EXHIBIT 10.22
CONFIDENTIAL TREATMENT REQUESTED
BASIC PURCHASE AGREEMENT
IN THE FOLLOWING REFERRED TO AS "Agreement"
BETWEEN
INFINION Technologies AKTIENGESELLSCHAFT, BERLIN AND MUNCHEN
- IN THE FOLLOWING REFERRED TO AS "INFINION" or "BUYER" -
AND
WHITEOAK SEMICONDUCTOR PARTNERSHIP, HENRICO COUNTY, VIRGINIA
- IN THE FOLLOWING REFERRED TO AS "WhiteOak" or "BUYER" -
AND
PROMOS TECHNOLOGIES INC., HSINCHU, TAIWAIN
- IN THE FOLLOWING REFERRED TO AS "ProMOS" or "BUYER"
AND
FormFactor INC., LIVERMORE, CALIFORNIA
- IN THE FOLLOWING REFERRED TO AS "VENDOR" -
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
page 1/15
1. PURPOSE OF THIS AGREEMENT
This Agreement will serve as the basis for purchase of Multi-DUT Memory Probe
Cards by INFiNION, Whiteoak, and ProMOS from FormFactor, Inc. (the "Purpose").
In the case of ProMOS, this Agreement will terminate (with respect to ProMOS
only), if ProMOS ceases to manufacture semiconductor products solely for
INFiNION. Except for the use of the parties' names in their individual sense in
Sections 13.4, and 15.3 of this Agreement, all references to "INFiNION" or
"BUYER" in this Agreement and the Appendices attached hereto apply equally to
INFiNION, Whiteoak, and ProMOS (except for the different termination provisions
for ProMOS, described above). This Agreement will be an integral part of any
purchase orders for probe cards, and as such will be attached to all purchase
orders issued by BUYER for VENDOR's * * * and * * *DUT * * * and * * * probe
cards and associated services, hereinafter referred to as "Products."
1.1 Subject of this Agreement is the procurement of Products.
1.2 The Product(s) will be delivered in accordance with the purchase
order(s) issued by BUYER and accepted by VENDOR (such accepted purchase
order(s) hereinafter referred to as "Individual Contract(s)"). Such
Individual Contracts shall specify only the quantity, price, and time of
delivery. All other terms of Individual Contracts shall be contained in
this Agreement.
1.3 All technical documentation required to operate and maintain the
Product(s) shall be provided and shipped with the Products.
2. INDIVIDUAL CONTRACT (PURCHASE ORDER)
2.1 BUYER shall furnish purchase orders to VENDOR.
2.2 VENDOR shall have the right to accept, reject or modify purchase orders.
VENDOR shall accept, reject or modify the orders and communicate such
action to the responsible purchasing department at BUYER within ***
after receipt thereof. BUYER has the right to cancel the purchase order
or Individual Contract without cost in the case of VENDOR's
non-fulfillment of the said *** time frame, but such cancellation
must be communicated no later than *** after VENDOR's late
acceptance of the purchase order. In the event VENDOR modifies a
purchase order, the Individual Contract shall not be valid until BUYER
communicates acceptance of the modified purchase order.
2.3 The conditions of this Agreement shall apply to all purchase orders of
BUYER regarding the Products and to any confirmation of verbal or
written purchase order or order modification by BUYER even if they do
not refer to it expressly.
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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2.4 If subsequent to the acceptance of any purchase order BUYER requires an
earlier or later delivery date than as agreed, the parties shall use all
commercially reasonable efforts to find an acceptable solution for both
sides.
2.5 No purchase order or Individual Contract may be canceled within * * *
days of the delivery date. * * * before the end of each quarter, BUYER
shall provide to VENDOR a * * * month forecast for its purchases of
Product(s) per APPENDIX 2.
3. DELIVERY
3.1 Delivery shall be effected free carrier (FCA) Livermore, CA (place of
manufacture) in accordance with the INCOTERMS 1990. The freight carrier
will be *** if not agreed otherwise. VENDOR will inform the freight
carrier of the delivery date 7 days prior to the delivery at the latest.
3.2 The date for delivery of a Product is determined in the Individual
Contract. All penalty-free changes of accepted delivery dates are only
valid if these changes are requested by the responsible BUYER purchasing
department. VENDOR-required changes in delivery dates shall be subject
to the penalties described in Section 3.3 of this Agreement.
3.3 If the delivery of the Product is delayed from the accepted VENDOR
delivery date, BUYER is entitled to claim a penalty against the purchase
price in the amount of * * *% of the purchase price per * * * or part
thereof, up to a maximum of * * *% of the purchase price. This penalty
shall begin to accrue * * * after the accepted delivery date. First
article designs and NRE shall be exempt from this penalty.
3.4 VENDOR will adhere to all export regulations regulating its acts in
performance of this Agreement. Commercial documentation of deliveries
are absolutely necessary and will accord to legal regulations of the
countries of origin and receipt, minimal requirements are commercial
invoice and packing list. If the conditions of legal export regulations
are not observed by VENDOR the freight carrier is entitled to refuse
transportation of the Product(s).
4. PACKAGING
4.1 Unless otherwise stated by BUYER in the individual case, the packaging
shall protect the contractual Product(s) from such vibrations, shocks,
temperature, temperature differences, humidity, pressure and radiation,
as can be reasonably anticipated during shipment, in an adequate manner.
The inner packaging shall fulfill the clean-room requirements applicable
at BUYER and the outer packaging shall be labeled in such a way that the
instructions for transport and the BUYER Internal Equipment Code (which
is stated in the purchase order) of the shipment are clearly visible.
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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4.2 The VENDOR shall provide the freight carrier with all necessary
information about the following subjects within 2 weeks of VENDOR's
acceptance of the Individual Contract:
- place of origin
- dimensions and weight
- possible export limitations and restrictions
- dangerous materials
- sources of danger
- technical particulars, which have to be taken into consideration
during transport
- delivery date
- INFiNION Equipment Code
4.3 The stack-up of the packages shall be possible. Every package has to
have an exact pack-list including a pro forma invoice for custom purpose
only.
4.4 The deliveries of spare parts and back orders have to be marked as such.
4.5 Lashing and securing of the cargo must be effected by VENDOR in a manner
that a safe transportation is guaranteed. VENDOR is liable for any
damage incurred due to unfit or insecure packing, even in case of
arranging a subcontractor.
5. FINAL ACCEPTANCE
5.1 The parties agree that the Product shall meet the Specifications defined
in APPENDIX 8.
5.2 The Product shall be considered accepted by BUYER once the Product and
required technical documentation has been completely delivered, the
Specifications have been demonstrated by completion of the Product
Acceptance Checklist (APPENDIX 9), and all import and/or export
requirements have been met by the VENDOR. BUYER shall complete the
Product Acceptance Checklist within * * * of receipt of the Product, or
the Product shall be considered accepted.
6. PRICES, TERMS OF PAYMENT, DELIVERY TIMES
6.1 The prices for the Product(s) are based on agreed INCOTERMS, will be
indicated in the Individual Contract, and will include all services to
be rendered pursuant to the Individual Contract.
6.2 VENDOR offers volume based pricing for BUYER (as described in APPENDIX
1).
6.3 The payments are to be made within * * * following the date of invoice
and without any deductions. All payments are in U.S. Dollars.
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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6.4 VENDOR offers guaranteed 1st article and re-order delivery lead times as
described in APPENDIX 3.
7. WARRANTY
7.1 Warranty: ***
7.2 Covered by Warranty:
7.2.1 Electrical or mechanical failure of any component of the Product
when operated under normal conditions as described in the Product
specification.
7.2.2 Wear due to excessive cleaning when adhering to VENDOR-approved
cleaning protocol
7.3 Not Covered by Warranty:
7.3.1 Damage due to overdrive in excess of specifications.
7.3.2 Damage due to improper handling.
7.3.3 Any damage caused by Metrology tools.
7.3.4 Any damage caused by loose contaminants or particulates.
7.3.5 Damage due to failure to follow VENDOR-approved cleaning
procedures.
7.3.6 Operation outside specified temperature range.
7.3.7 Electrical current in excess of specifications.
7.3.8 Damage due to prober malfunction.
7.4 Sole Remedy: Should the Product fail to conform to the above warranty
during the Warranty Period, BUYER'S sole remedy and VENDOR's sole
obligation will be * * *:
-----------------------------------
FAILURE POINT * * *
-----------------------------------
* * * touchdowns * * *%
-----------------------------------
* * * touchdowns * * *
-----------------------------------
7.5 Touchdown Calculation: ***
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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7.6 Warranty Claims Process: If it is determined that the failure of the
Product is covered by the limited warranty, VENDOR will * * *.
If VENDOR determines that any returned Product is not defective, VENDOR
will provide a written statement setting forth VENDOR's conclusion that
the returned Product was not defective. VENDOR will return the Product
to BUYER at BUYER'S expense, freight collect and BUYER agrees to pay
VENDOR's reasonable cost of handling and testing.
7.7 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE WARRANTY AND REMEDIES SET
FORTH ABOVE ARE IN LIEU OF ALL OTHERS, AND VENDOR EXPRESSLY DISCLAIMS
ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF NONINFRINGEMENT,
FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. NO PERSON IS
AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE
PERFORMANCE OF THE PRODUCTS OTHER THAN AS PROVIDED IN THIS SECTION 7.
8. CHANGES IN THE PRODUCTS
8.1 Changes in the agreed Specifications or the outer design of the
Product(s), which are requested by BUYER, shall be performed by VENDOR
within a reasonable time if VENDOR agrees to perform such changes. If
such changes to Specifications will affect delivery dates or prices of
the Product(s), VENDOR shall inform BUYER thereof, and such
Specification changes will be made only after BUYER consents to the
changed delivery dates and prices.
8.2 VENDOR-initiated changes in the configuration or the Specification of
the Product(s) can be made only after consent of BUYER. These changes
shall be made in the form of an order which is submitted to VENDOR as a
supplement to the order number.
9. SPARE PARTS
VENDOR agrees to keep spare parts on stock as described in APPENDIX 4.
10. TECHNICAL ASSISTANCE
10.1 At the request of BUYER, VENDOR shall assist with reasonable technical
assistance in use of the Product(s).
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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10.2 For this purpose a sufficient number of adequate qualified personnel (as
described in APPENDIX 5) has to be provided in time.
11. RESEARCH AND DEVELOPMENT, NEW PRODUCTS AVAILABILITY, MANAGEMENT MEETINGS
11.1 VENDOR agrees to share it's * * * with BUYER on a regularly scheduled
basis. BUYER agrees to provide inputs to the VENDOR for consideration in
* * *.
11.2 VENDOR agrees to offer information regarding it's * * *, as described in
APPENDIX 6.
11.3 BUYER and VENDOR agree to participate in regularly scheduled management
meetings to discuss * * *, and other important business and technical
issues.
12. CONFIDENTIAL INFORMATION
12.1 For the purpose of this Agreement "Confidential Information" shall mean
any information and data, including but not limited to any kind of
business, commercial or technical information and data disclosed between
the Parties in connection with this Agreement, irrespective of the
medium in which such information or data is embedded, and which is -
when disclosed orally or visually - identified as Confidential
Information prior to disclosure, summarized in writing by the disclosing
Party, and given to the receiving Party in such summary form within
thirty (30) days of the subject oral or visual disclosure. In case of
disagreement, the receiving Party must make any objections to the
contents of the summary in writing within thirty (30) days of receipt.
Confidential Information shall include any copies or abstracts made
thereof as well as any modules, samples, prototypes or parts thereof.
12.2 All Confidential Information exchanged between the Parties pursuant to
this Agreement:
12.2.1 shall be used exclusively for the Purpose of this Agreement,
and the receiving Party shall be permitted to use Confidential
Information disclosed to it pursuant to this Agreement only for
such sole Purpose, unless otherwise expressly agreed to in
writing by the disclosing Party;
12.2.2 shall not be distributed, disclosed, or disseminated in any way
or form by the receiving Party to anyone except its own or its
Subsidiaries' employees, who have a reasonable need to know
said Confidential Information for the Purpose and who are bound
to confidentiality by their employment agreements or otherwise.
Subsidiary shall mean any company in which the receiving Party
owns more than fifty percent (50%) of such company's voting
capital;
12.2.3 shall be treated by the receiving Party with the same degree of
care to avoid disclosure to any third party as is used with
respect to the receiving Party's own information of like
importance which is to be kept confidential;
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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12.2.4 shall remain the property of the disclosing Party.
12.3 The obligations of paragraphs 12.2-12.2.4 shall not apply, however, to
any information which:
12.3.1 the receiving Party can demonstrate is already in the public
domain or becomes available to the public through no breach by
the receiving Party of this Agreement;
12.3.2 was rightfully in the receiving Party's possession prior to
receipt from the disclosing Party as proven by its written
records;
12.3.3 is independently developed by the receiving Party as proven by
its written records;
12.3.4 is approved for release by written agreement of the disclosing
Party;
12.3.5 is required to be disclosed by law or the rules of any
governmental organization; provided, however, that when a
receiving Party becomes aware of an obligation to disclose
Confidential Information to such governmental organization,
that Party shall promptly notify the disclosing Party of such
obligation, so that the disclosing party may seek a protective
order or otherwise take action to resist such disclosure.
12.4 Either Party shall have the right to refuse to accept any information
under this Agreement prior to any disclosure and nothing herein shall
obligate either Party to disclose any particular information.
12.5 It is understood that no license or right of use under any patent or
patentable right, copyright, trademark or other proprietary right is
granted or conveyed by this Section 12 of this Agreement. The disclosure
of Confidential Information and materials shall not result in any
obligation to grant the receiving Party rights therein.
12.6. Confidential Information provided to either Party pursuant to this
Agreement shall upon respective request of the disclosing Party either
be returned to the disclosing Party or be destroyed by the receiving
Party after termination of this Agreement. Such request shall be
notified in writing by the disclosing Party to the receiving Party
within ninety (90) days after termination of this Agreement. In case of
destruction, the receiving Party shall confirm in writing such
destruction to the disclosing Party.
13. TERM
13.1 This Agreement becomes effective upon signing by all parties and shall
run for a * * * period unless all parties agree to extend. * * *
13.2 BUYER is entitled to terminate any Individual Contract relating to this
Agreement at any time. This is possible without cost for BUYER until
* * * days prior to the accepted delivery date of
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
page 8/15
the Product(s). Within such * * * day period, if BUYER terminates an
Individual Contract, the amount payable to VENDOR under the terminated
Individual Contract may be * * *, provided that: (i) * * *; and, (ii)
* * *. Otherwise, all Individual Contracts are * * *.
13.3 Any BUYER may terminate this Agreement (with respect to itself only) if
VENDOR breaches any material term or condition of this Agreement and
fails to cure such breach within thirty (30) days following receipt of
written notice from the non-breaching BUYER. VENDOR may terminate this
Agreement (with respect to the breaching BUYER only) if any BUYER
breaches any material term or condition of this Agreement and fails to
cure such breach within thirty (30) days following receipt of written
notice from VENDOR.
13.4 This Agreement will terminate, with respect to ProMOS only, if ProMOS
ceases to manufacture semiconductor products exclusively for INFiNION.
13.5 In the event of termination Sections 7, 12, 14, 15, 16 and 17 shall
remain effective,
14. ASSIGNMENT
14.1 Any party may assign its rights and obligations under this Agreement to
any Company which is a member of that party's Group of Companies in the
sense of Articles 15 et seq. of the German Stock Corporation Act,
provided that such party notifies all other parties in writing, the
assignee agrees in writing to be bound by all terms of this Agreement,
and such party agrees to remain responsible for the performance by the
assignee of all provisions of this Agreement, including but not limited
to the protection of VENDOR's Confidential Information.
15. ARBITRATION
15.1 All disputes arising out of or in connection with this Agreement or
individual purchase contracts entered hereunder, including any questions
regarding their existence, validity or termination, but excluding any
disputes arising from any party's breach or alleged breach of Section 12
of this Agreement, shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce in Paris by three
arbitrators in accordance with the said Rules.
15.2 Each party shall nominate one arbitrator for confirmation by the
competent authority under the applicable Rules (Appointing Authority)
(except that in the case of a dispute between more than one BUYER, on
one side, and VENDOR on the other, the BUYERS shall nominate one
arbitrator between them). Both arbitrators shall agree on the third
arbitrator within 30 days. Should the two arbitrators fail, within the
above time limit, to reach agreement on the third arbitrator, he shall
be appointed by the Appointing Authority. If there are two or more
defendants, any nomination of an arbitrator by or on behalf of such
defendants must be by joint agreement between them. If such defendants
fail, within the time limit fixed by the
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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Appointing Authority, to agree on such joint nomination, the proceedings
against each of them must be separated.
15.3 The seat of arbitration shall be London, unless the dispute to be
arbitrated is between WhiteOak and FormFactor, in which case the seat of
arbitration shall be New York. The procedural law of this place shall
apply where the rules are silent.
15.4 The language to be used in the arbitration proceeding shall be English.
16. APPLICABLE LAW
This Agreement and individual purchase contracts signed between the
parties hereunder shall be governed by and construed in accordance with
the law in force in Germany. The application of the United Nations
Convention on Contracts for the International Sale of Goods of April 11,
1980 shall apply.
17. GENERAL PROVISIONS
17.1 Except for Individual Contracts consistent with Section 1.2, this
Agreement (together with the Appendices hereto) constitutes the complete
and exclusive agreement between the parties pertaining to the subject
matter hereof, and supersedes in their entirety any and all written or
oral agreements previously existing between the parties with respect to
such subject matter. Additional agreements and contractual changes must
be made in writing in order to become effective.
17.2 If individual provisions of this Agreement are or are held to be
invalid, the validity of the remaining provisions is not affected. In
this case, the parties or the arbitration panel shall replace the
invalid provision by a corresponding and appropriate valid provision.
17.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR VIOLATIONS OF SECTION
12 OF THIS AGREEMENT AND CASES OF GROSS NEGLIGENCE AND INTENTIONAL ACTS,
IN NO EVENT WILL ANY PARTY BE LIABLE FOR ANY LOST REVENUES, DATA, OR
PROFITS, OR SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WITH
RESPECT TO ANY CLAIMS THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE TERMINATION THEREOF, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17.4 VENDOR shall not be responsible for any failure to perform due to
unforeseen circumstances or to causes beyond VENDOR's reasonable
control, including but not limited to acts of God, war, riot, embargoes,
acts of civil or military authorities, fire, floods, accidents, strikes,
failure to obtain export licenses or shortages of transportation,
facilities, fuel, energy, labor or materials. In the event of any such
delay, VENDOR may defer the delivery date of orders for Products for a
period equal to the time of such delay.
17.5 All parties agree to comply with all applicable international, national,
state, regional and local laws and regulations in performing their
duties hereunder and in any of their dealings with respect to the
technical information and technology disclosed hereunder or direct
products
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thereof. In addition to such compliance and in particular:
(i) BUYER agrees that it will not reexport or release the software or
technology it receives from VENDOR to any party involved in
sensitive or unsafeguarded nuclear activities, or activities
related to chemical or biological weapons or missiles unless
authorized by the U.S. Export Administration Regulations or a
license from the U.S. Department of Commerce ("DOC"); and,
(ii) Without limiting the generality of Sections 17.5 and 17.5(i)
immediately above, BUYER agrees that it will not reexport or
release any technical information or technology it receives from
VENDOR, including under License Exception TSR, 15 C.F.R. Section
740.6, to a national of the countries named in Section 17.5(iv)
below without a license exception or a license from DOC; and,
(iii) Without limiting the generality of Sections 17.5 and 17.5(i)
above, BUYER agrees that it will not export the direct product of
the technical information or technology it receives from VENDOR,
including under License Exception TSR, to a country named in
Section 17.5(iv) below without a license exception or a license
from DOC if such foreign produced direct product is subject to
national security controls as identified on the Commerce Control
List, 15 C.F.R. Supp. No. 1 to Part 774.
(iv) Albania, Armenia, Azerbaijan, Belarus, Bulgaria, Cambodia, Cuba,
China (PRC), Estonia, Georgia, Iran, Iraq, Xxxxxxxxxx,
Xxxxxxxxxx, Xxxx, Xxxxxx, Libya, Lithuania, Moldova, Mongolia,
North Korea, Romania, Russia, Rwanda, Serbia, Sudan, Syria,
Tajikstan, Turkmenistan, Ukraine, Uzbekistan and Vietnam.
17.6 The sale of Products hereunder by VENDOR does not convey any license to
BUYER under any patent, copyright, trade secret, trademark or other
intellectual property right with respect to which VENDOR can grant
licenses. BUYER agrees not to reverse engineer, disassemble or modify
("Reverse Engineer") any Product or any portion thereof without the
express written permission of VENDOR. The parties acknowledge that under
EU Directives or applicable local law, persons may have a legal right to
Reverse Engineer certain interface information under certain limited
conditions. In the event BUYER believes it has such a legal right to so
Reverse Engineer any Product, or proposes to perform any Reverse
Engineering of any Product, BUYER agrees to immediately notify VENDOR in
writing of such belief, and/or of any proposed Reverse Engineering, and
BUYER agrees to allow VENDOR a reasonable opportunity after VENDOR's
receipt and acknowledgment of such notice to provide BUYER with
sufficient interface information under reasonable terms before it
performs any Reverse Engineering. Unless or until BUYER so notifies
VENDOR, BUYER agrees that it has no legal right to Reverse Engineer any
Product, and expressly waives any such rights it may have in any
jurisdiction. VENDOR expressly reserves all of its rights with respect
to any patent, copyright, trade secret, trademark and/or other
proprietary rights.
17.7 Notwithstanding Section 7.7, subject to Section 17.3 of this Agreement,
and subject to subsections 17.7.1 through 17.7.4 below, VENDOR will
defend, indemnify and hold BUYER harmless from any actual loss, damages,
liabilities and costs (including but not limited to reasonable
attorney's fees and litigation costs), based upon a third party claim
that BUYER's use of the Products sold hereunder, or any part thereof,
constitutes a misappropriation of any
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trade secret, or an infringement of any copyright, issued U.S. patent,
issued German Patent, issued Taiwanese patent, or issued European patent
enforceable in Germany. VENDOR's obligations under these Sections 17.7
through 17.7.4 ("VENDOR's Indemnity") shall arise only if (A) BUYER
promptly notifies VENDOR when any such claim is made, (B) BUYER is not
in default of this Agreement, (C) BUYER gives VENDOR sole control of the
defense and settlement of any such claim, and (D) BUYER furnishes such
information and assistance as VENDOR may reasonably request in
connection with the defense, settlement or compromise of such claim.
17.7.1 Mitigation: In the event BUYER'S use of a Product is, or in
VENDOR'S opinion is likely to be, successfully attacked as a
result of the type of infringement or misappropriation
specified in Section 17.7 above, VENDOR shall , at its sole
option and expense, either: (A) procure for BUYER the right to
continue using such Products under the terms of this Agreement;
or (B) replace or modify such Products so that they are
non-infringing and substantially equivalent in function to the
enjoined Products; or (C) if options (A) and (B) above cannot
be accomplished despite the reasonable efforts of VENDOR, then
VENDOR or BUYER may both (i) terminate BUYER's rights and
VENDOR's obligations under this Agreement with respect to such
Products, and (2) VENDOR shall refund to BUYER the net revenue
VENDOR received from BUYER for such Products conditioned upon
BUYER's return of the Product to VENDOR.
17.7.2 Exclusions: VENDOR will have no obligations under Sections 17.7
and 17.7.1 above to the extent an infringement or
misappropriation arises from: (A) modifications to the Products
that were not authorized by VENDOR; (B) Product specifications
requested by BUYER; (C) the use of the Products in combination
with products not provided by VENDOR, unless (i) VENDOR has
offered or promoted the Products to BUYER for use in such
combination, and (ii) there is no non-infringing such
combination or equivalent combination; or (D) the use of the
Products in a process, unless (i) VENDOR has offered or
promoted the Products to BUYER for use in such process, and
(ii) there is no non-infringing use of the Products in such
process or in an equivalent process.
17.7.3 Sole Remedy: EXCEPT FOR VENDOR'S OBLIGATIONS OF COOPERATION
FOUND IN CLAUSES 17.8(i) THROUGH 17.8(iv) BELOW, THE
OBLIGATIONS IN SECTIONS 17.7 THROUGH 17.7.2 ABOVE ARE VENDOR'S
SOLE AND EXCLUSIVE OBLIGATIONS, AND BUYER'S SOLE AND EXCLUSIVE
REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF
INTELLECTUAL PROPERTY RIGHTS. FOR THE AVOIDANCE OF DOUBT, THERE
IS NO WARRANTY, EXPRESSED OR IMPLIED, OF THE Products'
NON-INFRINGEMENT, AND, IN THE EVENT OF ANY CLAIMED
INFRINGEMENT, VENDOR HAS ONLY THE DUTY TO INDEMNIFY BUYER AS
EXPRESSED AND LIMITED IN THIS VENDOR's Indemnity.
17.7.4 Cumulative Cap on Liability: IN NO CASE SHALL VENDOR'S
CUMULATIVE LIABILITY UNDER THIS VENDOR's Indemnity EXCEED AN
AMOUNT EQUAL TO * * *.
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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17.8 Subject to Section 17.3 of this Agreement, BUYER will defend, indemnify
and hold VENDOR harmless from any actual loss, damages, liabilities and
costs (including but not limited to reasonable attorney's fees and
litigation costs) based upon a third party claim: (A) that any product
sold by BUYER and processed with Products is defective in design or
manufacture; (B) subject additionally to Sections 17.8.1 and 17.8.2
below, and except for infringements for which VENDOR must indemnify
BUYER under Sections 17.7 through 17.7.4 above, that BUYER's use of the
Products sold hereunder constitutes a misappropriation of any trade
secret, or an infringement of any copyright, issued U.S. patent, issued
German patent, issued Taiwanese patent, or issued European patent
enforceable in Germany; or (C) that BUYER has breached its obligations
under Section 17.5 above. BUYER's obligations under these Sections 17.8
through 17.8.2 ("BUYER's Indemnity") shall arise only if (i) VENDOR
promptly notifies BUYER when any such claim is made, (ii) VENDOR is not
in default of this Agreement, (iii) VENDOR gives BUYER sole control of
the defense and settlement of any such claim, and (iv) VENDOR furnishes
such information and assistance as BUYER may reasonably request in
connection with the defense, settlement or compromise of such claim.
17.8.1 Sole Remedy: EXCEPT FOR BUYER'S OBLIGATIONS OF COOPERATION
FOUND IN CLAUSES 17.7(A)-(D) ABOVE, THE OBLIGATIONS IN THIS
BUYER's Indemnity ARE BUYER'S SOLE AND EXCLUSIVE OBLIGATIONS,
AND VENDORS'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY
RIGHTS. FOR THE AVOIDANCE OF DOUBT, THERE IS NO WARRANTY,
EXPRESSED OR IMPLIED, THAT BUYER'S USE OF THE Products WILL NOT
INFRINGE A THIRD PARTY'S INTELLECTUAL PROPERTY, AND, IN THE
EVENT OF ANY CLAIMED INFRINGEMENT, BUYER HAS ONLY THE DUTY TO
INDEMNIFY AS EXPRESSED AND LIMITED IN THIS BUYER's Indemnity.
17.8.2 Cumulative Cap on Liability: IN NO CASE SHALL BUYER'S
CUMULATIVE LIABILITY UNDER THIS BUYER's Indemnity EXCEED AN
AMOUNT EQUAL TO THE * * *, BUT FOR THE AVOIDANCE OF DOUBT,
PAYMENTS UNDER THIS BUYER'S INDEMNITY SHALL BE IN ADDITION TO
ANY PAYMENTS FOR PRODUCTS.
17.9 All amounts payable under this Agreement are exclusive of all sales,
use, value-added, withholding, and other taxes and duties. BUYER will
pay all taxes and duties assessed in connection with this Agreement and
its performance by any authority within or outside of the U.S., except
for taxes payable on VENDOR's net income. BUYER will promptly reimburse
VENDOR for any and all taxes or duties that VENDOR may be required to
pay in connection with this Agreement or its performance.
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
page 13/15
(The remainder of this page is intentionally blank.)
page 14/15
17.10 This Agreement may be executed in multiple counterparts, each of which
will be an original as regards any Party whose signature appears thereon
and all of which together will constitute one and the same instrument.
This Agreement will become binding when one or more counterparts hereof,
individually or taken together, bear the signatures of all Parties
reflected hereon as signatories. VENDOR will send back the signed BUYER
versions to the responsible BUYERS' Purchasing Departments within two
weeks of signing the Agreement. BUYERS will send back the signed VENDOR
version to VENDOR (attention: Xxxxx Xxxxxxx) within two weeks of their
receipt of the signed BUYER versions from VENDOR.
Date: 5/5/99 Date: April 27, 1999
------------------------- ----------------------------------
FormFactor, Inc. INFiNION TECHNOLOGIES AG
By: /s/ [Illegible] By: /s/ Xxxxxxx /s/ Xxxxxx Xxxxxxxx
--------------------------- ---------------------------------------
Xxxxxxx Xxxxxxxx
Date:
-------------------------------------
Whiteoak Semiconductor Partnership
(Signature Page to Basic
Purchase Agreement
Between By: /s/ [Illegible]
---------------------------------------
Xxxxxxx
INFiNION, WhiteOak, ProMOS and
FormFactor) Date: July 09, 1999
-------------------------------------
ProMOS Technologies, Inc.
By: /s/ Xxxxx Xxxxx
---------------------------------------
APPENDIX 1 Volume based pricing for BUYERS
APPENDIX 2 Quarterly updated Forecast
APPENDIX 3 Guaranteed 1st article delivery lead times
APPENDIX 4 On stock spare parts
APPENDIX 5 Adequate qualified personnel has to be provided in time
APPENDIX 6 VENDOR-offered access to new Wafer Probe products
APPENDIX 7 INTENTIONALLY OMITTED
APPENDIX 8 Product Specifications
APPENDIX 9 Product Acceptance Checklist
APPENDIX 10 Non-Disclosure and Restricted Use Agreement
APPENDIX 11 * * *
APPENDIX 12 * * *
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
page 15/15
Appendix 1
--------------------------------------------------------------------------------
Product Pricing
Pricing Terms:
1. The pricing for the * * * shall be $* * *. Pricing for the * * *
shall be $* * * if delivered in the 1st 6 months of 1999. Pricing
for the * * * or * * * -DUT for 2nd 6 months of 1999 shall be
determined by mutual agreement in 2nd calendar quarter of 1999.
2. SIEMENS agrees * * *
3. SIEMENS agrees * * *
4. SIEMENS agrees * * *. VENDOR agrees to provide * * *.
5. All * * * DUT probecards shipped to SIEMENS in the lst half of
calendar 1999 shall be priced at $* * *each. Both parties agree to
negotiate new pricing for the * * * DUT cards in the 2nd calendar
quarter of 1999.
6. VENDOR shall have the right to publicly announce the existence of
this Agreement. SIEMENS shall have the right to approve the wording
of this announcement.
7. SIEMENS agrees to provide a good-faith forecast of its demand for
the following * * * month periods * * * before the end of each
quarter.
8. SIEMENS agrees to release all purchase orders at least * * * days in
advance of required shipment date.
9. VENDOR may adjust the * * * if it provides 90 days written notice to
SIEMENS and provides * * * to SIEMENS.
10. The * * * shall be charged at the standard list price of $* * *. If
VENDOR is able to * * * lower prices may apply and will be quoted as
required. VENDOR will provide to SIEMENS a * * *.
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
page 16/15
Appendix 3
--------------------------------------------------------------------------------
First Article and Re-Order Delivery Lead-times
Subject to the terms of this Agreement, VENDOR agrees to offer SIEMENS the
following First Article Standard Lead Times
DESIGN START 1ST ARTICLE RE-ORDER 1 RE-ORDER 2
------------ ----------- ---------- ----------
Q4-1998 * * * * * * * * *
Q1-1999 * * * * * * * * *
Q2-1999 * * * * * * * * *
Re-Order 1: * * *
Re-Order 2: * * *
EXPEDITED DELIVERY:
1st Article: Should SIEMENS request an expedited delivery, VENDOR will make
commercially reasonable efforts to meet expedited lead times * * *, subject to a
* * * premium for expedited NRE and 1st article probecards.
Re-Order: Should SIEMENS request an expedited delivery, VENDOR will make
commercially reasonable efforts to meet expedited lead times * * *, subject to a
* * * premium for expedited NRE and 1st article probecards.
NOTES:
1. Lead-time is defined as * * *.
2. Lead-time quoted is subject to * * *.
3. Should design changes be received after beginning of the design process,
SIEMENS may be subject to additional charges and modified delivery
schedules. Such changes would be by mutual agreement and would be taken on a
case by case basis.
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Appendix 4
--------------------------------------------------------------------------------
On Stock Spare Parts
PROBECARD SPARE PART TERMS:
1. VENDOR will stock spare parts on those designs for which SIEMENS takes
delivery of * * * equivalent probecards (the "SPARE PARTS"), and will
provide a limited number of them as replacements free of charge to SIEMENS,
as described below and subject to the terms and conditions of this
Agreement.
2. All Spare Parts remain the property of VENDOR unless purchased by SIEMENS or
transferred to SIEMENS at VENDOR's direction.
3. Spares Parts will be used only to replace damaged parts not covered by the
VENDOR Warranty. For example, if a card is damaged due to SIEMENS handling
error, the card is not covered by the FormFactor Warranty (see Appendix 7).
SIEMENS could, however, choose to replace this card with a Spare Part per
this Appendix.
4. For those designs of which VENDOR is obliged to stock Spare Parts under
Paragraph 1 above, VENDOR shall stock at least * * *% (rounded to the next
highest whole number) of the number of probecards delivered to SIEMENS, at
no additional charge to SIEMENS.
5. In order to receive a Spare Part, SIEMENS must return the damaged part
within * * * and complete a Spare Part Request Form. From the time SIEMENS
notifies VENDOR of the need for a Spare Part, VENDOR agrees to have the
Spare Part shipped to SIEMENS * * * subject to the receipt and approval of
the Spare Card Request Form.
6. VENDOR shall have the option to substitute spare probe heads for spare
cards.
7. VENDOR shall have the option to include Spare Parts with the last scheduled
shipment to SIEMENS (see example below).
8. Spare Parts for SIEMENS shall be stored at HTT Dresden. Spare Parts for
ProMOS shall be stored at Spirox-Taiwan. Spare Parts for Whiteoak shall be
stored at FormFactor - Livermore.
ON-STOCK SPARE PARTS EXAMPLE:
Dresden orders * * * probecards. Delivery is * * * units in December, * * *
units in January and * * * units in February for a total of * * * cards. VENDOR
would ship * * * units to Dresden in December and hold * * *% or * * * locally
(HTT-Dresden). VENDOR will ship an additional * * * units in January and hold
another * * * units locally (for a total of * * *). In February, VENDOR will
ship an additional * * * units (* * * new cards, * * * from local spares).
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Appendix 5
--------------------------------------------------------------------------------
Support Structure
Subject to the terms of this Agreement, VENDOR shall provide technical support
and assistance to SIEMENS through a combination of telephone support, periodic
visits from qualified factory personnel, and qualified local personnel, as
described below:
Telephone Support:
If required, VENDOR shall schedule a weekly conference call with each SIEMENS
site to communicate and discuss important technical issues. Additionally, VENDOR
will designate a factory-based technical support person for all SIEMENS sites.
This technical support person will be available during normal California
business hours (8am/5pm Pacific Standard Time) and will carry a Nationwide Pager
for emergency support.
Support from Factory Personnel:
VENDOR will visit each SIEMENS site, as required, to provide reasonable
technical support. Such support shall include training, trouble-shooting, and
assistance in various projects or experiments. Visits by Factory Personnel may
be substituted by local personnel as appropriate.
Support from Local Personnel:
VENDOR shall put in place and maintain, at its own cost, local support personnel
for each SIEMENS site. At VENDORS discretion, Local support personnel shall be
either employees of VENDOR or affiliates of VENDOR. Local personnel shall be
situated within reasonable driving distance from each SIEMENS site.
Each local support person shall be required to complete a VENDOR training
certification course. Training and certification shall take place annually.
VENDOR local support shall be allowed reasonable access to the test areas within
SIEMENS sites to assist in technical issues.
The following Personnel shall be available to SIEMENS sites:
Whiteoak: VENDOR East Coast Field Applications Engineer
Dresden: HTT-Dresden
Munich: HTT-Dresden, HTT-Munich
ProMOS: Spirox-Taiwan
VENDOR reserves the right to replace local personnel with 30 days notice to
SIEMENS.
Appendix 6
--------------------------------------------------------------------------------
New VENDOR Products
Subject to the terms of this Agreement, VENDOR agrees to provide information in
its discretion * * *.
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Appendix 8
--------------------------------------------------------------------------------
FORMFACTOR PRODUCT SPECIFICATION
1. Part Number Marking
Marking has to be readable from front of prober. The letters have to be min. 3
mm in height. The marking has to be water resistant, alcohol resistant and
unsmearable.
Text: As specified in chip specific documentation
2. Board/Layout
2.1 Number of probes: As specified in chip specific
documentation
2.2 Tester type: * * *
2.3 Material of the board/stiffness * * *
This shall be verified by FFI
modeling
2.4 Pad layout As specified in chip specific
documentation
2.5 Board layout As specified in chip specific
documentation layout and transit time
documents have to be available for
Siemens, * * *
2.6 Thickness of the board: * * *
2.7 Probe height: * * *
3. Specification of the probes
3.1 Probe material: * * *
3.2 Probe tip shape: * * *
3.3 Probe tip size: * * *
* * *
3.4 Max. probe length: * * *
3.5 Planarity: * * *
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Appendix 8
--------------------------------------------------------------------------------
3.6 X/Y accuracy: * * *
3.7 Rotation of the board * * *
3.8 Probe force * * *
3.9 Scrub length * * *
3.10 Scrub width * * *
3.11 Cleaning * * *
3.12 Life time * * *
See FormFactor Warrantee for details
4. ELECTRICAL PROPERTIES
* * *
4.1 Contact resistance see 4.3
4.2 Isolation resistance between any needle * * *
4.3 Resistance between needle tip and pogo pin * * *
4.4 Test frequency without "significant" influence on the signal
5. THERMAL STABILITY
* * *
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Appendix 9
--------------------------------------------------------------------------------
PROBECARD ACCEPTANCE CHECKLIST
Product ID:
-------------- --------------
Date:
Manufacturer: Probecard No.
-------------- DUT: --------------
Device:
-------------- --------------
OPTICAL CHECK
Probe tips [ ] ok
Solder Pads [ ] ok
Added Facilities [ ] ok
PRECISION POINT CHECK
Max Min Mean Units
-------- -------- -------- -----
[ ] ok
X position (mu)m [ ] ok
-------- -------- --------
Y position (mu)m [ ] ok
-------- -------- --------
Planarity (mu)m [ ] ok
-------- -------- --------
Alignment (mu)m [ ] ok
-------- -------- --------
Leakage nA [ ] ok
-------- -------- --------
Scrub Length (mu)m [ ] ok
-------- -------- --------
Scrub Diameter (mu)m [ ] ok
-------- -------- --------
Scrub Angle (Degree) [ ] ok
-------- -------- --------
Contact Resistance (Omega) [ ] ok
-------- -------- --------
Probe Force gm [ ] ok
-------- -------- --------
Capacitators [ ] ok
-------- -------- --------
TESTER CHECK
Contact Loop [ ] ok
Difference first/last contact [ ] ok
Probemark inspection [ ] ok
Hardcode [ ] ok
Reference measurements Tester
----------------
Board
----------------
Probecard
----------------
Lot
----------------
Yield comparison %YB
----------------
CHECK RESULT
--------------------------------------------------------------
Rework: YES NO
Return: YES NO
Release: YES NO
Name: _____________________________ Signature: _________________________________
Appendix 10
--------------------------------------------------------------------------------
NON-DISCLOSURE AND RESTRICTED USE AGREEMENT
(attached)
page 1/3
NON-DISCLOSURE AND RESTRICTED USE AGREEMENT
by and between
FormFactor Inc., Livermore, CA USA
- hereinafter referred to as "Siemens" -
- both hereafter referred to as "Party" or "Parties"
* * *
2 pages
*** Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Attachment 11
--------------------------------------------------------------------------------
* * *
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Page 1/1
Attachment 12
--------------------------------------------------------------------------------
* * *
----------
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Page 1/1
