Exhibit 10.16
CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document have been
omitted pursuant to a request for confidential treatment and, where applicable,
has been marked with an asterisk to denote where omissions have been made. The
confidential material has been filed separately with the Commission.
AMENDED AND RESTATED
INTELLECTUAL PROPERTY
AGREEMENT
TABLE OF CONTENTS
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ARTICLE 1 --GENERAL BACKGROUND..................................................................... 1
1.1 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
CONFIDENTIAL TREATMENT REQUESTED
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
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CONFIDENTIAL TREATMENT REQUESTED
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.
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CONFIDENTIAL TREATMENT REQUESTED
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,
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CONFIDENTIAL TREATMENT REQUESTED
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
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CONFIDENTIAL TREATMENT REQUESTED
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.
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CONFIDENTIAL TREATMENT REQUESTED
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
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CONFIDENTIAL TREATMENT REQUESTED
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.
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
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.
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
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 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
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
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 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
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CONFIDENTIAL TREATMENT REQUESTED
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.
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
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 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
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CONFIDENTIAL TREATMENT REQUESTED
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:
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
(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;
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.
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CONFIDENTIAL TREATMENT REQUESTED
(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).
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CONFIDENTIAL TREATMENT REQUESTED
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.
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CONFIDENTIAL TREATMENT REQUESTED
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
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CONFIDENTIAL TREATMENT REQUESTED
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.
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CONFIDENTIAL TREATMENT REQUESTED
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
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CONFIDENTIAL TREATMENT REQUESTED
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:
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CONFIDENTIAL TREATMENT REQUESTED
(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 *;
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
(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.
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.
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
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
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CONFIDENTIAL TREATMENT REQUESTED
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
* Material has been omitted and filed separately with the Commission.
- 24 -
CONFIDENTIAL TREATMENT REQUESTED
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.
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.
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
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
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CONFIDENTIAL TREATMENT REQUESTED
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
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CONFIDENTIAL TREATMENT REQUESTED
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."
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CONFIDENTIAL TREATMENT REQUESTED
(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: Vice President
---------------------------------------
Date: 5/21/02
----------------------------------------
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CONFIDENTIAL TREATMENT REQUESTED
SCHEDULES
- 30 -
CONFIDENTIAL TREATMENT REQUESTED
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 Databases.
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
APPLIED'S SOFTWARE AND 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).
* Material has been omitted and filed separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE 2.33
KINETICS PRE-EXISTING IP
PATENTS AND PATENT APPLICATIONS:
PATENTS OWNED BY KINETICS FLUID SYSTEMS, INC.
PATENT PATENT
APPLICATION FILING PATENT ISSUE
MATTER NUMBER PATENT COUNTRY SERIAL NO. DATE NUMBER DATE INVENTOR PRODUCTS
------------- ------ ------- ------------ ------ --------- --------- -------- --------
I0294/7005 Integrated U.S.A. 08/404,485 3/17/1995 5,605,179 2/25/1997 Xxxxxxxx very early Insync
I0294/7003 Gas Panel Strong, gas panel (like
Xxxxx was in lobby at
Elliot, Centre Pointe);
Xxxxx multiple valves
Balma in single block,
MFCs connected
on VCR tube
stubs;
I0294/7005 Integrated U.S.A. 08/736,354 10/22/1996 Xxxxxxxx see above
Gas Panel Strong,
Xxxxx
Xxxxxx,
Xxxxx
Xxxxx
I0294/7006EP Building Blocks EP 97947611.6 12/3/1996 11/17/1998 Xxxxxxx X. foreign filing
for Integrated Markulec off US#5,836,355;
Gas Panel et al "IGS" modular
blocks (long
bolts);
X0000/0000XX Xxxxxxxx Xxxxxx XX 000000/00 11/19/1997 Xxxxxxx X. foreign filing
for Integrated Markulec off US#5,836,355;
Gas Panel et al "IGS" modular
blocks (long
bolts);
I0294/7006KR Building Blocks KR 00-0000000 11/19/1997 Xxxxxxx X. foreign filing
for Integrated Markulec off US#5,836,355;
Gas Panel et al "IGS" modular
blocks (long
bolts);
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CONFIDENTIAL TREATMENT REQUESTED
I0294/7006PCT Building Blocks PCT PCT/US97/2 11/19/1997 WO 6/11/1998 Xxxxxxx X. foreign filing
for Integrated 1327 98/25058 Markulec off
Gas Panel et al US#5,836,355;
"IGS" 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"
Gas Panel et al style 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"
for Integrated Markulec style multiple
Gas Panel et al block modular
substrates on two
planes;
Improved U.S.A 08/672,826 6/28/1996 Xxxxxxxx
Compression Seal Strong,
Xxxxxx Xxx
MFC - Quick PCT PCT/US96/0 4/4/1996 Xxxxxxxx
Change Method 4708 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/US98 1/21/1999 Xxxxxxx X. foreign filing
For Integrated 115474 Markulec, for US#6,231,260;
Gas Panel WO99/028 Xxxxxx X. "Versaplane"
67 Xxx, modular gas panel
Xxxxxxx X. mounting plate;
Xxxxxxxx,
Xxxxx X.
Xxxxxx
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CONFIDENTIAL TREATMENT REQUESTED
I0294/7005JP Mounting Plane Japan 2000-502327 Xxxxxxx X. foreign filing
For Integrated Markulec, for US#6,231,260;
Gas Panel Xxxxxx X. "Versaplane"
Xxx, modular gas panel
Xxxxxxx X. mounting plate;
Xxxxxxxx,
Xxxxx X.
Xxxxxx
I0294/7005KR Mounting Plane Korea Xxxxxxx X. foreign filing
For Integrated Markulec, for US#6,231,260;
Gas Panel Xxxxxx X. "Versaplane"
Xxx, modular gas panel
Xxxxxxx X. mounting plate;
Xxxxxxxx,
Xxxxx X.
Xxxxxx
I0294/7005PCT Mounting Plane PCT PCT/US598/ 6/4/1998 WO99/028 01/25/199 Xxxxxxx X. foreign filing
For Integrated 11574 67 Markulec, for US#6,231,260;
Gas Panel Xxxxxx X. "Versaplane"
Xxx, modular gas panel
Xxxxxxx X. mounting plate;
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
Structure for for US#6,158,454;
Fluid Flow venting modular
Through backplance;
Structural
Arrangement
I0294/7007CN Sieve Like China 99807334.2 foreign filing
Structure for for US#6,158,454;
Fluid Flow venting modular
Through backplance;
Structural
Arrangement
I0294/7007EP Sieve Like EP PCT99914326.6 foreign filing
Structure for Pursuant to for US#6,158,454;
Fluid Flow PCT/US99/07223 venting modular
Through backplance;
Structural
Arrangement
- 35 -
CONFIDENTIAL TREATMENT REQUESTED
I0294/7007JP Sieve Like JP PCT99914326.6 foreign filing
Structure for Pursuant to for US#6,158,454;
Fluid Flow PCT/US99/07223 venting modular
Through backplance;
Structural
Arrangement
I0294/7007KR Sieve Like KR 2000-7011447 foreign filing
Structure for for US#6,158,454;
Fluid Flow venting modular
Through backplance;
Structural
Arrangement
I0294/7007PCT Sieve Like PCT PCT/US99/0 3/31/1999 WO99/531 10/21/1999 foreign filing
Structure for 7223 15 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 Xxxxxx exhaust air to
Through XxxxxXxxx, sweep past
Structural Xxxxxxx X. mechanical seals
Arrangement Markulec, of surface
Xxxxxx X. mounted modular
Xxx, components;
Xxxxxxx X.
Xxxxxxxx
I0294/7008TW System Of Taiwan 89125954 12/6/2000 foreign filing
Modular based on US for 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 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
Enabling The internal seal to
Distribution of avoid welded
Process Fluids caps;
Thorough
Removable
Components
- 36 -
CONFIDENTIAL TREATMENT REQUESTED
I0294/7008WO System Of WO PCT/US00/4 12/6/2000 WO foreign filing
Modular 2589 based 01/42694 for US#6,283,155;
Substrates For on US "K.1" modular
Enabling The 09/456,226 (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
Modular Vu (1.5") no-welds
Substrates of substrates;
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
Modular Vu (1.5") no-welds
Substrates of substrates;
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 High combines
Purity Fluid individual
Flow Control component station
Applications with orbitally
welded elbow-tee-
cross-etc. as
single part
Torque Tight USA 501682 7/12/1995 5,524,936 6/11/1996 Xxxx mechanism to
Locking Device et. al. prevent VCR
fittings from
loosening through
vibration or
chained assembly
sequence
U0128/7000EP Manifold System EP 99933722.3 Xxx X. Xx foreign filing
of Removable et al. for US#tbd;
Components For flanged modular
Distribution Of substrates-k1s
Fluids ETC.;
- 37 -
CONFIDENTIAL TREATMENT REQUESTED
U0128/7000JP Manifold System Japan 2000-229369 1/16/2001 Xxx X. Xx foreign filing
of Removable et al. for US#tbd;
Components For flanged modular
Distribution Of substrates-k1s
Fluids ETC.;
U0128/7000KR Manifold System Korea 10-2001- 11/8/2001 Xxx X. Xx foreign filing
of Removable 700024 et al. for US#tbd;
Components For flanged modular
Distribution Of substrates-k1s
Fluids ETC.;
U0128/7000 Manifold System USA 09/111,999 7/8/1998 GRANTED Xxxx X. covers individual
of Removable Xxxxxxxx, modular
Components For Xxx X. Xx, substrates with
Distribution Of and Xxxxx overlapping
Fluids P. Sheriff flange
interconnections;
X-Xxxxx, X0X,
X0X, etc.
U0128/7000WO Manifold System WO PCT/US99/ 07/7/99 Xxx X. Xx foreign filing
UNI/001WO of Removable 15272 01/13/99 et al. for US#tbd;
Components For 09/229,722 flanged modular
Distribution Of substrates-K1S,
Fluids etc.;
U0128/7001 Manifold System USA 09/229,722 1/13/1999 Xxxx X. covers individual
of Removable Xxxxxxxx, modular
Components For Xxx X. Xx, substrates with
Distribution Of and Xxxxx tongue & pocket
Fluids P. Sheriff interconnections;
Z-Cubes, K1S,
K1H, etc.
U0128/7006EP Gas Panel EP 97913896.3 5/12/1999 Xxxx X. foreign filing
Xxxxxxxx, for 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
Xxxxxxxx, for 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
Xxxxxxxx, for US#5,992,463;
Xxx X. Xx panel of long
monolithic
substrates
- 38 -
CONFIDENTIAL TREATMENT REQUESTED
U0128/7006KR Gas Panel Korea 7003781/19 10/29/1997 Xxxx X. foreign filing
99 Xxxxxxxx, for 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
Xxx X. Xx panel 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
Xxxxxxxx, modular component
Xxx X. Xx base with
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
Xxxxxxxx, for
Xxx X. Xx US#6,293,310B1;
"V" channel under
bridging
components;
U0128/7012CN Gas Panel China 98811585.9 5/26/2000 Xxxx X. foreign filing
Xxxxxxxx, for
Xxx X. Xx US#6,293,310B1;
"V" channel under
bridging
components;
U0128/7012EP Gas Panel EP 98,956,297 10/28/1998 Xxxx X. foreign filing
Murgitroyd & Co. Xxxxxxxx, for
File Xx. X00000 Xxx X. Xx XX#0,000,000X0;
"V" channel under
bridging
components;
U0128/7012EP Gas Panel EP/ 1,102,387 10/28/1998 Xxxx X. foreign filing
Murgitroyd & Co. HONG KONG Xxxxxxxx, for
File Xx. X00000 Xxx X. Xx XX#0,000,000X0;
"V" channel under
bridging
components;
- 39 -
CONFIDENTIAL TREATMENT REQUESTED
U0128/7012JP Gas Panel Japan Xxxx X. foreign filing
Xxxxxxxx, for
Xxx X. Xx US#6,293,310B1;
"V" channel under
bridging
components;
U0128/7012KR Gas Panel Korea 10-2000- 10/28/1998 Xxxx X. foreign filing
7004589 Xxxxxxxx, for
Xxx X. Xx US#6,293,310B1;
"V" channel under
bridging
components;
U0128/7012MX Gas Panel Mexico 4,198 4/28/2000 Xxxx X. foreign filing
Xxxxxxxx, for
Xxx X. Xx US#6,293,310B1;
"V" channel under
bridging
components;
U0128/7012PCT Gas Panel PCT PCT/US98/ 10/28/1998 Xxxx X. foreign filing
22912 Xxxxxxxx, for
Xxx X. Xx US#6,293,310B1;
"V" channel under
bridging
components;
U0128/7012PCL Gas Panel HK 1102386.7 Xxxx X. foreign filing
Xxxxxxxx, for
Xxx X. Xx US#6,293,310B1;
"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
Xxx X. Xx modular
substrates having
"V" channel under
bridging
components;
U0128/7018 Gas Panel USA 09/732,435 12/7/2000 Xxxx X. covers
Xxxxxxxx, incorporating
Xxx X. Xx moisture sensor
into 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;
- 40 -
CONFIDENTIAL TREATMENT REQUESTED
U0128/7026 Fluid Flow USA 60/291,430 Provisional Xxx Xxxx early approaches
System Application Vu to "super-
05/16/2001 component" 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.;
- 41 -
CONFIDENTIAL TREATMENT REQUESTED
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.
- 42 -
CONFIDENTIAL TREATMENT REQUESTED
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
- 43 -
CONFIDENTIAL TREATMENT REQUESTED
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:
------------------------------- --------------------------------
- 44 -
CONFIDENTIAL TREATMENT REQUESTED
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
- 45 -
CONFIDENTIAL TREATMENT REQUESTED
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)
- 46 -
CONFIDENTIAL TREATMENT REQUESTED
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
- 47 -
CONFIDENTIAL TREATMENT REQUESTED
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)
- 48 -
