EXHIBIT 10.25
SPECIALTY GAS SUPPLY AGREEMENT
This Agreement, made as of the 15th day of October 1996, between Air Products
and Chemicals, Inc. ("Seller") and Xxxxxx Corporation ("Buyer")
_________________________ Mountaintop _________________________ PA _____ 18707
_____ ("Buyer").
1. Sale and Purchase
Seller hereby agrees to sell to Buyer and Buyer hereby agrees to purchase
from Seller, Buyer's requirements of specialty gases listed in Attachment
1, for use at Buyer' location namely Fab 8, Mountaintop, Pa.
2. Designated Locations
This Agreement shall be applicable to all Buyer's activities carried on at
the location(s) set forth in Section 1 above and if the operations at any
such locations are expanded or relocated to new locations then, at
Seller's and Buyer's option, this Agreement shall be applicable at such
locations ("Designated Locations(s)").
3. Terms and Termination
3.1. This Agreement shall be effective as of the date first set forth
above (Contract commencement Date). The initial term of this
Agreement, as to each Product in attachment 1 at each Designated
Location shall be ten years ("Initial Term"), from the Contract
Commencement Date.
3.2. Either party may terminate this Agreement with respect to each
Product at each Designated Location as of the expiration date of the
Initial Term with respect to such Product at such Designated
Location.
3.3. In addition to any other rights which the Buyer may have, it
reserves the right to cancel this contract in any portion thereof,
if material furnished pursuant to this contract is not as specified
or if delivery is not made per mutually agreed expectation when and
as specified, through no fault of Buyer and without advance notice
from the Seller and acceptance by Buyer. Buyer may cancel this
contract or any portion thereof if the Seller is adjudicated a
bankrupt, if a petition under the bankruptcy Act is filed and not
vacated within sixty days, if the Seller makes an assignment for the
benefits of creditors, if a Receiver of the property of the
Seller is appointed or if action under any law for the relief of
debtors is taken in respect of the Seller.
4. Ownership of Cylinders and Containers
Except as otherwise stated herein, all cylinders and other containers,
including tank trucks and tube trailers, in which the Products are
delivered hereunder shall be and remain the property of Seller and are
returnable, at Buyer's risk and expense and in good condition, promptly
after being emptied.
5. Delivery
5.1. Title and risk of loss of all Products sold hereunder shall pass to
Buyer upon Seller's delivery at Seller's production facility as
provided herein. Seller's quantity measurements taken at shipping
point shall govern.
5.2. Buyer shall inspect the products furnished hereunder immediately
after delivery. Buyer's failure to give notice of any claim within
30 days from date of delivery shall constitute an unqualified
acceptance of such Products and a waiver by Buyer of all claims with
respect thereto.
6. Pricing and Adjustments to Price
6.1. The price for products delivered to Buyer by Seller is defined in
Attachment 1.
6.2. Current Specialty Gas pricing and requirements defined in Attachment
1 are based on "open standard specification" and have been
established for baseline purposes only. Final requirements and
specifications will be determined prior to installation. Some
adjustment to final purchase pricing may be required at that time
and subsequent to startup.
6.3. Xxxxxx anticipates purchase of those specialty gases defined on
Attachment 1 for a fixed price of $218,643 per year for Phase 1
(based on an estimated 225 water starts per day through calendar
year 97-98) and $587,510 per year for Phase II (based on water
starts at 600 per day after calendar year 98). Pricing may be
adjusted upward over the life of the agreement due to Air Products;
substantiated cost increases in raw materials including but not
limited to feedstocks. No profits shall be added to incremental
increases.
6.4. If any Price adjustment pursuant to Section 6.3 shall be prohibited
by any valid law or regulation of the united States or any state,
then Seller may, at its option and by not less than 90 days' prior
written notice to Buyer, terminate this Agreement as to the affected
Designated Location.
7. Taxes
7.1. Seller shall bear and pay all federal, state and local taxes based
upon or measured by its net income, and all franchise taxes based
upon its corporate existence, or its general corporate right to
transact business.
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7.2. Any other tax, howsoever denominated and howsoever measured, imposed
upon the storage, inventory, sale, transportation, delivery, use or
consumption of Product shall be paid directly by Buyer, or if paid
by Seller shall be invoiced to Buyer as a separate item and paid by
Buyer to Seller.
8. Payment
All payments due Seller hereunder shall be made to Seller at the location
indicated on the invoice. All invoices shall be payable net 30 days. The
timely payment by Buyer of all amounts due and owing to Seller hereunder
is an express-condition to the continued performance by Seller of its
obligations hereunder.
9. Seller's Warranty
Seller warrants that the Product shall conform to the specifications and
express warranties set forth herein and that at the time of delivery,
Seller shall have good title and right to transfer the same and that the
same shall be delivered free of encumbrances. THE FOREGOING WARRANTY IS
THE SOLE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, IN FACT OR BY LAW, INCLUDING, WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
10. Limitation of Liability
10.1. Buyer acknowledges that there are hazards associated with the use of
the Product, that it understands such hazards, and that it is the
responsibility of Buyer to warn and protect its employees and others
exposed to such hazards through Buyer's storage and use of the
Product. Seller shall provide Buyer with copies of Material Safety
Date Sheets relating to the Product for Buyer to make such warnings,
and Buyer shall hold harmless, indemnify and defend Seller from and
against any liability incurred by Seller because such warnings were
not made Buyer assumes all risk and liability for loss, damages or
injury to persons or to property of Buyer or others arising out of
the presence or use of the Product as a result of Buyer's failure to
warn. Unless such loss damage or injury is due to negligence of
seller or due to defective product or equipment.
10.2. No claim of any kind with respect to nondelivery of Product shall be
greater than the Unit Price payable hereunder for the Product in
respect to which such claim is made and Buyer's remedy (except for
the remedy of cancellation for material default) for delivery of
nonconforming Product shall be replacement by Seller of a like
quantity of conforming product at no additional cost to Buyer and
reimbursement to Buyer for any damages directly related to such
nonconforming product.
10.3. Except in the case of a willful and wrongful act or omission of
Seller, Seller shall not be liable in contract or tort for any
indirect, special, incidental or
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consequential damages arising out of its performance or
nonperformance hereunder; provided, however, Seller shall be liable
for injury or death to third parties and for direct and immediate
physical damage to the buildings, machinery and equipment of Buyer
where such injury, death or damage occurs during the term of this
Agreement which is proximately caused by, and to the extent of
Seller's negligence at the Designated Location.
11. Force Majeure
11.1. Neither party hereto shall be considered in default in the
performance of its obligations hereunder (other than its obligation
to make any payment of money hereunder), or be liable in damages or
otherwise for any failure or delay in performance which is due to
strike, lockout, concerted act of workers or other industrial
disturbance, fire, explosion, flood or other natural catastrophe,
civil disturbance, riot or armed conflict whether declared or
undeclared, curtailment, shortage, rationing or allocation of normal
sources of supply of labor, materials, transportation, energy, or
utilities, accident, act of God, delay of subcontractors or vendors,
sufferance of or voluntary compliance with act of government and
government regulations (whether or not valid), embargo, machinery or
equipment breakdown, or any other cause whether similar or
dissimilar to any of the causes or categories of causes described
above and which is beyond the reasonable control of the party
claiming excuse hereunder.
11.2. Neither party hereto shall be required to make any concession or
grant any demand or request to brink to an end any strike or other
concerted act of workers.
11.3. Either party affected by an event described in Section 11.1, shall,
promptly upon learning of such event and ascertaining that it has or
will affect its performance hereunder, give notice to the other
party, stating the nature of the event, its anticipated duration and
any action being taken to avoid or minimize its effect.
11.4. If any event within Section 11.1 shall only partially reduce
Seller's ability to produce or deliver Product, then Seller may
prorate its available supply among Buyer and Seller's other
customers in a fair and equitable manner.
12. Impairment of Credit
Unless otherwise required by law, if a petition is brought by or against
Buyer under any present or future bankruptcy or insolvency laws seeking
any reorganization, arrangement, readjustment, liquidation, dissolution or
similar relief with respect to Buyer, or its Buyer shall make any
assignment for the benefit of creditors or if a receiver is appointed for
Buyer, or if Buyer shall fail to make payments in accordance with the
terms of this Agreements, or if in Seller's opinion Buyer's credits has
been impaired
12.1. Seller may, at its option, terminate this Agreement by written
notice to Buyer or impose such new payment terms, including cash on
delivery, as it deems adequate to protect its interest.
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12.2. The election of any option under Section 12 shall not preclude the
exercise of any other option.
13. General Provisions
13.1. This Agreement is subject to acceptance by an executive officer of
Seller.
13.2. This instrument together with any terms and conditions of Seller's
Attchment(s) hereto constitutes the entire agreement between the
parties. No terms and conditions in any form of purchase order,
order acknowledgment or other acceptance forms of Buyer issued with
respect to this transaction shall alter the terms hereof and
objection is hereby made to all such additional or different terms.
Acceptance is expressly limited to the terms offered herein. No
modification or waiver of this agreement shall bind Seller unless in
writing and signed and accepted by an executive officer of Seller.
13.3. This Agreement may not be assigned by either Buyer or Seller without
the prior written consent of the other party, which consent shall
not be unreasonably withheld. It shall inure to the benefit of and
be binding upon the successors and, if properly assigned, the
assigns of both parties.
13.4. If any provision of this Agreement is held invalid by any law and/or
regulation, all other provisions hereof shall continue in full force
and effect.
13.5. This Agreement shall be governed by and construed according to the
laws of the place of performance without giving effect to its
conflicts of law provisions.
13.6. In the event of conflict between the terms of this Agreement and any
of its Attachments/Exhibits, the terms of the Attachments/Exhibits
shall govern.
13.7. Compliance With Laws. Seller warrants that all goods or services
called for herein shall be produced or performed in compliance with
all applicable federal and state laws, rules and regulations.
13.8. Patent Indemnification. Seller warrants that it will defend at its
expense any suit against Buyer respecting infringement (including
contributory infringement) if any United States or other patent
covering all or part of the material furnished under this contract,
its manufacture, and/or its se if such use is inducted by Seller or
if there is no practical noninfringing use, and will pay costs,
fees, and/or damages awarded against Buyer for such infringement by
and final court decision; provided Buyer promptly notifies Seller of
and charge of and use it for such infringement and tenders to Seller
the defense of such suit, Buyer having the right to be represented
in such defense at its own expense. Buyer extends a like warranty to
Seller with respect to unavoidable infringement by Seller in
complying with Buyer's specifications, except to the extent that
such specification are derived from Seller or Seller has notice of
such infringement.
Submitted by /s/ Xxxxxxx X. Dutch
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Xxxxxxx X. Dutch
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ACCEPTED by: ACCEPTED by:
XXXXXX CORPORATION AIR PRODUCTS AND CHEMICALS, Inc.
/s/ Xxx Xxx illegible
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By Xxx Xxx By illegible
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NAME
Sr. Mgr. Cont. Admin. GM Electronics US
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TITLE TITLE
11-8-96
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DATE
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TITLE
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DATE
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ATTACHMENT 1 TO PRODUCT SUPPLY AGREEMENT
DATED OCTOBER 7, 1996, BETWEEN
AIR PRODUCTS AND CHEMICALS, INC. ("SELLER")
AND XXXXXX SEMICONDUCTOR CORP. ("BUYER")
[REDACTED]
