1
Exhibit 10.11
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406, promulgated under the Securities Act of 1933, as
amended.
INTEL CORPORATION PURCHASE AGREEMENT - CHEMICALS/GASES
Agreement #: C-06438
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Effective Date: FEB. 18, 1999
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Expiration Date: DEC. 31,2001
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CNDA #: 17452
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BUYER: Intel Corporation (and all Intel divisions and
subsidiaries, hereinafter "BUYER" or "INTEL")
Intel Corporation
0000 Xxxxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000-0000
SUPPLIER: Cabot Corporation (hereinafter "SUPPLIER")
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
X Terms and Conditions of Purchase Agreement - Goods
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Addenda attached here to and X A Product Description and Price Schedule
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Incorporated herein by reference X B Key Contacts & Intel Fab Locations
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(Xxxx "X" where applicable.) X C Quality Requirements
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X D Volume Commitments
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E
------
F
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Buyer will purchase and Supplier will sell certain Items in accordance with the
Terms and Conditions and Addenda attached hereto. All Purchase Orders issued to
Supplier by Buyer during the term of this Agreement shall be governed only by
the Terms and Conditions of this Agreement notwithstanding any preprinted terms
and conditions on Supplier's acknowledgment or Buyer's Purchase Order. Any
additional or different terms in documents exchanged by the parties subsequent
to execution of this agreement are hereby deemed to be material alterations and
notice of objection to and rejection of them is hereby given.
INTEL CORPORATION SUPPLIER
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxx
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Signature Signature
Xxxxxx Xxxxx Xxxxxxx Xxxxxxx
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Printed Name Printed Name
Commodity Manager GM & VP
---------------------------------- -------------------------------
Title Title
2/18/99 2/18/99
------------------------------------ -------------------------------
Date Date
2
TERMS AND CONDITIONS OF PURCHASE AGREEMENT - CHEMICALS/GASES
1. DEFINITIONS
A. "Release" means Buyer's authorization to ship in accordance with the
Buyer's Purchase Order, and authorizing Supplier to ship a definite
quantity of Items to a specified schedule. The Release is contained in the
Purchase Order sent to Supplier.
B. "Items" means the goods which Supplier is to provide to Buyer as set forth
on Addendum A. Any Item which is custom made for Buyer shall be indicated
by an asterisk (*) on such Addenda A.
C. "Estimated Usage" or "Forecast" is the quantity Buyer reasonably expects
to Release, however, Buyer shall not be obligated to Release such
quantities of Items.
D. "Purchase Order" is Buyer's document setting forth specific line Items
ordered and Release information.
E. "CIF" means "Cost, Insurance and Freight (named port of shipment)."
Reference Incoterms 1990.
F. "DDP" means "Delivered Duty Paid (named place of destination)." Reference
Incoterms 1990.
G. "DDU" means "Delivered Duty Unpaid (named place of destination)."
Reference Incoterms 1990.
H. "FMO" is Fab Materials Operation (a department within Intel Corporation).
I. "FOB" means "Freight on Board (named port of shipment)." Reference
Incoterms 1990.
J. "FCA" means "Free Carrier (named place of destination)". Reference
Incoterms 1990.
2. TERM OF AGREEMENT
A. The term of this Agreement shall begin on the Effective Date and continue
to the Expiration Date, unless renewed pursuant to the terms of this
Section. After the initial term, this Agreement shall be automatically
renewed from year to year (for one-year periods) without action by either
party, unless terminated pursuant to Section 5 of this Agreement. At
Buyer's option, Items may be scheduled for delivery up to three (3) months
following expiration or termination of this Agreement.
B. This Agreement shall be effective to all Intel manufacturing facilities in
the U.S. and the non-U.S. facilities identified in Addenda hereto.
3. PRICING
A. Prices of Items are as set forth in Addendum A, and may only be modified
by mutual agreement. Supplier will publish newly negotiated prices to
corporate representative and all Site buyers within 10 days of signed
agreement.
B. For any Item of which Supplier supplied Buyer [ ], during the previous
calendar year, Supplier agrees that the price for such Item shall always
be Supplier's lowest net price charged any customer for like volumes of
such Item. If the net price charged to Buyer for such is greater than that
charged to another customer of Supplier for like volumes, Supplier shall
adjust its price to Buyer to the lower price for as long as Supplier
continues to offer such lower price to another customer. In addition, to
the extent Buyer was charged a higher price during a period that Supplier
was selling like volumes of such Item to another customer at a lower
price, Supplier shall refund to Buyer the difference in the purchase price
paid by Buyer and such lower price.
C. In the event Supplier offers any Item of which Supplier supplied Buyer [
] during the previous calendar year at a lower price (taking into account
volume discounts) either as a general price drop or only to some
customer(s) for any reason, Supplier shall immediately inform Buyer of
this price.
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D. Applicable taxes and other charges such as duties, customs, tariffs,
imposts and government imposed surcharges, and freight shall be stated
separately on Supplier's invoice.
E. Additional costs, except those described in Section 3(D) or in Addenda A
or D, will not be reimbursed without Buyer's prior written approval.
F. Buyer reserves the right to have Supplier's records inspected and audited
only by an independent third party auditor to ensure compliance with
section 3B of this Agreement. At Buyer's option or upon Supplier's written
demand, such audit will be performed by an independent third party at
Buyer's expense. However, if Supplier is found to not be complying with
section 3B of this Agreement in any way, Supplier shall reimburse Buyer
for all costs associated with the audit. The results of such audit shall
be kept confidential by the auditor, and only Supplier's failures to abide
by the obligations of this Agreement shall be reported to Buyer.
G. If a new product not included in Addendum A is to be purchased regularly,
its price will be negotiated by a corporate representative at the time of
initial purchase. If the product is for test purposes only at a given
site, its price may be established between Supplier and a Sitebuyer. Said
price shall be in effect until such time as an Intel part number is
created, at which time a corporate-wide price will be negotiated by a
corporate representative.
H. Supplier will publish quarterly updates of Addendum A to FMO, all Buyer's
Site Chemicals buyers and Buyer's Accounts Payable department, including
new chemicals, their negotiated prices, supplier part numbers, Intel part
numbers and any other changes. Quarterly updates of Addendum A will be
issued on 1/30, 4/30, 7/30 and 10/30 of each year. Names and addresses of
all parties to receive the updates will be provided and updated by Site
buyer (see Addendum B).
I. U.S. and non-U.S. prices will be fixed in U.S. dollars regardless of the
Item country of origin or destination. Buyer retains the right to buy from
Supplier or any subsidiaries of Supplier in U.S. dollars.
J. The cost of containers, both returnable and disposable, diptubes and any
required accessories will be included in the cost of the chemical
K. Warehousing costs will be separate from this Agreement and will be billed
separately.
4. INVOICING AND PAYMENT
A. Any applicable prompt payment discounts will be computed from the latest
of: (i) the scheduled delivery date; (ii) the date of actual delivery; or
(iii) the date a properly filled out original invoice or packing list is
received. Payment is made when Buyer's check is mailed or EDI funds
transfer initiated. Buyer shall make payment within forty-five (45) days
of receipt of the proper original invoice or packing list.
B. Original invoices or packing lists shall be submitted and shall include:
full legal company name, payment terms, freight terms, tax status and
rate, purchase agreement number from the Purchase Order, purchase order
number, line Item number, Release number, part number, complete xxxx to
address, description of Items, quantities, unit price and extended totals.
Buyer's payment shall not constitute acceptance. Invoice must match
Buyer's PO and packing slip exactly including unit of measure.
C. Supplier shall provide to Buyer's Accounts Payable, and update as
necessary, the names and phone numbers of a contact in Accounts
Receivable.
D. All international shipments must be accompanied by original invoice.
E. Supplier will invoice Buyer for material and services no later than 120
days after delivery.
5. TERMINATION
This Agreement may not be terminated by either party prior to the
Expiration Date, except upon material breach by the other party. The
Agreement may be terminated by
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either party on or after the Expiration Date by delivering to the other
party written notice of termination at least one year prior to the date of
such termination.
6. CONTINGENCIES
Neither party shall be responsible for its failure to perform due to
causes beyond its reasonable control such as acts of God, fire, theft,
war, riot, embargoes or acts of civil or military authorities. If delivery
is to be delayed by such contingencies, Supplier shall immediately notify
Buyer in writing and Buyer may either: (i) extend time of performance; or
(ii) terminate all or part of the uncompleted portion of the Purchase
Order at no cost to Buyer.
7. DELIVERY, RELEASES AND SCHEDULING
A. Any Forecasts provided by Buyer are for planning purposes only and do not
constitute a Release or other commitment by Buyer.
B. [Left intentionally blank]
C. Supplier shall notify Buyer in writing within two (2) business days of
receipt of Buyer's Purchase Order if Supplier is unable to make any
scheduled delivery and state the reasons therefor. The absence of such
notice constitutes acceptance of the Purchase Order and commitment to the
Release terms.
D. Supplier shall not deliver Items earlier than five (5) business days prior
to agreed scheduled delivery dates and Buyer may return early, excess, or
non-conforming shipments at Supplier's risk and expense.
E. Buyer may reschedule or cancel any Release in whole or in part prior to
the Release date at no additional charge.
F. Buyer may place any portion of a Release on hold by notice which shall
take effect immediately upon receipt. Releases placed on hold will be
rescheduled or canceled within a reasonable time.
G. Supplier shall not deliver Items until such Items are specified in an
issued Purchase Order which contains specific Release dates for specific
Items.
H. Purchase orders will specify the destination date at Buyer dock or
designated warehouse.
I. Supplier must notify FMO, Accounts Payable and all Site Chemical buyers
immediately in writing of any changes, including changes in delivery
schedules, part numbers, contact persons and the party to be invoiced.
J. Supplier must provide FMO with a Certificate of Analysis (C of A) or
sample for each lot to be shipped, as directed in the most current
appropriate Intel Specification (Addendum C).
K. Buyer may return any standard Item in same condition as received within
[ ] days of receipt. Buyer will pay return freight and disposal costs,
if necessary (Disposal costs paid only if the product conformed to all
required specifications in place). Reimbursement for Items returned will
be made by credit memo.
L. Supplier shall ship all Items according to the delivery address provided
on each Purchase Order submitted by Buyer.
M. Supplier shall provide and update as necessary the name and phone number
of one person which Buyer's representative may contact regarding
scheduling and delivery. Additionally, Supplier will provide 24-hour
hotline/contact number which Buyer may contact in case of emergency.
N. Supplier agrees to maintain safety stock on specified Items as mutually
agreed with Buyer's local sites. Supplier shall notify Buyer whenever
safety stock falls below minimum levels and will provide a corrective
action plan to replenish Items. In the event Buyer no longer intends to
purchase a particular Item from Supplier for use at a particular site,
Buyer shall so notify Supplier of such fact and Buyer shall purchase
Buyer's minimum required safety stock of such Items at that site.
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O. Supplier shall maintain an on-hand supply of emergency packaging material
sufficient to meet pre-agreed requirements with Buyer's Site Chemical
buyer.
8. ACCEPTANCE AND WARRANTY
A. Buyer may with reasonable advance notification inspect and test all Items
at reasonable times before, during and after manufacture. If any
inspection or test is made on Supplier's premises, Supplier shall provide
reasonable facilities and assistance for the safety and convenience of
Buyer's inspectors in such manner as shall not unreasonably hinder or
delay Supplier's performance. All Items shall be received subject to
Buyer's inspection, testing, approval and acceptance at Buyer's premises
notwithstanding any inspection or testing at Supplier's premises or any
prior payment for such Items. Items rejected by Buyer as not conforming to
this Agreement or Item specifications whether provided by Buyer or
furnished with the Item may be returned to Supplier at Supplier's risk and
expense and, at Buyer's request shall immediately be repaired or replaced.
B. Supplier warrants that all Items furnished here under shall be new, of the
grade and quality specified, conform to all agreed-to specifications, and
will be free of liens and encumbrances (excluding claims of intellectual
property infringement, which are the exclusive subject of Section 14).
These warranties shall survive any delivery, inspection, acceptance,
payment or resale of the Items. Original specifications and any subsequent
modifications to those specifications shall be agreed upon by both Buyer
and Supplier. SUPPLIER MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE ITEMS, WHETHER USED ALONE
OR IN COMBINATION WITH OTHER SUBSTANCES, EVEN IF THE PURPOSES OR USES OF
SUCH PRODUCTS ARE KNOWN BY SUPPLIER.
C. During the Items' specified shelf life, at Buyer's option, Supplier shall
promptly repair, replace or refund the purchase price of all Items not
conforming to the foregoing warranties, and shall also refund the cost of
return shipping of such Items. Supplier will bear the risk of loss of such
Items while in transit. [ ] As used herein, "Non-Conformance Event"
shall mean the receipt by Buyer of a lot of Items which are not in
conformity with the warranty given in Section 8B above. IN NO EVENT SHALL
SELLER BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING IN WARRANTY UNDER THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. [ ] NOTHING IN THIS SECTION IS
INTENDED TO PLACE A LIMITATION ON EITHER PARTY'S LIABILITY IN TORT FOR
PERSONAL INJURY.
D. Freight charges for returned non-conforming Items shall be paid by
Supplier with the understanding that returns must be authorized in
accordance with Supplier's return authorization procedures. Returns must
be authorized by Supplier within 10 days of Buyer's request. Credit for
returned Items will be issued within 30 days of notification by Buyer.
E. Notwithstanding anything to the contrary contained in this Agreement,
Supplier represents and warrants to Buyer that there will be no disruption
in the supply of those goods and/or services which are under the direct
control of the Supplier as a result of or due to the date change from and
between December, 1999, and January, 2000, nor due
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to the year 2000 being a leap year. Supplier does not provide any such
warranty for disruptions caused by those goods and/or services which are
not under the Supplier's direct control. As used herein, "direct control"
refers to goods and/or services which the Supplier actively manages by
contract and/or owns. [ ]
9. PRODUCT SPECIFICATIONS/IDENTIFICATION/ ERRATA
A. Supplier shall not modify the specifications for Items without Buyer's
written consent. Supplier shall notify FMO and all Site Chemical buyers
immediately in writing of any change in Supplier's part number, in the
manufacturing process, packaging or description for any Item sold to Buyer
at least ninety (90) days in advance of any changes. Such notice shall
also be included in the quarterly update mentioned in Section 3 (I).
B. Supplier shall cooperate with Buyer to provide configuration control and
traceability systems for Items supplied hereunder.
C. Items must comply with Buyer's raw material specifications (Intel
Specification 07-400).
D. As long as Buyer is purchasing a particular Item, Supplier shall notify
FMO and all Site Chemical buyers at least one year in advance of expected
discontinuance of that Item. Exception: In the event of changes or
discontinuation required by governmental order or requirement, Supplier
shall notify Buyer in writing immediately. Notification of any change in
product specification must follow Intel's " Materials Change Control
Procedure." (Intel Specification 07-120).
E. Where an existing agreed-to Intel Specification (Addendum C) is updated,
the updated Specification must be agreed to by Buyer and Supplier before
it will be in effect.
10. CONTAINERS AND DIPTUBES
A. All necessary chemical containers, packaging and diptubes will be provided
by Supplier and included in the cost of the Item.
B. All containers and diptubes shall be inspected by Supplier before each use
and repaired or replaced as necessary.
C. At all times, ownership and title of containers and diptubes will remain
with the Supplier.
D. Buyer will not be responsible for any additional charges for acquisition,
termination or disposal of containers or diptubes.
E. In the event that containers or diptubes become damaged through neglect or
misuse by Buyer, Buyer will reimburse Supplier an amount agreed upon and
pro-rated based upon useful life.
F. All packaging including quartz, stainless steel, bottles, drums and ICBs,
shall be equipped with tamper evident seals.
11 PACKING AND SHIPMENT
A. Shipments to Israel: Delivery terms for Israel will be DDP Intel,
Jerusalem. Supplier fulfills its obligation to deliver when Items are made
available at Buyer's dock or designated warehouse. Supplier will bear all
risks, liabilities and costs involved in bringing the Items thereto. Buyer
will ship empty containers to the point of manufacture in a timely manner.
B. Shipments to Ireland: Delivery terms for Ireland will be DDU Intel,
Leixlip. Supplier fulfills its obligation to deliver when Items are made
available at Buyer's dock or designated warehouse. Supplier will bear all
risks, liabilities and costs involved in bringing the Items thereto,
excluding duties, taxes and other official charges payable upon
importation. Buyer will ship empty containers to the point of manufacture
in a timely manner.
C. For all other Intel Factories, both U.S. and non-U.S., Items shall be DDP
Buyer's dock or as otherwise specified in the Release. Buyer will ship
empty containers to the point of manufacture in a timely manner. All Items
shall be prepared for shipment in a manner
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which: (i) follows good commercial practice; (ii) is acceptable to common
carriers for shipment at the lowest rate; and (iii) is adequate to ensure
safe arrival. Supplier shall xxxx all containers with necessary lifting,
handling and shipping information, purchase order number, date of shipment
and the names of the Buyer and Supplier. Buyer shall notify Supplier of
the method of shipment and expected delivery date. If no instructions are
given, Supplier shall select the most cost effective carrier, given the
time constraints known to Supplier. Supplier shall ship only the quantity
of Items specified in the Release. Buyer may return at Supplier's expense
any Items in excess of the quantity stated in the Release.
D. Supplier shall be responsible for all Supplier's activities through
manufacture, storage, transport, and delivery of Items to Buyer. In the
event that Buyer must deploy emergency, safety, or materials personnel in
response to an emergency or non-compliance with Intel or regulatory
procedure involving Items supplied hereunder, Buyer and Supplier will
review the incident. If Buyer and Supplier agree that (i) such deployment
was necessary, and (ii)Supplier's negligent act or failure to act was the
proximate cause of such emergency or non-compliance, then Supplier agrees
to reimburse Buyer for the out-of-pocket cost incurred by Buyer in
deploying its personnel to respond to such incident. Supplier will not be
responsible for costs incurred by such deployment due to Buyer's negligent
act or failure to act. International shipments: Supplier will provide
Buyer's representative with shipping documents as requested. Buyer's
purchase orders will contain detailed shipping instructions.
E. Shipment of all Items qualified for Buyer's Preship or Direct Ship
Programs will be done in accordance with latest mutually accepted Intel
Specification 07-402 (Intel Chemical and Gas Quality Program.).
12. OWNERSHIP AND BAILMENT RESPONSIBILITIES
A. Any specifications, drawings, schematics, technical information, data,
tools, dies, patterns, masks, gauges, test equipment, and other materials
furnished or paid for by Buyer shall: (i) be kept confidential; (ii)
remain Buyer's property; (iii) be used by Supplier exclusively for Buyer's
orders; (iv) be clearly marked as Buyer's property and segregated when not
in use; (v) be kept in good working condition at Supplier's expense; and
(vi) be shipped to Buyer promptly on demand.
B. Supplier shall insure Buyer's property and be liable for loss or damage
while in Supplier's possession or control, ordinary wear and tear
excepted.
13. CONFIDENTIALITY AND PUBLICITY
A. During the course of this Agreement, either party may have or may be
provided access to the other's confidential information and materials.
Provided such are marked in a manner reasonably intended to make the
recipient aware, or the recipient is sent written notice within
forty-eight (48) hours of disclosure, that the information or materials
are "Confidential", each party agrees to maintain such information in
accordance with the terms of this Agreement and the CNDA referenced on the
signature page of this Agreement or any applicable separate nondisclosure
agreement between Buyer and Supplier. In the absence of a CNDA or other
written agreement, at a minimum each party agrees to maintain such
information in confidence and limit disclosure on a need to know basis, to
take all reasonable precautions to prevent unauthorized disclosure, and to
treat such information as it treats it's own information of a similar
nature, until the information becomes publicly available through no fault
of the non disclosing party. Supplier's employees who access Buyer's
facilities may be required to sign a separate non-disclosure agreement
prior to admittance to Buyer's facilities.
B. The parties agree that neither will disclose the existence of this
Agreement, nor any of its details or the existence of the relationship
created by this Agreement, to any third party without the specific,
written consent of the other. If disclosure of this Agreement
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or any of the terms hereof is required by applicable law, rule or
regulation, or is compelled by a court or governmental agency, authority
or body: (i) the parties shall use all legitimate and legal means
available to minimize the disclosure to third parties of the content of
the Agreement, including without limitation seeking a confidential
treatment request or protective order; (ii) the disclosing party shall
inform the other party at least ten (10) business days (i.e., not a
Saturday, Sunday or a day on which banks are not open for business in the
geographic area in which the non-disclosing party's principal office is
located) in advance of the disclosure; and (iii) the disclosing party
shall give the other party a reasonable opportunity to review and comment
upon the disclosure, and any request for confidential treatment or a
protective order pertaining thereto, prior to making such disclosure. The
parties may disclose this Agreement in confidence to their respective
legal counsel, accountants, bankers and financing sources as necessary in
connection with obtaining services from such third parties. The
obligations stated in this section shall survive the expiration or
termination of this Agreement.
14. PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS AND MASKWORK RIGHTS
A. Supplier makes no agreement to defend, indemnify or hold Buyer harmless
from any costs, expenses, losses, damages or liabilities incurred because
of actual or alleged infringement of any patent, trade secret or other
intellectual property right by, or arising from use of, [ ] slurry or
any other Items designated as custom by the parties. For all other Items,
Supplier agrees to indemnify and hold Buyer harmless from any costs and
expenses (including reasonable attorneys' fees) incurred in connection
with, and damages awarded to a third party as a direct result of,
adjudicated claims of infringement of any third party patent, trade
secret, trademark or other intellectual property right arising out of the
purchase of Items by Buyer or the use of Items by Buyer or Buyer's
customers, provided, however, that Seller is not obligated to so indemnify
Buyer, if (i) the sale of such Item by Supplier does not constitute
contributory infringement or inducement to infringe; or (ii) Buyer
modifies the Item; or (iii) Buyer uses the Item in a manner other than the
specific use for which the Item is sold by Supplier. Buyer shall promptly
notify Supplier of such claim or demand and shall permit Supplier to
participate in the defense thereof.
B. [ ] Supplier shall have the right to settle said claim at its
discretion.
C. If an injunction issues as a result of any such claim or action or if
Supplier determines in good faith that it is unable or unwilling to supply
an Item because the Item itself or the use of the Item may infringe a
patent or may constitute a misappropriation of a trade secret, Supplier
agrees at its expense and Buyer's option to either: (i) procure for Buyer
and Buyer's customers the right to continue using Items; (ii) replace them
with non-infringing Items; or (iii) modify them so they become
non-infringing. Buyer's sole remedy for Supplier's failure to supply or to
obtain the remedy elected shall be [ ], and upon [ ] Supplier
shall not be deemed in breach of this Agreement.
D. [ ]
15. HAZARDOUS MATERIALS
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A. If Items or any services provided hereunder include hazardous materials as
defined by relevant local, state, and national law, Supplier represents
and warrants that Supplier and its personnel providing services to Buyer
understand the nature of and hazards associated with the design and/or
service of Items including handling, transportation, and use of such
hazardous materials, as applicable to Supplier. Prior to causing hazardous
materials to be on Buyer's property, Supplier shall obtain written
approval from Buyer's Site Environmental/Health/Safety organization.
Supplier will indemnify Buyer from any environmental liability incurred by
Buyer which results from the shipment and delivery of hazardous Items to
Buyer, provided Buyer's negligence was not a proximate cause of such
liability.
B. Supplier will timely provide Buyer with material safety data sheets and
any other documentation reasonably necessary to enable Buyer to comply
with applicable laws and regulations.
C. Supplier hereby certifies that Items supplied to Buyer do not contain and
are not manufactured with any ozone depleting substances, as those terms
are defined by law.
16. CUSTOMS CLEARANCE
Upon Buyer's request, Supplier will promptly provide Buyer with a
statement of origin for all Items and with applicable customs
documentation for Items wholly or partially manufactured outside of the
country of import.
17. COMPLIANCE WITH LAWS
A. Supplier shall comply with all national, state, and local laws and
regulations governing the manufacture, transportation, and/or sale of
Items and/or the performance of services in the course of this Agreement.
In the United States, these may include, but are not limited to,
Department of Commerce, Environmental Protection Agency, and Department of
Transportation regulations applicable to hazardous materials.
B. Supplier represents and agrees that it is in compliance with Executive
Order 11246 and implementing Equal Employment Opportunity regulations and
the Immigration Act of 1987, unless exempted or inapplicable.
18. MERGER, MODIFICATION, WAIVER, AND REMEDIES
A. This Agreement contains the entire understanding between Buyer and
Supplier with respect to the subject matter hereof and merges and
supersedes all prior and contemporaneous agreements, dealings and
negotiations. No modification, alteration or amendment shall be effective
unless made in writing, dated and signed by duly authorized
representatives of both parties.
B. No waiver of any breach hereof shall be held to be a waiver of any other
or subsequent breach.
C. Except as otherwise expressly limited herein, the parties' rights and
remedies herein are in addition to any other rights and remedies provided
by law or in equity.
D. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such determination
shall not affect the validity of the remaining provisions unless Buyer
determines in its discretion that the court's determination causes this
Agreement to fail in any of its essential purposes.
19. ASSIGNMENT
Neither party may assign or factor any rights in nor delegate any
obligations under this Agreement or any portion thereof without the
written consent of the other. However, Supplier may assign its rights and
obligations hereunder to its direct and indirect subsidiaries, without
such consent. Buyer may cancel this Agreement for cause should Supplier
attempt to make an unauthorized assignment of any right or obligation
arising hereunder.
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20. APPLICABLE LAW
This Agreement is to be construed and interpreted according to the laws of
the State of Delaware, excluding its conflict of laws provisions. This
Agreement is not subject to the United Nations Convention on Contracts for
the International Sale of Goods, in accordance with Article 6 thereof.
21. HEADINGS
The headings provided in this Agreement are for convenience only and shall
not be used in interpreting or construing this Agreement.
22. SPECIFIC PERFORMANCE
Notwithstanding anything else contained in this Agreement, the parties
hereto agree that failure to perform certain obligations undertaken in
connection with this Agreement would cause irreparable damage, and that
monetary damages would not provide an adequate remedy in such event. The
parties further agree that failure to deliver against accepted Purchase
Orders, or to deliver confirmed supply or pricing, are such obligations.
Accordingly, it is agreed that, in addition to any other remedy to which
the non breaching party may be entitled, at law or in equity, the non
breaching party shall be entitled to injunctive relief to prevent breaches
of the provisions of this Agreement, and an order of specific performance
to compel performance of such obligations in any action instituted in any
court of the United States or any state thereof having subject matter
jurisdiction.
23. SURVIVAL
The provisions of Sections: 1, 8, 13, 14, 15, 20 will survive any
termination or expiration of this Agreement. In addition, any license
granted pursuant to Section 25 which is exercised prior to the Expiration
Date shall remain in force and effect for a period of three (3) years
following the Expiration Date, and Section 25 shall survive for this
three-year time period following the Expiration Date.
24. VOLUME COMMITMENTS
A. Buyer's and Supplier's volume obligations and sales commitments for
[ ] are set forth in Addendum D for the years set forth therein.
B. Notwithstanding the volume obligations described above and set forth in
detail in Addendum D of this Agreement, in the event that (i) Buyer is
made a party to litigation arising from a claim of intellectual property
infringement for which Buyer is indemnified, pursuant to Section 14 above,
and (ii) Buyer determines, in good faith, after a thorough review of the
claim, underlying patent, requested relief, Buyer's defenses and other
relevant facts, that [ ], unless Supplier agrees in writing to
increase [ ] set forth in Section 14 to a level which exceeds [ ].
C. Notwithstanding the volume obligations described above and set forth in
detail in Addendum D of this Agreement, in the event Supplier does not
supply a particular
- 10 -
11
Item for the reasons stated in Section 14C above, Supplier shall be
released from its contractual obligation to supply the affected Item to
Buyer.
25. LICENSE
A. Supplier agrees to grant to Buyer and/or its designee a contingent,
royalty-free, fully-paid, worldwide, non-exclusive, irrevocable license,
under those intellectual property rights that are owned by Supplier, or
licensed to Supplier (which Supplier has the right to sublicense), that
are necessary to make, use and import, and in the case of any such
designee, to sell to Buyer or offer for sale to Buyer, those specific
Items that Supplier is not able to supply under this Agreement for one of
the following reasons:
[ ]
The above described license is expressly limited to the right to make
Items for Buyer's sole use, or in the case of a designee, to make, sell or
offer for sale Items (not supplied for the reasons set forth above), in an
amount not to exceed those set forth in Addendum D, for Buyer's sole use.
In addition, the above described license shall not obligate Supplier to
disclose any trade secrets to Buyer or its designee other than the
formulation (i.e., the ingredients and proportions) of the Item which has
not been supplied. Any disclosure of such Item's formulation to Buyer
and/or its designee shall be subject to Buyer and/or its designee entering
into appropriate obligations of confidentiality with respect to such
formulation.
B. In the event (i) Buyer is made a defendant in litigation by any person or
entity other than [ ], arising from a claim of patent infringement for
which Buyer is indemnified, pursuant to Section 14 above; and (ii)
Supplier is willing to continue to supply the affected Items; and (iii)
Supplier is unable to settle such litigation [ ]; and (iv) Buyer
determines, in good faith, after a thorough review of the claim,
underlying patent, requested relief, Buyer's defenses and other relevant
facts, that [ ]:
(i) [ ] to Buyer and/or its designee [ ], and in the case of
any such designee, [ ], those specific Items (in an amount not to
exceed that set forth in Addendum D) that are the subject of such
litigation, provided, that Supplier [ ]. The [ ] in such case with
respect to the [ ] shall be [ ]
- 11 -
12
of the purchase price or fair market value (if produced by Buyer
internally) of the Item that is [ ]; or
(ii) [ ] to Buyer and/or its designee [ ], and in the case
of any such designee, [ ], those specific Items that are the subject
of such litigation. The [ ] in such case shall be [ ] of the
purchase price or fair market value (if produced by Buyer internally) of
the Item that is [ ]. The foregoing [ ] is expressly limited to
the right to [ ] (in an amount not to exceed that set forth in
Addendum D) for Buyer's sole use.
In the event Buyer exercises its right to have a [ ] to Buyer and/or
its designee under this Section 25B, any such [ ] shall not
subsequently revert to a [ ] under Section 25A, regardless of whether
Supplier subsequently stops supplying the affected Item.
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13
ADDENDUM A
PRODUCT DESCRIPTION AND PRICE SCHEDULE
A. [ ]
TABLE A
PRICES WHICH APPLY IF BUYER PURCHASES [ ]
-----------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION PRICE PER GALLON
-----------------------------------------------------------------------------------------------------------------
[ ] IBC United States United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC Barry, Wales United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC/DTA United States United States (FOB local $[ ]
Warehouse)
-----------------------------------------------------------------------------------------------------------------
TABLE B
PRICES WHICH APPLY IF BUYER PURCHASES [ ]
-----------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION PRICE PER GALLON
-----------------------------------------------------------------------------------------------------------------
[ ] IBC United States United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC Barry, Wales United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC/DTA United States United States (FOB local $[ ]
Warehouse)
-----------------------------------------------------------------------------------------------------------------
- 13 -
14
TABLE C
PRICES WHICH APPLY IF BUYER PURCHASES [ ]
-----------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION PRICE PER GALLON
-----------------------------------------------------------------------------------------------------------------
[ ] IBC United States United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC Barry, Wales United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC/DTA United States United States (FOB local $[ ]
Warehouse)
-----------------------------------------------------------------------------------------------------------------
Prices for purchases of [ ] between the [ ] shown in the above
tables [ ] shall be determined by a straight line extrapolation of the
prices shown in the above tables.
The price per gallon of [ ] shall be calculated based upon the percent
share of Buyer's requirements for [ ] which Buyer forecasts for the
relevant calendar year. For example, if Buyer purchases [ ] from
Supplier in calendar year 2000, the price will be determined using Table B.
However, if Buyer purchases [ ] from Supplier in calendar year 2000,
the price will be determined using Table A.
B. [ ]
--------------------------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF DESTINATION PRICE BASED ON CUMULATIVE VOLUMES OF [ ] PURCHASED
MANUFACTURE
# [ ]-[ ]* [ ]-[ ]* [ ]-[ ]* [ ]-[ ]* [ ]-[ ]* >[ ]*
[ ] IBC United States United States (FOB $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
local warehouse)
United States Israel $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
(DDP)
United States Ireland (DDU) $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
--------------------------------------------------------------------------------------------------------------------------------
* volumes in thousands of gallons
The price per gallon of [ ] shall be calculated based upon the
cumulative volume of gallons of [ ] purchased by Buyer from
- 14 -
15
Supplier during the term of this Agreement. Adjustments to the price,
based upon the cumulative gallons of [ ] purchased by Buyer from
Supplier, shall take effect in the quarter following the quarter in which
Buyer surpasses a volume threshold.
C. [ ]*
-------------------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION # PRICE PER GALLON
[ ] IBC United States United Sates (FOB local warehouse) $[ ]
[ ] IBC United States Ireland (DDU) $[ ]
[ ] IBC Xxxxx, Wales Ireland (DDU) $[ ]
[ ] IBC Xxxxx, Wales United Sates (FOB local warehouse) $[ ]
-------------------------------------------------------------------------------------------------------------------------
*[ ]
D. [ ]
------------------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION # PRICE PER GALLON
[ ] IBC United States United Sates (FOB local warehouse) $[ ]
------------------------------------------------------------------------------------------------------------------------
- 15 -
16
ADDENDUM B
KEY CONTACTS & INTEL FAB LOCATIONS
DEPARTMENT/TITLE NAME PHONE
OHKA:
Account Representative Xxxx Xxxxxx 000-000-0000
Accounts Receivable 000-000-0000
24-Hour Emergency Contact Xxxx Xxxxxx 000-000-0000
Schedule/Delivery Contact Xxxx Xxxxx 000-000-0000
General Xxxxx Xxxxxxx 000-000-0000
INTEL:
FMO
Commercial Xxxxxx Xxxxx 000-000-00
Technical Xxx Xxxxxxxxxxxx 000-000-0000
Xxx Xxxxxxxxxxx 000-000-0000
Buyers
Ireland Xxxxxxxxx Xxxxxxx 011-353-1-606-8630
New Mexico Xxxx Xxxxxxx 000-000-0000
Fab 6 Xxxxx Xxxxx 000-000-0000
Fab 12 Xxxxx Xxxxx 000-000-0000
Israel
Fab 8 Xxxx Provad 011-972-2-5896357
Fab 18 Xxxxx Xxxx 011-972-7-666-6953
Santa Xxxxx
D2 Xxxxx Ma 000-000-0000
Xxxxx Xxxxxxxx 000-000-0000
Oregon Xxxxxxx Xxxxxxx 000-000-0000
Massachusetts
F17 Xxxx Xxxxxx
Accounts Payable:
AZ/CA Xxxxx Xxxxxx 000-000-0000
OR Xxxxxxx Xxxxxxx 503-696-3046
NM Xxxxxx Xxxxxx 000-000-0000
- 16 -
17
ADDENDUM C
QUALITY REQUIREMENTS
LIST OF GOVERNING INTEL SPECIFICATIONS
-------------------------------------------------------------------------------------------
SPEC. NO. REV. TITLE ISSUE DATE
-------------------------------------------------------------------------------------------
07-116 0 MATERIALS CHANGE CONTROL POLICY 05/22/98
-------------------------------------------------------------------------------------------
07-123 2 SUPPLIER CORRECTIVE ACTION POLICY 02/25/98
-------------------------------------------------------------------------------------------
07-124 4 FMO/ATMO-DISCREPANT RAW MATERIAL DISPOSITION POLICY 06/09/98
-------------------------------------------------------------------------------------------
07-400 7 CHEMICALS SPECIFICATION SYSTEM 06/05/97
-------------------------------------------------------------------------------------------
07-401 6 PROCEDURE FOR SHIPPING & RECEIVING OF CHEMICALS 12/05/97
-------------------------------------------------------------------------------------------
07-402 5 INTEL CHEMICAL QUALITY PROGRAM 06/26/98
-------------------------------------------------------------------------------------------
07-403 2 SHIPPING OF TEMP-SENSITIVE CHEMICALS 12/05/97
-------------------------------------------------------------------------------------------
07-411 4 PROCUREMENT SPEC FOR CHEMICALS 11/25/98
-------------------------------------------------------------------------------------------
- 17 -
18
ADDENDUM D
VOLUME OBLIGATIONS
A. [ ]
During the years set forth below, Buyer shall be obligated to purchase
from Supplier [ ] During the years specified below, Supplier shall be
obligated to supply to Buyer [ ]
[ ] SLURRY VOLUME OBLIGATIONS
-------------------------------------------------------------------------------------
CALENDAR YEAR BUYER'S [ ] PERCENTAGE SUPPLIER'S [ ] PERCENTAGE
-------------------------------------------------------------------------------------
1999 [ ]% [ ]%
-------------------------------------------------------------------------------------
2000 [ ]% [ ]%
-------------------------------------------------------------------------------------
2001 [ ]% [ ]%
-------------------------------------------------------------------------------------
Ninety days prior to the commencement of each calendar year, Buyer shall commit
and obligate itself to purchase from Supplier [ ] which it shall purchase
from Supplier during the upcoming year. The amount of [ ] which Buyer will
purchase, above the [ ], will be determined according to whether Supplier
meets requirements set by Buyer's Supplier Score Card.
B. [ ]
During the years set forth below, Buyer shall be obligated to purchase
from Supplier [ ] During the years specified below, Supplier shall be
obligated to supply to Buyer [ ]
- 18 -
19
Notwithstanding the foregoing, during the course of any calendar year, Buyer
may, by giving 4 months advance written notification to Supplier, increase its
forecasted [ ] requirements for the remainder of the year (starting after
the 4 month notice period), provided, however, such new forecasted amount may
not exceed a volume which is greater than the product of the remaining volumes
from the original forecasted amount, multiplied by [ ].
[ ] SLURRY VOLUME OBLIGATIONS
------------------------------------------------------------------------------------
CALENDAR YEAR BUYER'S [ ] PERCENTAGE SUPPLIER'S [ ] PERCENTAGE
------------------------------------------------------------------------------------
1999 [ ]% [ ]%
------------------------------------------------------------------------------------
2000 [ ]% [ ]%
------------------------------------------------------------------------------------
2001 [ ]% [ ]%
------------------------------------------------------------------------------------
90 days prior to the commencement of 2001, Buyer shall commit and obligate
itself to purchase from Supplier [ ] which it shall purchase from Supplier
during 2001. The amount of [ ] which Buyer will purchase, above the [ ],
will be determined according to whether Supplier meets requirements set by
Buyer's Supplier Score Card.
C. [ ]
During the years set forth below, Buyer shall be obligated to purchase from
Supplier [ ] For each month of this Agreement, Supplier shall be obligated
to supply to Buyer [ ]
[ ] SLURRY VOLUME OBLIGATIONS
-----------------------------------------------------------------
CALENDAR YEAR [ ] PERCENTAGE [ ] PERCENTAGE
-----------------------------------------------------------------
1999 [ ]% [ ]%
-----------------------------------------------------------------
2000 [ ]% [ ]%
-----------------------------------------------------------------
2001 [ ]% [ ]%
-----------------------------------------------------------------
D. [ ]
Neither Buyer nor Supplier have any volume obligations with respect to
[ ]
- 19 -
20
With respect to all of the above describe Items, in the event Buyer does not
purchase a particular Item for use in its facilities in either [ ] for any
[ ] Supplier shall no longer be obligated to supply such Item to Buyer's
facilities in the relevant geographic region.
- 20 -
