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Exhibit 10.11
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406, promulgated under the Securities Act of 1933, as
amended.
INTEL CORPORATION PURCHASE AGREEMENT - CHEMICALS/GASES
Agreement #: C-06438
Effective Date: FEB. 18, 1999
Expiration Date: DEC. 31,2001
CNDA #: 17452
BUYER: Intel Corporation (and all Intel divisions and subsidiaries,
hereinafter "BUYER" or "INTEL")
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000-0000
SUPPLIER: Cabot Corporation (hereinafter "SUPPLIER")
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
X Terms and Conditions of Purchase Agreement - Goods
Addenda attached here to and X A Product Description and Price Schedule
Incorporated herein by reference X B Key Contacts & Intel Fab Locations
(Xxxx "X" where applicable.) X C Quality Requirements
X D Volume Commitments
E
F
Buyer will purchase and Supplier will sell certain Items in accordance with the
Terms and Conditions and Addenda attached hereto. All Purchase Orders issued to
Supplier by Buyer during the term of this Agreement shall be governed only by
the Terms and Conditions of this Agreement notwithstanding any preprinted terms
and conditions on Supplier's acknowledgment or Buyer's Purchase Order. Any
additional or different terms in documents exchanged by the parties subsequent
to execution of this agreement are hereby deemed to be material alterations and
notice of objection to and rejection of them is hereby given.
INTEL CORPORATION SUPPLIER
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------- --------------------------
Signature Signature
Xxxxxx Xxxxx Xxxxxxx Xxxxxxx
Printed Name Printed Name
Commodity Manager GM & VP
Title Title
2/18/99 2/18/99
Date Date
2
TERMS AND CONDITIONS OF PURCHASE AGREEMENT - CHEMICALS/GASES
1. DEFINITIONS
A. "Release" means Buyer's authorization to ship in accordance with the
Buyer's Purchase Order, and authorizing Supplier to ship a definite
quantity of Items to a specified schedule. The Release is contained in the
Purchase Order sent to Supplier.
B. "Items" means the goods which Supplier is to provide to Buyer as set forth
on Addendum A. Any Item which is custom made for Buyer shall be indicated
by an asterisk (*) on such Addenda A.
C. "Estimated Usage" or "Forecast" is the quantity Buyer reasonably expects to
Release, however, Buyer shall not be obligated to Release such quantities
of Items.
D. "Purchase Order" is Buyer's document setting forth specific line Items
ordered and Release information.
E. "CIF" means "Cost, Insurance and Freight (named port of shipment)."
Reference Incoterms 1990.
F. "DDP" means "Delivered Duty Paid (named place of destination)." Reference
Incoterms 1990.
G. "DDU" means "Delivered Duty Unpaid (named place of destination)." Reference
Incoterms 1990.
H. "FMO" is Fab Materials Operation (a department within Intel Corporation).
I. "FOB" means "Freight on Board (named port of shipment)." Reference
Incoterms 1990.
J. "FCA" means "Free Carrier (named place of destination)". Reference
Incoterms 1990.
2. TERM OF AGREEMENT
A. The term of this Agreement shall begin on the Effective Date and continue
to the Expiration Date, unless renewed pursuant to the terms of this
Section. After the initial term, this Agreement shall be automatically
renewed from year to year (for one-year periods) without action by either
party, unless terminated pursuant to Section 5 of this Agreement. At
Buyer's option, Items may be scheduled for delivery up to three (3) months
following expiration or termination of this Agreement.
B. This Agreement shall be effective to all Intel manufacturing facilities in
the U.S. and the non-U.S. facilities identified in Addenda hereto.
3. PRICING
A. Prices of Items are as set forth in Addendum A, and may only be modified by
mutual agreement. Supplier will publish newly negotiated prices to
corporate representative and all Site buyers within 10 days of signed
agreement.
B. For any Item of which Supplier supplied Buyer with [ ]% or more of Buyer's
requirements, as described in Addendum D, during the previous calendar
year, Supplier agrees that the price for such Item shall always be
Supplier's lowest net price charged any customer for like volumes of such
Item. If the net price charged to Buyer for such is greater than that
charged to another customer of Supplier for like volumes, Supplier shall
adjust its price to Buyer to the lower price for as long as Supplier
continues to offer such lower price to another customer. In addition, to
the extent Buyer was charged a higher price during a period that Supplier
was selling like volumes of such Item to another customer at a lower price,
Supplier shall refund to Buyer the difference in the purchase price paid by
Buyer and such lower price.
C. In the event Supplier offers any Item of which Supplier supplied Buyer with
[ ]% or more of Buyer's requirements as described in Addendum D during the
previous calendar year at a lower price (taking into account volume
discounts) either as a general price drop or only to some customer(s) for
any reason, Supplier shall immediately inform Buyer of this price.
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D. Applicable taxes and other charges such as duties, customs, tariffs,
imposts and government imposed surcharges, and freight shall be stated
separately on Supplier's invoice.
E. Additional costs, except those described in Section 3(D) or in Addenda A or
D, will not be reimbursed without Buyer's prior written approval.
F. Buyer reserves the right to have Supplier's records inspected and audited
only by an independent third party auditor to ensure compliance with
section 3B of this Agreement. At Buyer's option or upon Supplier's written
demand, such audit will be performed by an independent third party at
Buyer's expense. However, if Supplier is found to not be complying with
section 3B of this Agreement in any way, Supplier shall reimburse Buyer for
all costs associated with the audit. The results of such audit shall be
kept confidential by the auditor, and only Supplier's failures to abide by
the obligations of this Agreement shall be reported to Buyer.
G. If a new product not included in Addendum A is to be purchased regularly,
its price will be negotiated by a corporate representative at the time of
initial purchase. If the product is for test purposes only at a given site,
its price may be established between Supplier and a Sitebuyer. Said price
shall be in effect until such time as an Intel part number is created, at
which time a corporate-wide price will be negotiated by a corporate
representative.
H. Supplier will publish quarterly updates of Addendum A to FMO, all Buyer's
Site Chemicals buyers and Buyer's Accounts Payable department, including
new chemicals, their negotiated prices, supplier part numbers, Intel part
numbers and any other changes. Quarterly updates of Addendum A will be
issued on 1/30, 4/30, 7/30 and 10/30 of each year. Names and addresses of
all parties to receive the updates will be provided and updated by Site
buyer (see Addendum B).
I. U.S. and non-U.S. prices will be fixed in U.S. dollars regardless of the
Item country of origin or destination. Buyer retains the right to buy from
Supplier or any subsidiaries of Supplier in U.S. dollars.
J. The cost of containers, both returnable and disposable, diptubes and any
required accessories will be included in the cost of the chemical
K. Warehousing costs will be separate from this Agreement and will be billed
separately.
4. INVOICING AND PAYMENT
A. Any applicable 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. Buyer shall make payment within forty-five (45) days of
receipt of the proper original invoice or packing list.
B. Original invoices or packing lists shall be submitted and shall include:
full legal company name, payment terms, freight terms, tax status and rate,
purchase agreement number from the Purchase Order, purchase order number,
line Item number, Release number, part number, complete xxxx to address,
description of Items, quantities, unit price and extended totals. Buyer's
payment shall not constitute acceptance. Invoice must match Buyer's PO and
packing slip exactly including unit of measure.
C. Supplier shall provide to Buyer's Accounts Payable, and update as
necessary, the names and phone numbers of a contact in Accounts Receivable.
D. All international shipments must be accompanied by original invoice.
E. Supplier will invoice Buyer for material and services no later than 120
days after delivery.
5. TERMINATION
This Agreement may not be terminated by either party prior to the
Expiration Date, except upon material breach by the other party. The
Agreement may be terminated by
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either party on or after the Expiration Date by delivering to the other
party written notice of termination at least one year prior to the date of
such termination.
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 is to be
delayed by such contingencies, Supplier shall immediately notify Buyer in
writing and Buyer may either: (i) extend time of performance; or (ii)
terminate all or part of the uncompleted portion of the Purchase Order at
no cost 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.
B. [Left intentionally blank]
C. Supplier shall notify Buyer in writing within two (2) business days of
receipt of Buyer's Purchase Order if Supplier is unable to make any
scheduled delivery and state the reasons therefor. The absence of such
notice constitutes acceptance of the Purchase Order and commitment to the
Release terms.
D. Supplier shall not deliver Items earlier than five (5) business days prior
to agreed scheduled delivery dates and Buyer may return early, excess, or
non-conforming shipments at Supplier's risk and expense.
E. Buyer may reschedule or cancel any Release in whole or in part prior to the
Release date at no additional charge.
F. Buyer may place any portion of a Release on hold by notice which shall take
effect immediately upon receipt. Releases placed on hold will be
rescheduled or canceled within a reasonable time.
G. Supplier shall not deliver Items until such Items are specified in an
issued Purchase Order which contains specific Release dates for specific
Items.
H. Purchase orders will specify the destination date at Buyer dock or
designated warehouse.
I. Supplier must notify FMO, Accounts Payable and all Site Chemical buyers
immediately in writing of any changes, including changes in delivery
schedules, part numbers, contact persons and the party to be invoiced.
J. Supplier must provide FMO with a Certificate of Analysis (C of A) or sample
for each lot to be shipped, as directed in the most current appropriate
Intel Specification (Addendum C).
K. Buyer may return any standard Item in same condition as received within [ ]
days of receipt. Buyer will pay return freight and disposal costs, if
necessary (Disposal costs paid only if the product conformed to all
required specifications in place). Reimbursement for Items returned will be
made by credit memo.
L. Supplier shall ship all Items according to the delivery address provided on
each Purchase Order submitted by Buyer.
M. Supplier shall provide and update as necessary the name and phone number of
one person which Buyer's representative may contact regarding scheduling
and delivery. Additionally, Supplier will provide 24-hour hotline/contact
number which Buyer may contact in case of emergency.
N. Supplier agrees to maintain safety stock on specified Items as mutually
agreed with Buyer's local sites. Supplier shall notify Buyer whenever
safety stock falls below minimum levels and will provide a corrective
action plan to replenish Items. In the event Buyer no longer intends to
purchase a particular Item from Supplier for use at a particular site,
Buyer shall so notify Supplier of such fact and Buyer shall purchase
Buyer's minimum required safety stock of such Items at that site.
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O. Supplier shall maintain an on-hand supply of emergency packaging material
sufficient to meet pre-agreed requirements with Buyer's Site Chemical
buyer.
8. ACCEPTANCE AND WARRANTY
A. Buyer may with reasonable advance notification inspect and test all Items
at reasonable times before, during and after manufacture. If any inspection
or test is made on Supplier's premises, Supplier shall provide reasonable
facilities and assistance for the safety and convenience of Buyer's
inspectors in such manner as shall not unreasonably hinder or delay
Supplier's performance. All Items shall be received subject to Buyer's
inspection, testing, approval and acceptance at Buyer's premises
notwithstanding any inspection or testing at Supplier's premises or any
prior payment for such Items. Items rejected by Buyer as not conforming to
this Agreement or Item specifications whether provided by Buyer or
furnished with the Item may be returned to Supplier at Supplier's risk and
expense and, at Buyer's request shall immediately be repaired or replaced.
B. Supplier warrants that all Items furnished here under shall be new, of the
grade and quality specified, conform to all agreed-to specifications, and
will be free of liens and encumbrances (excluding claims of intellectual
property infringement, which are the exclusive subject of Section 14).
These warranties shall survive any delivery, inspection, acceptance,
payment or resale of the Items. Original specifications and any subsequent
modifications to those specifications shall be agreed upon by both Buyer
and Supplier. SUPPLIER MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE ITEMS, WHETHER USED ALONE
OR IN COMBINATION WITH OTHER SUBSTANCES, EVEN IF THE PURPOSES OR USES OF
SUCH PRODUCTS ARE KNOWN BY SUPPLIER.
C. During the Items' specified shelf life, at Buyer's option, Supplier shall
promptly repair, replace or refund the purchase price of all Items not
conforming to the foregoing warranties, and shall also refund the cost of
return shipping of such Items. Supplier will bear the risk of loss of such
Items while in transit. Supplier's warranty liability for damages arising
from each "Non-Conformance Event" shall [ ]. Furthermore, in no event shall
Supplier's [ ]. As used herein, "Non-Conformance Event" shall mean the
receipt by Buyer of a lot of Items which are not in conformity with the
warranty given in Section 8B above. IN NO EVENT SHALL SELLER BE RESPONSIBLE
OR LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING IN
WARRANTY UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The
[ ]contained in this Section 8 is separate and independent from the [ ]
contained in Section 14, and the amount of liability imposed under one of
these Sections does not limit or restrict the amount of liability imposed
under another Section. NOTHING IN THIS SECTION IS INTENDED TO PLACE A
LIMITATION ON EITHER PARTY'S LIABILITY IN TORT FOR PERSONAL INJURY.
D. Freight charges for returned non-conforming Items shall be paid by Supplier
with the understanding that returns must be authorized in accordance with
Supplier's return authorization procedures. Returns must be authorized by
Supplier within 10 days of Buyer's request. Credit for returned Items will
be issued within 30 days of notification by Buyer.
E. Notwithstanding anything to the contrary contained in this Agreement,
Supplier represents and warrants to Buyer that there will be no disruption
in the supply of those goods and/or services which are under the direct
control of the Supplier 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. Supplier does not provide any such warranty for disruptions
caused by those goods and/or services which are not under the Supplier's
direct control. As used herein, "direct control" refers to goods and/or
services which the Supplier actively manages by contract and/or owns.
Furthermore, in no event shall
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Seller's total and aggregate liability under such warranty exceed $500,000
over the term of this Agreement
9. PRODUCT SPECIFICATIONS/IDENTIFICATION/ ERRATA
A. Supplier shall not modify the specifications for Items without Buyer's
written consent. Supplier shall notify FMO and all Site Chemical buyers
immediately in writing of any change in Supplier's part number, in the
manufacturing process, packaging or description for any Item sold to Buyer
at least ninety (90) days in advance of any changes. Such notice shall also
be included in the quarterly update mentioned in Section 3 (I).
B. Supplier shall cooperate with Buyer to provide configuration control and
traceability systems for Items supplied hereunder.
C. Items must comply with Buyer's raw material specifications (Intel
Specification 07-400).
D. As long as Buyer is purchasing a particular Item, Supplier shall notify FMO
and all Site Chemical buyers at least one year in advance of expected
discontinuance of that Item. Exception: In the event of changes or
discontinuation required by governmental order or requirement, Supplier
shall notify Buyer in writing immediately. Notification of any change in
product specification must follow Intel's " Materials Change Control
Procedure." (Intel Specification 07-120).
E. Where an existing agreed-to Intel Specification (Addendum C) is updated,
the updated Specification must be agreed to by Buyer and Supplier before it
will be in effect.
10. CONTAINERS AND DIPTUBES
A. All necessary chemical containers, packaging and diptubes will be provided
by Supplier and included in the cost of the Item.
B. All containers and diptubes shall be inspected by Supplier before each use
and repaired or replaced as necessary.
C. At all times, ownership and title of containers and diptubes will remain
with the Supplier.
D. Buyer will not be responsible for any additional charges for acquisition,
termination or disposal of containers or diptubes.
E. In the event that containers or diptubes become damaged through neglect or
misuse by Buyer, Buyer will reimburse Supplier an amount agreed upon and
pro-rated based upon useful life.
F. All packaging including quartz, stainless steel, bottles, drums and ICBs,
shall be equipped with tamper evident seals.
11 PACKING AND SHIPMENT
A. Shipments to Israel: Delivery terms for Israel will be DDP Intel,
Jerusalem. Supplier fulfills its obligation to deliver when Items are made
available at Buyer's dock or designated warehouse. Supplier will bear all
risks, liabilities and costs involved in bringing the Items thereto. Buyer
will ship empty containers to the point of manufacture in a timely manner.
B. Shipments to Ireland: Delivery terms for Ireland will be DDU Intel,
Leixlip. Supplier fulfills its obligation to deliver when Items are made
available at Buyer's dock or designated warehouse. Supplier will bear all
risks, liabilities and costs involved in bringing the Items thereto,
excluding duties, taxes and other official charges payable upon
importation. Buyer will ship empty containers to the point of manufacture
in a timely manner.
C. For all other Intel Factories, both U.S. and non-U.S., Items shall be DDP
Buyer's dock or as otherwise specified in the Release. Buyer will ship
empty containers to the point of manufacture in a timely manner. All Items
shall be prepared for shipment in a manner which: (i) follows good
commercial practice; (ii) is acceptable to common carriers for shipment at
the lowest rate; and (iii) is adequate to ensure safe arrival. Supplier
shall xxxx all containers with necessary lifting, handling and shipping
information, purchase order number, date of shipment and the names of the
Buyer and Supplier. Buyer shall
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notify Supplier of the method of shipment and expected delivery date. If no
instructions are given, Supplier shall select the most cost effective
carrier, given the time constraints known to Supplier. Supplier shall ship
only the quantity of Items specified in the Release. Buyer may return at
Supplier's expense any Items in excess of the quantity stated in the
Release.
D. Supplier shall be responsible for all Supplier's activities through
manufacture, storage, transport, and delivery of Items to Buyer. In the
event that Buyer must deploy emergency, safety, or materials personnel in
response to an emergency or non-compliance with Intel or regulatory
procedure involving Items supplied hereunder, Buyer and Supplier will
review the incident. If Buyer and Supplier agree that (i) such deployment
was necessary, and (ii)Supplier's negligent act or failure to act was the
proximate cause of such emergency or non-compliance, then Supplier agrees
to reimburse Buyer for the out-of-pocket cost incurred by Buyer in
deploying its personnel to respond to such incident. Supplier will not be
responsible for costs incurred by such deployment due to Buyer's negligent
act or failure to act. International shipments: Supplier will provide
Buyer's representative with shipping documents as requested. Buyer's
purchase orders will contain detailed shipping instructions. E. Shipment of
all Items qualified for Buyer's Preship or Direct Ship Programs will be
done in accordance with latest mutually accepted Intel Specification 07-402
(Intel Chemical and Gas Quality Program.).
12. OWNERSHIP AND BAILMENT RESPONSIBILITIES
A. Any specifications, drawings, schematics, technical information, data,
tools, dies, patterns, masks, gauges, test equipment, and other materials
furnished or paid for by Buyer shall: (i) be kept confidential; (ii) remain
Buyer's property; (iii) be used by Supplier exclusively for Buyer's orders;
(iv) be clearly marked as Buyer's property and segregated when not in use;
(v) be kept in good working condition at Supplier's expense; and (vi) be
shipped to Buyer promptly on demand.
B. Supplier shall insure Buyer's property and be liable for loss or damage
while in Supplier's possession or control, ordinary wear and tear excepted.
13. 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 such 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 or 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 or any applicable separate nondisclosure
agreement between Buyer and Supplier. In the absence of a CNDA or other
written 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 it's own information of a similar
nature, until the information becomes publicly available through no fault
of the non disclosing party. Supplier's employees who access Buyer's
facilities may be required to sign a separate non-disclosure agreement
prior to admittance to Buyer's facilities.
B. The parties agree that neither will 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
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treatment request or protective order; (ii) the disclosing party shall
inform the other party at least ten (10) business days (i.e., not a
Saturday, Sunday or a day on which banks are not open for business in the
geographic area in which the non-disclosing party's principal office is
located) 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.
14. PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS AND MASKWORK RIGHTS
A. Supplier makes no agreement to defend, indemnify or hold Buyer harmless
from any costs, expenses, losses, damages or liabilities incurred because
of actual or alleged infringement of any patent, trade secret or other
intellectual property right by, or arising from use of, [ ] slurry or any
other Items designated as custom by the parties. For all other Items,
Supplier agrees to indemnify and hold Buyer harmless from any costs and
expenses (including reasonable attorneys' fees) incurred in connection
with, and damages awarded to a third party as a direct result of,
adjudicated claims of infringement of any third party patent, trade secret,
trademark or other intellectual property right arising out of the purchase
of Items by Buyer or the use of Items by Buyer or Buyer's customers,
provided, however, that Seller is not obligated to so indemnify Buyer, if
(i) the sale of such Item by Supplier does not constitute contributory
infringement or inducement to infringe; or (ii) Buyer modifies the Item; or
(iii) Buyer uses the Item in a manner other than the specific use for which
the Item is sold by Supplier. Buyer shall promptly notify Supplier of such
claim or demand and shall permit Supplier to participate in the defense
thereof.
B. To the extent any settlement of a claim or demand is for an amount less
than the Liability Cap set forth in this Section, Supplier shall have the
right to settle said claim at its discretion.
C. If an injunction issues as a result of any such claim or action or if
Supplier determines in good faith that it is unable or unwilling to supply
an Item because the Item itself or the use of the Item may infringe a
patent or may constitute a misappropriation of a trade secret, Supplier
agrees at its expense and Buyer's option to either: (i) procure for Buyer
and Buyer's customers the right to continue using Items; (ii) replace them
with non-infringing Items; or (iii) modify them so they become
non-infringing. Buyer's sole remedy for Supplier's failure to supply or to
obtain the remedy elected shall be [ ], and upon [ ] Supplier shall not be
deemed in breach of this Agreement.
D. In no event shall Supplier's total and aggregate liability under Section
14A above exceed forty million dollars ($40,000,000.00)(the "Liability
Cap"). The limitation on liability contained in this Section 14 is separate
and independent from the [ ] contained in Section 8, and the amount of
liability imposed under one of these Sections does not limit or restrict
the amount of liability imposed under another Section.
15. HAZARDOUS MATERIALS
A. If Items or any services provided hereunder include hazardous materials as
defined by relevant local, state, and national law, Supplier represents and
warrants that Supplier and its personnel providing services to Buyer
understand the nature of and hazards associated with the design and/or
service of Items including handling, transportation, and use of such
hazardous materials, as applicable to Supplier. Prior to causing hazardous
materials to be on Buyer's property, Supplier shall obtain written approval
from Buyer's Site Environmental/Health/Safety organization. Supplier will
indemnify Buyer from any
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environmental liability incurred by Buyer which results from the shipment
and delivery of hazardous Items to Buyer, provided Buyer's negligence was
not a proximate cause of such liability.
B. Supplier will timely provide Buyer with material safety data sheets and any
other documentation reasonably necessary to enable Buyer to comply with
applicable laws and regulations.
C. Supplier hereby certifies that Items supplied to Buyer do not contain and
are not manufactured with any ozone depleting substances, as those terms
are defined by law.
16. CUSTOMS CLEARANCE
Upon Buyer's request, Supplier will promptly provide Buyer with a statement
of origin for all Items and with applicable customs documentation for Items
wholly or partially manufactured outside of the country of import.
17. COMPLIANCE WITH LAWS
A. Supplier shall comply with all national, state, and local laws and
regulations governing the manufacture, transportation, and/or sale of Items
and/or the performance of services in the course of this Agreement. In the
United States, these may include, but are not limited to, Department of
Commerce, Environmental Protection Agency, and Department of Transportation
regulations applicable to hazardous materials.
B. Supplier represents and agrees that it is in compliance with Executive
Order 11246 and implementing Equal Employment Opportunity regulations and
the Immigration Act of 1987, unless exempted or inapplicable.
18. MERGER, MODIFICATION, WAIVER, AND REMEDIES
A. This Agreement contains the entire understanding between Buyer and Supplier
with respect to the subject matter hereof and merges and supersedes all
prior and contemporaneous agreements, dealings and negotiations. No
modification, alteration or amendment shall be effective unless made in
writing, dated and signed by duly authorized representatives of both
parties.
B. No waiver of any breach hereof shall be held to be a waiver of any other or
subsequent breach.
C. Except as otherwise expressly limited herein, the parties' 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.
19. ASSIGNMENT
Neither party may assign or factor any rights in nor delegate any
obligations under this Agreement or any portion thereof without the written
consent of the other. However, Supplier may assign its rights and
obligations hereunder to its direct and indirect subsidiaries, without such
consent. Buyer may cancel this Agreement for cause should Supplier attempt
to make an unauthorized assignment of any right or obligation arising
hereunder.
20. APPLICABLE LAW
This Agreement is to be construed and interpreted according to the laws of
the State of Delaware, excluding its conflict of laws provisions. This
Agreement is not subject to the United Nations Convention on Contracts for
the International Sale of Goods, in accordance with Article 6 thereof.
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21. HEADINGS
The headings provided in this Agreement are for convenience only and shall
not be used in interpreting or construing this Agreement.
22. SPECIFIC PERFORMANCE
Notwithstanding anything else contained in this Agreement, the parties
hereto agree that failure to perform certain obligations undertaken in
connection with this Agreement would cause irreparable damage, and that
monetary damages would not provide an adequate remedy in such event. The
parties further agree that failure to deliver against accepted Purchase
Orders, or to deliver confirmed supply or pricing, are such obligations.
Accordingly, it is agreed that, in addition to any other remedy to which
the non breaching party may be entitled, at law or in equity, the non
breaching party shall be entitled to injunctive relief to prevent breaches
of the provisions of this Agreement, 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.
23. SURVIVAL
The provisions of Sections: 1, 8, 13, 14, 15, 20 will survive any
termination or expiration of this Agreement. In addition, any license
granted pursuant to Section 25 which is exercised prior to the Expiration
Date shall remain in force and effect for a period of three (3) years
following the Expiration Date, and Section 25 shall survive for this
three-year time period following the Expiration Date.
24. VOLUME COMMITMENTS
A. Buyer's and Supplier's volume obligations and sales commitments for [ ] are
set forth in Addendum D for the years set forth therein.
B. Notwithstanding the volume obligations described above and set forth in
detail in Addendum D of this Agreement, in the event that (i) Buyer is made
a party to litigation arising from a claim of intellectual property
infringement for which Buyer is indemnified, pursuant to Section 14 above,
and (ii) Buyer determines, in good faith, after a thorough review of the
claim, underlying patent, requested relief, Buyer's defenses and other
relevant facts, that Supplier's indemnification obligation (which Supplier
has the unilateral right to increase) would not be adequate with respect to
the potential liability to such person, [ ], unless Supplier agrees in
writing to increase the amount of the Liability Cap set forth in Section 14
to a level which exceeds Buyer's good faith estimate of the amount of the
likely damages to be incurred in such lawsuit.
C. Notwithstanding the volume obligations described above and set forth in
detail in Addendum D of this Agreement, in the event Supplier does not
supply a particular Item for the reasons stated in Section 14C above,
Supplier shall be released from its contractual obligation to supply the
affected Item to Buyer.
25. LICENSE
A. Supplier agrees to grant to Buyer and/or its designee a contingent,
royalty-free, fully-paid, worldwide, non-exclusive, irrevocable license,
under those intellectual property rights that are owned by Supplier, or
licensed to Supplier (which Supplier has the right to sublicense), that are
necessary to make, use and import, and in the
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case of any such designee, to sell to Buyer or offer for sale to Buyer,
those specific Items that Supplier is not able to supply under this
Agreement for one of the following reasons:
(i) Supplier is [ ] selling or delivering such specific Item(s) to Buyer,
or
(ii) Supplier determines in good faith that it is [ ].
The above described license is expressly limited to the right to make Items
for Buyer's sole use, or in the case of a designee, to make, sell or offer
for sale Items (not supplied for the reasons set forth above), in an amount
not to exceed those set forth in Addendum D, for Buyer's sole use. In
addition, the above described license shall not obligate Supplier to
disclose any trade secrets to Buyer or its designee other than the
formulation (i.e., the ingredients and proportions) of the Item which has
not been supplied. Any disclosure of such Item's formulation to Buyer
and/or its designee shall be subject to Buyer and/or its designee entering
into appropriate obligations of confidentiality with respect to such
formulation.
B. In the event (i) Buyer is made a defendant in litigation by any person or
entity other than [ ], arising from a claim of patent infringement for
which Buyer is indemnified, pursuant to Section 14 above; and (ii) Supplier
is willing to continue to supply the affected Items; and (iii) Supplier is
unable to settle such litigation for an amount less than the [ ]; and (iv)
Buyer determines, in good faith, after a thorough review of the claim,
underlying patent, requested relief, Buyer's defenses and other relevant
facts, that Supplier's indemnification obligation (which Supplier has the
unilateral right [ ] with respect to the [ ] to such person, then Supplier
shall be obligated to either:
(i) Grant to Buyer and/or its designee a non-exclusive,
royalty-bearing, irrevocable license, under those patent rights that are
owned by Supplier, or licensed to Supplier (which Supplier has the right to
sublicense), that are necessary to make, use and import, and in the case of
any such designee, to make and sell to Buyer or offer for sale to Buyer,
those specific Items (in an amount not to exceed that set forth in Addendum
D) that are the subject of such litigation, provided, that Supplier
receives a non-exclusive, royalty-bearing, perpetual, irrevocable license
under the patent that is being asserted in the infringement litigation and
any other such patents of such party that are necessary to make and use
those specific Items. The [ ] in such case with respect to the
cross-licenses granted shall be [ ] of the purchase price or fair market
value (if produced by Buyer internally) of the Item that is [ ]; or
(ii) Grant to Buyer and/or its designee a non-exclusive,
royalty-bearing, irrevocable license, under those patents that are owned by
Supplier, or licensed to Supplier (which Supplier has the right to
sublicense), that are necessary to make, use and import, and in the case of
any such designee, to make and sell to Buyer or offer for sale to Buyer,
those specific Items that are the subject of such litigation. The [ ] in
such case shall be [ ] of the purchase price or fair market value (if
produced by Buyer internally) of the Item that is [ ]. The foregoing
license grant is expressly limited to the right to make Items (in an amount
not to exceed that set forth in Addendum D) for Buyer's sole use.
In the event Buyer exercises its right to have a license granted to Buyer
and/or its designee under this Section 25B, any such license grant shall
not subsequently
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revert to a license grant under Section 25A, regardless of whether Supplier
subsequently stops supplying the affected Item.
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ADDENDUM A
PRODUCT DESCRIPTION AND PRICE SCHEDULE
A. [ ]
TABLE A
PRICES WHICH APPLY IF BUYER PURCHASES [ ]% SHARE OF BUYER'S TOTAL
REQUIREMENTS FOR CMP SLURRIES UTILIZED IN [ ] POLISHING ASSOCIATED WITH THE
FOLLOWING MANUFACTURING PROCESSES OF BUYER: [ ]
CABOT PART # PKG POINT OF DESTINATION PRICE PER GALLON
MANUFACTURE
[ ] IBC United States United States (FOB $[ ]
local Warehouse)
Ireland (DDU) $[ ]
Israel (DDP) $[ ]
[ ] IBC Barry, Wales United States (FOB $[ ]
local Warehouse)
Ireland (DDU) $[ ]
Israel (DDP) $[ ]
[ ] IBC/DTA United States United States (FOB $[ ]
local Warehouse)
TABLE B
PRICES WHICH APPLY IF BUYER PURCHASES [ ]% SHARE OF BUYER'S TOTAL
REQUIREMENTS FOR CMP SLURRIES UTILIZED IN [ ] POLISHING ASSOCIATED WITH THE
FOLLOWING MANUFACTURING PROCESSES OF BUYER: [ ]
CABOT PART # PKG POINT OF DESTINATION PRICE PER GALLON
MANUFACTURE
[ ] IBC United States United States (FOB $[ ]
local Warehouse)
Ireland (DDU) $[ ]
Israel (DDP) $[ ]
[ ] IBC Barry, Wales United States (FOB $[ ]
local Warehouse)
Ireland (DDU) $[ ]
Israel (DDP) $[ ]
[ ] IBC/DTA United States United States (FOB $[ ]
local Warehouse)
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TABLE C
PRICES WHICH APPLY IF BUYER PURCHASES [ ]% SHARE OF BUYER'S TOTAL
REQUIREMENTS FOR CMP SLURRIES UTILIZED IN [ ] POLISHING ASSOCIATED WITH THE
FOLLOWING MANUFACTURING PROCESSES OF BUYER: [ ]
CABOT PART # PKG POINT OF DESTINATION PRICE PER GALLON
MANUFACTURE
[ ] IBC United States United States (FOB $[ ]
local Warehouse)
Ireland (DDU) $[ ]
Israel (DDP) $[ ]
[ ] IBC Barry, Wales United States (FOB $[ ]
local Warehouse)
Ireland (DDU) $[ ]
Israel (DDP) $[ ]
[ ] IBC/DTA United States United States (FOB $[ ]
local Warehouse)
Prices for purchases of requirements percentages between the requirements
percentages shown in the above tables (i.e. quantities between [ ]%, [ ]%
and [ ]%) shall be determined by a straight line extrapolation of the
prices shown in the above tables.
The price per gallon of [ ] shall be calculated based upon the percent
share of Buyer's requirements for [ ] or its equivalent associated with
Buyer's [ ] manufacturing processes which Buyer forecasts for the relevant
calendar year. For example, if Buyer purchases [ ]% of its total
requirements for [ ] or its equivalent associated with Buyer's [ ]
manufacturing processes in the form of [ ] from Supplier in calendar year
2000, the price will be determined using Table B. However, if Buyer
purchases [ ]% of its total requirements for [ ] or its equivalent
associated with Buyer's [ ] manufacturing processes in the form of [ ] from
Supplier in calendar year 2000, the price will be determined using Table A.
B. [ ]
CABOT PART # PKG POINT OF DESTINATION PRICE BASED ON CUMULATIVE VOLUMES OF [ ] PURCHASED
MANUFACTURE
# [ ]-[ ] [ ]-[ ] [ ]-[ ] [ ]-[ ] [ ]-[ ] > [ ]*
[ ] IBC United States United States $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
(FOB local
warehouse)
United States Israel $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
(DDP)
United States Ireland (DDU) $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
* volumes in thousands of gallons
The price per gallon of [ ] shall be calculated based upon the cumulative
volume of gallons of [ ] purchased by Buyer from Supplier during the term
of this Agreement. Adjustments to the price, based upon the cumulative
gallons of [ ] purchased by
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Buyer from Supplier, shall take effect in the quarter following the quarter
in which Buyer surpasses a volume threshold.
C. [ ]
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION # PRICE PER GALLON
[ ] * IBC United States United Sates (FOB local $[ ]
warehouse)
[ ] * IBC United States Ireland (DDU) $[ ]
[ ] * IBC Xxxxx, Wales Ireland (DDU) $[ ]
[ ] * IBC Xxxxx, Wales United Sates (FOB local $[ ]
warehouse)
* [ ]
D. [ ]
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION # PRICE PER GALLON
[ ] IBC United States United Sates (FOB local $[ ]
warehouse)
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ADDENDUM B
KEY CONTACTS & INTEL FAB LOCATIONS
DEPARTMENT/TITLE NAME PHONE
OHKA:
Account Representative Xxxx Xxxxxx 000-000-0000
Accounts Receivable 000-000-0000
24-Hour Emergency Contact Xxxx Xxxxxx 000-000-0000
Schedule/Delivery Contact Xxxx Xxxxx 000-000-0000
General Xxxxx Xxxxxxx 000-000-0000
INTEL:
FMO
Commercial Xxxxxx Xxxxx 000-000-00
Technical Xxx Xxxxxxxxxxxx 000-000-0000
Xxx Xxxxxxxxxxx 000-000-0000
Buyers
Ireland Xxxxxxxxx Xxxxxxx 011-353-1-606-8630
New Mexico Xxxx Xxxxxxx 000-000-0000
Fab 6 Xxxxx Xxxxx 000-000-0000
Fab 12 Xxxxx Xxxxx 000-000-0000
Israel
Fab 8 Xxxx Provad 011-972-2-5896357
Fab 18 Xxxxx Xxxx 011-972-7-666-6953
Santa Xxxxx
D2 Xxxxx Ma 000-000-0000
Xxxxx Xxxxxxxx 000-000-0000
Oregon Xxxxxxx Xxxxxxx 000-000-0000
Massachusetts
F17 Xxxx Xxxxxx
Accounts Payable:
AZ/CA Xxxxx Xxxxxx 000-000-0000
OR Xxxxxxx Xxxxxxx 503-696-3046
NM Xxxxxx Xxxxxx 000-000-0000
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ADDENDUM C
QUALITY REQUIREMENTS
LIST OF GOVERNING INTEL SPECIFICATIONS
SPEC. NO. REV. TITLE ISSUE DATE
07-116 0 MATERIALS CHANGE CONTROL POLICY 05/22/98
07-123 2 SUPPLIER CORRECTIVE ACTION POLICY 02/25/98
07-124 4 FMO/ATMO-DISCREPANT RAW MATERIAL DISPOSITION POLICY 06/09/98
07-400 7 CHEMICALS SPECIFICATION SYSTEM 06/05/97
07-401 6 PROCEDURE FOR SHIPPING & RECEIVING OF CHEMICALS 12/05/97
07-402 5 INTEL CHEMICAL QUALITY PROGRAM 06/26/98
07-403 2 SHIPPING OF TEMP-SENSITIVE CHEMICALS 12/05/97
07-411 4 PROCUREMENT SPEC FOR CHEMICALS 11/25/98
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ADDENDUM D
VOLUME OBLIGATIONS
A. [ ]
During the years set forth below, Buyer shall be obligated to purchase
from Supplier a [ ] volume of [ ] which is equal to the product of (i) Buyer's
total requirements for [ ] utilized in [ ] polishing associated with Buyer's [ ]
manufacturing processes ("[ ] Slurry Requirements"), multiplied by (ii) the [ ]
Percentage (set forth in the table below). During the years specified below,
Supplier shall be obligated to supply to Buyer a volume of [ ] which is equal to
the product of (i) Buyer's forecasted volume of [ ] Slurry Requirements for the
upcoming calendar year (which forecast shall be provided to Supplier 90 days
prior to the commencement of each calendar year), multiplied by (ii) the [ ]
Percentage (set forth in the table below).
[ ] SLURRY VOLUME OBLIGATIONS
CALENDAR YEAR BUYER'S [ ] PERCENTAGE SUPPLIER'S [ ] PERCENTAGE
------------- ---------------------- -------------------------
1999 [ ] % [ ] %
2000 [ ] % [ ] %
2001 [ ] % [ ] %
Ninety days prior to the commencement of each calendar year, Buyer shall commit
and obligate itself to purchase from Supplier a specific percentage of its [ ]
Slurry Requirements (which percentage shall be at least as large as the [ ]
Percentage) which it shall purchase from Supplier during the upcoming year. The
amount of [ ] which Buyer will purchase, above the [ ] Percentage, will be
determined according to whether Supplier meets requirements set by Buyer's
Supplier Score Card.
B. [ ]
During the years set forth below, Buyer shall be obligated to purchase from
Supplier a [ ] volume of [ ] which is equal to the product of (i) Buyer's total
requirements for [ ] utilized in [ ] polishing applications associated with
Buyer's [ ] manufacturing processes ("[ ] Requirements"), multiplied by (ii) the
[ ] Percentage (set forth in the table below). During the years specified below,
Supplier shall be obligated to supply to Buyer a volume of [ ] which is equal to
the product of (i) Buyer's forecasted volume of [ ] Requirements for the
upcoming calendar year (which forecast shall be provided to Supplier 90 days
prior to the commencement of each calendar year), multiplied by (ii) the [ ]
Percentage (set forth in the table below). Notwithstanding the foregoing, during
the course of any
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calendar year, Buyer may, by giving 4 months advance written notification to
Supplier, increase its forecasted [ ] requirements for the remainder of the year
(starting after the 4 month notice period), provided, however, such new
forecasted amount may not exceed a volume which is greater than the product of
the remaining volumes from the original forecasted amount, multiplied by [ ].
[ ] SLURRY VOLUME OBLIGATIONS
CALENDAR YEAR BUYER'S [ ] PERCENTAGE SUPPLIER'S [ ] PERCENTAGE
1999 [ ] % [ ] %
2000 [ ] % [ ] %
2001 [ ] % [ ] %
90 days prior to the commencement of 2001, Buyer shall commit and obligate
itself to purchase from Supplier a specific percentage of its [ ] Requirements
(which percentage shall be at least as large as the [ ] Percentage) which it
shall purchase from Supplier during 2001. The amount of [ ] which Buyer will
purchase, above the [ ] Percentage, will be determined according to whether
Supplier meets requirements set by Buyer's Supplier Score Card.
C. [ ]
During the years set forth below, Buyer shall be obligated to purchase from
Supplier a [ ] volume of [ ] which is equal to the product of (i) Buyer's total
requirements for [ ] utilized in [ ] polishing applications associated with
Buyer's [ ] manufacturing processes ("[ ] Requirements"), multiplied by (ii) the
[ ] Percentage (set forth in the table below). For each month of this Agreement,
Supplier shall be obligated to supply to Buyer a volume of [ ] which is equal to
the product of (i) the volume of [ ] Buyer purchased from Supplier during the
preceding month, multiplied by (ii) the [ ] Percentage (set forth in the table
below).
[ ] SLURRY VOLUME OBLIGATIONS
CALENDAR YEAR [ ] PERCENTAGE [ ] PERCENTAGE
1999 [ ] % [ ] %
2000 [ ] % [ ] %
2001 [ ] % [ ] %
D. [ ]
Neither Buyer nor Supplier have any volume obligations with respect to [ ]
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With respect to all of the above describe Items, in the event Buyer does not
purchase a particular Item for use in its facilities in either North America,
Ireland and/or Israel for any [ ], Supplier shall no longer be obligated to
supply such Item to Buyer's facilities in the relevant geographic region.
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