WORLDWIDE CORPORATE PURCHASE AGREEMENT-GOODS

 

WORLDWIDE CORPORATE PURCHASE AGREEMENT-GOODS

TABLE OF CONTENTS

 

1.	BASIC OBLIGATIONS OF THE PARTIES	1
2.	ADDENDA INCORPORATED INTO THIS AGREEMENT	2
3.	DEFINITIONS	2
4.	TERM OF AGREEMENT	3
5.	PRICING-GENERAL	4
6.	CURRENCY	5
7.	ORDER PLACEMENT PROCEDURE AND PRODUCT/GROUP SPECIFIC REQUIREMENTS	5
8.	INVOICING AND PAYMENT	5
9.	MINIMUM PURCHASE; TERMINATION FOR CONVENIENCE	6
10.	DELIVERY, RELEASES. AND SCHEDULING	6
11.	INSPECTION, WARRANTY AND ACCEPTANCE	7
12.	PRODUCT SPECIFICATIONS/IDENTIFICATION/ERRATA	8
13.	PACKING AND SHIPMENT	9
14.	OWNERSHIP AND BAILMENT RESPONSIBILITIES	10
15.	CONTINGENCIES	10
16.	CONFIDENTIALITY AND PUBLICITY	10
17.	REMEDIES AND LIMITATION OF LIABILITY	11
18.	INTELLECTUAL PROPERTY INDEMNIFICATION	12
19.	HAZARDOUS MATERIALS	13
20.	CUSTOMS CLEARANCE	14
21.	COMPLIANCE WITH LAWS AND RULES	14
22.	RETENTION	14
23.	SUPPLYLINE PROTECTION	16
24.	BUSINESS CONTINUITY	15
25.	NEW DEVELOPMENTS	15
26.	ELECTRONIC TRANSACTIONS	15
27.	PRIVACY	16
28.	DATA SECURITY REQUIREMENTS	17
29.	NOTICES	18
30.	DISPUTE RESOLUTION	18
31.	SPECIFIC PERFORMANCE	21
32.	MERGER, MODIFICATION, WAIVER AND REMEDIES	18
33.	ASSIGNMENT	19
34.	APPLICABLE LAW	19
35.	HEADINGS	19
36.	SURVIVAL	19
ADDENDUM A PRODUCT DESCRIPTION, PRICE SCHEDULE		23
ADDENDUM B PERFORMANCESTANDARDS/QUALITY REQUIREMENTS		24
ADDENDUM C CGO SUPPLEMENTAL PROVISIONS		25
ADDENDUM D PROTECTION OF INTEL’S ASSETS		31
ADDENDUM E ASSIGNMENT OF INTELLECTUAL PROPERTY		32
ADDENDUM F CAPACITY UPSIDE		33

 

 

WORLDWIDE CORPORATE PURCHASE AGREEMENT-GOODS

 

	Agreement #:
	Effective Date:	December 31, 2007
	Expiration Date:	December 30, 2010
	CNDA #:	3766614

 

This WORLDWIDE CORPORATE PURCHASE AGREEMENT — GOODS (“Agreement”), made and entered into as of the 31 st   day of December, 2007, by and between KMG Electronic Chemicals, Inc., 9555 W. Sam Houston Parkway S., Suite 600, Houston, TX 77099, acting for itself and on behalf of those subsidiaries and Controlled Affiliates offering goods within the scope of this Agreement (collectively “KMG” or “Supplier”), a corporation organized and existing under the laws of the State of Texas, and Intel Corporation, a corporation organized and existing under the laws of the State of Delaware, USA acting on behalf of its subsidiaries and Controlled Affiliates (collectively “Intel” or “Buyer”).  Buyer shall assure that Subsidiaries and Controlled Affiliated or sister entities abide by the terms and conditions of this Agreement.  The term “Party” or “Parties” as used in this Agreement refer to the signatories in their individual or collective capacities, respectively.

 

RECITALS

 

Supplier provides a variety of goods to Buyer and Buyer purchases such goods on a worldwide basis from geographically diverse locations.  Each Party maintains procurement and manufacturing facilities in various geographies to support its business needs.  In order to facilitate the business relationship and the on-going sale and purchase of goods, it is the Parties’ intent to enter into this Agreement which will define key terms and conditions which will govern the majority of contractual relationships between the Parties while allowing Buyer and Supplier sites to define the details of specific procurement activities.  Further, it is the intent of the Parties to simplify the administration of contractual obligations and to foster an improved working relationship;

 

NOW THEREFORE , in consideration of the mutual covenants and promises contained herein, and intending to be legally bound hereby, Buyer and Supplier agree as follows:

 

AGREEMENT

 

1.              BASIC OBLIGATIONS OF THE PARTIES

 

Buyer may purchase and Supplier shall sell the goods pursuant to applicable prices, terms and conditions defined infra and specific Addenda.  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 (as supplemented by the terms and conditions of the Addenda) without requirement of any specific reference hereto in an Intel Purchase Order, and notwithstanding any preprinted terms and conditions on Supplier’s acknowledgment or Buyer’s Purchase Order or terms required generally for bidders in electronic “Internet Negotiations” offered by Buyer.  Certain purchasing activities may occur between the subsidiary entities of Buyer for consumption by such legal entity, and such purchases may be in the name of the local Buyer and Supplier legal entities.  Any additional or different terms in Supplier’s documents are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given.  In the event

 

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of any conflict or inconsistency between the terms and conditions set forth herein and those of set forth on any Addenda to this Agreement, the Addenda shall control to the extent the conflict is specific to the subject matter of the Addenda.  Any conflict or inconsistency between the negotiated terms set forth on the face (but not the preprinted terms on the reverse side) of any Buyer’s Purchase Order accepted by Supplier and the terms of any Addenda shall be governed by the terms set forth on such Purchase Order.

 

2.              ADDENDA INCORPORATED INTO THIS AGREEMENT

 

As of the Effective Date of this Agreement, the following addenda are incorporated into this Agreement and shall be read as an integral part thereof.

 

Addendum A             Product Description, Price Schedule

Addendum B             Performance Standards/Quality Requirements

Addendum C             CGO Supplemental Provisions

Addendum D             Protection of Intel’s Assets

Addendum E              Assignment of Intellectual Property

Addendum F              Capacity Upside

 

3.              DEFINITIONS

 

A.             “Acceptance Date” means the date on which Buyer accepts an Item or Service provided by Supplier in accordance with an Addendum A.

 

B.             “Consignment” means those consumable items owned by the Supplier that are held off-site by Supplier to help ensure that delivery requirements are met.

 

C.             “Controlled Affiliate” means an entity that is controlled (through the exercise of majority voting power at the board and shareholder level), directly or indirectly, by the ultimate parent of a contracting Party.

 

D.             [***]

 

E.              “Errata” means deviation from Specification with regard to manufacturing, packaging, labeling processes and or raw material changes.

 

F.              “Hazardous Materials” are or contain dangerous goods, chemicals, contaminants, substances, pollutants, or any other materials that are defined as hazardous by relevant local, state, provincial, national, or international law, regulations, and standards.

 

G.             “Interrupt” means any event which detrimentally affects the output of an Intel tool or product quality.

 

H.             “Items” means the goods that Supplier is to make available for sale to Buyer as set forth on the applicable Addendum A.  Items may include but not be limited to chemicals that are transported, stored, dip tubed and delivered by Supplier or otherwise provided hereunder or either singly or collectively, as the context indicates, or other goods or materials which Supplier agrees to sell to Buyer under this Agreement.

 

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I.               “Purchase Agreement” means an agreement between Buyer or a Controlled Affiliate of Buyer and Supplier or a Controlled Affiliate of Supplier pertaining to the purchase and sale of Items and/or the performance of Services falling within the scope of the Addenda incorporated into this Agreement from time to time.

 

J.              “Purchase Order” is Buyer’s document setting forth specific Services to be rendered and/or specific Items ordered, and Release information.

 

K.             “Release” means Buyer’s authorization for Supplier to provide the Services and to ship a definite quantity of Items in accordance with a specified schedule.  The Release is contained in the Purchase Order sent to Supplier.

 

L.              “Service(s)” means the work to be performed by Supplier if any as set forth in the applicable Addendum “A” in compliance with the Specifications of the applicable Addenda.

 

M.            “Specification” means the agreed technical definition, and/or performance parameters, Performance Standards, or purchase specification of Items and service level agreement, as applicable for Services as set forth in the applicable specification addenda to Addendum A for each Item or Service purchased or to be purchased pursuant to this Agreement.

 

4.              TERM OF AGREEMENT

 

A.           The term of this Agreement shall begin on the Effective Date and continue to the Expiration Date.  Buyer shall provide notice of its desire to extend this Agreement ninety (90) days prior to the then current Expiration Date of this Agreement.  During such ninety (90) day period Buyer and Seller agree to negotiate, in good faith, the terms and conditions (including but not limited to pricing) of any such extension, and such extension shall be effective upon Buyer and Supplier agreeing thereon.  [***]

 

B.           [***]

 

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5.              PRICING - GENERAL

 

A.             For Items purchased by Buyer, Supplier will provide to Buyer a dated, electronic file of such Items, their part number, description, list price if applicable, negotiated discount, the current negotiated price, and warranty period.  These price files will be set forth in the applicable Addendum A.  All quotes and invoices from Supplier shall be developed using part numbers and negotiated or published list prices set forth in the applicable Addendum A.

 

B.             [***]

 

C.             [***]

 

D.             Buyer may return, at Buyer’s expense and with prior written approval from Supplier, [***] in unopened, original, individual Item packaging for a credit against any outstanding or future Supplier invoices.

 

E.              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 surcharges shall be stated separately on Supplier’s invoice.  Supplier 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 Supplier unless Buyer deducts or withholds taxes therefrom and remits such taxes to the local taxing jurisdiction, then Buyer shall duly withhold such taxes and shall pay to Supplier the remaining net amount after the taxes have been withheld.  Buyer shall not reimburse Supplier 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 Supplier collection and remittance of taxes is required by law, Supplier shall have sole responsibility for payment of said taxes to the appropriate tax authorities.  In the event Supplier 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.

 

F.              Additional costs, except those described on Addendum A, will not be reimbursed without Buyer’s prior written approval.

 

G.             Buyer reserves the right to have Supplier’s records inspected and audited to ensure compliance with this Agreement.  [***]

 

H.             If an Item not included in Addendum A is to be purchased by Buyer, its price will be negotiated by a corporate representative at the time of initial purchase.  If the Item is for test purposes only at a given site, its price may be established between Supplier and the Buyer’s site purchasing staff.  Such price shall be in

 

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effect only until a corporation-wide price is negotiated between Supplier and Buyer for the Buyer part number assigned to such Item.

 

I.               Within sixty (60) days of the end of each calendar quarter during the term of this Agreement, Supplier shall deliver comprehensive and accurate quarterly updates of the applicable Addendum A and reports of quarterly sales to Buyer. Each such quarterly update shall include a list of all Items delivered to Buyer during the subject quarter which are not listed in Addendum A or identified in previous quarterly updates, the price of each such Item, the Supplier part numbers of each such Item, the Intel part number of each such Item, and any other changes to the applicable Addendum A.

 

J.              [***]

 

K.             Except where otherwise noted, the prices to be charged under this Agreement are inclusive of any and all containers (both returnable and disposable), diptubes, diptube exchange and all necessary accessories for each Item.

 

L.              Warehousing costs are not included in the prices to be charged under this Agreement, except where noted in Addendum A to the contrary.

 

6.              CURRENCY

 

Prices for Items will be stated in U.S. dollars regardless of an Item’s country of origin or destination. Buyer reserves the right to use U.S. dollars or alternatively the currency of the country to which the Items are provided as the currency of exchange in any purchase under this Agreement from Supplier or any subsidiary of Supplier.  On a site-specific basis, Buyer will select U.S. dollars or local currency as currency of exchange and will maintain that currency as currency of exchange for the term of this Agreement or until change is mutually agreed to by Buyer and Supplier.

 

7.              ORDER PLACEMENT PROCEDURE AND PRODUCT/GROUP SPECIFIC REQUIREMENTS

 

Due to the diverse nature of the products purchased under this Agreement and the different ordering locations, the Parties may agree to specific order placement procedures.  Depending upon the buying and selling entities and the products procured, specific provisions regarding order placement may be set forth on the applicable Addendum A.  All purchases by Buyer must be accompanied by a valid Purchase Order issued by Buyer’s Purchasing organization.

 

8.              INVOICING AND PAYMENT

 

A.             [***]

 

B.             Original invoices or packing lists shall be submitted and shall include:  Purchase Agreement number from the Purchase Order, Purchase Order number, line item number, Release number, part number, complete bill to address, description of Items, quantities, unit price, extended totals, and any applicable tax or other charges.  All costs forwarded to Buyer for reimbursement of expenses agreed

 

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under the terms of this Agreement shall be net of any reclaimable Value Added Taxes (“VAT”) incurred on such expenses.  Buyer’s payment shall not constitute acceptance.

 

C.             Supplier shall be responsible for and shall hold Buyer harmless for any and all payments to its vendors or subcontractors utilized in the performance of Services.

 

D.             Supplier agrees to invoice Buyer no later than [***] days after completion of Services or shipment of Items.  Buyer will not be obligated to make payment against any invoices first submitted after such period.

 

9.              MINIMUM PURCHASE; TERMINATION FOR CONVENIENCE

 

A.             [***]

 

B.             [***]

 

C.             [***], Buyer may terminate any Purchase Order or Release issued under this Agreement, or any part thereof, at any time for its sole convenience by giving [***] days notice of termination to Supplier.  Upon Supplier’s receipt of such notice, Supplier shall, unless otherwise specified in such notice, immediately stop all work hereunder, give prompt notice to, and cause all of its suppliers or subcontractors to cease all related work, and, upon Buyer’s request, return all materials provided to Supplier by Buyer under this Agreement.

 

D.             [***]

 

E.              [***]

 

F.              [***]

 

G.             Notwithstanding anything else in this Agreement, failure to meet the delivery date(s) in the Purchase Order shall allow Buyer to terminate the order for the Item and/or any subsequent Releases in the Purchase Order without any liability whether the Purchase Order was for standard or Custom Items.

 

10.           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.             Supplier shall notify Buyer within forty eight (48) hours of receipt of Buyer’s Purchase Order if Supplier is unable to make any scheduled delivery and shall state the reasons therefor.

 

C.             On time delivery by Supplier is a key expectation of this Agreement.  Supplier shall deliver Items per the Release schedule and Buyer may return non-conforming shipments at Supplier’s risk and expense.

 

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D.                                     Buyer may reschedule any Release in whole or in part up to ten (10) days prior to the Release date at no additional charge, provided however that the rescheduled Release date is no more than thirty (30) days later than the original Release date.

 

E.                                       Buyer may place any portion of a Release on hold by notice that shall take effect immediately upon receipt.  Releases placed on hold will be rescheduled, or terminated in accordance with Section 9, within a reasonable time.  If placing a Release on hold will cause Supplier to incur additional storage and handling costs, Buyer and Supplier shall mutually agree on storage and handling solution and any costs to be reimbursed.

 

F.                                       Buyer shall have no obligation with respect to the purchase of Items under this Agreement until such Items are specified in an issued Purchase Order that contains specific Release dates for specific Items.

 

G.                                      If for any reason Supplier discontinues the manufacture of any Item during the term of this Agreement, Supplier shall for Items that are currently being purchased, or have been purchased, give Buyer notice [***].  If any warranty return claims are made for such discontinued Items, then such returns will be subject to the warranty provisions in Section 11.

 

H.                                     Supplier shall provide a Certificate of Analysis (C of A) or sample for each lot to be shipped, as directed in the most current appropriate Specification.

 

I.                                          Supplier shall maintain a safety stock on such Items as Buyer’s local sites may identify, [***].

 

J.                                         Supplier will store Items at Supplier’s local warehouse or Buyer’s designated warehouse.  However, if Supplier’s local warehouse does not meet the reasonable expectations of Buyer, Buyer reserves the right to request an alternate warehouse.

 

11.                                INSPECTION, WARRANTY AND ACCEPTANCE

 

A.                                    Buyer may inspect and test, at Buyer’s expense, 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.  In the event of any shortage, damage or discrepancy in or to a shipment of Items, Buyer shall promptly report such shortage, damage or discrepancy and furnish reasonable documentation thereof.  Supplier shall not be responsible for any shortage, damage or discrepancy unless Buyer provides notice thereof within thirty (30) days of Buyer’s receipt of such Items.  If Supplier receives such notice and is responsible for the shortage, damage or discrepancy, such Items may be returned to Supplier at Supplier’s

 

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risk and expense and, at Buyer’s request, shall be replaced by Supplier within normal lead-times for the Item.

 

B.                                      Supplier makes the following warranties regarding Items and Services furnished hereunder, which warranties shall survive any delivery, inspection, acceptance, payment, or resale of the Items:

 

1.                                        Items will not infringe any Party’s intellectual property rights;

2.                                        Supplier has the necessary right, title, and interest to provide said Items and Services to Buyer, and the Items will be free of liens and encumbrances;

3.                                        With the exception of used Items purchased by Buyer, Items are new, and of the grade and quality specified;

4.                                        Items are free from defects in workmanship and material, conform to all samples, drawings, descriptions, and Specifications furnished or published by Supplier and to any other agreed Specifications; and

5.                                        Items shall conform to the manufacturing quality provisions set forth in Addendum B.

 

C.                                      THE FOREGOING WARRANTIES SET FORTH IN PARAGRAPH B OF THIS SECTION 11 ARE THE SOLE WARRANTIES HEREUNDER, AND SUCH WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

D.                                     For