items to Buyer's dock.
11. OWNERSHIP AND BAILMENT RESPONSIBILITIES.
CHANGE
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 (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
BUYER'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.
ADD 11C
Notwithstanding anything else set forth herein, no provision of this
Agreement shall effect the transfer of ownership rights in intellectual
property from Seller to Buyer, nor restrict Seller's ability to transfer,
license or in any other way utilize its rights in and to intellectual
property, including but not limited to, any and all rights Seller may have
in and to patents, copyrights, trademarks, trade secrets and maskworks.
CHANGE
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. 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 and BUYER'S EMPLOYEES WHO
ACCESS SELLER'S FACILITIES may be required to sign a separate access
agreement prior to admittance to SUCH facilities THE TERMS OF SUCH
SEPARATE ACCESS AGREEMENTS SHALL NOT, HOWEVER, BE DEEMED TO BE
INCORPORATED INTO THIS AGREEMENT, NOR SHALL THEY ALTER THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER. 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
CONFIDENTIAL information, networks or software, and will take
reasonable steps to assure Buyer that all such have read and
understood Addendum C.
42
13. INTELLECTUAL PROPERTY INDEMNITY.
CHANGE
A. Subject to Section 32, Seller shall DEFEND, indemnify, and hold Buyer
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 PROPERTY right arising out
of the use of Items. BUYER WILL PROVIDE SELLER WITH PROMPT WRITTEN
NOTICE OF THE CLAIM WITH ALL REASONABLE INFORMATION AND ASSISTANCE TO
DEFEND OR SETTLE THE CLAIM. BUYER CAN PARTICIPATE IN IT'S OWN DEFENSE
AT IT'S OWN COST. Seller shall not be responsible for ▇▇▇▇▇'s
compromise of any claim made without Seller's consent.
CHANGE
If an injunction issues as a result of any claim for which Buyer has
obligations under Section 13(A), Seller agrees at its expense, AND
BUYERS 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 ▇▇▇▇▇▇'s
commercially reasonable efforts, none of the foregoing options are
available, Seller shall refund to Buyer the purchase price of the
Item. * * *
CHANGE
C. Seller's obligations pursuant to this Section 13 shall not apply
where: (i) custom Items are manufactured to Buyer's particular design
requirements and such design is the cause of the claim; (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; (iii) the claim is
based upon Buyer's use of the Items to practice any method or process
for which the Items were not intended and such use is the cause of the
claim; (iv) the claim is based upon modification of Items by Buyer
without Seller's written consent and such infringement would not have
occurred but for such modification; or (v) the claim is based on
Buyer's use or transfer of an Item delivered hereunder after Seller's
notice that Buyer shall cease use or transfer of such Item due to such
claim, provided that such notice is directed to the majority of
Seller's customers for the infringing product.
ADD
C2. Seller shall not be responsible for ▇▇▇▇▇'s compromise of any claim made
without Seller's consent.
CHANGE
D. THE FOREGOING STATES THE ENTIRE OBLIGATIONS AND REMEDIES OF THE SELLER
ARISING FROM ANY INTELLECTUAL PROPERTY CLAIM BY A THIRD PARTY.
16. COMPLIANCE WITH LAWS AND RULES
CHANGE
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 (Laws)
governing the manufacture, transportation or sale of Items or the
performance of Services covered by this Agreement anywhere in the
world, EXCEPT FOR THOSE OBLIGATIONS OF BUYER RELATED TO DELIVERY
F.C.A. 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 Laws governing Seller's personnel providing Services to Buyer.
In complying with the Laws, it is understood and agreed that the
Equipment shipped to all Buyer sites worldwide must be of a common
configuration ("Copy Exactly") for use by all Buyer sites worldwide
and comply with any and all product safety requirements described in
the Purchase Spec AND SUBASSEMBLY/ELECTRICAL SPECS. M AND N
RESPECTIVELY or elsewhere in this Agreement. Any Copy Exactly
exception must be mutually agreed to and documented in a configuration
specification as a site specific option.
▇. EACH PARTY AGREES THAT WHILE ON THE OTHER PARTY'S premises or
performing Services, EACH PARTY agrees to abide by EACH PARTY'S rules
and regulations that are provided to EACH PARTY in writing; posted
conspicuously or easily observed while on EACH PARTY's premises or
customarily followed or known by third party invitee, including, but
not limited to security, heath, safety, environmental and hazardous
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
43
material management rules and rules prohibiting the use of physical
aggression against persons or property, harassment and theft. EACH
PARTY will perform only those Services identified on Addendum A and
will work only in areas designated for such Services. EACH PARTY shall
take all reasonable precautions to ensure safe working procedures and
conditions for performance on EACH PARTY'S premises and shall keep
EACH PARTY'S site neat and free from debris.
CHANGE
18. GENERAL INDEMNIFICATION.
SUBJECT TO SECTION 32, Seller agrees to protect, defend, indemnify and hold
Buyer harmless from and against any and all THIRD PARTY 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. BUYER WILL PROVIDE
SELLER WITH PROMPT WRITTEN NOTICE OF THE CLAIM WITH ALL REASONABLE
INFORMATION AND ASSISTANCE TO DEFEND OR SETTLE THE CLAIM. BUYER CAN
PARTICIPATE IN ITS OWN DEFENSE AT ITS OWN COST. Seller shall not be
responsible for ▇▇▇▇▇'s compromise of any claim made without Seller's
consent
20. 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. EACH PARTY reserves the
right to instruct Seller to remove from ▇▇▇▇▇'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.
CHANGE
21. SECURITY.
EACH PARTY confirms that, to the best of its knowledge, THAT ITS OWN
EMPLOYEES performing work at THE OTHER PARTY'S facilities have no record of
criminal convictions involving drugs, assaultive or combative behavior or
theft within the last five (5) years. EACH PARTY understands that such
employees may be subject to criminal history investigations by THE VISITED
PARTY AT SUCH VISITED PARTY'S expense and will be denied access to SUCH
VISITED PARTY'S facilities if any such criminal convictions are discovered.
▇▇▇▇▇▇ also agrees to comply with ▇▇▇▇▇'s Alcohol and Drug-free Workplace
Directive set forth in Addendum B.
CHANGE
22. NEW DEVELOPMENTS.
ANY NEW DEVELOPMENTS SHALL BE COVERED UNDER A SEPARATE AGREEMENT.
DELETE -- NOT APPLICABLE
23. 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.
"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
44
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 for
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, ▇▇▇▇▇ receives no other rights or license,
whether by implication, estoppel 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 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.
24. MERGER, MODIFICATION, WAIVER, REMEDIES AND SEVERABILITY.
CHANGE
A. This Agreement, THE CNDA REFERENCED ON THE SIGNATURE PAGE OF THIS
Agreement, ANY MUTUALLY ACCEPTED SOW, and any Releases issued
hereunder contain the entire understanding between ▇▇▇▇▇ 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.
CHANGE
▇. ▇▇▇▇▇'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 BOTH PARTIES DETERMINES IN ITS DISCRETION THAT THE
COURT'S DETERMINATION CAUSES THIS AGREEMENT TO FAIL IN ANY OF ITS
ESSENTIAL PURPOSES.
CHANGE
25. ASSIGNMENT.
Neither party may assign any rights in, nor delegate any obligations under this
Agreement or any portion thereof, without the prior written consent of the other
party which will not be unreasonably withheld or delayed EXCEPT THAT SELLER MAY
ASSIGN THIS AGREEMENT AND ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT
WITHOUT PRIOR WRITTEN CONSENT OF BUYER (i) IN CONNECTION WITH A MERGER OR
REORGANIZATION OF SELLER, PROVIDED THAT THE MERGED OR REORGANIZED COMPANY AGREES
IN WRITING TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT, AND/OR
(ii) TO ANY PERSON OR ENTITY ACQUIRING ALL OR SUBSTANTIALLY ALL OF THE ASSETS OR
STOCK OF SELLER. ANY ASSIGNMENT IN CONTRAVENTION OF THIS SECTION 25 SHALL BE
NULL AND VOID. EITHER PARTY MAY TERMINATE THIS AGREEMENT FOR CAUSE SHOULD THE
OTHER PARTY ATTEMPT TO MAKE AN UNAUTHORIZED
45
ASSIGNMENT OF ANY RIGHT OR OBLIGATION ARISING HEREUNDER. SUBJECT TO THE
FOREGOING, THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL INURE TO THE BENEFIT
OF AND BE BINDING UPON THE RESPECTIVE SUCCESSORS AND ASSIGNS OF THE PARTIES.
CHANGE
26. APPLICABLE LAW
This Agreement shall be construed and interpreted in accordance with the
laws of the State of CALIFORNIA, excluding CALIFORNIA'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 CALIFORNIA version of the Uniform Commercial Code,
Article 2, shall be applicable to this Agreement.
29. SURVIVAL.
The rights and obligations of the parties as contained in Sections 1, 3
EXCEPT 3.G, 5, 6, 8, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22, 23, 24, 25,
26, 27, 28, 29, 30, 32, AND 33 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. Promptly following termination or expiration of this
Agreement, (a) each party shall return the other party's confidential
information and (b) Buyer shall pay Seller any amounts due.
CHANGE
30. ORDER OF PRECEDENCE.
In the event of a conflict or inconsistency between any terms or condition
of this Agreement including its Addenda on the one hand (excluding
Addendums M and N) and the Purchase Spec and Subassembly/Electrical
Specifications of Addendums M and N on the other, the terms and conditions
of this Agreement and its remaining Addenda shall control.
ADD:
32. LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES
EXCEPT FOR SELLER'S LIABILITY FOR INDEMNIFICATION OF BUYER PURSUANT TO
SECTIONS 12, 13, AND 14 OR DEATH OR PERSONAL INJURY TO ANY PERSON OR PROPERTY
DAMAGE TO OTHER PERSONS, OR DIRECT DAMAGE TO INTEL TANGIBLE PROPERTY, IN NO
EVENT SHALL SELLER'S LIABILITY TO BUYER UNDER THIS AGREEMENT EXCEED ***% OF
SELLER'S ANNUAL EARNINGS. THIS LIMITATION OF SELLER'S LIABILITY IS CUMULATIVE,
WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING
AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE
CLAIMS WILL NOT ENLARGE THE LIMIT. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS
OF COVER OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OR PROFITS,
INTERRUPTION OF BUSINESS OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY
ITEM OR SERVICE PROVIDED HEREUNDER OR ANY RELEASE OR SCOPE OF WORK, HOWEVER
CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, WARRANTY,
STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT
SELLER HAS BEEN ADVISED OF (OR KNOWS OR SHOULD KNOW OF) THE POSSIBILITY OF SUCH
DAMAGES OR LOSS, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
ADD
33. TERMINATION OF PRIOR DEVELOPMENT AGREEMENT
On August 7, 1997, the parties entered into that certain C4 PROBE CARD
DEVELOPMENT AND SUPPLY AGREEMENT ("Prior Agreement"). The parties agree that it
is in their best interests to terminate this Prior Agreement, and no provisions
survive. and the parties hereby terminate the Prior Agreement.
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
46
ADDENDUM A, `ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO ALL EQUIPMENT MODELS,
SPARE PARTS AND SERVICES, PART I. EQUIPMENT.
DELETE
SECTIONS 1, 2, 4, 5, 6, AND 7
RETAIN SECTION:
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 .
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.
i. Seller shall not make changes to Items without prior written approval
from Buyer.
ii. Changes include all hardware assembly modifications that affect the
manufacturing environment, impact/require recipe alteration to match
outputs, affect the ergonomic or safety characteristics of the
Equipment. 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 * * * (* * *) days, or as agreed to by both ▇▇▇▇▇
and Seller 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.
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.
ADDENDUM A
ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO ALL EQUIPMENT MODELS, SPARE
PARTS AND SERVICES
DELETE
PART II. SPARE PARTS.
PART III. SERVICES.
CHANGE
2. PRICING
A. Prices set forth in Addendum L and specific scopes of work (for
extended service contracts) shall - remain firm THROUGH * * *.
DELETE
B. Seller will decrease rates when they are determined not to be
competitive with geographical labor rates.
DELETE
C. If Seller decreases prices for Services furnished hereunder, the
prices of any and all remaining Services under this Agreement shall be
decreased.
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
47
DELETE
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.
DELETE
4. EQUIPMENT PRE-DELIVERY AND START UP
C. Prior to Equipment installation, Seller shall participate in Buyer's
installation design reviews, identify any flaws in the designs that
would impair the successful installation of Seller's Equipment, and
shall approve final design revisions.
D. After Buyer has completed Equipment Facilitation, 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. At a minimum, this shall include final
connection, pre-safety certification hookup work, mechanical,
electrical, software functionality testing, chemical functionality
testing, acceptance to Purchase Spec criteria, and process module
qualification (final acceptance). 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.
DELETE
5. PROCESS MODULE QUALIFICATION
E. Seller shall participate as needed in process and module qualification
and in integrating the Equipment into the manufacturing process.
▇. ▇▇▇▇▇▇ shall use mutually agreed procedures, practices and methodology
for ensuring that the Equipment being installed matches the
performance of similar Equipment installed in Buyer's facility.
G. Equipment matching shall include, but is not limited to, process
matching, gauge matching, statistical and Equipment to Equipment
matching in the same facility or in any of Buyer's facilities, subject
to any limitation defined in the purchase Spec.
▇. ▇▇▇▇▇ shall provide Seller with training to assist in Equipment,
process and module characterization procedures.
F. Seller shall assist Buyer in streamlining the process within critical
parameter requirements to achieve greater machine effectiveness and
higher output volume.
DELETE
6. FIELD SERVICE SUPPORT
C. If equipment does not meet performance requirements and specifications
as detailed in the Purchase Specification, Seller shall provide during
the warranty period service engineer on Buyer's site during the first
year at each of the new Buyers site installations. At no additional
cost, should chronic problems persist, additional field service
engineers will be dedicated to provide * * * on-site coverage, until
Equipment consistently meets Purchase Specifications. Sites shall have
the option of extending on-site coverage at a rate in accordance with
Addendum "Service," provided Purchase Specifications have been
achieved
D. Seller will provide worldwide field service support to ensure that the
equipment meets or exceeds the performance specifications. Seller will
(i) monitor and report data on performance to plan (by work week) at
the required service contract, warranty and management reviews, (ii)
actively participate in continuous improvement forums, such as, users
groups, (iii) continuously improve their process capability,
application knowledge, and support, (iv) train and certify their field
service personnel so that they meet the requirements identified in
this agreement, and (v) develop the appropriate escalation procedures
for problem resolution and Equipment down situations.
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
48
7. CONTINUOUS IMPROVEMENT
DELETE
A. After the first Equipment is installed at a site, Buyer may require
Seller to participate in a joint program to baseline and improve the
performance of Seller's Equipment in Buyer's production applications.
At the end of six months, Buyer and Seller shall review this baseline
performance and establish long range continuous improvement goals. In
no case shall baseline Equipment performance be less than parameters
defined in the Purchase Specifications. Seller commits to a
continuously improving Equipment Cost of Ownership (CoO).
CHANGE
▇. ▇▇▇▇▇▇ AND BUYER MAY WORK TOGETHER to collect and analyze data through
Buyer's automated data collection system and/or other data available to
Seller and recommend corrections or improvements to Equipment.
8. ESCALATION
A. Seller will provide telephone Technical Support with a * * * 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).
DELETE
B. If a problem with Equipment cannot be resolved by Buyer's personnel
within * * * of such a call, Seller will have service personnel on
Buyer's site within * * * or within * * * if an extended service
contract is in place.
DELETE
C. If the problem is still unresolved * * * after the initial call,
Seller shall dispatch at least one additional senior (Level III) field
service engineer to the site.
CHANGE
D. If the problem is still unresolved * * * after the initial call, BUYER
MAY REQUEST AND SELLER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO
* * *.
CHANGE
E. A post mortem report is required for all equipment down over * * *.
Seller's Field Service Manager is responsible for scheduling a post
mortem meeting with the Buyer after the "Escalated" problem is
resolved. The Seller report will include, but is not limited to,
documenting the root cause , plan of action, any future preventive
actions, a summary of the daily activities noting parts used, their
effect on the problem, and any change to the plan of action.
CHANGE
F. IF * * *, These levels of escalation will be provided at no cost
during the warranty period. * * *
9. TECHNICAL EXPERTISE
CHANGE
A. In order to be considered a Level III Field Service Engineer (FSE OR
FAE, FIELD APPLICATION ENGINEER), the individual must meet all of the
following requirements:
i. At least six months experience working with the model(s) of
equipment being supported under this Agreement. Seller will work
with ▇▇▇▇▇'s training and documentation representative to develop
and produce a training plan, which will raise this individual to
Level III status.
DELETE
iv. Seller personnel used to install new equipment or relocate
existing equipment must be Skill Certified Level III
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
49
DELETE
v. ON SITE and OFF SITE Field Service Engineers must be Skill
Certified LEVEL III , as per Curriculum Section Addendum J.
DELETE
vi. ON SITE FIELD SERVICE ENGINEER (OSFSE) - The OSFSE will be
responsible for the management and supervision of Seller's team
of Field Service Engineer (FSE's) and other personnel utilized in
the performance 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. The OSFSE must be a certified
Level III (as per Section Addendum J of this Agreement) and will
deliver on-the-job training and formal training per Specification
20-254 section 4.7 to maintain and improve the skills of the
FSE's and ▇▇▇▇▇'s factory personnel assigned to Seller's
equipment. The OSFSE must report equipment performance MTBA,
MTBF, Utilization, Outs per system, Spares usage, and PM PAS,
weekly to responsible Process/Equipment Engineer, Site Supplier
Management Team and Buyer, as well as performance against
schedule (PAS) for any agreed to service objectives or issues and
plans. The OSFSE shall be responsible for resolving any Seller
personnel-related discipline issues. However, ▇▇▇▇▇ 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.
CHANGE
D. 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 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 may remain but shall be supplemented at no charge
by an additional Seller personnel who is Level III certified Or,
iii. 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.
10. OTHER SELLER RESPONSIBILITIES
DELETE
A. Seller must provide both Preventive Maintenance (PM) and Corrective
Maintenance (CM) support to mutually agreed procedures, which are
defined in Buyer's PM Specifications. Should a situation arise where
multiple procedures exist, ▇▇▇▇▇'s procedures will be executed by
default.
CHANGE
B. FSE's MAY, AT SELLER'S DISCRETION participate and contribute to Buyer
factory support teams.
DELETE
B. FSE must be Performance Base Equipment Training (PBET) certified.
DELETE
C. FSE will provide training described in 20-254 Training Requirements to
support Buyer's maintenance capability AT THE FEE SCHEDULE DEFINED IN
ADDENDUM ▇.
▇. Modifications and/or procedural changes recommended by Seller will be
implemented only as defined by ▇▇▇▇▇'s Change Control Procedures.
CHANGE
▇. ▇▇▇▇▇▇ MAY work with Buyer to develop, test, and proliferate
Continuous Improvement Projects (CIP) needed to meet or exceed the
Corporate Purchase Agreement and Corporate Purchase Specification
requirements.
DELETE
50
F. Seller will provide documented and demonstrated Response Flow
Checklists (RFCs) for equipment troubleshooting and repair of the
common failures from the reliability growth testing.
CHANGE
J. SELLER is responsible for FSE training, tracking and competency in all
Buyers safety requirements, as per Section Addendum J. This is inclusive of
any and all work performed by the Sellers FSE, at the Buyers sites.
DELETE
K. Seller must help develop and execute activities to reduce scrap and
unit losses and unscheduled downtime incidents.
DELETE
M. Seller shall generate Predictive Maintenance schedules.
DELETE
N. Should Seller have non-English speaking FSE's on site, Seller shall
provide adequate bilingual support for translation.
DELETE
O. As team member, Seller personnel shall function as proficient
maintenance technicians, to comply with Buyers in-house procedures,
while at the same time utilizing Seller knowledge to maintain
equipment and offering suggestions on improved methodology for
achievement of cost effective output increases.
DELETE
Seller shall provide Buyer with all Equipment-specific tools (one set per
site).
11. BUYER RESPONSIBILITIES
A. Buyer shall provide work area for Seller's contracted on site FSE
employees in the maintenance shop Additional Office space shall be
determined by local factory conditions.
B. Buyer shall provide access to Equipment for preventative maintenance
or repair.
▇. ▇▇▇▇▇ shall provide factory contacts to define priorities and assist
in resolving disputes and disciplinary issues.
D. Buyer shall provide access to facility and Equipment documentation.
E. Buyer shall provide a schedule of holidays and shutdowns.
ADD
F. BUYER MAY PROVIDE ACCESS TO A COMPUTER FOR NECESSARY TECHNICAL
PROGRAMS, EMAIL, ETC...
ADD TO END OF ADDENDUM C
In no event shall such updates to the protection methods materially change
Seller's obligations under this Agreement. Seller may terminate this Agreement
with five (5) days notice if any changes to protection methods are deemed by
Seller to be unacceptable.
DELETE ADDENDUMS D, E, F, G, H, I, AND J
ADD ADDENDUM L:
ADDENDUM L
C4 SIU PRICING AND LEADTIMES
51
1. C4 PRICING
A. Non-recurring Engineering for each new design shall be $* * * .
B. Should Buyer purchase * * * or more SIUs for a new product at one
time, the * * * pricing will apply for those first * * *
units.............
C. Seller may utilize and ship against the alternate specification for
the first * * * SIUs only. Seller will discount the ▇▇▇ ▇▇▇▇▇ for the
alternate spec. SIUs by * * *%. Alternate specification is defined as
not meeting the 100% specification, and * * *.
D. It is expected that all new product designs will be similar in design
to those found in the following Design Rules and Probe Layouts, that
should eliminate any custom quoting.
E. C4 Pricing Based on Layout complexity and Pin Count
--------------- ------------- --------------- ----------------- ------------------ ---------------
PROBE QUANTITY CUMULATIVE LAYOUT 1 CUSTOM
QUANTITY AND L2 LAYOUT L3 LAYOUT L4 LAYOUT
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- ------------- --------------- ----------------- ------------------ ---------------
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- ------------- --------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * $ * * *
--------------- -------------- -------------- ----------------- ------------------ ---------------
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * $ * * * $ * * * $ * * * by quotation
--------------- -------------- -------------- ----------------- ------------------ ---------------
* * * * * * by quotation by quotation by quotation by quotation
--------------- -------------- -------------- ----------------- ------------------ ---------------
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
52
F. Design Rules and Probe Layouts.
The following illustrations define typical layouts that are referred to in Table
1. These layouts are based primarily on current experiences and * * * designs.
Multiple repetitions of the same pattern (A, B, C, D) in a layout is acceptable.
Repetition of a pattern is defined as translation of the pattern to another area
of the array. Rotation of a pattern creates a new pattern (ex. pattern C
translated and rotated by 45 degrees creates a new pattern). Probe Density Rules
must be met.
KEY
A Uniform pattern (portions may be depopulated, single pattern for
the design)
B Additional pattern(s) and or pitches compared to pattern A
C, D, E, etc. Additional pattern and or pitch compared to patterns A or B, etc.
[4 graphics here]
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*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
53
2. $* * * MINIMUM ORDER FOR NEW PRODUCT
A. For every new product design, Buyer shall place a minimum order value
of $* * *. The minimum order value is comprised of the NRE
(non-recurring engineering) cost, and the SIU cost, multiplied by the
number of SIUs (sort interface units) purchased. Should Buyer not
order enough SIUs to meet the minimum order value, Buyer will still be
invoiced for $* * *.
3. SERVICE PRICING
A. Field Service Engineer (FSE) pricing will be at a daily rate of $* * *
per 8 hour day. If Buyer and Supplier mutually agree, FSEs may work in
excess of 8 hours per day, but no more than 12 hours per day. FSE
pricing beyond 8 hours will be at an hourly rate of $* * * per hour.
4. LEADTIMES
A. Leadtimes for C4 First Articles is * * * weeks plus American and/or
Japan holidays, as provided by Seller to Buyer each year in advance,
and as agreed to between Buyer and Seller.
B. Leadtimes for Buyer C4 forecasted reorders (repeat orders) is * * *
weeks. Buyer may expedite forecast reorders for a * * * week
through-put time for a * * *% expedite fee, or for a * * * week
through-put time for a * * *% expedite fee, subject to Seller's
acceptance. Seller shall commit to either the * * * or * * * week
expedite at time of order release, and should Seller not meet the
expedite time, then no premium shall be paid. Expedited reorders will
not count against late deliveries for on time delivery as reported on
the Supplier Report Card (only if the reorder is greater than * * *
weeks with the reorder count negatively against on time delivery). If
an expedited order is delivered in greater than * * * weeks, then
Buyer shall only pay for the reorder price (and not the * * *% or
* * *% expedite fee).
C. Leadtimes for Buyer C4 un-forecasted reorders (repeat orders) is
* * * weeks. Buyer may expedite un-forecasted reorders for a * * *
week throughput time for a * * *% expedite fee, subject to raw
material in stock or raw materials can be procured in time to meet the
expedited schedule. Expedited reorders will not count against late
deliveries for on time delivery as reported on the Supplier Report
Card (only if the reorder is greater than * * * weeks with the reorder
count negatively against on time delivery). If an expedited order is
delivered in greater than * * * weeks, then Buyer shall only pay for
the reorder price (and not the * * *% expedite fee).
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
54
ADDENDUM M
Procurement Spec. ▇▇-▇▇▇▇-▇
1 Title: SIU Procurement Specification
2 Purpose:
2.1 To establish uniform business standards for procurement of Sort
Interface Units (SIU).
2.2 To outline the qualification and disqualification process used in
selecting suppliers of SIUs.
2.3 To define some of the terminology used in association with ITTO Test
Tooling SIU transactions.
3 Scope:
3.1 This specification applies to all SIUs being purchased for use within
Intel.
3.2 This specification applies to all suppliers of SIUs.
4 Applicable Forms/Documents
4.1 Drawings/Information through electronic transfer
4.1.1 All Gerber artwork files (RS274x format)
4.1.2 Assembly Drawings/Information (electronic transfer)
4.1.3 Die pad coordinates and tester channel assignments spreadsheet
(.XLS)
4.1.4 PRV/ITC (or equivalent SIU analyzer) reference file
4.1.5 Mechanical Drawing (.PDF format)
4.1.6 Data Sheet (.PDF format)
4.1.7 Schematic (.PDF format)
4.1.8 Fab Drawing (.PDF format)
4.2 ITTO Test Tooling Product Catalog
4.3 Relevant Sub Assembly and Electrical Spec
4.3.1 86-2504 Resilient Contact Probe Card Subassembly & Electrical
spec. (if applicable)
4.3.2 86-2504 Buckling Beam Probe Card Subassembly & Electrical spec.
(if applicable)
4.3.3 Probe Card Subassembly & Electrical spec
4.4 Corporate Non-Disclosure Agreement (CNDA)
4.5 Confidential Information Transmittal Record (CITR)
5 General
5.1 Key Results
5.1.1 Clearly communicate Intel's requirements for SIU physical and
functional parameters and supplier qualification process.
5.1.2 Provide an uninterrupted supply of high quality SIUs to Intel's
internal production, production support, and development
operations.
5.2 Terms and Definitions
5.2.1 Acceptance: Intel verification that an SIU meets specified
criteria as outlined in the documents listed in Criteria and
Procedure section of this document, and as determined during the
incoming inspection.
5.2.2 First Article Inspection: Inspection by ITTO Engineering of the
first build by that supplier of a given product.
55
5.2.3 Incoming Inspection: Standard quality assessment performed when
a SIU is received at an Intel site from the supplier.
5.2.4 ITTO Test Tooling: Intel Tooling Operations, Test Tooling -
Intel group chartered to coordinate SIU procurement for HVM
Intel Factories.
5.2.5 Qualification Types:
5.2.5.1 Conditional Qualification: After the agreed upon First
Articles have been accepted by Intel, the supplier
becomes conditionally qualified for the technology or
technology level under evaluation. During the conditional
qualification period, the supplier's volume is restricted
to the orders placed to complete the qualification
status.
5.2.5.2 Full Qualification: Once all qualification samples have
been delivered and the supplier has met the agreed upon
success criteria, the supplier reaches full qualification
for the technology or technology level evaluated. At this
point, Intel may choose to increase order volume based on
need.
5.2.6 SIU: Sort Interface Unit, (a.k.a. probe card).
5.2.7 Supplier: Any manufacturer which provides production ready test
tooling (SIUs, etc.) to Intel.
5.2.8 Technology, Technology Level: Details are in Intel Product
Requirement Docs (PRD). Access to PRD information through ITTO
Engineering
Examples:
A. SIUs and cantilever style SIUs are different technologies.
B. 237 um pitch and 225 um pitch SIUs are different technology
levels.
6 Policy/Procedure
6.1 Supplier Qualification
6.1.1 Before initializing discussions with any prospective supplier
(and sub-supplier where necessary), the Intel purchasing
representative will execute the appropriate Corporate
Non-Disclosure Agreement (CNDA) with the supplier. All
information communicated will be outlined in a supplementary
Confidential Information Transmittal Record (CITR).
6.1.2 ITTO Test Tooling and purchasing will meet with the prospective
supplier to discuss Intel specifications and requirements.
Topics will include, but will not be limited to: SIU
specifications, supplier volume, delivery capabilities and other
business considerations, supplier process controls and quality
assurance methodology, and future technology support.
6.1.2.1 If, in Intel's opinion, the prospective supplier appears
unlikely to be able to satisfy Intel's short and/or long
term needs, Intel may terminate the evaluation with no
prejudice to the supplier.
6.1.2.2 Intel reserves this right, independent of whether
factors are under the supplier's control, or whether the
factors are subjective or quantitative in nature.
6.1.3 Each technology and/or technology level may require a separate
qualification.
6.1.4 Intel and the supplier will negotiate an agreement on terms for
delivery of first article goods for evaluation. This should
include pricing, delivery schedule, and first article product.
6.1.5 Qualification parameters will be established based on the
criteria outlined in section 6.3.
6.1.5.1 Success criteria for these parameters will be defined
(depending on the parameter) using a combination of
distribution matching to requirements (mean, standard
deviation), pass/fail criteria or meeting spec ranges.
6.1.5.2 Qualification Parameters, Success Criteria and sample
size will be negotiated and established between Intel
and Supplier prior to beginning conditional
qualification.
6.1.5.3 The first article sample shall include one or more SIUs.
The exact number is to be determined during negotiation,
and may be dependent on the nature of the product.
56
6.1.5.4 The requirements of the first article sample(s) will be
validated against the relevant first article checklist.
6.1.6 Intel will provide the supplier with all drawings and
documentation necessary to build the first article SIUs to the
necessary specifications. This information transmittal must be
accompanied by a CITR signed by both parties.
6.1.7 Upon receipt of supplier's first article SIU(s), Intel will
evaluate the card(s) according to the criteria outlined in
section 6.3.
6.1.8 If the first article SIUs meet Intel approval according to the
criteria listed herein, the supplier will be deemed
"Conditionally Qualified" on that product. The supplier will
remain in conditional qualification status until such time as
all full qualification criteria have been demonstrated.
6.1.8.1 Samples must exhibit 100% conformance to acceptance
criteria directly affecting functionality to allow
supplier to achieve conditional qualification.
6.1.8.2 During conditional qualification, samples exhibiting
100% conformance to acceptance criteria will be shipped
to customers.
6.1.8.3 Non-conformance to criteria not directly affecting
functionality, such as artwork, documentation and
packaging, will not prevent the supplier from achieving
conditional qualification, however, conformance to these
items individually must be demonstrated prior to
acceptance of the SIU.
6.1.9 If the First Article SIU(s) do not meet the criteria listed
herein, Intel will inform the supplier in writing, indicating
which criteria were deficient, and to what degree, and the
SIU(s) will remain with the supplier. (Intel also reserves the
right to determine (based on the root cause and correction) if
the data from failing sample(s) will be included in the full
qualification.)
6.1.10 The supplier has the option to either withdraw itself from the
qualification process, to repair, or to re-submit another
sample. Supplier must notify Intel in writing of intent within
ten business days from Intel notification of sample deficiency.
Any repairs or re-submissions will be completed by the supplier
at no additional cost to Intel.
6.1.10.1 If the supplier chooses to re-submit another sample, it
must address the deficient criteria from the first
sample with a written explanation and corrective action
report.
6.1.10.2 If the supplier chooses to repair and resubmit the same
sample, a corrective action report must be submitted
along with the intent letter, and Intel must approve
the corrective action prior to delivery of the repaired
SIU.
6.1.10.3 If the supplier chooses to withdraw itself from the
qualification process, the supplier will not be
eligible to attempt qualification on the same product,
technology, or technology level until they are able to
present clear and convincing evidence that they have
completed a corrective action plan, and that the stated
deficiency is corrected. The supplier will, however,
remain eligible to attempt qualification for other
technologies or technology levels.
6.1.11 Failure to meet specified criteria during a qualification will
have no effect on the qualification status of the supplier for
any other product type, technology, or technology level on
which they are currently qualified by Intel.
6.1.12 Conditional Qualification will continue until Intel has
accepted the appropriate sample size to allow Intel to
statistically verify performance to the qualification line
items outlined in section 6.3.
A. For those parameters with statistical success criteria,
qualification must demonstrate supplier is statistically
equal to or better than existing supplier distributions for
the equivalent technology, technology level under
evaluation.
B. For those parameters with statistical success criteria but
no baseline exists, the supplier will be evaluated against
the specification target and specification window for the
technology, technology level, under evaluation.
6.1.13 The sample size used for qualification is dependent on the
minimum detectable difference in means, (alpha) (alpha), and
(beta) (beta) as defined by ITTO Test Tooling to determine
success criteria. Typically, the (delta) (delta) = 1.5 standard
deviations and (alpha) (alpha) = (beta) (beta) = 0.05. Standard
deviation
57
(assessment of the spread of the data) may also be evaluated,
but will not determine sample size. Under special
circumstances, Intel reserves the right to either increase or
decrease sample size and/or delta. The sample size and delta
will be communicated to the supplier during initial
qualification discussions.
6.1.14 Upon meeting the success criteria, the supplier will achieve
full qualification status for that product type, technology, or
technology level. The supplier will be notified in writing.
6.1.15 Changes to the product form, fit, or function, initiated either
by Intel or by the supplier, can result in:
A. PRE QUALIFICATION: Qualification sample plan may be
restarted.
B. POST QUALIFICATION: Return to conditional qualification
status on that product type or technology level.
6.1.15.1 Changes noted above will be evaluated on a case by
case basis for applicability of this requirement. The
supplier will be notified in writing of this action.
6.2 Supplier Disqualification
6.2.1 In situations where a supplier has exhibited repeated quality
issues which create an environment of unpredictable SIU supply,
Intel reserves the right to apply the conditional qualification
status to ensure corrective action. Because such a situation
depends on a variety of factors (i.e.; volume, production
conditions, lead times, etc.), this action will be carefully
reviewed with the supplier prior to being taken.
6.2.2 If a supplier is disqualified, they may not re-qualify on the
same technology level unless they are able to present clear and
convincing evidence that they have completed a corrective action
plan, and that the stated deficiency has been corrected.
6.3 Criteria and Procedure
6.3.1 General
6.3.1.1 In the event of conflict between information in
this specification or specification 86-2504, and
that of other applicable procurement documents, the
precedence in which requirements shall govern, in
descending order, is as follows:
A. Written ECO's, letters, waivers, or faxes which clarify the
purchase order.
B. Intel Purchase Order
C. The Data Sheet
D. Reference Documents specified in the Data Sheet.
E.g.; the Fab Drawing, the Electrical Assembly Drawing, and
ECO's.
F. This spec, & the relevant Subassembly & Electrical Spec.
G. Design Rules
6.3.1.2 In all cases where a specified criterion or requirement
is to be waived in the order or delivery of a SIU, the
waiver must be documented for record keeping at ITTO
Test Tooling.
6.3.1.3 The supplier must provide Intel written notification and
Intel must issue a written waiver (or change required
documentation) before changing any part of the form,
fit, or function of a SIU, packaging, or any aspect of
the business arrangement between the supplier and Intel.
6.3.1.4 Intel will notify the supplier of SIU acceptance or
rejection in writing, within 21 calendar days from the
time of shipment.
6.3.2 Printed Circuit Board
6.3.2.1 All physical dimensions and tolerances must be achieved
as specified in the appropriate fabrication/assembly
drawings.
58
6.3.2.2 All specified on-board discrete components (capacitors,
resistors, EPROMs, etc.) must be present and functional
as specified in the appropriate assembly drawings.
6.3.2.3 Each SIU must have securely (or permanently) and legibly
marked upon it an alpha-numeric identifier which is
unique to that SIU. This identifier must be included on
all documentation delivered with the SIU. This
identifier is for Intel tracking, and does not replace
supplier's existing process specific serialization, if
any. Alpha- numeric identifier must conform to Intel
requirements as defined by Intel purchase order.
6.3.3 Sub-Assembly/Electrical requirements - See the relevant
Subassembly and Electrical Specification.
6.3.3.1 SIUs must pass all required criteria while attached to
the same fixture ring (if any required) with which it
will ship.
6.3.4 Packaging
6.3.4.1 Packaging must consist of rigid outer materials
sufficient to prevent collapse onto the SIU due to:
- Pressure from cushioning within shipping carton
- Free fall drop at any orientation from height of 48" while in
shipping carton
- Normal handling throughout lifetime
6.3.4.2 Package must include a secure mechanism or design which
prevents package from opening, or SIU from dislocating
within the package, during shipping. Sealing method must
be able to withstand a 48" free fall drop at any
orientation while in shipping carton.
6.3.4.3 Rigid SIU package must be sealed within at least one
flexible bag throughout shipping to prevent migration of
shipping package materials into the SIU package.
6.3.4.4 A removable cover must be provided which prevents
contact with the sub-assembly during SIU handling.
6.3.5 Material Quality: See the relevant Subassembly and Electrical
Specification.
6.3.6 Documentation
6.3.6.1 All documentation must contain the unique identification
number of the SIU to ensure traceability.
6.3.6.2 Supplier will comply with ITTO Test Tooling transaction
and documentation procedures. These will be outlined and
monitored through supplier/ITTO business meetings.
7 Responsibilities
7.1 It is the supplier's responsibility to meet the SIU product quality
and functionality requirements defined in this document, regardless of
the level of inspection performed at Intel prior to use, or at the
supplier site prior to shipment.
7.2 Required supplier deliverables consist of the following:
7.2.1 Hardware:
7.2.1.1 Complete and functional SIU tested and verified as
meeting Intel's specified criteria.
7.2.2 Documentation:
7.2.2.1 Probe layout (or graphic representation of probe
alignment data)
7.2.2.2 SIU analyzer inspection results on 3.5" diskette in
agreed upon format.
7.2.2.3 SIU inspection criteria (e.g.; checklist indicating SIU
passed outgoing inspection).
7.3 It is the responsibility of ITTO Test Tooling to manage quality, form,
fit, and function of additional components defined by Intel that are
outside of the supplier's direct control (e.g. fixtures, shipping
containers).
59
7.4 It is the responsibility of the ITTO Test Tooling Quality Group to
ensure that the outgoing inspection methodology and metrology of any
supplier is such that there is a close correlation between the
supplier's outgoing quality assessment of a product, and Intel's
incoming inspection.
7.5 It is the responsibility of the ITTO Test Tooling Engineering Group to
ensure that any change to the design or function of a SIU, or any SIU
from a prospective supplier which possesses a new design or new
materials, is first evaluated to verify that it meets specified
requirements.
7.6 It is the responsibility of the supplier to immediately notify Intel
if a discrepancy, misunderstanding, or ambiguity is located in any of
the documentation required to manufacture the SIU.
7.7 Change Control:
7.7.1 Supplier generated change requests will be co-managed utilizing
an agreed upon supplier change control system.
7.7.2 Supplier Responsibility:
7.7.2.1 Notify Intel in writing under CITR, at least two weeks
prior to making any change in the materials used in
manufacturing Intel products included in his
specification. Any test data regarding material
performance, reliability, environmental impact, etc.
must be made available to Intel upon request before the
change takes place.
7.7.3 ITTO Responsibilities:
7.7.3.1 Ensure that any change to the design or function of a
probecard or any probecard from a prospective supplier
which possesses a new design or new materials is first
evaluated to verify that it meets specified
requirements.
7.7.3.2 Respond to Supplier in a timely manner as to status and
approval for change requests.
8 Spec. History
8.1 rev. 0.0: Original author collaboration by ▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇.
Spec 07-1004 to replace and supercede 07-1003 and any other 07-XXXX
purchasing specification.
8.2 rev. 1.0: Modification by ▇▇▇▇▇▇▇ ▇▇▇ to cover both SIU types: 1)
epoxy needle 2) resilient contact. Spec owner now ▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇ ▇▇▇. Spec 07-1004 to replace and supercede 07-1003 and any other
07-XXXX purchasing specification.
8.3 Rev. 2.0: Modification by ▇▇▇▇ ▇▇▇▇▇▇▇ to add buckling beam. And
Spec. ▇▇-▇▇▇▇-▇ to supercede all previous specs..
8.4 Rev. 3.0: Add datasheet, schematic, mechanical drawing, fab drawing to
4.1. Remove 4.1.2 and 4.1.6. Correct misspelled words.
----------
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The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
60
ADDENDUM N
X60 RC Subassembly/Electrical Spec.
1.1 86-2504 Resilient contact c4 array SIU subassembly & electrical
specification
1.2 PURPOSE:
The purpose is to clearly state all current physical and electrical requirements
for probe cards purchased by Intel to support C4 activities.
1.3 SCOPE:
This spec applies to all resilient contact C4 array probe cards purchased by
Intel.
1.4 Reference Documents:
1. Spec * * * C4 Array SIU Procurement
2. * * * files (* * * Format)
3. * * * files (if * * * format)
4. Assembly Drawings/Information (electronic transfer)
5. Die Pad coordinates and tester channel assignment spreadsheet (.XLS)
6. ITC (or equivalent SIU analyzer) reference file
7. PCB Fabrication Drawing (.DXF or RS274)
\ SECTION "2.0 process:"
2.1.1 Process Reference Items, for C4 Array Resilient Contact probe card
requirements are listed below. Values in parenthesis are in mils unless
otherwise noted:
------------------------- -------------- -------------- -------------
Process Reference Items * * * * * * * * *
C4 Array C4 Array C4 Array
------------------------- -------------- -------------- --------------
Minimum Bump Pitch * * * * * * * * *
Shrink
------------------------- -------------- -------------- --------------
Maximum Overdrive * * * * * * * * *
Shrink
------------------------- -------------- -------------- --------------
2.1.2 Required Items, for C4 Array Resilient Contact probe card requirements are
listed below. Values in parenthesis are in mils unless otherwise noted:
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
61
-------------------- ---------------------- ---------------------
Required Items * * * C4 Array Measurement Method at
Outgoing
-------------------- ---------------------- ---------------------
Components / BOM * * * Optical/Ohmmeter /
BSL Roboprobe System
-------------------- ---------------------- ---------------------
Contact Force * * * Current: Kmapper
Future: * * *
-------------------- ---------------------- ---------------------
Keep out areas No components Optical
-------------------- ---------------------- ---------------------
Keep out Requirement * * * Current: PB3000
Spring Design
-------------------- ---------------------- ---------------------
Leakage Signal Probes: Current: PB30000 &
(AT 5 Volts DC) * * * Bench Leakage Test
Power Supply Probes: Future:
* * *
-------------------- ---------------------- ---------------------
Path Resistance * * * - signal probes Current: PB3000
(Includes C-Res) Future:
* * * - single power
supply probe
-------------------- ---------------------- ---------------------
PCB Characteristics Impedance * * * PCB Supplier TDR
Hole posit/diameter optical and/or CMM
per PCB fab drawing. (Coord Meas Machine)
PCB * * *. Visual + Mount on
PC3000
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
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-------------------- ---------------------- ---------------------
Probe Angle As per Data Sheet using Optical Microscope
orientation convention and/or PB3000
definition (+-TBD Deg)
-------------------- ---------------------- ---------------------
Probe Blade Tip Height * * * Current: TBR
-------------------- ---------------------- ---------------------
Probe Blade Tip Length * * * Current: TBR
-------------------- ---------------------- ---------------------
Probe Depth * * * Current:PB300 and/or
(Future Tgt/Range TBD) Optical Scope
-------------------- ---------------------- ---------------------
Probe Tip Alignment * * * Current: View Eng
and/or ITC PB3000
-------------------- ---------------------- ---------------------
Probe Tip Diameter * * * Current: View Eng
and/or ITC PB3000
-------------------- ---------------------- ---------------------
Probe Tip Optical Must be able to be Tel P8I Prober
usability recognized by the
Prober vision system
-------------------- ---------------------- ---------------------
Probe Tip Planarity Maximum * * * Current: Tel Prober
Post Tilt Correction and ITC PB3000
(1st to last probe)
-------------------- ---------------------- ---------------------
Probe Tip Planarity Maximum * * * Review H Map Data
(Least Squares Fit)
Pre Tilt Correction (Used
when supplier does not do
tilt correction)
-------------------- ---------------------- ---------------------
Probe Tip Thickness * * * Tencor Profilmeter
Minimum: TBD
Future Tgt: TBD)
-------------------- ---------------------- ---------------------
Probe Type (Spring) * * * unless otherwise Optical Microscope
noted on Data Sheet
-------------------- ---------------------- ---------------------
Space Transformer * * * Sp Xfmr Supplier
CFC (TDR)
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
63
>
Impedance measurement)
-------------------- ----------------------- ---------------------
Wire Check All probes must Current: ITC PB3000
demonstrate
proper connectivity
-------------------- ----------------------- ---------------------
2.1.3 Key Results, for Material Quality Requirements are listed below:
-------------------------------------------------
Item/Allowance
-------------------------------------------------
Item/Allowance
-------------------------------------------------
* * *
-------------------------------------------------
* * *
-------------------------------------------------
* * *
-------------------------------------------------
* * *
-------------------------------------------------
* * *
-------------------------------------------------
* * *
-------------------------------------------------
* * *
-------------------------------------------------
* * *
-------------------------------------------------
2.1.4 Materials must be able to maintain specified physical tolerances when
acclimatized and measured in the following environmental conditions listed
below:
----------------------------------- ----------------
Condition Limit
----------------------------------- ----------------
Temperature * * *
----------------------------------- ----------------
Humidity * * *
----------------------------------- ----------------
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
64
\ SECTION "3.0 equipment & materials: N/a"
METROLOGY PERFORMANCE REQUIREMENTS:
P/T = * * *.
\ SECTION "4.0 safety: n/a"
\ SECTION "5.0 pre-procedure: n/a"
\ SECTION "6.0 procedures: n/a"
\ SECTION "7.0 shutdown/start-up: n/a"
\ SECTION "8.0 problem resolution: n/a"
\ SECTION "9.0 maintenance: n/a"
\ SECTION "10.0 drawings/schematics: n/a"
\ SECTION "11.0 supplemental:"
11.1.1 Probe Card Physical Characteristics:
--------------------------- ------------------------------------------------------------
Term Definition
--------------------------- ------------------------------------------------------------
Braze Process of soldering probe tips to the springs using a * * *
--------------------------- ------------------------------------------------------------
Die Coordinates Relative to The coordinate system specified by the
PCB (S9K) designer should be oriented relative to the * * *.
(Graphic available from ITO) If the viewing position is correct, there will
be * * *.
The origin of the die should be the * * *.
--------------------------- ------------------------------------------------------------
----------
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
65
-------------------- ---------------------------------------------------
Discrete Components * * *
-------------------- ---------------------------------------------------
Hardware * * *
-------------------- ---------------------------------------------------
Interposer Temporary interconnect between the space
transformer and the PCB.
-------------------- ---------------------------------------------------
PCB Signal Trace Electrical path on the printed circuit board from
tester electrical contact point to the interposer
connection point.
-------------------- ---------------------------------------------------
PCB Flatness Planar conformance of the probe card printed
circuit board. * * *
-------------------- --------------------------------------------------
PCB Thickness Nominal distance from the top to the bottom of the
probe card printed circuit board. * * *
-------------------- ---------------------------------------------------
Probe Array Rotation The angle between the probe array X-Y axis and the
(Graphic available probe card printed circuit board X-Y axis. * * *
from ITO)
-------------------- ---------------------------------------------------
Probe Card Assembly The assembled probe card including printed circuit
board, interposer, space transformer subassembly,
and applicable mounting hardware.
-------------------- ---------------------------------------------------
Probe Depth * * *
-------------------- --------------------------------------------------
Probe Spring Angle Specified in the above defined Die Coordinates
Orientation Convention relative to PCB system (See Definition above) * * *
Convention
----------
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
66
(Graphic available
from ITO)
-------------------- ---------------------------------------------------
Probe Tip Planarity * * * (Draft Definition)
Least Squares Fit
(Pre Tilt Correct)
-------------------- ---------------------------------------------------
Probe Tip Planarity * * *
(After Tilt)
-------------------- ---------------------------------------------------
Probe Tip Positional * * *
Alignment
-------------------- ---------------------------------------------------
Signal Path Electrical path of the probe card assembly from the
tester electrical contact point to the probe tip.
-------------------- ---------------------------------------------------
Space Transformer Electromechanical component to which the probes are
attached which maps the probe pitch to the PCB
pitch.
-------------------- ---------------------------------------------------
Space Transformer The assembly which includes the space transformer
Sub-Assembly and probe array.
-------------------- ---------------------------------------------------
Spring|Type * * * (Characteristics):
Generally used for * * *
Height xx mil
Length xx mil
Type 2 (Characteristics):
Generally used for * * *
Height xx mil
Length xx mil
* * * (Characteristics):
Generally used for * * *
Height * * * mil
Length xx mil
-------------------- ---------------------------------------------------
Tester Electrical Location on the printed circuit board where the
Contact Point tester signal and power channels contact the
printed circuit board.
-------------------- ---------------------------------------------------
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
67
-------------------- ---------------------------------------------------
Tip Diameter * * *
-------------------- ---------------------------------------------------
11.1.2 Probe Card Functional Aspects:
-------------------- ---------------------------------------------------
Term Definition
-------------------- ---------------------------------------------------
Overdrive (Maximum) * * *
-------------------- ---------------------------------------------------
Overdrive (Target) * * *
-------------------- ---------------------------------------------------
PCB Characteristic Characteristic * * * impedance of the probecard
Impedance printed circuit board signal trace. * * *
-------------------- ---------------------------------------------------
Probe Leakage Maximum current from one tester electrical contact
point to all other tester electrical contact
points (* * *).
-------------------- ---------------------------------------------------
Probe Tip Horizontal Horizontal distance a probe tip moves across a
Movement (a.k.a. contacted surface in response to * * *.
scrub)
-------------------- ---------------------------------------------------
Signal Path Total series resistance of the signal path. * * *
Resistance
-------------------- ---------------------------------------------------
11.1.3 Defects
-------------------- ---------------------------------------------------
Term Definition
-------------------- ---------------------------------------------------
----------
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
68
-------------------- ---------------------------------------------------
Lifted Trace or Layer * * *
-------------------- ---------------------------------------------------
Probe- Bent, Broken * * *
-------------------- ---------------------------------------------------
Probe Tip Missing * * *
-------------------- ---------------------------------------------------
Probe Tip Misalign * * *
-------------------- ---------------------------------------------------
\ SECTION "12.0 automation/recipes: n/a"
\ SECTION "13.0 spec history:"
Rev No.: 0
Spec Owner: ▇. ▇▇▇▇▇▇▇
Author of Change: ▇. ▇▇▇▇▇▇▇
Changes to Section: ALL
Reason/Change: Creating * * * Spec
Rev No.: 1
Spec Owner: ▇. ▇▇▇▇▇▇▇
Author of Change: C. Wall
Changes to Section: Reordered Tables alphabetically. Multiple changes for
improving clarification of the Rev 0 specification. Also changed to Resilient
Spring C4 Array Sub Assembly and Electrical spec to allow generic use regardless
of generation. Eliminated section regarding change control policy and
responsibility. Will add this to the procurement spec where it belongs. Combined
Components and continuity rows in the spec section for clarity. Added PCB trace
"AND LAYERS" in PCB lifted trace sections. Only specification changes were:
1) elimination of designed overdrive (* * *)
2) addition of maximum overdrive (* * *).
3) Changed *** C4 Array Shrink pitch from * * * to * * *
4) Changed *** C4 Array pitch from * * * to * * *
5) Changed *** C4 Array pitch from TBD to * * *
6) * * *
7) * * *
8) Clarified Leakage spec to be at * * * and added * * *.
----------
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
69
All other changes were for definitions or formatting.
Reason/Change: Improvement of document clarification for internal intel and
suppliers.
Rev No.: 2
Spec Owner: ▇. ▇▇▇▇
Author of Change: ▇. ▇▇▇▇
Changes to Section: ALL
Reason/Change: Creating * * * Spec
----------
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request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
70
AMENDMENT O TO
CAPITAL EQUIPMENT AND SERVICE AGREEMENT
BETWEEN
INTEL CORPORATION
AND
FORMFACTOR INC.
INTEL AGREEMENT NUMBER C-5673
AMENDMENT EFFECTIVE DATE: 1-22-01
WHEREAS, Intel and FormFactor Inc. (Supplier), have entered into a Purchase
Agreement, Agreement No. C-5673 (hereinafter called "Agreement") dated 1-08-01,
and
WHEREAS, both parties wish to amend the Agreement to include modified
Confidentiality and Publicity language as described in this Amendment O
Attachment.
THEREFORE, for valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties agree as follows:
1. PRE-ESTABLISHED TERMS
All terms and conditions of the Agreement remain in full force and effect
and apply to this Addendum, unless specifically modified below.
2. AGREEMENT MODIFICATIONS
AGREED: TO INCLUDE ATTACHMENT `ADDENDUM O EFFECTIVE FROM 1/22/01'
INTEL CORPORATION FORMFACTOR INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------- ------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------- ----------------------------------------
(Printed Name) (Printed Name)
Commodity Manager Director, Sales
-------------------------------------- ---------------------------------------
(Title) (Title)
1-22-01 1-22-01
-------------------------------------- ----------------------------------------
(Date) (Date)
71
ADDENDUM O
CONFIDENTIALITY AND PUBLICITY
Change 12.B. Confidentiality and Publicity in the GENERAL
TERMS AND CONDITIONS OF PURCHASE AGREEMENT -- CAPITAL
EQUIPMENT AND SERVICES form:
B. 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.
Change to:
B. Neither party may use the other party's name in advertisements, news
releases, publicity statements or financial statement filings, or disclose
the existence of this Agreement, nor any of its details or the existence of
the relationship created by this Agreement, unless such disclosure is
reasonably required to meet General Accepted Accounting Principles (GAAP)
or Securities Exchange Commission (SEC) filing requirements, to any third
party without the specific, written consent of the other, which consent
shall not be unreasonably withheld. If disclosure of this Agreement or any
of the terms hereof is required by applicable law, rule, or regulation,
including SEC filing requirements, or is compelled by a court or
governmental agency, authority, or body: (i) the parties shall use all
reasonable 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 five (5)
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, in any event within two (2) business days following being provided
with the relevant information and documents, 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.
72
AMENDMENT TO P
CAPITAL EQUIPMENT AND SERVICE AGREEMENT
BETWEEN
INTEL CORPORATION
AND
FORMFACTOR INC.
INTEL AGREEMENT NUMBER C-05673
AMENDMENT EFFECTIVE DATE: 4-1-01
WHEREAS, Intel and FormFactor Inc. (Supplier), have entered into that certain
Capital Equipment and Service Agreement, Agreement No. C-05673 (hereinafter
called "Agreement") dated 1-08-01, and
WHEREAS, both parties wish to amend the Agreement to include modified
Confidentiality and Publicity language as described in this Amendment P attached
hereto.
THEREFORE, for valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties agree as follows:
1. PRE-ESTABLISHED TERMS
All terms and conditions of the Agreement remain in full force and effect
and apply to this Addendum, unless specifically modified below.
2. AGREEMENT MODIFICATIONS
AGREED: TO INCLUDE ATTACHMENT `ADDENDUM P EFFECTIVE FROM 4/1/01'
INTEL CORPORATION FORMFACTOR INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------- ----------------------------------------
(Printed Name) (Printed Name)
Commodity Manager Technical Sales Manager
-------------------------------------- ----------------------------------------
(Title) (Title)
4-23-01 4-23-01
-------------------------------------- ----------------------------------------
(Date) (Date)
73
ADDENDUM P
PRICE REDUCTION
(1) Effective with all orders shipped starting 4/1/01, Supplier shall reduce
Addendum L pricing by * * *%.
(2) The * * *% price reduction will be valid through * * *, however there shall
be a * * *-month check point. If the "downturn" has subsided at * * *, then
the * * *% price reduction shall be eliminated.
(3) Supplier hereby * * *.
(4) In * * *, FFI will provide * * * per quarter if the previous quarter's OTD
* * *.
----------
*** Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
74
AMENDMENT TO Q
CAPITAL EQUIPMENT AND SERVICE AGREEMENT
BETWEEN
INTEL CORPORATION
AND
FORMFACTOR INC.
INTEL AGREEMENT NUMBER C-05673
AMENDMENT EFFECTIVE DATE: 3-1-01
WHEREAS, Intel and FormFactor Inc. (Supplier), have entered into that certain
Capital Equipment and Service Agreement, Agreement No. C-05673 (hereinafter
called "Agreement") dated 1-08-01, and
WHEREAS, both parties wish to amend the Agreement to include modified
Confidentiality and Publicity language as described in this Amendment P attached
hereto.
THEREFORE, for valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties agree as follows:
1. PRE-ESTABLISHED TERMS
All terms and conditions of the Agreement remain in full force and effect
and apply to this Addendum, unless specifically modified below.
2. AGREEMENT MODIFICATIONS
AGREED: TO INCLUDE ATTACHMENT `ADDENDUM Q EFFECTIVE FROM 9/3/01'
INTEL CORPORATION FORMFACTOR INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------- ----------------------------------------
(Printed Name) (Printed Name)
Commodity Manager Technical Sales Manager
-------------------------------------- ----------------------------------------
(Title) (Title)
9-24-01 9-3-01
-------------------------------------- ----------------------------------------
(Date) (Date)
75
ADDENDUM Q
PRICE REDUCTION
(1) Effective with all new product design purchase orders submitted by Buyer to
Seller after 9/3/01, the minimum order value shall be $* * *.
(2) The * * *% price reduction that is noted in Addendum P will be valid
through * * *.
(3) Effective with all new product designs purchase orders submitted by Buyer
to Seller after 9/3/01, the * * * price shall be $* * *.
--------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately.
76