Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 1 of 16
`Case 5:20-cv-05676—EJD Document 42-9 Filed 12/07/20 Page 1 of 16
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`EXHIBIT G
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`EXHIBIT G
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`

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`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 2 of 16
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`Sale and Relationship Agreement
`
`This Sale and Relationship Agreement ("this Agreement") made this 11th day of
`December 1998, is by and between Applied Komatsu Technology America Inc., a
`Californi~ corporation having offices at 3101 Scott Boulevard, Santa Clara, California
`95054 ("AKTA"), representing, as appropriate, Applied Komatsu Technology, Inc.
`("AKT"), and Symmorphix Inc., a Delaware corporation having offices at 1111 West El
`Camino Real, No. 109-233, Sunnyvale, California 94087 ("Symmorphix").
`
`1. AKTA shall sell and Symmorphix shall buy the following two (2) systems
`("Equipment") at the prices stated below:
`• AKTA PVD 1600 SIN Alpha 2, asset tag# C201153, 3-chamber system
`• AKTA PVD 3500 S/N Alpha 1, asset tag# C201155, 2-chamber system
`To ta l -
`
`2. The purchase and sale of the Equipment shall be as described in AKTA's standard
`Terms and Conditions of Sale, shown in Exhibit A, attached hereto and made a part of
`this Agreement.
`
`3. The payment schedule for the Capital Equipment will be as follows:
`•
`-
`cash ten (10) days from date of execution of this Agreement
`•
`-
`cash thirty (30) days from first payment due date
`•
`-
`cash thirty (30) days from second payment due date
`•
`-
`cash thirty (30) days from third payment due date
`•
`-
`cash thirty (30) days from fourth payment due date
`• Final balance o f - payable in cash on or before May 31 , 1999.
`
`4. Title to the Equipment will remain with AKTA until one hundred percent of the
`purchase price has been received by AKTA.
`
`5. If Symmorphix does not substantially comply with the required payments described
`in Section 3 of this Agreement, then Symmorphix shall lose its right to purchase the
`Equipment under this Agreement, and AKTA shall retain title and ownership to the
`Equipment and any moneys paid by Symmorphix hereunder. AKTA shall provide
`Symmorphix with at least ten (10) days prior written notice of AKTA's intention to
`exercise its rights under this Section 5. Symmorphix will be allowed, during this ten (10)
`day notice period, to cure any failure and recover its rights and position hereunder.
`
`6. AKTA shall provide Symmorphix with the following access to AKTA facilities, which
`shall extend through and including April 30, 1999. No modification or extension shall be
`effective unless by written agreement, signed by authorized representatives of AKTA
`and Symmorphix. AKTA will provide office space for designated Symmorphix
`personnel and such Applications Lab facilities as are required to operate the PVD 1600
`Serial # Alpha 2 system. The applicable office space, access routes, and use areas
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`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 3 of 16
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`shall be as shown in Exhibit B, attached hereto and made a part of this Agreement,
`subject to change by mutual written agreement. Symmorphix will at all times comply
`with AKTA's lab operation procedures, safety procedures and regulations, and standard
`practices when working in the AKTA Applications Lab. Access to analytical equipment
`for Symmorphix personnel shall be on a shared basis, with AKTA work receiving first
`priority.
`
`per month for five (5)
`7. Symmorphix shall pay AKTA
`months (December 1998 through April 1999) to offset expenses incurred for process
`gas supplies, utilities, facility maintenance, and janitorial services to support the
`operation of the 1600 PVD system. Additional expenses must be discussed w ith and
`approved by Symmorphix in advance.
`
`8. Replacement parts, service labor, replacement targets and backing plates, etc. are
`specifically excluded from this Agreement. Any such items will be handled under
`separate purchase order/sales order transactions on a case-by-case basis. Incidental
`supplies which are not typically provided by AKTA to its customers shall be purchased
`by Symmorphix directly from other vendors (e.g. wipes, glass, etc.).
`
`9. The following AKTA employees, who were subject to AKTA's October 29, 1998
`Reduction in Force (RIF), will be permitted restricted access to designated AKTA
`facilities and will be permitted to work on Symmorphix business without affecting their
`AKTA separation packages so long as they are not receiving employment
`compensation from Symmorphix prior to December 29, 1998.
`• Bob Conner, Ernest Demaray, David Orgill, Bill Lee, Ravi Mullapudi, Ron Johnson,
`Kai-An Wang
`• Additional persons as may be approved by AKTA, in writing, on a case-by-case
`basis.
`
`Symmorphix is not allowed, and shall not attempt, to bring any persons not named
`above in this Section 9 (including visitors, customers, contractors, job candidates, or
`other workers) irJto any AKTA premises without the prior written approval of AKTA.
`AKTA will provide a response within 24 hours of receipt of request from Symmorphix.
`
`1 O. Symmorphix agrees, for valuable consideration contained within this Agreement,
`not to solicit for employment, to employ, or otherwise to engage the services of any
`person who is an employee of AKTA on or after October 29, 1998, except any AKTA
`employee who is the subject of AKTA's October 29, 1998 RIF.
`
`-
`11. Symmorphix shall send all formal communications to AKTA in care of David
`Sponseller. Day to day coordination of activities between AKTA and Symmorphix shall
`be between Bill Harshbarger of AKTA and Ernest Demaray of Symmorphix.
`Symmorphix understands and agrees that it is not empowered or authorized to direct
`the efforts of or otherwise assign tasks to AKTA employees. All requests for AKTA
`
`Sale and Relationship Agreement: AKTA/Symmorphixlllllllllllll- Page 2
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`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 4 of 16
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`resources, except as clearly granted under this Agreement, must be conveyed to AKTA
`in care of Bill Harshbarger or his designated delegate.
`
`12. Symmorphix shall obtain and maintain any and all required insurance coverage for
`its employees and agents. Any injuries sustained when working on Symmorphix
`business are the responsibility of Symmorphix and its insurers.
`
`13. Symmorphix shall obtain and maintain all required Workers' Compensation and
`disability insurance policies with limits as required by law and acceptable to AKTA no
`later than January 4, 1999. Any requests by Symmorphix to operate the Equipment on
`AKTA premises prior to Symmorphix having obtained such insurance is strictly at
`AKT A's discretion and shall be handled on a case-by-case basis.
`
`14. Symmorphix shall obtain and maintain, during any period that any Symmorphix
`employee or agent is within AKTA's premises, comprehensive general liability
`insurance covering personal injury and property damage in amounts acceptable to
`AKTA.
`
`15. Symmorphix must comply with all California Occupational Safety and Health
`Administration (Cal OSHA) requirements and all applicable local ordinances, including
`without limitation the Santa Clara Municipal Fire Code. Symmorphix must also
`establish appropriate worker safety and training programs. Symmorphix may voluntarily
`adopt existing AKTA safety programs but Symmorphix assumes full responsibility for
`employee, equipment, and facility safety in its area of use.
`
`16. Symmorphix shall obtain any appropriate business operating licenses as required
`by law or local ordinance and by insurers of Symmorphix and AKT A.
`
`17. Symmorphix must make its own arrangements for all purchasing, shipping and
`receiving functions. Symmorphix may use an AKTA hand truck if needed for glass
`container handling. Symmorphix must use the designated access routes on the
`attached layout (see Exhibit B) for its shipping and receiving operations, and must
`maintain all personnel work areas, and access and egress routes clear of obstructions
`as required by local ordinances and authorities and AKTA standards.
`
`18. Symmorphix must abide by all AKTA environmental policies, practices, and
`procedures governing operations such as solvent usage, wet cleans, hazardous waste
`disposal, effluent treatment. Symmorphix personnel may not bring onto AKTA's site or
`handle or move hazardous materials including but not limited to gas bottl~s (including
`helium) and wet lab chemicals. Symmorphix personnel may, however, use AKTA(cid:173)
`supplied IPA squeeze bottles for routine system maintenance.
`
`19. All Symmorphix personnel must attend a site orientation training session to be
`conducted by AKTA on a mutually acceptable date. AKTA has an Emergency
`Response Team which will respond in the event of emergency involving Symmorphix
`
`Sale and Relationship Agreement: AKTA/Symmorphixllllllllllll- Page 3
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`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 5 of 16
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`operations. However, Symmorphix hereby agrees to hold AKTA and Applied Materials,
`Inc. harmless in the event of any problems which might develop as a result of such
`response.
`
`20. All costs associated with removal of the Equipment from AKTA premises
`(subsequent to completed purchase thereof by Symmorphix) shall be borne by
`Symmorphix. Unless otherwise agreed upon in writing, all Equipment purchased
`hereunder shall be transported from AKTA's site no .later than April 30, 1999.
`
`21. The parties have agreed to certain provisions regard ing future dealings, intellectual
`property, confidential information, and licenses, as described in Exhibit C, attached
`hereto and made a part of this Agreement.
`
`In witness whereof the parties hereto have caused this Agreement to be executed by
`their duly authorized representatives on the date(s) shown below.
`
`Symmorphix Inc.
`("Symmorphix")
`
`Applied Komatsu Technology
`America, Inc. ("AKTA")
`
`Bob Conner
`President
`December 11 , 1998
`
`President
`December 11, 1998
`
`Acknowledged and Accepted:
`Applied Komatsu Technology, Inc.
`("AKT")
`
`Shareholders Committee
`
`Howard Neff
`President
`December 11, 1998
`
`By
`Title
`Date
`
`Sale and Relationship Agreement: AKTNSymmorphix . . . . . - Page 4
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`

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`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 6 of 16
`Exhibit A
`Terms and Conditions of Sale
`
`e
`
`e
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`1.
`
`Controlling
`Document
`
`2.
`
`Payment
`
`3.
`
`4.
`
`Security
`Interest
`
`De/Ivery
`and Delay
`
`5. Force Majeure
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`6.
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`Taxes and
`Other Charges
`
`7. Cancellattons
`for Convenience,
`Shipment Holds,
`and Liquidated
`Damages
`Therefor
`
`~~AKT
`
`Terms And Conditions Of Sale
`THE ACCEPTANCE OF PURCHASER'S ORDER IS EXPRESSLY MADE CONDITIONAL ON PURCHASER'S
`ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND APPLIED KOMATSU TECHNOLOGY
`AMERICA, INC. ("A") AGREES TO FURNISH THE SYSTEMS, MATERIALS, AND SPARE PARTS ("PRODUCTS")
`AND SERVICES COVERED THEREBY ONLY UPON THESE TERMS AND CONDITIONS. This document constitutes
`the entire agreement of the parties with respect to the subject matter hereof. Any term or condition of Purchaser's
`order inconsistent with or in addition to these Terms and Conditions hereof shall not be binding on AKTA. Unless
`Purchaser shall notify AKTA in writing to the contrary within ten (10) days of receipt hereof, acceptance of these Terms
`and Conditions shall be conclusively presumed. In the absence or such notification, the sale and delivery by AKTA of
`the items covered hereby shall be conclusively presumed to be subject to these Terms and Conditions. No waiver,
`alteration, or modification of any of the provisions hereof shall be binding on AKT A unless made in writing and signed
`by an authorized representative 9~ AKT A. All orders _or contracts must be approved and accepted by AKTA at its home
`office. These Terms and Cond1t1ons shall be applicable whether or not they are attached to or enclosed with the
`products sold hereunder.
`Payment for Products and services is due at or before shipment of Products or provision of services, unless AKTA
`grants credit in writing. If credit is granted, credit terms for service or spare parts shall require payment in U.S. Dollars
`thirty (30) days from date of invoice; and for Systems, payment in U.S. Dollars is due per the schedule set forth in
`AKTA's quotation or sales order. Unless AKTA's quotation or sales order provides to the contrary, final payment is due
`net thirty (30) days from the date of invoice. AKTA reserves the right to require an irrevocable letter of credit from a
`bank which it designates. Sums unpaid thirty (30) days after date of invoice shall be subject to a late payment charge
`of one and one-hart percent (1.5%) per month from the due date, or the maximum amount permitted by law, .jf less, and,
`in addition, Purchaser shall pay all costs incurred b{ AKTA which relate to the credit extension.
`In the event of any
`default in payment, Purchaser shall pay all costs o collection.
`If delivery is delayed or this contract is canceled by
`Purchaser in accordance with Section 7 hereof, payments already made shall be retained by AKTA and AKTA to
`payments required pursuant to Section 7.
`AKTA retains a security interest in Products delivered hereunder and in proceeds from the sale, exchange, collection,
`or disposition thereof, until Purchaser has made payment in full for such Products. Purchaser shall, upon request by
`AKTA, provide all information and signatures required by AKTA to perfect such security interest. AKTA reserves all
`rights granted to a secured creditor under the California Uniform Commercial Code, including the right to repossess
`upon default by Purchaser. To simplify such repossession, AKTA may require the Purchaser t0 assemble the collateral
`and make it available to AKTA at a place reasonably convenient to both parties and designated by AKTA.
`Terms of sale are Free On Board (FOB) at AKTA's plant or shipping point designated by AKTA. Title to Products shall
`pass to Purchaser on AKTA's tender of the Products to Purchaser or a carrier. All risk of loss or damage of Products in
`transit shall be borne by Purchaser. Shipment of Products to Purchaser's desired location, if arranged by AKTA, shall
`be either freight collect or freight prepaid with charges invoiced to Purchaser, unless otherwise agreed. AKT A reserves
`the right to make partial deliveries, and all such partial deliveries shall be separately invoiced and paid for when due.
`Delay in delivei:y of any installment shall not relieve Purchaser of its obligation to accept such later deliveries.
`In any
`event. delivery times shall not be considered absolute and no breach shall be found if the Products herein specified are
`delivered within a reasonable time after the delivery date set forth.
`AKTA shall not be liable for any loss or damage as a result of any failure to perform or any delay in delivery or
`equipment start-up (if required) due to any cause beyond AKTA's control, including but not limited to, acts of God, acts
`of Purchaser, fire, theft, accident, flood, war, sabotage, slowdown, strikes, or other labor difficulties, riot, embar90,
`government act, regulation, rule, ordinance or request, or inability to obtain necessary labor, materials, manufacturing
`facilities, or transportation. In the event of any such contingency, the date of performance or delivery shall be extended
`by a period equal to the time lost by the delay.
`If, due to any such contingency, AKTA is unable to supply the total
`demands for any Product specified hereunder, AKTA shall have the right to allocate its available supply among
`customers and its departments and divisions. AKTA shall not make or participate in any shipment which does not
`conform to the requirements of the U.S. Export Administration Act or any other relevant export-import law or regulation.
`Any manufacturer's tax, sales tax, use tax, excise tax, custom, inspection or testing fee, or any other tax, fee, or charge
`of any nature whatsoever imposed currently or in the future by any federal, state, or other governmental authority, upon
`or with respect to the safe, purchase, delivery, shipment, storage, processing, use, or consumption of any of the
`Products covered hereby, including taxes, fees, or charges upon or measured by the receipts from the sale thereof
`shall be borne by Purchaser in addition to the prices quoted or invoiced. In the event AKTA is required to pay any such
`tax, fee, or charge, Purchaser shall reimburse AKTA therefor.
`Purchaser may request a delay in delivery for a maximum of ten (10) working days from the contract scheduled delivery
`at no charge, and AKTA shall P.roceed with completion of the work. Purchaser's payments shall in such event be due
`and payable in accordance with the contract scheduled delivery.
`In the event Purchaser is unable to receive any
`Product at the time AKTA is prepared to make delivery, AKTA may, upon notice to Purchaser, giving Purchaser
`reasonable opportunity to designate a location for storage, deliver such Product and ship it to storage at any suitable
`location including AKTA's facilities. All costs incurred by AKTA, including but not limited to preparation for the
`placement into storage, inspection, insurance, and any taxes shall be borne by Purchaser. AKTA will take all
`reasonable steps to minimize such expenses. When Purchaser is ready to receive the Product, AKTA shall arrange, at
`Purchaser's expense, removal of the Product from storage and shipment of the Product to Purchaser.
`Purchaser has the right to cancel this contract for convenience upon prior written notice. A request by Purchaser for
`delay in delivery beyond ten (10) working days from the contract delivery date shall be deemed to be a cancellation of
`the contract. Inasmuch as contract cancellation would cause substantial damage to AKTA in an amount that would be
`difficult to ascertain, Purchaser shall pay liquidated damages for cancellation in accordance with the table set forth
`below.
`
`Exhibit A to Sale and Relationship Agreement
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`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 7 of 16
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`Canceled orders shall be subject to
`cancellation charges as a function of the
`number of weeks AKTA receives notice
`before the stipulated delivery date, as follows:
`
`PERCENT OF FACE VALUE OF
`NOTICE RECEIVED PRIOR TO STIPULATED
`P.&_
`SHIPPING DATE
`100%
`FEWER THAN 2 WEEKS
`2 • 4 WEEKS
`90%
`4 · 6 WEEKS
`70%
`6 · 8 WEEKS
`50%
`8 • 10 WEEKS
`40%
`20%
`10 • 12 WEEKS
`10%
`12 AND MORE WEEKS
`AKTA'S LIABILITY ON ANY CLAIM OF ANY KIND, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING
`NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE FOR ANY EXPENSE, INJURY, LOSS, OR DAMAGE
`ARISING OUT OF OR
`IN CONNECTION WITH THE PROVISION OF ANY SERVICE OR THE DESIGN,
`MANUFACTURE, SALE, DELIVERY, INSPECTION, REPAIR, MAINTENANCE, INSTALLATION, OR USE OF ANY
`PRODUCT FURNISHED UNDER THIS CONTRACT SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE
`PRODUCT OR SERVICE WHICH GIVES RISE TO THE CLAIM.
`IN NO EVENT SHALL AKTA BE LIABLE FOR ANY
`SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR CONTINGENT DAMAGES, WHETHER OR NOT AKTA
`HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
`AKTA grants to Purchaser a non-assignable, non-transferable, non-exclusive, royalty free license to use, with any
`Product purchased from or supplied by AKTA, patented methods and processes of AKTA which are appropriately
`utilizable in such Product. This license does not extend to the use of any of AKTA's patented methods or processes in
`products not purchased from or supplied by AKTA or in Products which have been substantially altered by Purchaser or
`any third party, and any and all such use of AKTA's patented processes is expressly not authorized.
`Except as set forth in the preceding paragraph, the sale, lease, or other transfer of AKTA Products to Purchaser does
`not convey any license or right, by implication, estoppel, or otherwise, to any method or process invention of any
`patent. AKT A grants to Purchaser a non-assignable, non-transferable, non-exclusive, royalty free right to use, in object
`code form, any software and related documentation furnished under these Terms and Conditions. This grant shall be
`limited to use with the Products for which the software was obtained. Purchaser may make a single arcnive copy of
`this software, provided that any copy must contain the same copyright notice and proprietary markings as the original
`software. Use of software on any equipment other than that for which it was obtained or any other material breach
`shall automatically terminate this license. Terms of any agreement packaged with the software shall prevail over these
`Terms and Conditions.
`AKTA accepts no liability for, and Purchaser shall hold AKTA harmless against any expense or loss from infringement
`of patents, trademarks, or other intellectual property rights of others arising from AKTA's compliance with Purchaser's
`design, formulae, processes, specifications, or instructions, or with Purchaser's requirements that a design be
`produced to perfo'rm a specific process.
`Except as otherwise provided in the preceding paragraph, AKTA, if notified promptly in writing and given authority,
`information, and assistance for defense of same, shall defend any suit or proceedin~ brought against Purchaser, so far
`as based on a claim that any AKTA Product furnished under these Terms and Conditions constitutes an infringement of
`any U.S. apparatus patent of anY. third party which has been issued as of the date of sale of the AKTA Product to
`Purchaser hereunder. The liability of AKTA stated herein does not extend to non-United States patents, nor to any
`method or process claim of any patent.
`In case any such Product is in such suit held to constitute infringement of any U.S. apparatus patent and all use of said
`Product by Purchaser is enjoined, AKTA shall, at its own expense and option, either procure for the Purchaser the ri9ht
`to continue using said Product, replace same with a non-infringing product, modify it so it becomes a non-infringing
`Product, or remove said Product. and refund the purchase price to Purchaser, together with transportation and
`installation costs thereof. In no event shall AKTA's total liability to Purchaser under or as a result of compliance with
`the provisions of this paragraph exceed the aggregate sum paid by Purchaser for the allegedly infringing Product. The
`foregoing states the entire liability of AKTA for patent infringement by said Products, or by any part thereof, either alone
`or in combination with other devices or elements.
`THE FOREGOING PROVISION IS STATED IN LIEU OF ANY OTHER EXPRESSED, IMPLIED, OR STATUTORY
`WARRANTY AGAINST INFRINGEMENT AND SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR PATENT
`INFRINGEMENT OF ANY KIND.
`Purchaser will provide all support staff and equipment necessary for start-up of Systems supplied hereunder or shall
`arrange with AKTA in advance of shipment for the attendance of an AKTA Field Service Engineer. Purchaser shall
`effect start-up within thirty (30) days of receipt of a System. Costs resulting from an>.'. delays in the start-up due to lack
`of preparedness by Purchaser will be billed at standard rates provided by AKT As Field Service Policy Statement.
`Supervision of start-up and instruction of the Purchaser's personnel will be conducted at time of start-up unless prior
`arrangements have been made with AKT A.
`Purchaser shall examine all Products promptly upon receipt therefor. Within ten (10) days of such receipt, Purchaser
`shall notify AKTA in writing of any complaint which Purchaser may have concernin9 the Products delivered h~reunder,
`including but not limited to· any claimed shortages, defects, quality problems, or delivery errors. If Purchaser intends to
`reject the Products delivered hereunder, it must specify the grounds therefor. If no notice is received from Purchaser
`within ten (10) days of receipt, the Products delivered hereunder shall be deemed unqualifiedly accepted as of the date
`of delivery and Purchaser will be conclusively presumed to have waived all such claims and complaints, except as
`permitted by AKTA's express warranty.
`
`e
`
`8.
`
`Limitation of
`Liability
`
`9.
`
`Licenses
`
`10.
`
`Patent and
`Trademark
`Indemnity
`
`11.
`
`Start-up
`of Systems
`
`12.
`
`Examination
`
`Exhibit A to Sale and Relationship Agreement
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`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 8 of 16
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`e
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`e
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`•J.
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`14. lndemnfflcation
`
`15.
`
`Drawings
`and Designs
`
`16.
`
`warranty AKTA warrants to Purchaser that all new Products provided by AKTA hereunder shall conform to the published
`specifications and shall be free from defects in material and workmanship when used under normal operating
`and
`conditions, and that all service provided by AKTA shall be performed in a workmanlike manner.
`Returns
`The foregoing warranty shall apply to such period of time and under such conditions as are specified in AKTA's
`standard warranty for each Product. If not otherwise specified, the warranty for Systems shall apply for one year from
`the date of start-up and AKTA's sign-off of the System, provided the same is not unreasonably delayed by AKTA.
`In
`any event, however, the warranty period and AKT A's responsibilities set forth herein shall terminate fourteen (14)
`months after the date of delivery of the System by AKTA to Purchaser (if located within the continental United States),
`and fifteen (15) months after the date of delivery of the equipment by AKTA to Purchaser (if located outside the
`continental United States). The warranty provided hereunder shall not include parts or materials which AKTA considers
`as consumables under normal operating conditions. During this warranty period, AKTA shall a) with the exception of
`cleaning, perform all monthly preventative maintenance checks prescribed in the relevant AKTA's equipment manual
`on a mutually agreeable schedule, b) review Purchaser's daily and weekly maintenance logs, and c) provide informal
`on-system maintenance training.
`The foregoing warranty for spare parts shall apply for a period of ninety (90) days from the date of delivery of the spare
`parts by AKTA. The warranty granted hereby shall not include spare parts which AKTA considers as consumables
`under normal operating conditions.
`The foregoing warranty for service shall apply for a period of ninety (90) days from performance of the service.
`THE FOREGOING WARRANTIES ARE EXCLUSIVE OF ALL OTHER WARRANTIES WHETHER WRITIEN, ORAL,
`OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
`If any Product delivered hereunder does not meet the above warranty, Purchaser shall promptly notify AKTA and make
`the Product available for correction. AKT A shall, during its normal business hours, correct any defect at its option
`either by repairing or replacing any defective part or, if other remedies fail, by replacing the Product.
`If a spare part
`delivered hereunder does not meet the above warranty, Purchaser shall promptly advise AKTA and, upon obtaining an
`AKTA Return Material Authorization, ship the defective spare part to AKTA. If the service provided hereunder does not
`meet the above warranty, Purchaser shall promptly notify AKTA, and make the affected Product available for
`correction. AKTA shall, during its normal business hours, correct any defect by reperforming the service.
`All returned Products must be accompanied by an AKTA Return Material Authorization signed by an authorized
`representative of AKTA. AKTA is under no obligation to accept, inspect, replace, or repair unauthorized shipments,
`and Purchaser shall bear all expenses incurred by such unauthorized shipments to AKTA. Unless specifically noted
`otherwise in writing, return of Products constitutes Purchaser's authorization for AKTA to repair said Products and to
`invoice Purchaser for any and all reasonable costs of repair, labor, parts, and freight on items not covered by the terms
`of this warranty. Such authorization includes charges for handling of returned items found not defective, including a
`fifteen percent (15%) restocking charge for spare parts. Purchaser shall bear the risk of loss or damage during transit
`of Products whether or not the Product meets warranty requirements. Any parts replaced shall become the property of
`AKTA.
`AKTA shall not be obligated to repair or replace any Product rendered defective, in whole or in part, by external causes,
`such as but not limited to catastrophe, power failure or transients, over-voltage on interface, environmental extremes,
`or improper use, maintenance, or application.
`AKTA's liability arising from the sale or use of Products or service shall be limited to the cost of correcting defects, as
`provided herein, or the price allocable to the Product, or part thereof which gives rise to the claim, or the amount of
`purchase order, whichever is least. All such liabilities will terminate upon expiration of the warranty period. THE
`FOREGOING CONSTITUTES PURCHASER'S SOLE AND EXCLUSIVE REMEDY FOR AKTA'S FURNISHING OF
`NONCONFORMING OR DEFECTIVE PRODUCTS OR SERVICE, AND AKTA SHALL NOT IN ANY EVENT BE LIABLE
`FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES BY REASON OF THE FACT THAT
`SUCH PRODUCTS SHALL HAVE BEEN NONCONFORMING OR DEFECTIVE.
`In the event any of the Products furnished hereunder is subjected to, or a claimed defect arises as a result of, accident,
`misuse, neglect, alteration, failure to install or removal of safety devices provided or required by AKTA, unauthorized
`relocation, or improper repair or maintenance, or is installed, maintained, or used contrary to AKTA's printed warnings,
`instructions, or recommendations, PURCHASER AGREES TO DEFEND, PROTECT, INDEMNIFY, AND HOLD AKTA
`HARMLESS FROM AND AGAINST ALL CLAIMS OF ANY KIND, WHETHER BASED IN CONTRACT, IN TORT
`(INCLUDING NEGLIGENCE OR STRICT LIABILITY). OR OTHERWISE FOR ANY LOSSES, EXPENSES, DAMAGES,
`AND LIABILITIES, DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL which may arise out of the use of Products
`except those caused solely by defects in materials or workmanship, or by the sole negligence of AKT A.
`All drawings, specifications, photographs, or other data furnished by AKTA, other than that contained in published
`brochures or product specifications shall be treated as confidential information by Purchaser, shall not be disclosed to
`any third party, shall remain the sole property of AKTA, and shall be returned to AKTA upon request. Any confidential
`information transferred from Purchaser to AKTA shall be pursuant to AKTA's standard Confidential Disclosure
`Agreement.
`Assignment Purchaser shall not assign its rights hereunder.
`The agreement hereunder shall be governed by and construed in accordance with the laws of the State of California.
`11. California Law
`and Disputes Any action based on this contract must be commenced within one (1) year after the cause of action arises.
`
`Version 1998
`
`Exhibit A to Sale and Relationship Agreement
`
`

`

`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 9 of 16
`
`Symmorphix Use of Facilities
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`Case 5:20-cv-05676-EJD Document 42-9 Filed 12/07/20 Page 10 of 16
`
`Exhibit C
`Future Dealings, Intellectual Property, Confidential Information, and Licenses
`
`1. AKTA intends to offer for sale new 1600/3500/4300 PVD systems to Symmorphix in
`the future, under the same terms as detailed in this Agreement.
`
`2. Symmorphix will provide AKTA with the first right to supply any sputtered silicon
`PVD systems, spares, and upgrades. During AKTA's 1999 fiscal year, AKTA will
`provide Symmorphix with a right of first refusal for additional PVD system sales, that is,
`AKTA will offer to sell a PVD system to Symmorphix before selling it to another party
`having the same sputtered silicon film product objectives as Symmorphix.
`
`3. License Grants
`a) AKTA grants to Symmorphix a non-assignable, non-transferable, non-exclusive,
`royalty free license to use, with products purchased from or supplied by AKTA
`("Products"), patented methods and processes of AKTA which are appropriately
`utilizable in the Produc