Exhibit 10.16
AMENDED AND RESTATED
INTELLECTUAL PROPERTY
AGREEMENT
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT AND AN
UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED WITH THE SECURITY AND
EXCHANGE COMMISSION
TABLE OF CONTENTS
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ARTICLE 1 --GENERAL BACKGROUND.................................................................... 1
h1.1 Applied's Business.................................................................... 1
1.2 Kinetics' Business.................................................................... 1
1.3 Existing Business Relationship between the Parties.................................... 1
1.4 Renegotiation of the Outsource Relationship........................................... 2
1.5 Scope of this Agreement............................................................... 2
1.6 Statement of Agreement................................................................ 2
Article 2 - Definitions........................................................................... 3
2.1 Affiliate............................................................................. 3
2.2 Agreement............................................................................. 3
2.3 Applied............................................................................... 3
2.4 Applied FDS or Applied Fluid Delivery System.......................................... 3
2.5 Applied FDS Technology................................................................ 3
2.6 Applied Future IP..................................................................... 3
2.7 Applied IP............................................................................ 3
2.8 Applied Pre-Existing IP............................................................... 3
2.9 Applied System........................................................................ 4
2.10 Component............................................................................. 4
2.11 Confidential Information.............................................................. 4
2.12 Current Applied FDS Technology........................................................ 4
2.13 Current Applied FDS or Current Applied Fluid Delivery Systems......................... 4
2.14 Design IP............................................................................. 4
2.15 Design Services....................................................................... 4
2.16 Design Services Agreement or DSA...................................................... 5
2.17 Design SOW............................................................................ 5
2.18 Development Services.................................................................. 5
2.19 Development Services Agreement or DVA................................................. 5
2.20 Documentation......................................................................... 5
2.21 Effective Date........................................................................ 5
2.22 Existing Component.................................................................... 5
2.23 FDS Technology........................................................................ 6
2.24 Fluid Delivery System or FDS.......................................................... 6
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2.25 Future Applied FDS.................................................................... 6
2.26 Future Applied FDS Technology......................................................... 6
2.27 Future Modifications.................................................................. 6
2.28 GSA................................................................................... 6
2.29 IP Rights............................................................................. 7
2.30 Kinetics.............................................................................. 7
2.31 Kinetics Future IP.................................................................... 7
2.32 Kinetics IP........................................................................... 7
2.33 Kinetics Pre-Existing IP.............................................................. 7
2.34 Manufacturing Process................................................................. 7
2.35 Outsource Relationship................................................................ 8
2.36 Party(ies)............................................................................ 8
2.37 Standard Services..................................................................... 8
2.38 Third Party Applications.............................................................. 8
2.39 Third Party FDS Technology............................................................ 8
Article 3 - Intellectual Property................................................................. 8
3.1 Pre-Existing IP....................................................................... 8
3.2 License to Kinetics for FDS Operations................................................ 8
3.3 Future Modifications - Generally...................................................... 9
3.4 Standard Services..................................................................... 9
3.5 Design Services....................................................................... 9
3.5.1 Design Services Procedure................................................... 9
3.5.2 Performance of Design Services.............................................. 9
3.5.3 Ownership of Design IP...................................................... 10
3.6 Development Services.................................................................. 10
3.7 Applied's Approval of Design Services and Development Services........................ 10
3.8 Ownership of Manufacturing Processes.................................................. 10
3.9 Trademark Rights...................................................................... 10
3.10 Applications for IP Rights............................................................ 11
3.11 Existing Third Party FDS Technology................................................... 11
3.12 Future Third Party FDS Technology..................................................... 11
3.13 License to Applied For Cover and Support.............................................. 12
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3.14 Reservation of Rights................................................................. 12
Article 4 - Confidentiality....................................................................... 13
4.1 Definition............................................................................ 13
4.2 Confidentiality Obligations........................................................... 15
4.3 Identification As Confidential........................................................ 16
4.4 Need-To-Know Disclosure............................................................... 17
4.5 Remedies.............................................................................. 17
4.6 Visual Information.................................................................... 17
Article 5 - Term and Termination.................................................................. 17
5.1 Term.................................................................................. 17
5.2 Termination........................................................................... 18
5.2.1 In Event of a GSA Termination............................................... 18
5.2.2 By Either Party in Event of an IPA Default.................................. 18
5.2.3 By Either Party Immediately Upon Confidentiality Breach..................... 18
5.2.4 By Either Party of a DSA.................................................... 18
5.2.5 By Either Party of a Development Services Agreement......................... 19
5.2.6 Effective Date of Termination Upon GSA Termination.......................... 19
5.3 Consequences of Termination or Expiration............................................. 20
5.4 Termination of the Amended IPA........................................................ 22
Article 6 - Warranties and Representations........................................................ 22
6.1 Kinetics Pre-Existing IP Rights....................................................... 22
6.2 Applied Pre-Existing IP Rights........................................................ 22
6.3 Future Modifications.................................................................. 22
6.4 Completeness of Schedules of Pre-Existing IP Rights................................... 23
6.5 Disclaimer of Warranties.............................................................. 23
6.6 Limitation of Liability............................................................... 23
Article 7 - Indemnities........................................................................... 23
7.1 Indemnification - Performance of Agreement............................................ 23
7.2 Indemnification - Infringement/Misappropriation....................................... 24
7.3 Indemnification/Duty to Defend Set-Off................................................ 24
7.4 Indemnified Party's Obligations....................................................... 25
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Article 8 - General Provisions.................................................................... 25
8.1 Entire Agreement...................................................................... 25
8.2 Succession and Assignment............................................................. 25
8.3 Export Regulation..................................................................... 26
8.4 Rules of Construction................................................................. 27
8.5 Attorneys' Fees....................................................................... 27
8.6 General Provisions.................................................................... 27
AMENDED AND RESTATED
INTELLECTUAL PROPERTY AGREEMENT
This Amended and Restated Intellectual Property Agreement (the
"Agreement") is by and between Applied Materials, Inc., a Delaware corporation,
having places of business in Santa Clara, California and Austin, Texas, and
Kinetics Fluid Systems, Inc., a California corporation, having places of
business in Santa Clara, California and Austin, Texas.
ARTICLE 1
GENERAL BACKGROUND
1.1. APPLIED'S BUSINESS. Applied, among other activities, designs,
manufactures and markets (a) semiconductor wafer fabrication equipment, (b)
wafer inspection and metrology equipment, (c) flat panel display fabrication
equipment, (d) wafer fabrication factory control software, (e) toxics abatement
or recycling equipment, (f) thin film application processes, and (g) parts,
components and processes related to any of the foregoing.
1.2. KINETICS' BUSINESS. Kinetics, among other activities, designs,
develops, manufactures and markets, for use in semiconductor fabrication
equipment and other applications, (a) Fluid Delivery Systems, (b) Components,
(c) chemical and slurry delivery systems, (d) process chillers, (e) thermal
measurement and control devices, (f) utility infrastructure and delivery systems
for semiconductor fabrication facilities, (g) ancillary equipment to connect the
utility infrastructure of semiconductor fabrication facilities to semiconductor
fabrication equipment, and (h) waste recycling systems for chemicals and slurry.
1.3. EXISTING BUSINESS RELATIONSHIP BETWEEN THE PARTIES. The Parties
previously established a business relationship, according to which Kinetics
manufactures for Applied fluid delivery systems for incorporation into various
systems sold by Applied, including semiconductor fabrication equipment, flat
panel display fabrication equipment and thin film application process equipment
("Outsource Relationship"). The Outsource Relationship is
defined by a series of agreements, including an "Intellectual Property
Agreement" dated June 28, 1999 ("Original IPA.") The Original IPA was amended by
a series of three amendments - (1) First Amendment to Intellectual Property
Agreement dated September 20, 1999, (2) Second Amendment to Intellectual
Property Agreement dated September 20, 1999, and (3) Third Amendment to
Intellectual Property Agreement dated June 25, 2000 (the thrice-amended Original
IPA and any of its predecessor agreements, including the Original IPA, are
referred to hereinafter as the "Amended IPA"). The Amended IPA defines each
Party's intellectual property rights and obligations related to the fluid
delivery systems manufactured for Applied by Kinetics until the Effective Date
of this Agreement.
1.4. RENEGOTIATION OF THE OUTSOURCE RELATIONSHIP. The Parties have
renegotiated the Outsource Relationship to reflect developments since the
relationship was initially created. As a part of these renegotiations, the
Parties have renegotiated their respective duties, obligations and rights
relating to intellectual property in and related to fluid delivery systems, and
desire to reflect same in this Agreement. More specifically, the Parties desire
that this Agreement supersede the Amended IPA, which terminates on the Effective
Date of this Agreement.
1.5. SCOPE OF THIS AGREEMENT. The Parties desire to enter into new
agreements, including a new agreement defining their respective intellectual
property rights, to reflect more accurately the current business conditions
surrounding the Outsource Relationship.
1.6. STATEMENT OF AGREEMENT. Now, therefore, in consideration of the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree to the following terms, conditions and obligations.
ARTICLE 2
DEFINITIONS
2.1 AFFILIATE means "affiliate" as defined in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act.
2.2 AGREEMENT means this Amended and Restated Intellectual Property
Agreement.
2.3 APPLIED means Applied Materials, Inc. and all of its domestic and
international divisions and subsidiaries.
2.4 APPLIED FDS or APPLIED FLUID DELIVERY SYSTEM means Current Applied
FDS and Future Applied FDS.
2.5 APPLIED FDS TECHNOLOGY means Current Applied FDS Technology and
Future Applied FDS Technology.
2.6 APPLIED FUTURE IP means all IP Rights relating to Future
Modifications owned by Applied, including, without limitation, Design IP.
Applied Future IP includes any and all IP Rights in and to software for
"Capacity FDS Hardware" and "Product Change Hardware" and to "Improved Software"
(all as defined in Section 4.2 of the GSA) provided or purchased by Applied in
accordance with Section 4.2 of the GSA.
2.7 APPLIED IP means Applied Pre-Existing IP and Applied Future IP.
Applied IP includes any and all IP Rights in and to "Test Fixture Software" (as
defined in Section 4.2 of the GSA) provided or purchased by Applied in
accordance with Section 4.2 of the GSA.
2.8 APPLIED PRE-EXISTING IP means all existing IP Rights relating to the
Current Applied FDS or Current Applied FDS Technology that are owned by Applied,
or to which Applied otherwise has rights (but only to the extent of such
rights), as of the Effective
Date, as set forth in Schedule 2.8. Applied Pre-Existing IP, for purposes of the
license of Section 3.2, does not include Applied business information (such as
sub-tier supplier information and Component pricing information) relating to the
Current Applied FDS Technology.
2.9 APPLIED SYSTEM means capital equipment sold by Applied that
incorporates a Fluid Delivery System.
2.10 COMPONENT means a component, part or sub-assembly of a Fluid
Delivery System, including but not limited to, valves, tubing, mass flow
controllers, base plates, brackets, sticks, manifolds (final and SLD), safety
sensors, GPLIS, VDS, ozonators, pneumatics, manifolds, filters, cables,
transducers, fluid delivery controllers and enclosures.
2.11 CONFIDENTIAL INFORMATION means Confidential Information as defined
in Section 4.1.
2.12 CURRENT APPLIED FDS TECHNOLOGY means the FDS Technology currently
utilized in connection with the Current Applied Fluid Delivery Systems.
2.13 CURRENT APPLIED FDS or CURRENT APPLIED FLUID DELIVERY SYSTEMS means
the Fluid Delivery Systems sold to Applied by Kinetics for incorporation into an
Applied System as of the Effective Date.
2.14 DESIGN IP means any and all IP Rights, other than Kinetics
Pre-Existing IP or Manufacturing Processes, relating to a Future Modification
created, conceived or first reduced to practice by or for a Party after the
Effective Date and during the course of, and as a result of, Design Services.
2.15 DESIGN SERVICES means those services provided by Kinetics to Applied
hereunder for the preparation and delivery of a detailed design of a Future
Applied FDS or Component, comprised exclusively of Existing Components,
implementing Applied's specific
requirements and including one or more of the following activities: (a) the
selection and configuration of Existing Components; (b) the preparation or
release, or both, of bills of materials, drawings, product definition forms,
engineering change orders or other documentation related to the selection and
configuration of Existing Components; and (c) the manufacture, testing and
delivery of such Future Applied FDS.
2.16 DESIGN SERVICES AGREEMENT OR DSA means an agreement with respect to
Design Services entered into and executed by Kinetics and Applied in accordance
with Section 3.5 of this Agreement.
2.17 DESIGN SOW means a written statement of work for Design Services
agreed to and executed by both Parties, specifying the scope of Design Services
to be provided by Kinetics, the related fees payable by Applied and any other
related responsibilities of each Party in accordance with Section 3.5.1.
2.18 DEVELOPMENT SERVICES means any services with respect to Future
Modifications provided by Kinetics to Applied other than Design Services and
Standard Services.
2.19 DEVELOPMENT SERVICES AGREEMENT OR DVA means a written agreement with
respect to Development Services entered into and executed by Kinetics and
Applied, in accordance with Section 3.6 of this Agreement.
2.20 DOCUMENTATION means all blueprints, drawings, schematics, manuals,
flowcharts, specifications, prototypes, specimens, software, manuals and other
tangible materials related to the FDS Technology.
2.21 EFFECTIVE DATE means June 1, 2002.
2.22 EXISTING COMPONENT means a Component of a Current Applied FDS, or
any other Component that is commercially available to or from Kinetics as of the
effective date of the applicable DSA.
2.23 FDS TECHNOLOGY means the technology, both tangible and intangible,
related to the design and manufacture of a Fluid Delivery System.
2.24 FLUID DELIVERY SYSTEM OR FDS means a product that distributes or
controls fluid (liquid, vapor or gas) to a tool or chamber, including all
hardware that is embodied in or that is inside or attached to any such fluid
delivery system, including but not limited to Components, but not including the
Applied system controller or weldments that connect the fluid delivery system to
the tool or chamber.
2.25 FUTURE APPLIED FDS means any future Fluid Delivery System that
incorporates a Future Modification.
2.26 FUTURE APPLIED FDS TECHNOLOGY means any Future Modification relating
to Standard Services, Design Services, or Development Services. Future Applied
FDS Technology also means any Future Modification relating to: (a) the FDS test
fixture(s) identified in Schedule 4.2.2(c) of the GSA; and (b) Purchased FDS
Test Fixture(s), Capacity FDS Hardware, Product Change Hardware and Improved
Software, all as defined in Section 4.2 of the GSA, provided or purchased by
Applied in accordance with Section 4.2 of the GSA.
2.27 FUTURE MODIFICATIONS means improvements, enhancements or
modifications created, conceived or first reduced to practice by or for a Party
pursuant to the provisions hereof after the Effective Date to an Applied FDS or
the Applied FDS Technology, or both, and inventions, discoveries, works of
authorship, know-how, technical information, work
product and/or other information related thereto, but in any case excludes any
Manufacturing Processes.
2.28 GSA means the Global Supply Agreement concurrently entered into by
the Parties or any subsequent Global Supply Agreement entered into by the
Parties.
2.29 IP RIGHTS means all patent rights, copyrights, trade secret rights,
mask work rights and other intellectual or intangible proprietary rights (other
than trademarks, service marks and similar rights) in any jurisdiction.
2.30 KINETICS means (a) Kinetics Fluid Systems, Inc.; (b) all
unincorporated divisions of Kinetics Fluid Systems, Inc.; and (c) those
subsidiaries and affiliates of Kinetics Fluid Systems, Inc. that are approved
(through written supplement to this Agreement or the GSA) by Applied as
permitted to perform obligations hereunder. Unit Instruments, Inc. shall not be
included in the term "Kinetics" unless a written amendment to this Agreement,
executed by Unit Instruments, Inc. and by both Parties, so provides.
2.31 KINETICS FUTURE IP means all IP Rights relating to Future
Modifications and owned by Kinetics, including all ***.
2.32 KINETICS IP means Kinetics Pre-Existing IP and Kinetics Future IP.
2.33 KINETICS PRE-EXISTING IP means all existing IP Rights relating to
the Current Applied FDS or Current Applied FDS Technology that are owned by
Kinetics, or to which Kinetics otherwise has rights (but only to the extent of
such rights), as of the Effective Date, as set forth in Schedule 2.33.
2.34 MANUFACTURING PROCESS means: (a) each process or apparatus for
manufacturing Fluid Delivery Systems, Components or both, developed ***, but
excluding any process or apparatus owned by *** under the specific provisions of
the GSA or any "Tooling
Loan Agreement" between the Parties; (b) any IP Rights and know-how related to
each process or apparatus as defined in paragraph (a), both tangible and
intangible; and (c) related documentation, including without limitation assembly
procedures, test procedures, operational method sheets, process mapping, product
synchronizations and sequence of events documentation; but, in each case,
excludes ***.
2.35 OUTSOURCE RELATIONSHIP means the business relationship between the
Parties, according to which Kinetics manufactures for Applied FDS's for
incorporation into Applied Systems.
2.36 PARTY(IES) means Applied, Kinetics or both, depending upon context.
2.37 STANDARD SERVICES shall have the meaning given such term by the GSA.
2.38 THIRD PARTY APPLICATIONS means those computer software applications
as set forth in Schedule 2.38.
2.39 THIRD PARTY FDS TECHNOLOGY means FDS Technology owned by a party
other than the Parties.
ARTICLE 3
INTELLECTUAL PROPERTY
3.1 PRE-EXISTING IP. Each Party's Pre-Existing IP shall remain such
Party's sole property.
3.2 LICENSE TO KINETICS FOR FDS OPERATIONS. Applied grants to Kinetics a
non-exclusive, non-transferable (except as provided in Section 3.7 and Section
8.2), royalty-free, worldwide license to reproduce, distribute, create
derivative works of, use, make, have made, sell, offer to sell, import,
practice, modify and improve Applied IP and, to the extent possible, the Third
Party Applications for the limited purposes of fulfilling its obligations under
this
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* Confidential Treatment Requested
Agreement, the GSA and each DSA and DVA. With respect to the Third Party
Applications, Applied's license of rights is subject to any and all limitations
on such license as set forth in Applied's contracts with the applicable vendors.
Applied does not represent or warrant that Kinetics requires a license to or
that Applied has the right to license the Third Party Applications,
notwithstanding Applied's representation and warranty of Section 6.2.
3.3 FUTURE MODIFICATIONS - GENERALLY. Future Modifications may involve
Design Services, Development Services or Standard Services.
3.4 STANDARD SERVICES. The Parties have agreed, as part of the GSA, to
terms and conditions relevant to the provision by Kinetics of Standard Services.
Applied shall own any Fluid Delivery System and FDS Technology, and any IP
Rights related thereto, created, conceived or first reduced to practice by or
for a Party during the course of, and as a result of, Standard Services, but in
no event shall Applied own any ***.
3.5 DESIGN SERVICES.
3.5.1 DESIGN SERVICES PROCEDURE. If the Parties agree that Kinetics
will perform Design Services for Applied, then the Parties will execute a Design
SOW, addressing the issues referred to in Schedule 3.5.1, which shall be part of
the Purchase Order (as defined in the GSA) under which Kinetics will provide the
Design Services. Each Design SOW, together with the related Purchase Order,
shall form a separate contract (a "Design Services Agreement") between the
Parties relating to those Design Services, which contract incorporates the terms
of this Agreement, the GSA, the Design SOW and the
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* Confidential Treatment Requested
related Purchase Order. In the event (and to the extent) of conflict between or
among this Agreement, the GSA, the Design SOW and the related Purchase Order,
precedence shall be given first to this Agreement, second to the GSA, third to
the Design SOW and fourth to the Purchase Order.
3.5.2 PERFORMANCE OF DESIGN SERVICES. Kinetics shall provide the
Design Services to Applied as specified in the DSA. Applied shall pay Kinetics
the fees specified in the DSA for the Design Services in accordance with the
GSA.
3.5.3 OWNERSHIP OF DESIGN IP. Applied shall own any and all Design
IP, and Kinetics hereby assigns and transfers to Applied any and all rights
Kinetics may have in Design IP. Furthermore, Kinetics shall obtain any and all
necessary assignments from its employees or subcontractors, as the case may be,
to assure that Kinetics and, in turn, Applied receives full and complete
ownership of Design IP.
3.6 DEVELOPMENT SERVICES. If the Parties agree that Kinetics will
perform Development Services, then the Parties will negotiate in good faith to
agree upon and execute a Development Services Agreement.
3.7 APPLIED'S APPROVAL OF DESIGN SERVICES AND DEVELOPMENT SERVICES.
Applied has the right to perform services substantially similar to Design
Services and Development Services solely, jointly with a third party or jointly
with Kinetics. Kinetics may not perform any Design Services or Development
Services unless performed jointly with Applied or otherwise approved by Applied;
however, Kinetics may subcontract those obligations to perform any agreed-to
Design Services or Development Services that Kinetics reasonably determines to
be outside Kinetics' core competency or as necessary to efficiently meet
Applied's requirements, and sublicense to the subcontractor associated licenses
and rights required to perform those obligations, with Applied's prior written
approval, such approval not to be unreasonably withheld, delayed or denied.
3.8 OWNERSHIP OF MANUFACTURING PROCESSES. *** will own each
Manufacturing Process.
3.9 TRADEMARK RIGHTS. Applied grants to Kinetics a non-exclusive,
royalty-free, worldwide license to use Applied's trademarks, as defined in
Schedule 2.8, in the manner designated by Applied in connection with any Applied
Fluid Delivery Systems. Kinetics will not include any of its trademarks on any
Applied Fluid Delivery Systems, except that Kinetics may place the Kinetics
trademark(s) on Components manufactured by or for Kinetics and utilized in any
Applied Fluid Delivery Systems. The Parties acknowledge the importance of
maintaining the quality of Applied Fluid Delivery Systems and, accordingly,
Kinetics agrees to follow all the quality requirements of Sections 4.1 and 4.3
through 4.7 of the GSA.
3.10 APPLICATIONS FOR IP RIGHTS. Each Party has the sole right to control
the process of preparing, filing, prosecuting and/or maintaining an application
or applications in relation to any IP Rights allocated to such Party hereunder,
and such Party shall bear the costs thereof. Each Party agrees to (i) disclose
promptly in writing to the other Party all IP Rights allocated to the other
Party hereunder; and (ii) assist the other Party as reasonably necessary to
obtain, register or apply for any such IP Rights, including by causing its
personnel and contractors to assign such IP Rights, sign or provide documents
and render assistance.
3.11 EXISTING THIRD PARTY FDS TECHNOLOGY. In the event that Applied has a
license to Third Party FDS Technology which is necessary for Applied Fluid
Delivery Systems being requested by Applied, Applied, in its sole discretion,
will either: (a) sublicense that Third Party FDS Technology to Kinetics, if
Applied has the right to do so; or (b) make commercially reasonable efforts to
assist Kinetics in obtaining a license to the Third Party FDS Technology
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* Confidential Treatment Requested
from the owner; provided that neither Party will be required to take any act in
violation of existing agreements with third parties.
3.12 FUTURE THIRD PARTY FDS TECHNOLOGY. In the event that the Parties
agree to introduce in the future Third Party FDS Technology into any Applied
Fluid Delivery System, then the Party with the relationship to the Third Party
will obtain all necessary rights from the Third Party to allow Kinetics to
manufacture Applied Fluid Delivery Systems incorporating the Third Party
Technology.
3.13 LICENSE TO APPLIED FOR COVER AND SUPPORT. If Applied obtains Applied
Fluid Delivery Systems from a second source (i) in accordance with Applied's
"cover" rights under GSA Section 7.2 or (ii) to effect support as provided by
GSA Section 4.8.3.b, then Kinetics agrees to extend to Applied a non-exclusive,
non-transferable, royalty-free, worldwide, irrevocable (provided that Applied
complies with all related obligations) license to manufacture, have manufactured
for sale to Applied (and grant a sublicense to the manufacturer as necessary to
exercise this right to have manufactured for sale to Applied), use and sell any
such Applied Fluid Delivery Systems incorporating any Kinetics IP solely for
incorporation into an Applied System in accordance with Applied's "cover" rights
under GSA Section 7.2 or "Post Term Support" rights under GSA Section 4.8.3.b,
as required. The license will expire upon expiration or termination in each case
of Applied's "cover" rights under GSA Section 7.2(d) or "Post Term Support"
rights under GSA Section 4.8.3.b. Furthermore, in order for Applied to fully
enjoy its licenses pursuant to this Section, Kinetics agrees to provide to
Applied assistance, FDS Technology and Documentation, and otherwise take all
action, necessary to allow Applied or a reasonably skilled FDS manufacturer, in
the case that Applied exercises its sublicensing rights,
to manufacture the Applied Fluid Delivery System. Notwithstanding the foregoing,
Kinetics shall not be required to provide *** to Applied or its manufacturer.
3.14 RESERVATION OF RIGHTS. All IP Rights of each Party that are not
expressly granted in this Agreement are reserved and retained by such Party.
Except as expressly provided in this Agreement, as of the Effective Date, no
other licenses of IP Rights are granted whatsoever, whether expressly or by
implication or estoppel, by either Party to the other Party.
ARTICLE 4
CONFIDENTIALITY
4.1 DEFINITION. Confidential Information means all non-public,
proprietary information of, or disclosed by, a Party ("Disclosing Party") that,
from time-to-time, may be acquired by a Party ("Receiving Party") from the
Disclosing Party that is: (i) related to an Applied FDS or Applied FDS
Technology; or (ii) related to the provision of Applied FDS or Applied FDS
Technology pursuant to this Agreement, the GSA, a DSA or a Development Services
Agreement; or (iii) Visual Information as defined in Section 4.6. The
Confidential Information may be in any form, medium, state or condition,
inclusive of information that is embodied in a product or tangible item or that
is intangible, whether disclosed in oral, written, graphic, machine recognizable
(including computer programs, algorithms or databases), model or sample form or
any derivation thereof, and shall include all of the following:
(a) Processes; formulas; trade secrets; know-how; proprietary
information; innovations; inventions; discoveries; improvements; research;
development; product analysis or evaluations and test results, information
and design; operations; systems; specifications; standards; drawings;
designs; devices; data; patterns; compilations; methods; programs;
technical documentation; manufacturing techniques or sequences;
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* Confidential Treatment Requested
schematics; configurations; computer programs, codes and operating
standards; all whether or not patented or patentable.
(b) Product plans; customer configurations or product designs;
confidential information received from customers; supplier configurations
or product designs; confidential information received from suppliers.
(c) Marketing plans; business plans; business activities;
facilities; warehousing and leasing; inventory; inventory management
plans, methods and procedures; inventory, materials and Components
qualification and evaluation; business and product forecasts; corporate
financial information and budgets or projections; business processes.
(d) Personnel information; organizational structure; salaries and
benefits; employee qualifications, requirements, resumes and individual
data; labor cost models.
(e) Supplier information, including identity; product sales;
product manufacturing; supply; pricing; evaluation and performance
histories; forecasts; requirements or standards; logistics; delivery or
freight arrangements or requirements; materials handling techniques,
standards or requirements; supplier personnel.
(f) Customer information including: identity, product sales;
product purchase histories or forecasts; customer agreements, terms and
pricing; customer personnel.
(g) The terms, but not existence, of this Agreement, the GSA, any
DSA or Development Services Agreement, and any and all information
relating to the Outsource Relationship.
Notwithstanding the above, Confidential Information does not include
information:
(i) of which the Receiving Party was rightfully in possession
prior to disclosure, as evidenced by appropriate documentation;
(ii) that was independently developed by employees or agents of the
Receiving Party without use of Confidential Information provided by the
Disclosing Party hereunder;
(iii) that the Receiving Party rightfully receives from a third
party not owing a duty of confidentiality to the Disclosing Party;
(iv) that becomes publicly available without fault of the Receiving
Party; or
(v) whose disclosure is required by order of a court or government
authority, provided that Disclosing Party shall notify the other party in
advance of such a disclosure or release; shall take commercially
reasonable efforts (at least equal to the efforts such party takes to
protect the confidentiality of its own information) to protect the
confidentiality of the Confidential Information in the Agreement, which
shall include deleting the financial terms of or other Confidential
Information in the Agreement from (or obtaining confidential treatment of
such terms and information in) disclosure or public release when permitted
by applicable law, rule or regulation (and requesting such deletion or
equivalent protection or confidential treatment where approval by a court
or governmental authority is required).
4.2 CONFIDENTIALITY OBLIGATIONS. The Receiving Party shall hold the
Disclosing Party's Confidential Information in strictest confidence for five (5)
years after receipt, using such measures as the Receiving Party uses to protect
the confidentiality of its own Confidential Information of like importance, but
in no event using less than reasonable care. The Receiving Party shall not make
any disclosure of such Confidential Information, other than to its
employees, consultants, agents and representatives on a need to know basis. This
prohibition against disclosure includes a prohibition against disclosure by
Kinetics to any Kinetics Affiliate, unless (1) Kinetics notifies Applied of a
commercially reasonable need for such disclosure and (2) Kinetics obtains
Applied's prior written consent to such disclosure, which consent will not be
unreasonably withheld, and (3) the Affiliate executes an Non-Disclosure
Agreement (NDA) having confidentiality obligations at least equal to those of
this Article 4. The Receiving Party shall inform each such employee, consultant,
agent and representative of the Receiving Party's confidentiality obligations
under this Agreement, and shall be jointly and severally liable for any breach
of this Agreement by any such employee, consultant, agent or representative. The
Receiving Party shall use the Confidential Information solely to perform the
activities contemplated by this Agreement, the GSA, and each DSA and Development
Services Agreement entered into by the Parties pursuant to Section 3 hereof.
Kinetics will not, without Applied's prior written consent: (i) use IP Rights
contributed by Applied in connection with the sale to Applied's customers of
Fluid Delivery Systems or Components, or (ii) sell to Applied's customers Fluid
Delivery Systems or Components to which Applied contributed IP Rights. The
preceding provision relates to Applied Pre-Existing IP Rights, as well as IP
Rights in Future Modifications.
4.3 IDENTIFICATION AS CONFIDENTIAL. Unless such information is disclosed
orally or as Visual Information (as defined by Section 4.6), Confidential
Information shall be designated as such by an appropriate legend, such as
"Kinetics Confidential" or "Applied Confidential". Confidential Information that
is disclosed orally shall be identified as confidential before or at the time of
disclosure, and shall be confirmed as confidential in a written notice given by
the Disclosing Party to the Receiving Party within thirty (30) days after such
oral
disclosure. Such notice must contain a reasonable summary of the orally
disclosed Confidential Information and a statement to the effect that such
information is Confidential Information. Applied shall not be required to
designate or identify Visual Information (as defined by Section 4.6) as
"Confidential".
4.4 NEED-TO-KNOW DISCLOSURE. The Receiving Party agrees to limit
disclosure of Confidential Information of the Disclosing Party only to those
employees, agents, contractors and representatives of the Receiving Party who
have a need to know the Confidential Information in order to perform the
obligations set forth in the this Agreement, the GSA and each DSA and
Development Services Agreement entered into by the Parties pursuant to Section 3
hereof, and provided that, before any such disclosure, each such employee,
agent, consultant and representative shall execute an Employee Joinder of the
form and substance of Schedule 4.4.
4.5 REMEDIES. The Parties acknowledge and agree that money damages above
will not be an adequate remedy for any breach of the obligations set forth in
this Article 4 of this Agreement or of any confidentiality obligation between
the Parties. Accordingly, the Parties agree that the Disclosing Party may be
irreparably harmed and shall be entitled to seek injunctive relief, including a
temporary or preliminary injunction or a permanent injunction, or to any other
appropriate relief to restrain or redress any breach or threatened breach of
confidentiality, in addition to any other remedies either Party may have in law
or equity.
4.6 VISUAL INFORMATION. The Parties recognize and acknowledge that, in
order for Kinetics to perform its GSA obligations, select Kinetics employees
will have access to Applied information stored within and presented by Applied's
computer system, or as a result of access to and presence on Applied facilities
("Visual Information"). The Visual Information will include both FDS-related and
non-FDS information.
ARTICLE 5
TERM AND TERMINATION
5.1 TERM. This Agreement shall commence on the Effective Date and expire
concurrently with expiration of the GSA, unless terminated earlier in accordance
with Section 5.2.
5.2 TERMINATION.
5.2.1 IN EVENT OF A GSA TERMINATION. This Agreement will be
terminated in the event of a termination of the GSA.
5.2.2 BY EITHER PARTY IN EVENT OF AN IPA DEFAULT. This Agreement may
be terminated by either Party by written notice to the other Party in the Event
of IPA Default by the other Party upon the failure by the other Party to correct
the Event of IPA Default within thirty (30) days of receipt of written notice of
the Event of Default. An Event of IPA Default means a material breach of the
warranties, representations, covenants or obligations under this Agreement. In
the event that the allegedly defaulting party disputes the claim that an Event
of Default has occurred, then either party may exercise its rights in and to the
Business Review Process of Section 7.2.5 of the GSA.
5.2.3 BY EITHER PARTY IMMEDIATELY UPON CONFIDENTIALITY BREACH. If a
Party materially breaches its confidentiality obligations under Article 4 in a
manner that cannot be cured, then, in addition to any rights under Section
5.2.2, the other Party may give written notice to the breaching Party that the
other Party intends to promptly terminate this Agreement. During the five (5)
business days after receipt of such notice, the breaching Party shall meet with
the other Party to discuss the confidentiality breach and whether the breaching
Party can cure it, but if the Parties do not agree in writing within such period
on a plan to be implemented by the breaching Party to cure the confidentiality
breach, then after such period the other Party may
immediately terminate this Agreement by written notice to the breaching Party.
During such period, the breaching party will take appropriate steps to remedy or
mitigate its breach.
5.2.4 BY EITHER PARTY OF A DSA. A Party may terminate a DSA by
written notice to the other Party if the other Party is in material breach of
that DSA and fails to remedy that material breach within thirty (30) days after
receiving written notice of the material breach from the terminating Party. In
addition, any and all DSA's pending upon a termination pursuant to Section 5.2.1
- 5.2.3 shall terminate concurrently with the termination of the respective GSA
or IPA, as applicable. Upon termination of a DSA: (i) each Party shall cease all
activities pursuant to the DSA; (ii) Kinetics shall deliver to Applied all
work-in-progress as of the termination date on each deliverable specified in the
DSA; and (iii) Applied shall pay to Kinetics a quantum meruit of fees payable
for the Design Service commenced but not completed under the DSA.
5.2.5 BY EITHER PARTY OF A DEVELOPMENT SERVICES AGREEMENT. A Party
may terminate a DVA by written notice to the other Party if the other Party is
in material breach of that DVA and fails to remedy that material breach within
thirty (30) days after receiving written notice of the material breach from the
terminating Party. In addition, any and all DVA's pending upon a termination
pursuant to Section 5.2.1 - 5.2.3 shall terminate concurrently with the
termination of the respective GSA or IPA, as applicable. Upon termination of a
DVA: (i) each Party shall cease all activities pursuant to the DVA; (ii)
Kinetics shall deliver to Applied all work-in-progress as of the termination
date on each deliverable specified in the DVA; and (iii) Applied shall pay to
Kinetics a quantum meruit of fees payable for the Development Services commenced
but not completed under the DVA.
5.2.6 EFFECTIVE DATE OF TERMINATION UPON GSA TERMINATION. Any such
termination pursuant to Section 5.2.1 will become effective upon that date
determined by the GSA. A Party shall exercise such right of termination by the
issuance of a notice of termination with respect to this Agreement that is
issued concurrently with a Notice of Termination for Default with respect to the
GSA pursuant to Article 25(b)(ii), or a Notice of Termination for Applied
Default with respect to the GSA pursuant to Article 25(d)(iii), and the date on
which termination of this Agreement is effective shall be the same date on which
such termination of the GSA becomes effective, in accordance with the
requirements of the GSA. The period between the notice of termination and the
date on which such termination is effective is hereafter referred to as the
"Wind-Down Period." During the Wind-Down Period, each Party will continue to
comply with its obligations under the GSA, including particularly the provisions
thereof related to the Wind-Down Period.
5.3 CONSEQUENCES OF TERMINATION OR EXPIRATION. Upon the date of
expiration of this Agreement or the date on which termination of this Agreement
is effective, as the case may be:
(a) Each Party shall cease all activities pursuant to this
Agreement, the then existing GSA and any DSA or Development Services
Agreement entered into by the Parties pursuant to Section 3 hereof,
respectively, other than the activities provided for by this Section 5.3;
(b) Each Party shall cease use of and return to the other Party
all Confidential Information, including all Documentation reflecting and
all other tangible embodiments of the Confidential Information, owned by
the other Party, except as provided for in this Section 5.3;
(c) Each Party shall confirm in writing to the other Party that
all Confidential Information has been returned;
(d) The obligations of Articles 4, 6 and 7 and Sections 3.10, 5.4,
8.4 and 8.5 (as applicable) shall remain in full force and effect, unless
expressly terminated by mutual written agreement of the Parties;
(e) The licenses of Sections 3.2 and 3.9 will terminate;
(f) Kinetics agrees to provide to Applied any and all training or
training materials reasonably necessary for Applied to assume
manufacturing and servicing of the Applied Fluid Delivery Systems being
manufactured or developed as of the date of termination in the same manner
as then practiced by Kinetics, but Kinetics shall not be required to
provide ***;
(g) Kinetics will disclose to Applied all FDS Technology necessary
to manufacture the Applied Fluid Delivery Systems being manufactured or
developed as of the date of termination in the same manner as then
practiced by Kinetics, but Kinetics shall not be required to provide ***;
(h) Kinetics will provide to Applied all Documentation (and all
copies of same) necessary to manufacture the Applied Fluid Delivery
Systems being manufactured or developed as of the date of termination in
the same manner as then practiced by Kinetics, but Kinetics shall not be
required to provide ***; and
(i) Notwithstanding the above, each Party may retain the other
Party's Confidential Information to the extent and for the period
necessary to perform any obligations during the Wind-Down Period and any
post-termination obligations under the GSA, and each party shall perform
such obligations under the GSA.
-------
*Confidential Treatment Requested
The above itemization of consequences is not exhaustive; instead, the Parties
agree that, upon termination, Kinetics will take any and all steps necessary to
place Applied in the same position as Kinetics at the time of termination with
respect to the manufacturing, developing or both of Fluid Delivery Systems being
manufactured or developed by Kinetics for Applied at the date of termination.
These steps include the provisions by Kinetics of all information, in whatever
form, relevant to FDS Technology, as it relates to the Applied Fluid Delivery
Systems, and the license by Kinetics of all IP Rights, necessary for Applied to
continue the manufacture of and have manufactured the then existing Applied
Fluid Delivery Systems and utilization of the associated FDS Technology.
Notwithstanding the foregoing, Kinetics shall not be required to provide
Manufacturing Processes.
5.4 TERMINATION OF THE AMENDED IPA. The Parties hereby terminate the
Amended IPA on the Effective Date of this Agreement. This Agreement supersedes
the Amended IPA on and from the Effective Date, and accordingly each party
waives its rights, and shall not perform its obligations, under Section 5.3 of
the Amended IPA related to termination or expiration of the Amended IPA.
ARTICLE 6
WARRANTIES AND REPRESENTATIONS
6.1 KINETICS PRE-EXISTING IP RIGHTS. Kinetics represents and warrants
that (a) it is the owner of Kinetics' Pre-existing IP, (b) it is not aware of
any claim of ownership or infringement by any third party with respect to the
Kinetics Pre-Existing IP, (c) it has the right to grant the licenses granted
under this Agreement, and (d) it has not and will not grant to any third parties
rights inconsistent with the rights granted to Applied hereunder.
6.2 APPLIED PRE-EXISTING IP RIGHTS. Applied represents and warrants that
(a) it is the owner of Applied's Pre-existing IP, (b) it is not aware of any
claim of ownership or infringement by any third party with respect to the
Applied Pre-Existing IP, (c) it has the right to grant the licenses granted
under this Agreement, and (d) it has not and will not grant to any third parties
rights inconsistent with the rights granted to Kinetics hereunder.
6.3 FUTURE MODIFICATIONS. The Parties represent and warrant that they
will not knowingly infringe upon or misappropriate any third-party's IP Rights
in performing any jointly agreed-to Future Modifications pursuant to this
Agreement and any DSA or DVA.
6.4 COMPLETENESS OF SCHEDULES OF PRE-EXISTING IP RIGHTS. The Parties
represent and warrant that the Schedules of Pre-Existing IP Rights are complete
and accurate as to the best of the Parties' belief. In the event that any
additional Pre-Existing IP Rights of a Party are identified after the Effective
Date and upon the Parties' agreement that the information constitutes a
Pre-Existing IP Right, the Parties agree to amend the Schedule(s) accordingly.
6.5 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, THE GSA, OR ANY DSA OR DVA, ANY FDS TECHNOLOGY OR CONFIDENTIAL
INFORMATION PROVIDED BY EITHER PARTY UNDER ANY SUCH AGREEMENT IS PROVIDED "AS
IS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED, IMPLIED, OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND NEITHER PARTY SHALL
STATE, COMMUNICATE, SUGGEST, OR REPRESENT TO ANY THIRD PARTY OTHERWISE.
6.6 LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, THE GSA, OR ANY DSA OR DVA, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR
CONTINGENT DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH EXCLUDED DAMAGES.
ARTICLE 7
INDEMNITIES
7.1 INDEMNIFICATION - PERFORMANCE OF AGREEMENT. *** (The "Indemnifying
Party") shall indemnify, defend, and hold *** harmless from and against any and
all claims, suits, losses, and liabilities or portions thereof and the
associated costs and expense, including attorneys' fees, to the extent awarded
by a court of competent jurisdiction or pursuant to a settlement, caused in
whole or in part by the breach by the Indemnifying Party of any term or
provision of this Agreement or any DSA or DVA, or any negligent, grossly
negligent or intentional acts, errors, or omissions by the Indemnifying Party,
its employees, officers, agents or representatives in the performance of this
Agreement or any DSA or DVA.
7.2 INDEMNIFICATION - INFRINGEMENT/MISAPPROPRIATION. In the event that
*** is charged with infringement, misappropriation or other violation of any
third-party's IP Rights as a result of any IP Rights licensed by *** under this
Agreement or any DSA or DVA, but not including the Third Party Applications, ***
shall have the sole responsibility to:
(a) defend against any such claim at its sole expense, and
(b) account for any injury, loss, or damage, of any kind or
nature, or any other liability incurred by or imposed upon ***
charged with infringement or misappropriation.
----------
* Confidential Treatment Requested
Notwithstanding the foregoing and the priority of agreements provision of
Section 1.3 of the GSA, Kinetics' indemnification duty relating to its supply
obligations will be governed by the GSA.
7.3 INDEMNIFICATION/DUTY TO DEFEND SET-OFF. If a claim of infringement,
misappropriation or other violation is made by a third party as a result of
Kinetics' performance pursuant to this Agreement and Applied incurs expenses in
connection with the defense of such matter as a result of Kinetics' failure to
comply with its obligations set forth in Sections 7.1 and 7.2, Applied may apply
up to fifty percent (50%) of any future royalties that otherwise may be payable
to Kinetics hereunder in order to recover such expenses.
7.4 INDEMNIFIED PARTY'S OBLIGATIONS. In connection with any indemnity
provided under this Agreement, the indemnified Party shall (a) provide
reasonable cooperation and assistance to the indemnifying Party; and (b) provide
prompt written notice of any claim that would trigger an indemnity obligation.
The indemnifying Party will not be responsible for any obligation under any
settlement agreement entered into without the indemnifying Party's consent.
ARTICLE 8
GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT. This instrument, including the exhibits and
schedules hereto, sets forth the entire agreement between the Parties and merges
and supersedes any and all previous agreements, understandings and negotiations
between the Parties as to such subject matter, except for the GSA executed
concurrently herewith. The GSA shall determine the priority of provisions
amongst this Agreement, the GSA and each DSA and Development Services Agreement
in the event of inconsistency among them. Any representation, promise, or
condition in connection with such subject matter that is not incorporated in
this instrument shall
not be binding upon either Party. This Agreement may not be amended, modified or
supplemented by the Parties in any manner, except by an instrument in writing
signed by the Parties.
8.2 SUCCESSION AND ASSIGNMENT.
(a) This Agreement shall be binding upon and inure to the benefit
of each of the Parties and its respective permitted successors and permitted
assigns. Neither Kinetics nor Applied shall assign or transfer to another person
this Agreement, or its rights, interests or obligations under this Agreement, in
whole or in part, whether voluntarily or by operation of law, (i) without the
prior express written consent of the other party, or (ii) under and in
accordance with the requirements set out in Article 17 of Exhibit 1 to the GSA,
which Article is incorporated herein by this reference to apply to this
Agreement.
(b) If a Party assigns or transfers the GSA, or permits the GSA to
vest in another, in whole or in part, pursuant to any transaction in accordance
with the provisions of the GSA, then that Party shall also assign, transfer or
cause to vest in such other person, this Agreement, in whole or in like part.
(c) Except as permitted and as provided in or under Sections 8.2
(a) and (b) above, neither Party may assign, transfer or permit this Agreement
or any rights or obligations hereunder to vest in any other person, in whole or
in part, without the express prior written consent of the other.
(d) With prior notice to and express written consent by Applied
(which may be included as part of a DSA or DVA), Kinetics may, solely for the
purpose of providing Design or Development Services to Applied, delegate part,
but not all, of its obligations hereunder, and may assign and sublicense part
but not all of its rights hereunder, to an Affiliate of Kinetics if
Kinetics remains primarily, or equally with the Affiliate, obligated for
performance of all of Kinetics' obligations as a party to this Agreement and the
Affiliate agrees in writing to be bound by the terms and conditions of this
Agreement.
(e) Any assignment, transfer or vesting of this Agreement not made
in compliance with and approved as required under this Section shall be void
and, at the option of the other Party, may be deemed a breach of and default
under this Agreement.
8.3 EXPORT REGULATION. The Parties will not knowingly export directly or
indirectly, any technology or know-how to any countries, agencies, groups or
companies prohibited by the United States Department of Commerce or United
States Department of State unless prior authorization is obtained.
8.4 RULES OF CONSTRUCTION. Capitalized terms used herein shall have the
meaning assigned to them by the definitions in Article 2. Additionally, the
singular includes the plural and the plural includes the singular; words
importing any genders include the other gender; references to "writing" include
printing, typing, lithography and any other means of reproducing words in
tangible, visible form; references to articles, section (or any subdivision of
sections), schedules and exhibits are to those of this Agreement, unless
otherwise indicated; the words "hereof," "hereunder," "herein," and any other
words of similar import refer to this Agreement, including its schedules and
exhibits; and the word "including," when used in this Agreement, is not intended
to be exclusive and, in all cases, means "including without limitation". The
headings contained in this Agreement are intended for reference only and shall
not be referred to in the interpretation of this Agreement.
8.5 ATTORNEYS' FEES. If either Party seeks to enforce its rights under
this Agreement by legal proceedings or otherwise, the non-prevailing Party shall
pay all costs and expenses, including reasonable attorneys' fees, incurred by
the prevailing Party.
8.6 GENERAL PROVISIONS. The following provisions of the GSA and of
Exhibit 1 of the GSA are incorporated into this Agreement by reference, provided
that references in such provisions to the "Agreement" shall, when used herein,
be references to this Amended and Restated Intellectual Property Agreement:
(i) Article 11 of Exhibit 1 to the GSA, entitled "Applicable Law,
Consent to Jurisdiction and Venue."
(ii) Article 23 of Exhibit 1 to the GSA, entitled "Force Majeure."
(iii) Section 9.1 of the GSA, entitled "Independent Contractor."
(iv) Section 9.2 of the GSA, entitled "No Third Party
Beneficiary."
(v) Section 9.3 of the GSA, entitled "Severability."
(vi) Section 9.4 of the GSA, entitled "Waiver."
(vii) Section 9.6 of the GSA, entitled "Execution."
(viii) Section 10 of the GSA, entitled "Representations and
Warranties of the Parties."
(ix) Section 1.2.2 of the GSA, entitled "Notices."
(x) Article 17 of Exhibit 1 to the GSA, entitled "Assignment and
Succession", pursuant to Section 8.2 of this Agreement
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date set forth below to be effective as of the Effective Date.
APPLIED MATERIALS, INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxx
--------------------------
Title: Vice President
--------------------------
Date: 5/21/02
--------------------------
KINETICS FLUID SYSTEMS, INC.
By: /s/ Xxx Xxxxx
-----------------------------
Name: Xxx Xxxxx
--------------------------
Title: President
--------------------------
Date: 5/21/02
--------------------------
SCHEDULES
SCHEDULE 2.8
APPLIED FDS PRE-EXISTING IP
APPLIED FDS CONFIDENTIAL INFORMATION
1. Confidential Information with respect to: (a) *** fixture hardware
and test fixture hardware that is based upon ***; and (b) "Current
TF Software", as defined in GSA Section 4.2.3(c), being all software
used, as of the Effective Date, in the testing operation of all ***
and test fixtures listed in GSA Schedules 4.2.2(a), (c) and (d).
2. Confidential Information with respect to ***.
3. Confidential Information with respect to process ***.
4. Confidential Information with respect to ***
5. Confidential Information embodied in the documentation related to
Items 1-8.
6. Confidential Information embodied in the *** drawings, ***
procedures, *** and engineering change orders related to the ***
Applied Fluid Delivery Systems.
7. Confidential Information embodied in the Applied Software and
Databases listed below.
APPLIED FDS TRADEMARKS
"APPLIED MATERIALS", including U.S. Trademark Regs. No. 1,980,572 and No.
1,943,850
Stylized "A" and "APPLIED MATERIALS", including U.S. Trademark Regs. No.
1,690,615 and No. 1,588,182
Stylized "A", including U.S. Trademark Reg. No. 1,549,863
"AMAT" (unregistered)
APPLIED COPYRIGHTS
Copyrights, whether or not registered, related to Applied-owned
Documentation and, as appropriate, to Applied's ***.
----------
* Confidential Treatment Requested
*** DATABASES:
A. In-House Developed ***
***
***
***
***
***
B. In-House *** and ***
***
***
***
***
***
***
***
C. Test Fixture Software
All "Current TF Software", as defined in GSA Section 4.2.3(c), being
all software used, as of the Effective Date, in the testing operation of
all test fixtures listed in GSA Schedules 4.2.2(a), (c) and (d).
----------
* Confidential Treatment Requested
SCHEDULE 2.33
KINETICS PRE-EXISTING IP
PATENTS AND PATENT APPLICATIONS:
PATENTS OWNED BY KINETICS FLUID SYSTEMS, INC.
PATENT FILING PATENT PATENT
MATTER NUMBER PATENT COUNTRY APPLICATION DATE NUMBER ISSUE INVENTOR PRODUCTS
SERIAL NO. DATE
------------- --------------- ------- ----------------- ---------- -------------- ---------- ---------- --------------------
I0294/7005 Integrated Gas U.S.A. 08/404,485 3/17/1995 5,605,179 2/25/1997 Xxxxxxxx very early Insync
I0294/7003 Panel Strong, gas panel (like was
Xxxxx in lobby at Centre
Elliot, Pointe); multiple
Xxxxx valves in single
Balma block, MFCs
connected on VCR
tube stubs;
I0294/7005 Integrated Gas U.S.A. 08/736,354 10/22/1996 Xxxxxxxx see above
Panel Strong,
Xxxxx
Xxxxxx,
Xxxxx
Xxxxx
I0294/7006EP Building Blocks EP 97947611.6 12/3/1996 11/17/1998 Xxxxxxx X. foreign filing off
for Integrated Markulec US#5,836,355; "IGS"
Gas Panel et al modular blocks (long
bolts);
X0000/0000XX Xxxxxxxx Xxxxxx XX 000000/00 11/19/1997 Xxxxxxx X. foreign filing off
for Integrated Markulec US#5,836,355; "IGS"
Gas Panel et al modular blocks (long
bolts);
I0294/7006KR Building Blocks KR 00-0000000 11/19/1997 Xxxxxxx X. foreign filing off
for Integrated Markulec US#5,836,355; "IGS"
Gas Panel et al modular blocks (long
bolts);
X0000/0000XXX Xxxxxxxx Xxxxxx XXX XXX/XX00/00000 11/19/1997 WO 98/25058 6/11/1998 Xxxxxxx X. foreign filing off
for Integrated Markulec US#5,836,355; "IGS"
Gas Panel et al modular blocks (long
bolts);
Building Blocks U.S.A 08/760,150 12/3/1996 5,836,355 11/17/1998 Xxxxxxx X. variations upon
for Integrated Markulec Insync "IGS" style
Gas Panel et al multiple block
modular substrates
on two planes;
X0000/0000 Xxxxxxxx Xxxxxx X.X.X 08/931,060 9/15/1997 6,302,141 10/16/2001 Xxxxxxx X. Insync "IGS" style
for Integrated Markulec multiple block
Gas Panel et al modular substrates
on two planes;
Improved U.S.A 08/672,826 6/28/1996 Xxxxxxxx
Compression Sea Strong,
Xxxxxx
Xxx
MFC - Quick PCT PCT/US96/04708 4/4/1996 Xxxxxxxx
Change Method Strong,
and Apparatus Xxxxx
Xxxxx,
Xxxxx
Xxxxxx,
Xxxxxxx
Xxxxx
MFC - Quick U.S.A 08/437/093 5/5/1995 Xxxxxxxx
Change Method Strong,
and Apparatus Xxxxx
Xxxxx,
Xxxxx
Xxxxxx,
Xxxxxxx
Xxxxx
I0294/7005EP Mounting Plane EP 98925252.3 6/4/1998 PCT/US98115474 1/21/1999 Xxxxxxx X. foreign filing for
For Integrated WO99/02867 Markulec, US#6,231,260;
Gas Panel Xxxxxx X. "Versaplane" modular
Xxx, gas panel mounting
Xxxxxxx plate;
X.
Xxxxxxxx,
Xxxxx X.
Xxxxxx
I0294/7005JP Mounting Plane Japan 2000-502327 Xxxxxxx X. foreign filing for
For Integrated Markulec, US#6,231,260;
Gas Panel Xxxxxx X. "Versaplane" modular
Xxx, gas panel mounting
Xxxxxxx plate;
X.
Xxxxxxxx,
Xxxxx X.
Xxxxxx
I0294/7005KR Mounting Plane Korea Xxxxxxx X. foreign filing for
For Integrated Markulec, US#6,231,260;
Gas Panel Xxxxxx X. "Versaplane" modular
Xxx, gas panel mounting
Xxxxxxx plate;
X.
Xxxxxxxx,
Xxxxx X.
Xxxxxx
I0294/7005PCT Mounting Plane PCT PCT/US598/11574 6/4/1998 WO99/02867 01/251/99 Xxxxxxx X. foreign filing for
For Integrated Markulec, US#6,231,260;
Gas Penel Xxxxxx X. "Versaplane" modular
Xxx gas panel mounting
Xxxxxxx plate;
X.
Xxxxxxxx,
Xxxxx X.
Xxxxxx
I0294/7005 Mounting Plane U.S.A 08/893,773 7/11/1997 6,231,260 5/15/2001 Xxxxxxx X. "Versaplane"
For Integrated Markulec, mounting plate;
Gas Panel Xxxxxx X.
Xxx,
Xxxxxxx
X.
Xxxxxxxx,
Xxxxx X.
Xxxxxx
I0294/7007CA Sieve Like Canada 2332286 3/31/1999 foreign filing for
Structure for US#6,158,454;
Fluid Flow venting modular
Through backplance;
Structural
Arrangement
I0294/7007CN Sieve Like China 99807334.2 foreign filing for
Structure for US#6,158,454;
Fluid Flow venting modular
Through backplance;
Structural
Arrangement
I0294/7007EP Sieve Like EP PCT99914326.6 foreign filing for
Structure for Pursuant to US#6,158,454;
Fluid Flow PCT/US99/07223 venting modular
Through backplance;
Structural
Arrangement
I0294/7007JP Sieve Like JP PCT99914326.6 foreign filing for
Structure for Pursuant to US#6,158,454;
Fluid Flow PCT/US99/07223 venting modular
Through backplance;
Structural
Arrangement
I0294/7007KR Sieve Like KR 2000-7011447 foreign filing for
Structure for US#6,158,454;
Fluid Flow venting modular
Through backplance;
Structural
Arrangement
I0294/7007PCT Sieve Like PCT PCT/US99/07223 3/31/1999 WO99/53115 10/21/1999 foreign filing for
Structure for US#6,158,454;
Fluid Flow venting modular
Through backplance;
Structural
Arrangement
I0294/7007 Sieve Like U.S.A 09/060,519 4/14/1998 6,158,454 12/12/2000 Xxxxxxx X. mounting plate
Structure for Duret, design allowing
Fluid Flow Xxxx exhaust air to sweep
Through Xxxxxx past mechanical
Structural XxxxxXxxx, seals of surface
Arrangement Xxxxxxx X. mounted modular
Markulec, components;
Xxxxxx X.
Xxx,
Xxxxxxx
X.
Xxxxxxxx
I0294/7008TW System Of Taiwan 89125954 based on 12/6/2000 foreign filing for
Modular US 09/456,226 US#6,283,155;
Substrates "K.1" modular
for Enabling (1.5");
The
Distribution of
Process
Fluids
Thorough
Removable
Components
I0294/7008 System Of U.S.A 09/456,226 12/6/1999 6,283,155 9/4/2001 Xxx Xxxx "K.1" modular
Modular Vu substrates (1.5"
Substrates For wide) using internal
Enabling The seal to avoid welded
Distribution of caps;
Process Fluids
Thorough
Removable
Components
I0294/7008WO System Of WO PCT/US00/42589 12/6/2000 WO 01/42694 foreign filing for
Modular based on US US#6,283,155;
Substrates For 09/456,226 "K.1" modular
Enabling The (1.5");
Distribution of
Process Fluids
Thorough
Removable
Components
I0294/7008 System of USA 09/456,226 12/6/1999 Xxx Xxxx "K.1" modular (1.5")
Modular Vu no-welds substrates;
Substrates of
Enabling the
Distribution of
Process Fluids
Through
Removable
Components
I0294/7008TW System of Taiwan 09/456,226 12/6/1999 Xxx Xxxx "K.1" modular (1.5")
Modular Vu no-welds substrates;
Substrates of
Enabling the
Distribution of
Process Fluids
Through
Removable
Components
PATENTS OWNED BY UNIT INSTRUMENTS, INC.
(KINETICS FLUID SYSTEMS, INC HAS RIGHTS TO THESE PATENTS.)
Welded USA 09/398,302 9/20/1999 6,125,887 10/3/2000 Xxxxx X. modular substrate
Interconnection Pinto system which
Modules For combines individual
High Purity component station
Fluid Flow with orbitally
Control welded elbow-tee-
Applications cross-etc. as single
part
Torque Tight USA 501682 7/12/1995 5,524,936 6/11/1996 Xxxx et. mechanism to prevent
Locking Device al. VCR fittings from
loosening through
vibration or chained
assembly sequence
U0128/7000EP Manifold System EP 99933722.3 Xxx X. Xx foreign filing for
of Removable et al. US#tbd; flanged
Components For modular substrates
Distribution Of - k1s ETC.;
Fluids
U0128/7000JP Manifold System Japan 2000-229369 1/16/2001 Xxx X. Xx foreign filing for
of Removable et al. US#tbd; flanged
Components For modular substrates
Distribution Of - k1s ETC.;
Fluids
U0128/7000KR Manifold System Korea 00-0000-0000000 1/8/2001 Xxx X. Xx foreign filing for
of Removable et al. US#tbd; flanged
Components For modular substrates
Distribution Of - k1s ETC.;
Fluids
U0128/7000 Manifold System USA 09/111,999 7/8/1998 GRANTED Xxxx X. covers individual
of Removable Xxxxxxxx, modular substrates
Components For Xxx X. Xx, with overlapping
Distribution Of and Xxxxx flange
Fluids P. Sheriff interconnections;
X-Xxxxx, X0X, X0X,
etc.
U0128/7000WO Manifold System WO PCT/US99/15272 07/7/99 Xxx X. Xx foreign filing for
UNI/001WO of Removable 09/229,722 01/13/99 et al. US#tbd; flanged
Components For modular substrates
Distribution Of - K1S, etc.;
Fluids
U0128/7001 Manifold System USA 09/229,722 1/13/1999 Xxxx X. covers individual
of Removable Xxxxxxxx, modular substrates
Components For Xxx X. Xx, with tongue & pocket
Distribution Of and Xxxxx interconnections;
Fluids P. Sheriff Z-Cubes, K1S, K1H,
etc.
U0128/7006EP Gas Panel EP 97913896.3 5/12/1999 Xxxx X. foreign filing for
Xxxxxxxx, US#5,992,463;
Xxx X. Xx panel of long
monolithic
substrates;
U0128/7006JP Gas Panel Japan 522,597/1998 10/29/1997 Xxxx X. foreign filing for
Xxxxxxxx, US#5,992,463;
Xxx X. Xx panel of long
monolithic
substrates;
U0128/7006TW Gas Panel Taiwan 86116147 10/30/1997 122,473 10/29/2000 Xxxx X. foreign filing for
Xxxxxxxx, US#5,992,463;
Xxx X. Xx panel of long
monolithic
substrates
U0128/7006KR Gas Panel Korea 7003781/1999 10/29/1997 Xxxx X. foreign filing for
Xxxxxxxx, US#5,992,463;
Xxx X. Xx panel of long
monolithic
substrates;
U0128/7006 Gas Panel USA 08/739,936 10/30/1996 5,992,463 11/30/1999 Xxxxxxxx, panel of long
Xxx X. Xx monolithic
substrates;
U0128/7009 Gas Panel USA 09/371,408 8/10/1999 6,192,938 2/27/2001 Xxxx X. similar to
Xxxxxxxx, US#5,992,463
Xxx X. Xx individual gas
string using long
substrate; also
covers super
component;
U0128/7010 Gas Panel USA 09/371,655 8/10/1999 6,189,570 2/20/2001 Xxxx X. similar to
Xxxxxxxx, US#5,992,463 panel
Xxx X. Xx of multiple long
substrates;
U0128/7011 Gas Panel USA 09/371,659 8/10/1999 6,142,539 11/7/2000 Xxxx X. covers any modular
Xxxxxxxx, component base with
Xxx X. Xx combination of inlet
& outlet seals with
keeper and retained
screws;
U0128/7012CA Gas Panel Canada 2,307,663 10/28/1998 Xxxx X. foreign filing for
Xxxxxxxx, US#6,293,310B1;
Xxx X. Xx "V" channel under
bridging
components;
U0128/7012CN Gas Panel China 98811585.9 5/26/2000 Xxxx X. foreign filing for
Xxxxxxxx, US#6,293,310B1;
Xxx X. Xx "V" channel under
bridging
components;
U0128/7012EP Gas Panel EP 98,956,297 10/28/1998 Xxxx X. foreign filing for
Murgitroyd & Xxxxxxxx, US#6,293,310B1;
Co. File Xxx X. Xx "V" channel under
No. P26089 bridging components;
U0128/7012EP Gas Panel EP/ 1,102,387 10/28/1998 Xxxx X. foreign filing for
Murgitroyd & HONG Xxxxxxxx, US#6,293,310B1;
Co. File KONG Xxx X. Xx "V" channel under
No. P26089 bridging components;
U0128/7012JP Gas Panel Japan Xxxx X. foreign filing for
Xxxxxxxx, US#6,293,310B1;
Xxx X. Xx "V" channel under
bridging components;
U0128/7012KR Gas Panel Korea 00-0000-0000000 10/28/1998 Xxxx X. foreign filing for
Xxxxxxxx, US#6,293,310B1;
Xxx X. Xx "V" channel under
bridging components;
U0128/7012MX Gas Panel Mexico 4,198 4/28/2000 Xxxx X. foreign filing for
Xxxxxxxx, US#6,293,310B1;
Xxx X. Xx "V" channel under
bridging components;
U0128/7012PCT Gas Panel PCT PCT/US98/22912 10/28/1998 Xxxx X. foreign filing for
Xxxxxxxx, US#6,293,310B1;
Xxx X. Xx "V" channel under
bridging components;
U0128/7012PCL Gas Panel HK 1102386.7 Xxxx X. foreign filing for
Xxxxxxxx, US#6,293,310B1;
Xxx X. Xx "V" channel under
bridging components;
U0128/7012 Gas Panel USA 08/960,464 10/29/1997 6,293,310 9/25/2001 Xxxx X. covers small
Xxxxxxxx, individual modular
Xxx X. Xx substrates having
"V" channel under
bridging components;
U0128/7018 Gas Panel USA 09/732,435 12/7/2000 Xxxx X. covers incorporating
Xxxxxxxx, moisture sensor into
Xxx X. Xx gas path defined by
modular substrate
architecture;
U0128/7019 Gas Panel USA 09/732,434 12/7/2000 Xxxx X. covers using
Xxxxxxxx, prepackaged
Xxx X. Xx components with
seals + keeper +
screws;
U0128/7026 Fluid Flow USA 60/291,430 Provisional Xxx Xxxx early approaches to
System Application Vu "super-component"
05/16/2001 shown to AMAT under
NDA;
U0128/7028 Gas Panel USA 9939487 8/23/2001 Xxxxxxxx, covers components
Xxx X. Xx bridging between
substrates -
applicable to both
MFCs & parts on K1S,
etc.;
CONFIDENTIAL INFORMATION:
1. Surface Passivation
Know-how associated with polishing and passivation of fluid delivery
stainless steel surfaces by mechanical, chemical and electromechanical
means.
2. Machining and Surface Finishing Processes
(a) counterbore creation/finish
(b) circular pattern workhardening
(c) no-lap sharp edge
(d) Z-Bloc component & substrate process sequences
(e) Plug/cap methods for long drilled passages
3. Proprietary skills and know-how related to:
(a) computerized solid modeling design techniques;
(b) orbital and TIG welding of corrosion resistant metals, including
design of welding hardware and tooling;
(c) assembling fluid handling items composed of various polymers;
(d) functional test and commissioning of fluid handling subsystems;
(e) apparatus for intentionally inducing a phase change within fluids
being transported; and
(f) databases & libraries of components and methods for making facility
connections to semiconductor process tools and means for speeding
field fabrication of same.
4. Confidential Information embodied in the software, databases and documents
listed below.
COPYRIGHTS:
1. "GasWare" - software that takes a FDS schematic and creates a BOM and
model for that FDS.
2. "FabWare" - a database of information relating to connections between
semiconductor fabrication tooling and facilities.
3. "Manufacturing Scheduling" software.
4. Other software and documents created by Kinetics (including its employees
and consultants) related to Current Applied FDS or Current Applied FDS
Technology.
SCHEDULE 2.38
THIRD PARTY APPLICATIONS
A. Customized Applications
ORACLE
PDM
MM 3000
GPSI
B. Off-the-Shelf Applications
SMS
Interwise (LEAP training)
Reflection
Lotus Notes
Netscape Navigator
Microsoft Windows NT
Microsoft Office (no access)
McAfee VirusScan
BoKs
C. Netscape Plug Ins
Jinitiator (Oracle plug-in for LEAP)
Brio
Macromedia Shockwave author.exe
Macromedia Shockwave dir/flash.exe
Install from the Web
Real Player
WinZip
Adobe Acrobat Plug-in
MS Agent Plug-in
D. Additional (Non-Core Image) Applications
Autoview
Fastlook
SCHEDULE 3.5.1 -- DESIGN SOW
DESIGN SERVICES
STATEMENT OF WORK
This Design Services Statement of Work ("Design SOW") is entered into as
of ("Design SOW Effective Date") by and between Applied Materials, Inc., a
Delaware corporation having offices located in Santa Clara, CA ("Applied") and
Kinetics Fluid Systems, Inc., a California corporation having offices located in
Santa Clara, CA ("Kinetics") (collectively the "Parties").
This Design SOW is entered into by and between the Parties under and
pursuant to the Intellectual Property Agreement between the Parties with an
effective date of ______________, 2001 ("IPA").
This Design SOW incorporates the terms of the IPA and of the Global Supply
Agreement between the Parties with an effective date of June 1, 2002 ("GSA").
In the event (and to the extent) of conflict between this Design SOW and
the related Purchase Order, then this Design SOW shall take precedence over the
Purchase Order, except to the extent that this Design SOW expressly states that
the Purchase Order shall take precedence.
[PARTIES TO INSERT A DESCRIPTION OF:
(I) THE SCOPE OF THE DESIGN SERVICES TO BE PROVIDED,
(II) A SPECIFICATION FOR EACH DELIVERABLE,
(III) ANY DELIVERY DUE DATES FOR EACH DELIVERABLE,
(IV) THE AMOUNT OR METHOD OF CALCULATION OF ANY FEES PAYABLE, AND
(V) PAYMENT DUE DATES.]
Each of the parties hereto has caused this Agreement to be executed by its
duly authorized officer or representative as of the Design SOW Effective Date
set forth above.
APPLIED MATERIALS, INC. KINETICS FLUID SYSTEMS, INC.
By: By:
Signature: Signature:
----------------------- ----------------------------
Printed Name: Printed Name:
-------------------- -------------------------
Title: Title:
--------------------------- --------------------------------
Date: Date:
---------------------------- ---------------------------------
SCHEDULE 4.4
KINETICS EMPLOYEE JOINDER
I am an employee, agent, contractor or representative of Kinetics Fluid
Systems, Inc. ("KINETICS").
Kinetics has entered into agreements with Applied Materials, Inc.
("APPLIED") under which Kinetics will manufacture fluid delivery systems for
Applied.
As part of that relationship, Applied will disclose its Confidential
Information (defined below) to Kinetics, and Kinetics will disclose the
Confidential Information to those Kinetics employees, agents, contractors and
representatives who must receive the information to perform under the
agreements.
Applied and Kinetics have agreed to protect the confidentiality of each
other's Confidential Information and, as part of this agreement, have agreed to
have those employees, agents, contractors and representatives that receive
Confidential Information review and agree to the following undertakings
regarding the Confidential Information:
1 DEFINITION. Confidential Information means all non-public,
proprietary information of, or disclosed by, Applied that, from time-to-time,
may be acquired by Kinetics from Applied and that is related to the fluid
delivery systems being manufactured by Kinetics for Applied pursuant to the
Global Supply Agreement between Applied and Kinetics. The Confidential
Information may be in any form, medium, state or condition, inclusive of
information that is embodied in a product or tangible item or that is
intangible, whether disclosed in oral, written, graphic, machine recognizable
(including computer programs, algorithms or databases), model or sample form or
any derivation thereof. Notwithstanding the above, Confidential Information does
not include information:
(i) of which Kinetics was rightfully in possession prior to
disclosure, as evidenced by appropriate documentation;
(ii) that was independently developed by employees or agents of
Kinetics without use of Confidential Information provided by Applied hereunder;
(iii) that Kinetics rightfully receives from a third party not owing
a duty of confidentiality to Applied;
(iv) that becomes publicly available without fault of Kinetics; or
(v) whose disclosure is required by order of a court or government
authority, provided that Applied shall have been given timely notice of such
requirement and that Kinetics shall cooperate with Applied to limit the scope
and effect of such order.
2 CONFIDENTIALITY OBLIGATIONS. I will hold Applied's Confidential
Information in strictest confidence for five (5) years after receipt, using such
measures as Kinetics uses to protect the confidentiality of its own Confidential
Information of like importance, but in no event using less than reasonable care.
I will not disclose any Confidential Information, other than to other Kinetics
employees, consultants, agents and representatives who have a need to know the
Confidential Information in order to perform the agreements between Kinetics and
Applied. I
will not disclose any Confidential Information to any Kinetics Group company
other than Kinetics Fluid Systems, Inc., unless I am specifically advised by
Kinetics that such disclosure has been permitted by Applied. I will use the
Confidential Information solely to perform the activities contemplated by the
agreements between Kinetics and Applied.
3 IDENTIFICATION AS CONFIDENTIAL. Unless such information is disclosed
orally, Confidential Information shall be designated as such by an appropriate
legend, such as "Kinetics Confidential" or "Applied Confidential". Confidential
Information that is disclosed orally shall be identified as confidential before
or at the time of disclosure, and shall be confirmed as confidential in a
written notice given within thirty (30) days after such oral disclosure. Such
notice must contain a reasonable summary of the orally disclosed Confidential
Information and a statement to the effect that such information is Confidential
Information.
4 REMEDIES. I acknowledge and agree that money damages above will not
be an adequate remedy for any breach of the obligations set forth herein.
Accordingly, I agree that Applied may be irreparably harmed and shall be
entitled to seek injunctive relief, including a temporary or preliminary
injunction or a permanent injunction, or to any other appropriate relief to
restrain or redress any breach or threatened breach of confidentiality, in
addition to any other remedies Applied may have in law or equity.
5 VISUAL INFORMATION. I acknowledge that, in order for Kinetics to
perform its obligations related to the manufacture of fluid delivery systems for
Applied, I may access to Applied Confidential Information stored within and
presented by Applied's computer system or as a result of access to and presence
on Applied facilities ("VISUAL INFORMATION"). The Visual Information will
include both gas panel and non-gas panel Confidential Information. I will only
access, use or disclose any Visual Information as necessary to manufacture Fluid
Delivery Systems pursuant to the Global Supply Agreement between Applied and
Kinetics.
I have read, and I understand and agree to be bound by, the
confidentiality terms set forth above.
-------------------------
(Signature)
-------------------------
(Printed name)
-------------------------
(Date)
APPLIED EMPLOYEE JOINDER
I am an employee, agent, contractor or representative of Applied
Materials, Inc. ("APPLIED").
Applied has entered into agreements with Kinetics Fluid Systems, Inc.
("KINETICS") under which Kinetics will manufacture fluid delivery systems for
Applied.
As part of that relationship, Kinetics will disclose its Confidential
Information (defined below) to Applied, and Applied will disclose the
Confidential Information to those Applied employees, agents, contractors and
representatives who must receive the information to perform under the
agreements.
Applied and Kinetics have agreed to protect the confidentiality of each
other's Confidential Information and, as part of this agreement, have agreed to
have those employees, agents, contractors and representatives that receive
Confidential Information review and agree to the following undertakings
regarding the Confidential Information:
1 DEFINITION. Confidential Information means all non-public,
proprietary information of, or disclosed by, Kinetics that, from time-to-time,
may be acquired by Applied from Kinetics and that is related to the fluid
delivery systems being manufactured by Kinetics for Applied pursuant to the
Global Supply Agreement between Applied and Kinetics. The Confidential
Information may be in any form, medium, state or condition, inclusive of
information that is embodied in a product or tangible item or that is
intangible, whether disclosed in oral, written, graphic, machine recognizable
(including computer programs, algorithms or databases), model or sample form or
any derivation thereof. Notwithstanding the above, Confidential Information does
not include information:
(i) of which Applied was rightfully in possession prior to
disclosure, as evidenced by appropriate documentation;
(ii) that was independently developed by employees or agents of
Applied without use of Confidential Information provided by Kinetics hereunder;
(iii) that Applied rightfully receives from a third party not owing
a duty of confidentiality to Kinetics;
(iv) that becomes publicly available without fault of Applied; or
(v) whose disclosure is required by order of a court or government
authority, provided that Kinetics shall have been given timely notice of such
requirement and that Applied shall cooperate with Kinetics to limit the scope
and effect of such order.
2 CONFIDENTIALITY OBLIGATIONS. I will hold the Kinetics' Confidential
Information in strictest confidence for five (5) years after receipt, using such
measures as Applied uses to protect the confidentiality of its own Confidential
Information of like importance, but in no event using less than reasonable care.
I will not disclose any Confidential Information, other than to other Applied
employees, consultants, agents and representatives who have a need to know the
Confidential Information in order to perform the agreements between Kinetics and
Applied. I
will use the Confidential Information solely to perform the activities
contemplated by the agreements between Kinetics and Applied.
3 IDENTIFICATION AS CONFIDENTIAL. Unless such information is disclosed
orally, Confidential Information shall be designated as such by an appropriate
legend, such as "Kinetics Confidential" or "Applied Confidential". Confidential
Information that is disclosed orally shall be identified as confidential before
or at the time of disclosure, and shall be confirmed as confidential in a
written notice given within thirty (30) days after such oral disclosure. Such
notice must contain a reasonable summary of the orally disclosed Confidential
Information and a statement to the effect that such information is Confidential
Information.
4 REMEDIES. I acknowledge and agree that money damages above will not
be an adequate remedy for any breach of the obligations set forth herein.
Accordingly, I agree that Kinetics may be irreparably harmed and shall be
entitled to seek injunctive relief, including a temporary or preliminary
injunction or a permanent injunction, or to any other appropriate relief to
restrain or redress any breach or threatened breach of confidentiality, in
addition to any other remedies Kinetics may have in law or equity.
I have read, and I understand and agree to be bound by, the
confidentiality terms set forth above.
-------------------------
(Signature)
-------------------------
(Printed name)
-------------------------
(Date)
