EX-99.1 2 d389474dex991.htm INTEL CORPORATION PURCHASE AGREEMENT
`
`Exhibit 99.1
`
`CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY
`CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT
`HAS BEEN REQUESTED IS OMITTED AND NOTED WITH “***.” AN UNREDACTED VERSION OF THIS
`DOCUMENT HAS BEEN SUBMITTED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION.
`
`INTEL CORPORATION PURCHASE AGREEMENT
`CAPITAL EQUIPMENT, GOODS AND SERVICES
`
`Agreement Number: CW1916674
`Effective Date: April 30, 2012
`NDA #: 19156
`
`BUYER:
`Intel Corporation (and all Intel Affiliates and Subsidiaries, hereinafter “Buyer” or “Intel”).
`5000 West Chandler Blvd.
`Chandler, AZ 85226
`
`SELLER:
`Delta Design (hereinafter “Seller”).
`12367 Crosthwaite Circle
`Poway, CA 92064-6817
`
`Addenda attached hereto and
`incorporated herein by reference
`(Mark “X” where applicable):
`
`x
`
`x
`x
`x
`x
`x
`x
`x
`x
`
`General Terms and Conditions of Purchase Agreement -
`Capital Equipment, Goods and Services
`A
`Equipment Specific Terms, Conditions, and Pricing
`B
`Additional Equipment Terms and Conditions
`C
`Additional Spare Parts Terms and Conditions
`D
`Additional Services Terms and Conditions
`E
`Training Documentation and Pricing
`F
`Spare Parts Consigned Inventory Program
`G Third Party Technology Escrow
`H Treatment of ESAs
`
`During the term of this Agreement and any extension thereto, Buyer may purchase and Seller shall accept all Releases for Items
`and Services in accordance with the prices and the terms and conditions contained in this Agreement. Any and all Releases, as
`may be issued by the Buyer, shall reference this Agreement and be governed solely by the terms and conditions of this Agreement
`notwithstanding any preprinted terms and conditions on Seller’s acknowledgment or Buyer’s Release. Any additional or different
`terms as may be contained in Seller’s documents are hereby deemed to be material alterations, and Buyer hereby gives notice of
`objection to and rejection of such material alterations. When Buyer is a subsidiary or affiliate of Intel, the obligations of the parties
`run between such subsidiary and affiliate and the Supplier, and not between Intel Corporation and the Supplier.
`
`INTEL CORPORATION
`
`Signed:
`By:
`Title:
`Date:
`
`/s/ Cory Hooks
`Cory Hooks
`Account Manager
`April 30, 2012
`
`INTEL CONFIDENTIAL
`
`SELLER
`
`Signed:
`By:
`Title:
`Date:
`
`/s/ Kent Blumenshine
`Kent Blumenshine
`Director–Strategic Accounts
`April 30, 2012
`
`Page 1 of 44
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`*** Confidential material redacted and submitted separately to the Commission
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`1
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`Exhibit 2604
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`

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`CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY
`
`TABLE OF CONTENTS
`
`1. Definitions
`2. Term of Agreement
`3. Pricing
`4.
`Invoicing and Payment
`5. Termination for Convenience
`6. Contingencies
`7. Delivery, Releases, and Scheduling
`8. Acceptance and Warranties
`9. Purchase Specifications, Identifications and Errata
`10. Packing and Shipment
`11. Ownership and Bailment Responsibilities
`12. Confidentiality and Publicity
`13. Intellectual Property Indemnity
`14. Supply Line Protection
`15. Hazardous Materials
`16. Customs Clearance
`17. Compliance with Laws and Rules
`18. Insurance
`19. General Indemnification
`20. Retention and Audits
`21. Independent Contractor
`22. Security
`23. Drug Testing
`24. New Developments
`25. Software and Documentation License
`26. Merger, Modification, Waiver, Remedies and Severability
`27. Assignment
`28. Choice of Law and Forum
`29. Headings
`30. Specific Performance
`31. Notice
`32. Privacy
`33. Electronic Transactions
`34. Use of Web Sites
`35. Supply Line Capability
`36. Sole Compensation
`37. Survival
`38. Order of Precedence
`39. Limitation of Liability
`
`3
`4
`4
`5
`5
`6
`6
`7
`8
`8
`8
`8
`9
`10
`10
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`10
`12
`12
`12
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`13
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`16
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`INTEL CONFIDENTIAL
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`Page 2 of 44
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`2
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`Exhibit 2604
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`

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`CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY
`
`GENERAL TERMS AND CONDITIONS OF PURCHASE AGREEMENT –
`
`CAPITAL EQUIPMENT GOODS AND SERVICES
`
`1. DEFINITIONS
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`I.
`
`J.
`
`K.
`
`L.
`
`M.
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`N.
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`O.
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`P.
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`“Consumable” means a Spare Part whose life expectancy and mode of failure is known or predictable during the normal
`operation of the Equipment and that should meet the normal attributes of schedulable and predictable demand and life
`expectancy of less than ***.
`
`“Custom Items” mean those Items manufactured by Seller for sale exclusively to Buyer for which a minimum of *** of
`Seller’s cost pertaining to the Items is directly attributable to the customization for Buyer as set forth in the Purchase
`Spec.
`
`“Consignment” means any spare part owned by the Seller which Buyer chooses to hold on-site, or Seller holds off-site,
`at Buyer’s discretion, to help Seller meet the Equipment availability requirements or productivity as defined in the
`Purchase Spec.
`
`“Component” means any library, tool, class, etc. to support calibration, diagnostics, configuration, classes, development
`programming syntax, pattern management, STL, SECS/GEM libraries, etc.
`
`“Documentation” means any and all user documentation and training materials necessary to instruct Buyer in the proper
`installation, use and operation of the Software and Items.
`
`“Equipment” means whole systems, or subsystems, that produce the required output per the applicable configuration
`and system performance specifications set forth in the Purchase Spec for each model or as agreed in writing by the
`parties.
`
`“Facilitation” means placement and rough hook-up of electrical, gas, and vacuum utilities to the Items.
`
`“Forecast(s)” means the quantity of Items or Services that Buyer reasonably anticipates it may purchase during a
`specified time.
`
`“Hazardous Materials” mean dangerous goods, chemicals, contaminants, substances, pollutants or any other materials
`that are defined as hazardous by any applicable law, regulations and standards.
`
`“Items” means either singly or collectively, as the context indicates: Equipment; Equipment components; Equipment
`conversion kits, , software; hardware; Spare Parts; upgrades, retrofits, modifications, and enhancements to any of the
`foregoing purchased separately; or other goods which Seller is to sell to Buyer as set forth in this Agreement.
`
`“Lead-time” means the agreed number of calendar weeks or days from the date a Release is issued for an Item to the
`date the Item is to be shipped by the Seller, or the agreed number of calendar weeks or days from the date a Release is
`issued for an Item to the date the Item is to be received by Buyer.
`
`“Non-Consumable” means a Spare parts that is not replaced routinely and has an unpredictable life expectancy and that
`is typically replaced or repaired due to failures or deteriorating performance (quality and output).
`
`“OTD” or “On-Time Delivery” means a percentage computed for each Buyer site for each (Buyer work week calendar)
`month equal to: the number of Releases for Items received by such site which are (i) complete and (ii) delivered to the
`FCA point by the date specified, divided by the total number of Releases received by such site.
`
`“Purchase Spec” means the agreed purchase specifications for each model or model variation of Items purchased or to
`be purchased pursuant to this Agreement as set forth in Addendum A.
`
`“Release” means Buyer’s purchase order or change order to ship a definite quantity of Items or to provide Services to a
`specified schedule.
`
`“Services” means the work to be performed by Seller including, but not limited to: development, installation, process
`qualification, maintenance, warranty repair, service call, continuous improvement, Equipment upgrades/modification,
`and extended service contracts as set forth in Addendum D, the Purchase Spec and/or any Buyer factory specific Scope
`Of Work (“Scope of Work” or “SOW”).
`
`Q.
`
`“Software” means any Component and/or firmware provided, with embedded in or that is necessary, required or
`normally provided by the Seller for the use and/or operation of Items, in object and/or Source Code form.
`
`INTEL CONFIDENTIAL
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`Page 3 of 44
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`3
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`Exhibit 2604
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`

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`CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY
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`R.
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`S.
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`T.
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`“Spare Part(s)” mean Consumable and/or Non-Consumable Items that are used as a means to maintain, sustain, or
`otherwise enable Equipment to meet or exceed its performance, availability and production requirements.
`
`“Statistical Delivery Date” means the date for the calculation of the delivery time. Calculation of the delivery time is an
`element in the determination of a Sellers adherence to delivery dates (that is, the Seller’s delivery timeliness, or on-time
`delivery performance).
`
`“CE!” means after designing and proving that a process works once, it is expanded and proliferated by copying
`equipment, environments, procedures, processes, materials, as closely as possible. Then verify that inputs and outputs
`are all matched to the original prototype.
`
`2.
`
`TERM OF AGREEMENT
`
`A. This Agreement shall be effective for five (5) years from the Effective Date.
`
`B. At Buyer’s option, Items for which a Release has been issued prior to the expiration of this Agreement may be
`scheduled for delivery up to *** following such expiration or for such longer period as may be required to complete
`delivery.
`
`3.
`
`PRICING
`
`A.
`
`B.
`
`Prices for Items, Training and Services set forth herein shall remain fixed or decline for the duration of this Agreement
`unless agreed otherwise in writing by the parties.
`
`Seller warrants to Buyer that the prices set forth in this Agreement reflect the Seller’s lowest price charged any
`customer. If Seller sells any Item or equivalent service to any other customer at a price less than the price set forth in
`this Agreement or any addendum, Seller shall notify Buyer and adjust its price to the lower price for all future and
`unpaid invoices for such Item or Service and rebate to Buyer an amount equal to the difference in the price paid by
`Buyer and the lower price for any invoices already paid by Buyer for such Item or Service. The above adjustments and
`rebates shall be calculated from the date the Seller first sells the Item or Service at the lower price.
`
`C. Buyer reserves the right to have Seller’s records inspected and audited to ensure compliance with this Agreement. If
`discrepancies are found during the audit and price adjustments are required to be paid by the Seller to the Buyer, Seller
`shall reimburse Buyer for all costs associated with the audit, along with a single payment covering the price adjustments
`within thirty (30) days after the completion of the audit. The results of such audit shall be kept confidential by the
`auditor and, if conducted by a third party, only Seller’s failures to abide by the obligations of this Agreement shall be
`reported to Buyer.
`
`D. Unless expressly provided otherwise herein, the prices for Items, Training and Services shall include all applicable
`taxes, including but not limited to sales/use taxes, transaction privilege taxes, gross receipts taxes, and other charges
`such as duties, customs, tariffs, imposts, and government imposed each of which shall be stated separately on Seller’s
`invoice. Seller shall have sole responsibility for the payment of all such charges without reimbursement by Buyer.
`Seller shall remit all such charges to the appropriate tax authority unless Buyer provides sufficient proof of tax
`exemption. In the event that Buyer is prohibited by law from making payments to the Seller unless Buyer deducts or
`withholds taxes there from and remits such taxes to the local taxing jurisdiction, then Buyer shall duly withhold such
`taxes and shall pay to the Seller the remaining net amount after the taxes have been withheld. Buyer shall not reimburse
`Seller for the amount of such taxes withheld. When property is delivered and/or services are provided or the benefit of
`services occurs within jurisdictions in which Seller collection and remittance of taxes is required by law, Seller shall
`have sole responsibility for payment of said taxes to the appropriate tax authorities. In the event Seller does not collect
`tax from Buyer, and is subsequently audited by any tax authority, liability of Buyer will be limited to the tax
`assessment, with no reimbursement for penalty or interest charges. Each party is responsible for its own respective
`income taxes or taxes based upon gross revenues, including but not limited to business and occupation taxes.
`
`E. Additional costs, except those provided for herein or specified in a Release, will not be reimbursed without Buyer’s
`prior written approval.
`
`F. All prices are in U.S. dollars.
`
`G.
`
`Seller shall provide annual and quarterly audited financial statements and independent auditors’ opinion to Buyer in
`accordance with securities regulations or within three (3) months of the period closing date if Seller is a private
`company. If applicable, these statements must include details on the semiconductor equipment division/subsidiary, and
`a signed management letter, which states that the financial statements are in conformity with generally, accepted
`accounting principles.
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`INTEL CONFIDENTIAL
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`Page 4 of 44
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`4
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`Exhibit 2604
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`

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`CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY
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`4.
`
`INVOICING AND PAYMENT
`
`A.
`
`B.
`
`Invoices shall be submitted by Seller in accordance with guidelines specified at supplier.intel.com. Seller will invoice
`Buyer no later than *** days after completion of the Services or the delivery of the item(s) to the Supplier Tender Point.
`Buyer is not obligated to make payment against any invoices submitted after such period.
`
`Payment is deemed to be made when Buyer’s check is mailed or EDI (Electronic Data Interface) funds transfer is
`initiated. Payment due dates and prompt payment discounts will be computer from the later of the date of delivery or the
`date that a property completed original invoice is received by Buyer. Payment of an invoice shall neither constitute
`acceptance of the Item or Service. Seller shall be fully responsible for, indemnify, and hold Buyer harmless from any
`liability related to payments to Seller’s vendors or subcontractors.
`
`C.
`
`Payment Schedule on Equipment and Items shall be as follows:
`
`I.
`
`II.
`
`Payment on all first-of-kind Items shall be *** net *** days from the later of (i) the Statistical Delivery date,
`(ii) confirmation of delivery to the Supplier Tender Point, or Buyer’s receipt of invoice. The remaining *** shall
`be paid net *** days from Final Acceptance, except as in part below.
`
`Payment on all other Items and Services shall be *** net *** days from the later of (i) the Statistical Delivery
`Date, (ii) confirmation of delivery to the Supplier Tender Point (or performance of Service), or (iii) Buyer’s
`receipt of invoice, except as in section III below. If, upon the Statistical Delivery Date at the Supplier Tender
`Point, there is no carrier to receive the tool, Supplier must notify Buyer immediately.
`
`III. Notwithstanding the forgoing, for any Item or Service provided to an Intel entity in the People’s Republic of
`China, payment terms for all such Items and Services are identical to section II above, except that the payment is
`“***”, instead of “***”.
`
`D.
`
`Payment schedule on all Items and Services other than Equipment provided to an Intel entity other than the People’s
`Republic of China shall remain as defined in the Purchase Agreement.
`
`5.
`
`TERMINATION FOR CONVENIENCE
`
`A. Buyer may terminate this Agreement or any Release placed hereunder, in whole or in part, at any time for its sole
`convenience by giving written notice of termination to Seller. Upon Seller’s receipt of such notice, Seller shall, unless
`otherwise specified in such notice, immediately stop all work hereunder, give prompt written notice to and cause all of
`its vendors or subcontractors to cease all related work and, at the request of Buyer, return any materials provided to
`Seller by Buyer.
`
`B. There shall be no charges for termination of Releases for standard Items or for Services not yet provided. Buyer will be
`responsible for payment of authorized Services and Items already provided by Seller but not yet invoiced. Paragraphs C
`through E of this Section 5 shall govern Buyer’s payment obligation for Custom Items. Notwithstanding anything to the
`contrary, Seller shall not be compensated in any way for any work done after receipt of Buyer’s notice, nor for any costs
`incurred by Seller’s vendors or subcontractors after Seller receives the notice, nor for any costs Seller could reasonably
`have avoided, nor for any indirect overhead and administrative charges or profit of Seller.
`
`C. Any claim for termination charges for Custom Items must be submitted to Buyer in writing within *** days after receipt
`of Buyer’s termination notice along with a summary of all mitigation efforts.
`
`D. Custom items including Device kits and device kit spares that are complete or in substantial work are subject to a 100%
`cancelation fee regardless of lead-time. Seller shall, wherever possible, place such custom work in process in its
`inventory and sell it to other customers. For Standard items, Claim shall be limited to the percent of lead-time reference
`in Addendum A per schedule below.
`*** cancellation fee *** of the lead-time remains prior to scheduled delivery date in the release of Equipment.
`*** cancellation fee *** and *** of the lead-time remains prior to scheduled delivery date in the release of the
`Equipment.
`*** cancellation fee *** of the lead-time remains prior to the scheduled delivery date in the release of the Equipment.
`
`INTEL CONFIDENTIAL
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`Page 5 of 44
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`Exhibit 2604
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`

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`CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY
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`*** for less than *** of the lead-time remains prior to the scheduled delivery date in the release of the Equipment.
`Upon payment of Seller’s claim, Buyer shall be entitled to all such work and materials paid for.
`
`E. Before assuming any payment obligation under this section, Buyer may inspect Seller’s work in process and audit all
`relevant documents prior to paying Seller’s invoice.
`
`F. Notwithstanding anything else in this Agreement, the failure to meet the delivery date(s) in the Release by more than
`*** days, shall be considered a material breach and shall allow Buyer to terminate the order for the Item and/or any
`subsequent Releases without any liability whether the Release was for standard or Custom Items.
`
`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 of Items or the performance of Services is to
`be delayed by such contingencies, Seller shall immediately notify Buyer in writing. If the delay is greater than thirty
`(30) days from the date of the notice, Buyer will have the option, in its sole discretion, to either (i) extend time of delivery or
`performance, or (ii) terminate the uncompleted portion of the order at no cost of any nature 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. Buyer shall have no obligation but may, at its sole discretion, issue Releases under this Agreement. Buyer
`shall be responsible only for Items or Services for which it has issued Releases hereunder.
`
`B.
`
`Seller agrees to acknowledge each Release to Buyer’s purchasing agent (as noted on the Release) within *** hours after
`receipt of the Release.
`
`C. Buyer may place any portion of a Release on hold by notice that will take effect immediately upon receipt. Releases
`placed on hold will be rescheduled or cancelled within *** days. Any Release cancelled shall be subject to the terms
`and conditions of Section 5.
`
`D.
`
`E.
`
`Seller will give Buyer most-favored customer lead-time as specified in Addendum A, C, D or any other Equipment-
`specific Addendum for each Equipment model.
`
`Seller agrees that all Items will be delivered ready for shipment to the Free Carrier (FCA) point on the exact date
`specified in the Release (“Ship Date”). Late deliveries of any Items except Spare Parts (as measured by adherence to the
`Ship Date on the most recent Release or contractually committed lead-time, whichever is earlier) will result in, at
`Buyer’s option, a price reduction (or debit to Seller’s account) on such late Items of 1percent (1%) for each calendar
`day capped at ***. In addition, Seller shall deliver, at its sole cost and expense, any late shipment of Items by expedited
`freight as instructed to Buyer’s site. Early deliveries of Items (as measured by adherence to the Promise Date on the
`most recent Release) will result in a price reduction of *** for each calendar day that an Item is delivered early. Partial
`deliveries are counted as late shipments and will only be considered complete when all Items have been shipped.
`Equipment shipments will not be considered complete until the Environmental Health and Safety documentation
`outlined in Section 15 has been completed and provided to Buyer. Configuration and other Buyer-requested or Buyer-
`approved changes that result in Designated Delivery Date changes will be reflected on a change order to the Release.
`For new Equipment, late delivery penalties only apply after global acceptance is granted and the CE! configuration is
`defined. Late charges against Seller do not apply in situations where, upon the Designated Delivery Date, late shipment
`is the fault of the Buyer designated carrier and not the Seller. All remedies will be reconciled and settled in the quarter
`following the quarter in which late deliveries occurred.
`
`F.
`
`Seller agrees to reserve production capacity equal to Buyer’s delivery Forecasts until the contractual lead-time
`established in Addendum A or any other Equipment-specific Addendum.
`
`G. At Buyer’s discretion, Seller will make available burst capacity up to *** of the last quarters Equipment purchases
`(minimum one) for shipment within *** of the contractual un-forecasted lead-time from Release date. This provision
`may be applied once every *** days as defined in Addendum A for each type/configuration of Equipment.
`
`H.
`
`Seller will, as required by Buyer, participate in Buyer’s forecasting process, and Buyer will supply a rolling Forecast of
`required delivery dates to the Seller at such times and for such periods as may be determined by Buyer.
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`INTEL CONFIDENTIAL
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`Page 6 of 44
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`CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY
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`I.
`
`J.
`
`Configuration and other Buyer-requested or Buyer-approved changes that result in Ship Date changes will be reflected
`on a change order to the Release showing the revised ship and delivery dates subject to Section 7E.
`
`Seller will notify Buyer in writing of the planned obsolescence of any Item or part revision. Seller will make that Item
`available to the Buyer for a minimum of *** days after the notice, during which time Buyer will have the option to
`place a final Release for such Items for delivery after the *** day notice. Buyer may return obsolete Items within ***
`days after written notification of part revision or obsolescence, at no cost. If any warranty return claims are made for
`such discontinued Items, then such returns will be subject to the warranty provisions in Section 8.
`
`8. ACCEPTANCE AND WARRANTIES
`
`A. All Items purchased by Buyer are subject to inspection and test (source inspection) before being allowed to ship from
`Seller’s factory. Source inspection requirements are described in the Purchase Spec unless agreed otherwise in writing
`by the parties. Seller shall be responsible for source inspections and shall provide Buyer with written certification that
`Items tested have passed source inspection and comply in all respects with the requirements described in the Purchase
`Spec. Buyer may participate, as it deems necessary, in source inspections. If any inspection or test is made on Seller’s
`premises, Seller shall provide Buyer with reasonable facilities and assistance at no additional charge.
`
`(i)
`
`(ii)
`
`Notwithstanding any source inspection or testing at Seller’s premises, all Items purchased by Buyer are subject to
`Buyer’s inspection and test (qualification) before final acceptance at Buyer’s premises. Final acceptance
`requirements are described in the Purchase Spec unless agreed otherwise in writing by the parties. Items, other
`than Equipment, rejected by Buyer as not conforming to the Purchase Spec may be returned to Seller at Seller’s
`risk and expense and, at Buyer’s option, such Item shall be immediately repaired or replaced.
`
`If Equipment does not pass final acceptance criteria, due to no fault of Buyer, within *** days of delivery, then
`Buyer may give written notice to Seller of failure to meet final acceptance criteria on time. If Equipment does not
`meet final acceptance criteria within *** days of such notice, Buyer may, at Buyer’s option; (a) return the
`Equipment for full credit or (b) have the Equipment replaced with new Equipment within *** of contractual lead-
`time of Buyer’s written election of option, or (c) initiate Buyer’s escalation procedures per Addendum D
`(Services) Section 8 (Escalation).
`
`(iii) Acceptance and/or inspection by Buyer shall in no event constitute a waiver of Buyer’s rights and remedies with
`regard to any subsequently discovered defect or nonconformity.
`
`B.
`
`Seller warrants to Buyer that all Items provided by Seller for delivery hereunder shall conform in all respects to the
`Purchase Spec; be free from defects in material and workmanship and be new, of the grade and quality specified.
`
`(i)
`
`(ii)
`
`(ii)
`
`If an Item delivered hereunder does not comply with any of the above warranties, Buyer shall notify Seller as
`soon as practicable and at Buyer’s option, Seller shall repair or replace the defective Item, at its sole cost and
`expense, or refund the purchase price. Seller shall also be responsible for and pay the cost of shipping of all Items
`not conforming to the warranties and will bear the risk of loss of such Items while in transit and any other costs
`reasonably associated with a nonconforming Item, such as, the cost to de-install the Item.
`
`The warranty period for Equipment shall apply for *** years for legacy and *** and
`
`The warranty period for Equipment shall apply for *** years for legacy and *** and *** years for new
`development (both Non-consumables and Service) starting from the date of final acceptance of the Equipment.
`The warranty for additional Service, Equipment conversion kits, Equipment upgrades or Equipment
`modifications shall apply for *** years from the date of installation of the Item or for the Item’s remaining
`warranty period, whichever is longer. The warranty for additional Spare Parts shall apply for *** year for non-
`consumables beginning from the date of installation and 1 year from date of receipt for consumables. Seller shall
`perform warranty work *** hours per day, *** days per week. Seller will offer and Buyer may purchase
`additional periods of warranty. Consumables are guaranteed for good workmanship and functionality upon
`arrival at Buyers facility. In case of initial failure, Buyer has responsibility to show conclusive data that a given
`consumable part did not function upon arrival.
`
`(iii)
`
`In conjunction with the warranty period, Seller shall perform all preventative maintenance on a mutually
`agreeable schedule. Seller shall train Buyer personnel on all preventative maintenance and recommended
`scheduling.
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`INTEL CONFIDENTIAL
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`CONFIDENTIAL TREATMENT REQUESTED – REDACTED COPY
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`(iv) At Buyer’s option the labor value of the warranty, or the purchase price of an extended warranty (if purchased
`with the Equipment), can be credited against a Service contract prior to the end of the warranty period. All
`warranty terms will continue to apply throughout the term of any Service contract or extended warranty period.
`
`C.
`
`Seller further warrants that all Items furnished hereunder will not infringe any third party’s intellectual property rights,
`and that Seller has the necessary right, title, and interest to provide said Items and Services to Buyer free of liens and
`encumbrances.
`
`D. All of the above warranties shall survive any delivery, inspection, acceptance, payment, or resale of the Items.
`
`E.
`
`Seller warrants that all Services provided shall be performed in accordance with good workmanlike standards and shall
`meet the descriptions and specifications provided on Addendum B or a Service level agreement. Seller shall guarantee
`workmanship for *** year after Services are provided unless agreed otherwise in writing by the parties. Seller shall
`promptly correct any non-conforming or defective workmanship at no additional cost to Buyer.
`
`9.
`
`PURCHASE SPECIFICATIONS, IDENTIFICATION AND ERRATA
`
`A.
`
`B.
`
`C.
`
`Seller shall not modify the purchase specifications for any Item or Services without the prior written approval of the
`Buyer.
`
`Seller shall cooperate with Buyer to provide configuration control and traceability systems for Items and Services
`supplied hereunder.
`
`Seller shall provide Buyer with an errata list for Item and shall promptly notify Buyer in writing of any new errata with
`respect to the Item.
`
`10. PACKING AND SHIPMENT
`
`A. All Items shall be prepared for shipment in a manner which: (i) follows good commercial practice, (ii) is acceptable by
`common carriers for shipment at the lowest rate, and (iii) is adequate to ensure safe arrival. If Buyer requests, Seller will
`package Items for clean room delivery per the Purchase Spec. Seller shall mark all containers with necessary lifting,
`handling, unpacking and shipping information, Release number, Buyer’s Item Identification number or part number,
`description, line item number, date of shipment and the names of the Buyer and Seller.
`
`B. All Items shall be shipped Free Carrier, Seller’s Dock (FCA: Seller’s Dock, Incoterms 2000). Buyer shall notify Seller
`of the method of shipment and expected delivery date. If no instructions are given, Seller shall select the most cost
`effective carrier based upon Buyer’s required delivery date. Title and risk of loss to Equipment shall pass to Buyer upon
`delivery to the FCA point.
`
`11. OWNERSHIP AND BAILMENT RESPONSIBILITIES
`
`A. Any specifications, drawings, schematics, technical information, data, tools, dies, patterns, masks, gauges, test
`equipment and other materials furnished to Seller by Buyer or Items paid for by Buyer and being held by Seller shall
`(i) remain or become Buyer’s property, (ii) be used by Seller exclusively for Buyer’s orders, (iii) be clearly marked as
`Buyer’s property, (iv) be segregated when not in use, (v) be kept in good working condition at Seller’s expense, and
`(vi) be shipped to Buyer promptly on Buyer’s demand or upon termination or expiration of this Agreement, whichever
`occurs first. Any such property furnished by Buyer to Seller that is marked or otherwise noted by Buyer as being
`confidential information will be treated by Seller in accordance with Section 12 hereafter.
`
`B.
`
`Seller shall be liable for any loss of or damage to Buyer’s property while in Seller’s possession or control, ordinary
`wear and tear excepted.
`
`12. 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. All confidential or proprietary information and materials disclosed to the other party
`hereunder shall be disclosed in accordance with the requirements of the Corporate Non-Disclosure Agreement
`(“CNDA”) referenced on the signature page of the Agreement. Each party agrees to maintain such confidential
`information in accordance with the terms of the Agreement and the CNDA and any other applicable separate
`nondisclosure agreement between Intel and Supplier. 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 its own information of a similar