EXHIBIT 10.16
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into on this 6th day of July, 1995, by
and between Fluoroware, Inc., a corporation organized and existing under the
laws of Minnesota, U.S.A., with its principal place of business at Chaska,
Minnesota (U.S.A.) (hereafter "Supplier") and Metron Semiconductors Europa B.V.,
a limited liability company organized and existing under the laws of The
Netherlands, with its principal place of business at Almere, The Netherlands
(hereafter "Distributor").
WHEREAS, Supplier designs, manufactures and sells products for use in the
semiconductor industry, which Products are more particularly described in
Exhibit A attached hereto (the "Products") , and wishes to expand its market for
the Products in the geographical areas set forth in Exhibit B attached hereto
(the "Territories");
WHEREAS, Distributor has served as Supplier's distributor under various
distribution agreements dating back to 1975;
WHEREAS, Distributor wishes to assign this Agreement to those of its
subsidiaries and affiliates in the respective Territories as more particularly
described in Exhibit B;
WHEREAS, Supplier wishes to appoint Distributor and Distributor wishes to
accept such appointment, as the independent, exclusive distributor of the
Products in the Territories on the terms and conditions set forth herein; and
NOW, THEREFORE, Supplier and Distributor agree as follows:
1. Appointment of Distributor, Terms of Product Sales.
1.1 Subject to all of the terms and conditions of this Agreement, Supplier
hereby appoints Distributor, and Distributor hereby accepts such
appointment, as the exclusive, independent distributor of the Products
in the Territories. Supplier may, however, sell Products to third
parties for use in the Territories on a representative basis, provided
that Supplier shall pay Distributor a commission with respect to such
sales equal to ten percent (10%) of the applicable sales list price of
the Products. In certain representative sales of Products, Supplier
may allocate the commission between Distributor and a third party,
such allocation determined by Supplier on an equitable basis and based
on services performed by Distributor with respect to such Products,
consistent with past practice between Supplier and Distributor.
Moreover, Supplier shall not be prohibited from establishing technical
or support offices or organizations in the Territories, provided that
such offices or organizations may not engage in sales of the Products.
1.2 With the exception of Supplier's Critical Fluid Management products,
or such other products as agreed to by Supplier and Distributor,
Supplier shall sell the
Products to Distributor at Supplier's current U.S. domestic sales list
prices, less Distributor's discount, as provided in Exhibit A.
Supplier's Critical Fluid Management products shall be sold through
Fluoroware GmbH to Distributor at Supplier's current GmbH sales list
price less Distributor's discount, as provided in Exhibit A. Supplier
may change its sales list prices upon sixty (60) days' advance written
notice to Distributor.
1.3 Distributor shall have the right of first refusal to act as
distributor in the Territories and under the terms of this Agreement
for any modified, revised, up-dated or replacement products sold by
Supplier and related to the Products. Supplier shall notify
Distributor immediately of any such products.
1.4 Sales to the Distributor will be invoiced on an open account basis.
Sales invoices will be due for payment sixty (60) days after shipment
of the Products. A late payment penalty may be applied to late
payments for Products accented by Distributor or Distributor's
customers, without prior written approval by Supplier. Such penalty
shall be equal to the lesser of the following interest rates in effect
on the date the payment was due: (i) two points plus the prime
interest rate as announced by Xxxxxx Trust and Savings Bank, and (ii)
three points plus the statutory default late payment interest rate
under the laws of the Netherlands applicable to distribution
agreements.
1.5 Supplier shall retain title to the Products and bear the risk of loss
until delivery to the carrier, F.O.B. Supplier's factory or
distribution center, at which time title shall pass and the risk of
loss shall be borne by Distributor (or Distributor's customers).
Provided, however, that beginning September 1, 1996, Supplier and
Distributor shall implement procedures to provide for Supplier to
retain title to the Products and bear the risk of loss until delivery
F.O.B. at Distributor's warehouse (or the place of acceptance by
Distributor's customer). In any event, Distributor (or Distributor's
customers) shall, directly or indirectly, bear the cost of any customs
duties, taxes, shipping and handling costs, and insurance with respect
to the shipment of the Products.
1.6 Notwithstanding the general rule provided in Section 1.5 above,
Supplier and Distributor may negotiate and arrange for certain sales
of Products pursuant to terms under which either: (i) Supplier shall
retain title to the Products and bear the risk of loss until delivery,
F.O.B. Distributor's warehouse (or the place of acceptance by
Distributor's customer) , or (ii) Supplier shall retain title to the
Products and bear the risk of loss until delivery to the carrier,
F.O.B. Supplier's factory or distribution center.
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2. Obligations and Covenants of Supplier.
2.1 Supplier will use its best efforts to comply with Distributor's
request for the means of shipping the Products as specified in
Distributor's orders and shall use its best efforts to notify
Distributor in the event that Supplier is unable to comply with such
request. Supplier shall not send partial shipments of Distributor's
orders unless Distributor agrees in advance.
2.2 Absent extraordinary circumstances and subject to written agreement by
Supplier and Distributor (such agreement which shall not be
unreasonably withheld), Supplier shall not sell the Products directly
to customers in the Territories and shall refer to Distributor in a
timely manner all orders and inquiries relating to the Products
originating from within or outside the Territories to the extent such
orders or inquiries relate to Products destined for use within the
Territories.
2.3 In negotiation or renegotiation of any agreement with any of its other
distributors, agents or employees subsequent to the date of this
Agreement, Supplier will insist upon a covenant that such other
distributor, agent or employee will not seek customers or establish a
branch or maintain any distribution outlet in the Territories.
2.4 Supplier will, from time to time, supply Distributor, at Supplier's
cost, with a reasonable quantity of promotional materials in the
English language, such as literature, catalogs and other advertising
materials relating to the Products. Such promotional materials shall
also be translated in the native language of the country to which the
Products are shipped if required by applicable law.
2.5 Supplier will provide Distributor with reasonable numbers of the
Products for Distributor to use as samples and demonstration models.
The supply of the Products under this provision shall be on a
consignment basis only.
2.6 Supplier will conduct technical seminars and provide training for
sales or services related to the Products for the benefit of
Distributor's employees. Each party shall be responsible for the
expenses (including the cost of transportation, meals and lodging)
incurred by its own employees attending such seminars or training.
2.7 Supplier will, from time to time, and at its own cost (including the
cost of salaries and lodging for Supplier's employees), participate in
international trade shows for promoting the Products in the
Territories pursuant to agreement by Supplier and Distributor.
2.8 Supplier will use its best efforts to assist Distributor to facilitate
any import processing by providing Distributor with all required
documents and information.
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2.9 Supplier agrees to comply with all applicable export control laws and
regulations relating to the Products. Supplier will also use its best
efforts to provide information necessary for Distributor to comply
with all applicable export control laws and regulations relating to
the Products.
2.10 Supplier's warranties with respect to the Products are set forth in
the Exhibits C-1, C-2, C-3 and C-4 which are attached hereto and
incorporated herein by reference. Such warranties may be amended,
supplemented or replaced by Supplier, provided that Supplier provides
Distributor with sixty (60) days' prior written notice of such
amended, supplemented or replacement warranties.
2.11 Without Distributor's prior written consent, Supplier will not use,
reproduce, disclose or otherwise make available to any person, other
than Supplier's employees or agents who have a need to know such
information, any and all information, written or oral, which is
disclosed by Distributor to Supplier, identified as confidential
information and not generally available to the public. The term
"confidential information" shall not include information provided by
Distributor to Supplier exclusively for the purpose of soliciting
potential and actual sales of the Products. In addition, the term
"confidential information" shall not include any information that is
or becomes known to the public through no fault of Supplier.
2.12 Supplier shall accept for credit any inventory of spares or equipment
which is obsolete, provided that Distributor shall review its
inventory on an annual basis for the purpose of determining
obsolescence, and Supplier may refuse any Products held by Distributor
for more than twelve (12) months. Supplier shall accept such obsolete
equipment or spares within six (6) months after written notice of
obsolescence by Distributor. Moreover, Supplier shall accept for
credit or refund any consumable Products that are in the original
packaging and in good, saleable condition as determined by Supplier.
Supplier's credit or refund shall be pursuant to agreement between
Supplier and Distributor. Distributor shall pay all costs of custom
duties, insurance, shipping and handling costs for returned Products.
2.13 During the term of any warranty made by Supplier with respect to any
Product sold by Distributor, Supplier shall maintain an adequate
inventory of spare parts for such Product.
2.14 Upon delivery of each Product by Supplier to Distributor, Supplier
shall supply Distributor or its customers with adequate documentation
for purposes of servicing and trouble-shooting such Product. Such
documentation shall comply with any applicable law. The cost of any
such manuals and documentation shall be included in the price of the
Product under Section 1.2 of this Agreement.
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3. Obligations and Covenants of Distributor.
3.1 Distributor will use its best efforts to market and sell the Products
in the Territories.
3.2 Except as otherwise required by law, Distributor will market and sell
the Products without removing or altering any labels, trade names,
trademarks, notices, labels, serial numbers or other identifying
marks, symbols or legends affixed to any of the Products or their
containers or packages.
3.3 Supplier shall not be liable under any warranties made by Distributor
with respect to any of the Products which exceed the warranties made
by Supplier. Supplier may modify any warranties upon reasonable notice
to Distributor, provided, however, that such amended warranties will
not apply to Products sold or Products which Distributor has entered
into a contract to sell but which have not yet delivered.
3.4 Without Supplier's prior written consent, Distributor shall not use,
produce or disclose or otherwise make available to any person, other
than Distributor's employees or agents who have a need to know such
information for the performance of its obligations hereunder, any and
all information written or oral, which is disclosed by Supplier to
Distributor, identified as confidential information and not generally
available to the public. The term "confidential information" shall not
include information provided by Supplier to Distributor exclusively
for the purpose of soliciting potential and actual sales of the
Products. In addition, the term "confidential information" shall not
include any information that is or becomes known to the public through
no fault of Distributor.
3.5 Distributor shall furnish to Supplier, upon Supplier's reasonable
requests from time to time, reports including, but not limited to,
actual and forecast sales, market conditions and competitive activity.
3.6 Distributor will, from time to time, and at its own cost (including
the cost of salaries and lodging for Distributor's employees),
participate in international trade shows for promoting the Products in
the Territories pursuant to agreement by Supplier and Distributor.
3.7 Distributor shall use its best efforts to install and service any
Products during any applicable warranty period. Distributor may
contract with other individuals or business entities to assist
Distributor in installing and servicing the Products, provided that
such individuals or business entities: (i) have adequate training to
install and service the Products, and (ii) agree in writing that they
will not compete with Supplier by selling any products or equipment in
the Territories
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during the term of this Agreement, to the extent that such products or
equipment are similar in function to any Products sold by Supplier.
4. Term and Termination.
4.1 Unless and until sooner terminated as provided for herein, this
Agreement shall continue for a term of three (3) years commencing on
July 1, 1995 and will be deemed automatically renewed thereafter for
one or more additional terms of two (2) years and on the same
conditions.
4.2 This Agreement may be terminated by either party upon providing the
other party with written notice of termination more than twelve (12)
months prior to expiration of the applicable term, i.e., more than
twelve (12) months prior to expiration of the initial three-year term
or more than twelve (12) months prior to expiration of an ensuing
two-year extension.
4.3 In the event of a breach of any material provision of this Agreement,
this Agreement may be terminated upon ninety (90) days' written notice
given by the nonbreaching party to the other party, which notice shall
specify the breach on which the termination is based, provided,
however, that in such event this Agreement shall continue in full
force and effect without regard to such notice if the other party
cures the breach specified in the notice within the said 90-day
period.
4.4 This Agreement will terminate immediately upon the occurrence of any
of the following events:
(a) All or any substantial part of the property of either party shall
be condemned, seized or otherwise appropriated, or the custody or
control of such property shall be assumed by any person or agency
acting or purporting to act under authority of any government (de
jure or de facto) or either party shall have been prevented from
exercising normal managerial control over all or any substantial
part of its property by any such person or agency; or
(b) Either party shall (i) apply for or consent to the appointment of
a receiver, trustee or liquidator for its business or of all or
any substantial part of its assets, or (ii) be unable, or admit
in writing its inability, to pay its debts as they mature, (iii)
make a general assignment for the benefit of creditors, (iv) be
adjudicated a bankrupt or insolvent, or (v) file a voluntary
petition in bankruptcy or a petition or an answer seeking
reorganization or an arrangement with creditors or seeking to
take advantage of any insolvency law, or file an answer admitting
the material allegations of a petition filed
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against either party in any bankruptcy, reorganization or
insolvency proceeding, or take corporate action for the purpose
of effecting any of the foregoing; or
(c) An order, judgment or decree shall be entered without the
application, approval or consent of the subject party by any
court of competent jurisdiction, approving a petition seeking
reorganization of the party or appointing a receiver, trustee or
liquidator of its business or of all or any substantial part of
its assets; or
(d) An order or notice shall be published by any government or
inter-government authority requiring the cessation of trading
activities with the subject party as a result of the violation of
export controls, safety or other regulatory laws.
4.5 Upon termination of this Agreement, Distributor shall no longer have
the right to serve as a distributor of the Products in the Territories
and shall not be entitled to any additional consideration as a result
of such termination. However, Distributor shall have the right to
continue selling in the Territories the Products which are in
Distributor's inventory at the time of termination of this Agreement;
such right, however, shall terminate six (6) months after termination
of this Agreement. Supplier shall accept all Products returned by
Distributor for full refund if Distributor so requests in writing
within twelve (12) months after termination of this Agreement, such
refund to be made at the prices for which the Products were originally
purchased by Distributor from Supplier, provided that the returned
Products are in good condition as approved by Supplier, such approval
by Supplier shall not unreasonably be withheld or delayed.
4.6 Upon termination of this Agreement, Distributor shall cease to
represent itself as being a distributor of Supplier. Within sixty (60)
days after termination, Distributor will return to Supplier all
promotional materials for and samples and demonstration models of the
Products.
4.7 Notwithstanding termination of this Agreement upon notice as provided
in Section 4.2 of this Agreement, Supplier shall continue to provide
Products in conformity with and pursuant to the terms of this
Agreement during the remaining term of this Agreement. Further, in the
event of a termination notice, Distributor shall notify Supplier by
the termination date, of a list of all prospective customers
interested in the Products. If, within six (6) months after the
termination date, Supplier receives a purchase order from any of the
identified prospects, Supplier (i) shall promptly notify Distributor
of such purchase order and (ii) shall pay to Distributor a commission
equal to the Distributor's discount with respect to the Products under
such purchase order.
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4.8 Notwithstanding termination of this Agreement, Distributor shall
continue to perform all warranty service during the term of any
applicable warranty period, whether such warranty expires before or
after the termination of this Agreement, with respect to any Products
sold by, on behalf of, or in cooperation with Distributor.
4.9 Upon the termination, expiration or non-renewal of this Agreement,
Supplier shall not be liable to Distributor for any compensation,
reimbursement or damages on account of the loss of prospective profits
from anticipated sales, or on account of any expenditures,
investments, losses or commitments in connection with the business or
goodwill of Supplier, Distributor, or otherwise, provided that
Supplier has not breached any material provision of this Agreement,
except as expressly provided in Section 4.7 of this Agreement.
5. Indemnification.
5.1 Distributor hereby agrees to indemnify and hold Supplier harmless from
and against any and all damages, liabilities, fines or expenses
incurred by Supplier as a result of Distributor's breach of any
provision hereof.
5.2 Supplier hereby agrees to indemnify and hold Distributor harmless from
and against any and all damages, liabilities, fines or expenses
incurred by Distributor as a result of Suppliers breach of any
provision hereof.
5.3 Supplier agrees to defend and hold Distributor harmless from and
against any and all damages, liabilities, fines or expenses incurred
by Distributor in connection with any claim or lawsuit arising out of
the design, manufacture, use, Supplier's warranty, or any defect
("gebrek") of any of the Products, provided that Distributor has
complied with its obligations hereunder and has given prompt notice of
the claim or lawsuit to Supplier together with all information and
documents relating to such a claim or lawsuit. Distributor hereby
agrees to assist Supplier in defending such claim or lawsuit.
5.4 Supplier agrees to defend and hold Distributor harmless from and
against any and all damages, liabilities, fines or expenses incurred
by Distributor in connection with any claim or lawsuit arising out of
any infringement or alleged infringement of any patent or other
intellectual property rights of any person, firm or company in the
Territories, provided that Distributor has given prompt notice of the
claim or lawsuit to Supplier together with all information and
documents relating to such a claim or lawsuit. Distributor hereby
agrees to assist Supplier in defending such claim or lawsuit.
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5.5 The indemnification agreements as provided in this Section 5 shall
continue in full force and effect despite the expiration, recision, or
termination of this Agreement.
6. Relationship of the Parties.
6.1 The relationship between Supplier and Distributor is an independent
contractor relationship between a seller and buyer. Neither
Distributor, nor any employee of Distributor, shall be considered an
employee or agent of Supplier for any purpose. Unless otherwise
expressly authorized in writing by the other party hereto, neither
party shall have the right or authority to assume or create any
responsibility, express or implied, on behalf of or in the name of the
other party hereto, or to bind the other party in any manner
whatsoever, or to accept payment from any person on behalf of the
other party.
6.2 Supplier hereby grants a license to Distributor permitting Distributor
to use Supplier's trademarks and trade names only in connection with
the sale of Products. Distributor agrees to use Supplier's trademarks
and trade names in connection with the sale of any Products. This
license shall terminate upon the termination of this Agreement, at
which time Distributor shall cease to and shall not thereafter use,
and shall not permit any of its agents, employees or subsidiaries
thereafter to use, for any purpose whatsoever, any of Supplier's
trademarks or trade names other than for the purpose of selling
Products in Distributor's inventory as specifically provided in
Section 4.5 of this Agreement, or pursuant to any other written
agreement between the parties. Nothing in this Agreement shall be
deemed to transfer to or confer upon Distributor any right, title or
interest in any trademark or trade name owned by or used by Supplier.
6.3 During the term of this Agreement and for a period of six (6) months
after termination of this Agreement, (i) Supplier shall not, without
Distributor's prior written consent, solicit employees of Distributor
or any of its subsidiaries for employment with Supplier or otherwise
interfere, with Distributor's relationship with its employees, and
(ii) Distributor shall not, without Supplier's prior written consent,
solicit employees of Supplier or any of its subsidiaries for
employment with Distributor or otherwise interfere with Supplier's
relationship with its employees. This Section shall not restrict or
prohibit (i) Supplier from hiring an employee of Distributor or any of
its subsidiaries, if such employee applies for employment with
Supplier by responding to an announcement of an available employment
position, and (ii) Distributor from hiring an employee of Supplier or
any of its subsidiaries, if such employee applies for employment with
Distributor by responding to an announcement of an available
employment position.
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7. Assignment.
7.1 Neither this Agreement nor any right, title, interest or obligation
hereunder may be assigned or otherwise transferred by either party or
their assignees, transferees or successors in interest without the
prior written consent of the other party. This Agreement shall inure
to the benefit of such assignees, transferees and other successors in
interest of the parties in the event of an assignment or other
transfer made consistent with the provisions of this Agreement.
7.2 By its signature to the Agreement, Supplier consents to the assignment
of this Agreement to Distributor's affiliated companies in the
respective geographical areas set forth in Exhibit B attached hereto.
8. Force Majeure.
Neither party shall be liable for any breach of this Agreement occasioned
by an act of God, labor disputes, unavailability of transportation, goods
or services, governmental restrictions or actions, change in the law, war
(declared or undeclared) or other hostilities, or by any other event, the
condition or cause of which is beyond the control of such party. In the
event of nonperformance or delay attributable to any such causes, the
period for performance of the applicable obligation hereunder will be
extended for a period equal to the period of delay. However, the party so
delayed shall use its best efforts, without obligation to expend
substantial amounts not otherwise required under this Agreement, to
circumvent or overcome the cause of the delay. In the event that any such
delay exceeds sixty (60) days, either party may at its option terminate
this Agreement effective immediately by giving written notice thereof to
the other party.
9. Notices.
Any notice required to be given hereunder shall be deemed to have been
effectively given only when delivered personally to an officer of the
applicable party, or when first sent by telefax and confirmed by registered
mail, addressed to the ,applicable party at its address set forth below, or
at such other address as such party my hereafter designate as the
appropriate address for the receipt of such notice:
To Supplier at: Fluoroware, Inc.
Attention: Xxxx Xxxxx
000 Xxxxxxxx Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000 X.X.X.
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To Distributor at: Metron Semiconductors Europa B.V.
c/o Metron Technology Corporation,
Attention: Xxxxxx Xxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
X.X.X.
with a copy to: Metron Semiconductors Europa B.V.
Attention: Xxx Xxxxxxx
Saturnstra e 48
D-85609 Aschheim
Germany
10. Waiver.
No waiver by either party of strict compliance with all terms and
conditions of this Agreement shall constitute a waiver of any subsequent
failure of the other party to comply strictly with each and every term and
condition hereof.
11. Complete Agreement.
This Agreement constitutes the entire agreement between the parties
relating to the subject matter contained herein and it supersedes and
terminates any and all prior agreements between them, including the
Distribution Agreement between Supplier and Distributor dated September 1,
1988, and the Conditions of Sales Representative Term Agreement between
Supplier and Metron Semiconductors (Hong Kong) Ltd., dated June 4, 1985, as
amended on October 22, 1985, June 4, 1986, and June 19, 1986. If any
provision, or application hereof, of this Agreement is held unlawful or
unenforceable in any respect, such illegality or unenforceability shall not
affect other provisions or applications that can be given effect and this
Agreement shall be construed as if the unlawful or unenforceable provision
or application had not been contained herein. This Agreement may be amended
or otherwise modified only by a written document signed by authorized
representatives of the parties.
12. Counterparts.
This Agreement may be executed in two counterparts, each of which shall be
deemed an original, but both of which shall constitute but one instrument.
13. Arbitration and Applicable Law.
13.1 Any dispute between the parties arising out of or in connection with
this Agreement that cannot be settled amicably between the parties
shall be finally
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resolved by arbitration. Arbitration proceedings shall be conducted in
Minneapolis, Minnesota pursuant to the International Arbitration Rules
of the American Arbitration Association. In the event that either
party makes a demand for arbitration, the arbitrator shall be selected
by mutual agreement between the parties, or if the parties are unable
to agree on an arbitrator within twenty (20) days after a demand for
arbitration is made, the arbitrator shall be selected by the American
Arbitration Association. Disputes subject to arbitration hereunder for
claims in the aggregate amount of One Million (U.S.) Dollars
($1,000,000.00) shall be resolved by a panel of three independent
impartial arbitrators, one arbitrator selected by Supplier, one by
Distributor and the third by the other two arbitrators. Failure to
select an arbitrator within twenty (20) days of a demand for
arbitration shall be deemed a waiver of a right to select an
arbitrator and one will be selected by the American Arbitration
Association. All arbitrators shall be persons with skill and
experience in the industry. The costs of arbitration, but not the
costs and expenses of the parties, shall be shared equally by Supplier
and Distributor.
13.2 Either party shall have the right to review, prior to the submission
of its case to the arbitration panel, any and all documents in the
possession of the other party which relate to such other party's
performance under, or the conduct of its activities in connection
with, this Agreement.
13.3 The governing language of this Agreement shall be English. This
Agreement shall be interpreted and enforced in accordance with the
laws of the United States and the State of Minnesota, without giving
effect to choice of law principles. The United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this
Agreement.
13.4 The agreement to arbitrate as provided in this Section 13 shall
continue in full force and effect despite the expiration, recision, or
termination of this Agreement. The parties knowingly and voluntarily
waive their rights to have their dispute tried and adjudicated by a
judge or jury.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
DISTRIBUTOR SUPPLIER
METRON SEMICONDUCTORS EUROPA B.V. FLUOROWARE, INC.
By /s/ Illegible By /s/ Xxxxx Xxxxxxxxx
------------------------------- --------------------
Title Executive Vice President Title Executive Vice President
---------------------------- -------------------------
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Distribution Agreement 6th July, 1995
EXHIBIT A
1. The following Products are covered by this Distribution Agreement:
1.1 Except as provided in Sections 1.2 and 1.3 below, or pursuant to a
written agreement between Supplier and Distributor, Distributor shall
be the exclusive distributor of the following Products and any
products which are intended to replace such Products:
(a) Microelectronics Materials Management Products.
* HTC 8020 Cleaning Systems
* all products listed in Supplier's following catalogs,
in effect as of the effective date of this Distribution
Agreement:
* Handling Products for the Semiconductor Back-End
* Handling Products and Services for the Data Storage
Industry
* Wafer Handling Products for the Semiconductor Industry
* Mask and Reticle Handling Products for the
Semiconductor Industry
* Specialized Handling Products
* Labware
(b) Critical Fluid Management Products.
* espy Sensing Components
* all products listed in the Fluoroware Fluid Handling
Products and Technical Reference Manual (3-ring binder) with
the following subcatalogs, in effect as of the effective
date of this Distribution Agreement:
* Valves and Fluid Controls
* Tube Fittings and Tubing
* PureBond Fusible and Related Piping Products
* Specialty, Custom Fab and Accessory Products
* FluoroPure Chemical Container Product
* Process Tanks
A-1
Any new product lines manufactured by Supplier subsequent to the
effective date of this Distribution Agreement will be covered by this
Distribution Agreement only upon written agreement between Supplier
and Distributor.
1.2 Products Limited to certain Supplier offices.
Matrix trays may be distributed only by Metron Semiconductors Limited,
Metron Semiconductors Asia Limited and Metron Semiconductors (Hong
Kong) Limited.
1.3 Products under a non-exclusive distributor basis.
FluoroTrac identification products, FluoroTrac spares, and Flat Panel
Display products may be sold by Distributor on a non-exclusive basis.
2. Distributor's discount for each Product shall be a percentage of Supplier's
sales list price within a range of five percent (5%) to forty percent
(40%), unless otherwise agreed to in writing by Supplier and Distributor.
A-2
Distribution Agreement 6th July, 1995
EXHIBIT B
The Territories covered by this Distribution Agreement include each of the
following countries and any country that is a successor to such countries.
Responsibility for the Territories are divided among Distributor's subsidiaries
as follows:
Metron Semiconductors Deutschland GmbH
Albania Latvia
Armenia Lithuania
Austria Macedonia
Xxxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxxx & Xxxxxxxxxxx Xxxxxxx
Xxxxxxxx Russia
Croatia Slovakia
Czech Republic Slovenia
Estonia Switzerland
Georgia Tajikistan
Germany Turkey
Greece Turkmenistan
Hungary Ukraine
India Uzbekistan
Kazakhstan Yugoslavia
Kyrgyzstan
Metron Semiconductors Deutschland GmbH, Filiale Italiana
Italy
Malta
Metron Semiconductors Benelux B.V.
The Netherlands
Belgium
Luxembourg
B-1
Metron Semiconducteurs France S.A.
France
Spain
Portugal
Metron Semiconductors Ltd.
United Kingdom
Republic of Ireland
Metron Semiconductors Nordic AB
Denmark
Finland
Norway
Sweden
Metron Semiconductors (Israel) Ltd.
Israel
Metron Semiconductors (Hong Kong) Limited
Hong Kong
Metron Semiconductors Asia Limited and Metron Semiconductors Far East Limited
Peoples Republic of China
Indonesia
Korea
Malaysia
Philippines
Singapore
Taiwan
Thailand
B-2
EXHIBIT C-1
Microelectronics Materials Management Products
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Quality Policy Fluoroware, Inc. is dedicated to providing quality products
and services that satisfy our customers' needs. Quality is
the responsibility of every employee. Our focus is on
continuous improvement and prevention methods for achieving
quality.
Xxx Ouememoen
Chairman of the Board and Chief Executive Officer
Fluoroware is ISO certified. This certification, issued by
SGS International Certification Services, covers all design,
manufacture and sale of close tolerance plastic products
produced by injection molding, rotational molding,
extrusion, machining and fabrication.
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How to Order Contact your local sales representative or Fluoroware.
Fluoroware Fluoroware Products
Products
FLUOROWARE, INC.
000 Xxxxxxxx Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000 XXX
Telephone: 612/000-0000
Telefax: 612/448-5224
CUSTOMER SERVICE: 612/448-8181
Please use a complete ordering numbers when placing an
order.
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Environmental Fluoroware is dedicated to the conservation of the earth's
Statement resources to ensure that future generations may also enjoy
the beauty and diversity of the natural environment.
Please recycle this catalog. Please contact Fluoroware
for information on recycling your plastic products.
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Technical Support Fluoroware has technical service personnel who are always
Services ready to assist you with your questions and concerns about
Fluoroware(R) products and your specific application.
We are committed to being your resource for quality products
and efficient technical service. Contact your local sales
representative or Fluoroware, Inc. 612/448-3131.
C-1-1
Conditions Terms and Delivery
of Sale Net 30 days, FOB Chaska, Minnesota unless otherwise
specifically provided in writing. In all cases, risk
of loss or damage in goods in transit shall fall
upon Purchaser, whose responsibility it shall be to
file with the carrier.
Warranty Fluoroware, Inc. warrants each new Fluoroware
Product against defects in materials or workmanship for a
period of ninety (90) days from the date of purchase and,
upon confirmation of defects, agrees as is exclusive remedy
to receive defective product without charge, shipping
expenses to be paid by customer.
Fluoroware, Inc. is not responsible for such damage
resulting from accident, misuse or abuse, or lack of
reasonable care.
IMPORTANT: NO OTHER WARRANTY, WRITTEN OR ORAL IS AUTHORIZED
BY FLUOROWARE, INC. NO RESPONSIBILITY IS ASSUMED FOR ANY
SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES. IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR
PURPOSE ARE SPECIFICALLY DISCLAIMED.
Claims and Returns Claims for storage or inaccurate filling
of orders must be made to Fluoroware, Inc. within 30 days
after receipt of goods. All returns must have an
accompanying return authorization number regardless of
reason for return. Return procedures must be initiated by
phone or mail contact directly with Fluoroware, Inc. There
will be a restocking charge on any items returned for credit
or exchange when the error is not Fluoroware's.
Price All prices are subject to change without notice and
are based on standard packaging. For information on pricing,
please contact Fluoroware.
Product Changes Fluoroware, Inc. reserves the right to make
design changes for the improvement of a product.
Special Orders Product runs of parts with special
materials/revisions or parts requiring a special material
revision will be quoted as specials and are NOT RETURNABLE
when made to a customer's specification.
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Trademarks Fluoroware(R), STAT-PRO(R), RoBox(R), FluoroTrac(TM),
ORION(TM) and PolyPure(TM) are trademarks of Fluoroware,
Inc.
Tellon(R), Tyvek(R), Tefzel(R) and Dalrin(R) are
registered trademarks of DuPont.
Calanex(R)is a registered trademark of Hoechst Celanese.
Ultem(R)is a registered trademark of G.E. Plastics.
Solei(R)is a registered trademark of Solvay and Cie.
C-1-2
EXHIBIT C-2
HTC 8020 System and FluoroTrac System
Product Support
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INSTALLATION
Installation of HTC systems is performed by the customer. Facilities
requirements are provided by the Fluoroware Account Manager to the
appropriate customer contact. It is the Account Manager's responsibility to
review facilities requirements, warranty, training and installation with
the appropriate customer contact(s).
SYSTEM START-UP
A Fluoroware Field Service Representative will visit the customer to ensure
correct installation and to conduct the initial start-up of the equipment.
This field support is included in the system cost. Fluoroware requires
notification of system start-up at least two weeks in advance. Fluoroware
will give faster response when feasible, but will only commit to a two week
response time. If facility hookup is not complete when the Fluoroware
Representative arrives, the start-up will be rescheduled and Fluoroware
will xxxx the customer for additional time and expense. It is the
responsibility of the Account Manager to inform the appropriate customer
contact of this, insuring the facility hookup is complete when the Field
Service Representative arrives.
WARRANTY INFORMATION
Fluoroware, Inc. warrants each HTC 8020 System against defects in materials
or workmanship for a period of (1) year from the date of shipment and, upon
confirmation of the defect agrees, at its option, to repair or replace the
defective component without charge. Fluoroware will pay shipping expenses
for any defective components.
Fluoroware, Inc. is not responsible for product damage resulting from
accident, misuse or abuse, or lack of reasonable care.
No responsibility is assumed for any special, incidental, or consequential
damages. Implied warranties for merchantability and fitness for a
particular purpose are specifically disclaimed.
C-2-1
Entegris Integrated Shipping Systems
Entegris, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxxx Xxxxxxxx 00000
Telephone 000-000-0000
Facsimile 719-528-2690
Entegris, Inc., ISS Amendments to
Metron/Fluoroware Distribution Contract
(7/6/98 Renewal)
Entegris, Inc. Integrated Shipping Systems (ISS) has noted the following
exceptions to the Distribution Agreement, executed between Metron Technologies,
Inc. and Fluoroware, Inc., dated July 7, 1995, hereafter "Agreement" in these
Amendments. The following sections shall be amended and replace the respective
sections of the Agreement as noted;
Section
1.1 Entegris, Inc. - ISS (hereafter "Supplier" in these Amendments) will
maintain offices for sales support to identified Strategic Accounts,
referred to in Exhibit "Al", and within the territories identified in the
attached amendments to Exhibit "B1". ISS personnel will actively sell to
identified Strategic Accounts, globally. Supplier International Sales
Managers (ISM) will direct Metron Technology, Inc. (hereafter "Distributor"
in these amendments) and Supplier personnel, within their assigned regions,
to meet business unit goals and objectives. The Distributor sales personnel
will also take direction from the Supplier Strategic Account Managers (XXX)
on any activity involving an identified Strategic Account within their
respective territories.
1.2 Entegris ISS will sell Products, as defined in Exhibit "Al", to the
distributor per the attached price list, unless product is shipped directly
from the Supplier manufacturing facilities or distribution centers to the
customer ("drop ship") in which case Supplier shall extend Distributor a
ten percent (10%) discount off of the end customer "net sales price" or
commercial invoice. "Net sales price" for the purpose of this Agreement
shall mean the price received by the Supplier, excluding any sales taxes,
value added taxes (VAT), duties, transportation charges, freight charges,
foreign exchange rate differential, or other items which are ordinarily and
customarily deducted from the gross sales price. The attached price list
will be reviewed on a semi-annual basis. Concurrent to the semi-annual
price list review, Supplier shall have the right to modify Exhibit "Al".
Entegris ISS will give a sixty (60) day advance notice of impending changes
to the price list, based on the semi-annual review. Submittal of a Price
Deviation Request (PDR, sample attached) will document any requested
deviation from the attached price list. The Supplier Product Marketing
Manager must approve the PDR prior to acceptance of any
purchase order from the Distributor. Distributor will reference recommended
selling price guidelines (maximum / minimum) established on the attached
price list.
The Supplier agrees to pay a five percent (5%) commission based upon a
percentage of "net sales price" received from the sale of the Products to
identified Strategic Accounts. All prices are F.C.A / F.O.B. point or
origin or manufacture. In case of a blanket order, the sale occurs when the
blanket order buyer submits instructions for the actual delivery of the
Products. The Supplier will pay the commission during the month following
receipt of payment. When commission has been paid and the Products are
returned at a later date for credit, the commission paid will be deducted
against Distributor future commissions. No commission will be paid on
returned goods, samples, restocking charges, tooling fees, engineering
charges, second operations, or special run charges that are considered
abnormal to operations.
1.4 Sales to the Distributor will be invoiced on an open account basis. All
terms are net thirty (30) days, with a one and one-half percent (1-1/2%)
monthly service charge on the unpaid balance, not to exceed the maximum
amount permitted by law. Supplier reserves the right to withhold services
and remaining Products until payments on this or any other order are
current
1.5 All prices are exclusive of taxes and are F.O.B. point of manufacture or
origin. All applicable duties, sales, use, VAT, or excise taxes will be
added to the purchase price and itemized and/or invoiced separately. For
Product purchased by the Distributor, title to the Product shall be passed
to the Distributor and Distributor shall bear the risk of loss, F.O.B.
Suppliers factory or distribution centers.
1.6 This section is excluded.
2.2 Supplier will negotiate pricing, accept purchase orders from, ship directly
to, and invoice all designated Strategic Accounts or entities, located
within any of the Distributor's Territories. All orders from designated
Strategic Accounts will be placed with an Entegris, Inc. customer service
representative. Supplier shall present and freely share global strategies,
objectives, and goals for each designated Strategic Account, with locations
within the Distributor's Territories, with the Distributor personnel.
2.4 Supplier will, from time to time, supply Distributor, at Supplier's cost,
with a reasonable quantity of promotional materials in the English
language, such as literature, catalogs and other advertising materials
relating to the Products. The Distributor will only translate such
materials to other languages on approval of the Supplier Product Marketing
Department and after final draft review. Cost of translations to other
languages will be borne by the Distributor, unless approved in advance by
Supplier.
-2-
2.5 Supplier will provide Distributor with reasonable numbers of the Product
for the Distributor to use as samples and demonstration models, on an as
needed basis only. Distributor will insure that all such product shall be
destroyed or returned to Supplier if the product does not reflect the
current acceptable engineering revision levels or acceptance criteria.
2.10 Supplier warrants that at the time the Products are delivered to the
Distributor, they will meet the Supplier's Product specification, for a
period of ninety (90) days. Said warranty is limited, at the option of
Supplier, to repair or replacement of the defective item, provided that
such item is returned to Supplier, transportation prepaid for inspection
and approval. Distributor will follow Supplier establish Corrective Action
procedures.
THE EXPRESS WARRANTIES HEREIN CONTAINED ARE IN LIEU OF ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY
AND FOR FITNESS FOR ANY PARTICULAR PURPOSE, PURCHASER ACKNOWLEDGES THAT IT
IS NOT RELYING UPON SELLER'S SKILL AND JUDGMENT TO SELECT OR FURNISH
PRODUCTS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO
WARRANTIES WHICH ARE NOT CONTAINED IN THIS AGREEMENT. SELLER SHALL NOT BE
LIABLE FOR DAMAGES, INCLUDING SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE PRODUCT OR
THEIR USE BY PURCHASER. THIS WARRANTY SHALL NOT APPLY TO PRODUCTS WHICH
HAVE BEEN SUBJECT TO MISUSE OR ABUSE, MISAPPLICATION, REPAIR OR TAMPERING
IN ANY WAY SO AS TO AFFECT PERFORMANCE
2.12 Supplier shall only accept for credit any inventory of Product that is
obsolete, provided that said product is no older than ninety (90) days.
Supplier determines definition and designation of obsolete product and is
obligated to give sixty (60) days notice of Product obsolescence. Supplier
may refuse any products held by the Distributor for more than ninety (90)
days after written notice of obsolescence by Supplier.
3.1 Distributor will use its best efforts to sell the products in the
Territories. Distributor will support XXX activity and take direction from
the XXXx and ISMs in implementation of designated Strategic Account
strategies, objectives, and goals.
4.2 These amendments will be effective for twelve- (12) months from the
execution date. Either party, upon providing a ninety- (90) day written
notice of termination, prior to the expiration date, may terminate these
Amendments to the Agreement stated herein. If neither party provides notice
to terminate, these Amendments to the Agreement will automatically extend
for an additional twelve- (12) month term and this amendment will revert to
the original Section 4.2, as written in the Agreement, dated 7/6/98,
between Fluoroware Inc. and Metron Technologies Inc.
-3-
4.5 Upon termination of these Amendments to the Agreement, Distributor shall no
longer have the right to serve as a distributor of the Products in the
Territories and shall not be entitled to any additional consideration. All
Products in possession of the Distributor shall be returned to the
Supplier, using Supplier approved means. An authorization number provided
by Supplier and only upon prior authorization must accompany product
returned. Only those Products that are new and unused currently
manufactured, and which have been shipped to the Distributor within ninety
(90) days, will be accepted for return. Non Standard Products may not be
returned for credit. Products must be securely packed and sealed, in
original packaging, to reach Supplier without damage. Damaged Products will
not be accepted or considered for credit.
With the exceptions as noted above, Entegris, Inc. - Integrated Shipping Systems
recognize all other provisions of the Agreement.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx Grandinctti
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Xxxxxxx X. Xxxxxx Xxxxxxx Xxxxxxxxxxx
Senior Vice President, Entegris, Inc. Executive Vice President
Integrated Shipping Systems Metron Technology, Inc.
October 22, 1999 October 17, 1999
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Date Date
THIS SPACE INTENTIONALLY BLANK
-4-
Entegris Integrated Shipping Systems
Entegris, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxxx Xxxxxxxx 00000
Telephone 000-000-0000
Facsimile 719-528-2690
Entegris, Inc. - ISS Amendments to Metron / Fluoroware Contract
(7/6/98 Renewal)
EXHIBIT Al
1. The following Products are covered by this Distribution Agreement, in
addition to the Products defined in the original Exhibit A, dated 7/6/95:
1.1. Distributor shall be the exclusive distributor of the following
Products and any Products which are intended to replace such Products:
1.1.1. Wafer Shipping System
a. Ultrapak(R)Wafer Shipping Systems - All sizes
b. Ultrapak(R)SC (Sentinel Cassette) Wafer Shipping Systems -
All Sizes
c. Voyager(R)150mm, 200mm, and 300mm Wafer Shipping Systems
d. Crystalpak(R)Wafer Shipping systems - 200mm and 300mm
e. Crystalpak(R)SC (Sentinel Cassette) Wafer Shipping Systems -
200mm and 300mm
f. Sentinel(R) and Sentinel Plus@ Wafer Shipping Systems -
200mm
g. Orion(R) Wafer Shipping Systems - All Sizes
1.1.2. 300mm Front Opening Shipping Box (F.O.S.B.)
1.1.3. Disk Shipping System
a. All Sizes
1.1.4. Disk Process Carrier
a. All Sizes
2. Distributors discounts for each Product, defined herein, shall be:
2.1. Orders shipped directly to Metron Technology location, as defined in
Exhibit "B" - Per attached price list.
2.2. Orders shipped directly to Metron Technology customer location
- Ten Percent (10%) of net sales price established on Customer
Purchase Order to Metron Technologies
or
- Ten Percent (10%) of net sales price established on Commercial
Invoice to Metron Technologies customer.
3. The following accounts are designated as Entegris, Inc. ISS Global
Strategic Accounts. For these accounts the Distributor will provide local
representative support and receive a five percent (5%) commission on paid
invoices for product shipped to the Strategic Account entities or locations
within the Distributor's defined Territories, outlined on Exhibit B1.
3.1 Disk Strategic Accounts
- Seagate Technologies Inc.
- International Business Machines (IBM) Inc.
- Komag Inc.
- HMT Inc.
- MMC
- Hoya
3.2. Wafer Strategic Accounts
- Xxxxxx
- Shinetsu Hartdotai (SEM
- MEMC
- Sumitomo Sitix
- Komatsu
- Mitsubishi Silicon
THE SPACE BELOW THIS SECTION INTENTIONALLY BLANK
-2-
Entegris Integrated Shipping Systems
Entegris, Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxxx Xxxxxxxx 00000
Telephone 000-000-0000
Facsimile 719-528-2690
Entegris, Inc. - ISS Amendments to Metron/Fluoroware Contract
(7/6/98 Renewal)
EXHIBIT B1
With the exception of the designated Strategic Accounts, listed on Exhibit Al,
located within any of the listed Territories, the Territories covered by this
Distribution Agreement include each of the following countries and any country
that is a successor to such country. Responsibility for the Territories are
divided among Distributor's subsidiaries as follows:
Metron Semiconductors Deutschland GmbH
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Refer to original Exhibit B, dated 7/6/95
Metron Semiconductors Deutschland GmbH, Filiale Italiana
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Refer to original Exhibit B, dated 7/6/95
Metron Semiconductors Benelux B.V.
----------------------------------
Refer to original Exhibit B, dated 7/6/95
Metron Semiconducteurs France S.A.
----------------------------------
Refer to original Exhibit B, dated 7/6/95
Metron Semiconductors Ltd.
--------------------------
Refer to original Exhibit B, dated 7/6/95
Metron Semiconductors Nordic AB
-------------------------------
Refer to original Exhibit B, dated 7/6/95
Metron Semiconductors (Israel) Ltd.
-----------------------------------
Refer to original Exhibit B, dated 7/6/95
Metron Semiconductors (Hong Kong) Limited
-----------------------------------------
Refer to original Exhibit B, dated 7/6/95
Metron Semiconductors Asia Limited and Metron Semiconductors Far East Limited
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Refer to original Exhibit B, dated 7/6/95
ALL SALES WITHIN JAPAN ARE SPECIFICALLY EXCLUDED
ALL SALES TO LG SILTRON (WORLDWIDE) ARE SPECIFICALLY EXCLUDED
