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AG ASSOCIATES EXHIBIT 10.31
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INTERNATIONAL REPRESENTATIVE
AGREEMENT
THIS AGREEMENT: made and entered into this 13th day of September, 1996, by and
between:
AG Associates, Inc. having its principal office at 4425 Fortran Drive, San Jose,
California, 95134, hereinafter referred to as "Company and, Silicon
International, registered under the laws of Hong Kong, principal office at Suite
303, Four Seas Building, 208-212 Nathan Road, Kowloon, Hong Kong, hereinafter
referred to as "Representative", agrees as follows:
1) APPOINTMENT AND ACCEPTANCE - Company hereby appoints the Representative as
its authorized Representative to sell and service the products (enumerated
in "Section 3" hereof in the Territory (defined in "Section 2" hereof),
and Representative accepts the appointment and agrees to sell, promote and
extend the sales and handle the maintenance and servicing of the Company's
Products subject to the terms and conditions of this Agreement.
2) TERRITORY - Representative's Territory shall be limited to the Territory
referenced in Exhibit A, SALES TERRITORY REPRESENTED.
Company shall have the right, in its sole discretion, to modify Territory
assignments upon one hundred twenty (120) days prior notice to
Representative.
The Company retains the right to designate Exhibit G "HOUSE ACCOUNTS"
which shall not be eligible for Representative sales activity or standard
commissions.
3) PRODUCTS - The Products of Company to be sold by the Representative shall
include only systems and accessories and replacement parts, as listed in
Exhibit B, PRODUCTS REPRESENTED (the "Products").
4) AMOUNT OF COMPENSATION - Representative's compensation for services
performed hereunder shall be in accordance with Exhibit C, COMMISSION
SCHEDULE, herewith attached and made a part hereof. Commissions shall be
computed on the "net invoice price" of the Company's Products sold by the
Representative.
5) COMPUTATION AND PAYMENT OF COMMISSION
a) Commissions are accrued upon shipment of system from AG and payable
to Representative on or before the 25th day of the month following
the month in which full payment is received by the Company.
b) "Net invoice price" - shall mean the total price at which an order
is invoiced to the customer including any increase or decrease in
the total amount of the order (even though such increase or decrease
may take place after the effective date of termination), but
excluding shipping, taxes, insurance and C.O.D. charges.
c) Commissions shall be earned on all system orders for Company
Products that are listed in Exhibit B, PRODUCTS REPRESENTED, and
sold by the Representative. Commissions shall be calculated as
listed in Exhibit C, COMMISSION SCHEDULE.
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d) There shall be deducted from any sums due Representative:
I. Contributions of Representative to discounts granted to the
customer without the prior consent of the Company. This
contribution shall be understood to mean the discount given on
the Product from the Company's list price schedule.
II. An amount equal to commissions previously paid or credited on
sales of Company's Products which have since been returned by
the customer or on allowances credited to the customer for any
reason by the Company; and,
III. An amount equivalent to commissions previously paid or
credited on sales which Company shall not have been fully paid
by the customer whether by reason of the customer's
bankruptcy, insolvency, or any other reasons which, in the
Company's judgment, renders the account uncollectable (if any
sums are ever realized upon such uncollectable accounts,
Company will pay Representative its percentage of commission
applicable at the time of the original sale upon net proceeds
of such collection).
e) "Order" shall mean a written commitment to purchase Company's
Products placed by customer in Representative's Territory.
f) In the event that a product to be purchased by a customer outside of
the Territory for installation in the Territory, or by a customer in
the Territory for installation outside the Territory, Representative
shall notify the Company. Such a purchase shall be deemed a split
sale. The Company shall determine the compensation to be received by
the representatives with respect to any split sale, based on where
the purchase contract is to be signed, the degree of involvement of
the respective representatives before- and after the sale.
The split of total compensation paid to all representatives
(assuming that the discount on list price given to a representative
acting as a distributor on goods purchased shall be considered
"compensation" paid to such representative) shall be determined in
the following manner:
i) one third of the compensation shall be paid to the
representative in whose territory the technology developed and
the equipment selection originates:
ii) one third of the compensation shall be paid to the
representative into whose territory the purchasing and
negotiations are conducted;
iii) one third of the compensation shall be paid to the
representative in whose territory the Product(s) are shipped/
installed.
Final determination of the split will be made by the Vice President
of Sales of the Company.
6) ACCEPTANCE OF ORDERS - All orders are subject to acceptance or rejection
by an authorized Company officer at its home office and to the approval of
Company's credit department. Company shall be responsible for all credit
risks and collections. Representative shall assist in collections. On all
customer's purchase orders, an irrevocable letter of credit confirmed by
Company's Bankers shall be required. Company will agree with the terms of
C.A.D. - Cash Against Documents - at sight for purchase orders placed with
Company by Representative's "large account customers" who have
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d) There shall be deducted from any sums due Representative:
I. Contributions of Representative to discounts granted to the customer
without the prior consent of the Company. This contribution shall be
understood to mean the discount given on the Product from the
Company's list price schedule.
II. An amount equal to commissions previously paid or credited on sales
of Company's Products which have since been returned by the customer
or on allowances credited to the customer for any reason by the
Company; and,
III. An amount equivalent to commissions previously paid or credited on
sales which Company shall not have been fully paid by the customer
whether by reason of the customer's bankruptcy, insolvency, or any
other reasons which, in the Company's judgment, renders the account
uncollectable (if any sums are ever realized upon such uncollectable
accounts, Company will pay Representative its percentage of
commission applicable at the time of the original sale upon net
proceeds of such collection).
e) "Order" shall mean a written commitment to purchase Company's Products
placed
f) In the event that a Product to be purchased by a customer outside of the
Territory for installation in the Territory, or by a customer in the
Territory for installation outside the Territory, Representative shall
notify the Company. Such a purchase shall be deemed a split sale. The
Company shall determine the compensation to be received by the
representatives with respect to any split sale, based on where the
purchase contract is to be signed, the degree of involvement of the
respective representatives before and after the sale.
The split of total compensation paid to all representatives (assuming that
the discount on list price given to a representative acting as a
distributor on goods purchased shall be considered "compensation" paid to
such representative) shall be determined in the following manner:
i) one third of the compensation shall be paid to the representative in
whose territory the technology developed and the equipment selection
originates;
ii) one third of the compensation shall be paid to the representative
into whose territory the purchasing and negotiations are conducted;
iii) one third of the compensation shall be paid to the representative in
whose territory the Product(s) are shipped/installed.
Final determination of the split will be made by the Vice President of
Sales of the Company.
6) ACCEPTANCE OF ORDERS - All orders are subject to acceptance or rejection
by an authorized Company officer at its home office and to the approval of
Company's credit department. Company shall be responsible for all credit
risks and collections. Representative shall assist in collections. On all
customer's purchase orders, an irrevocable letter of credit confirmed by
Company's Bankers shall be required. Company will agree with the terms of
C.A.D. - Cash Against Documents - at sight for purchase orders placed with
Company by Representative's "large account customers" who have
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purchase missions in the U.S.A. or "large account customers" who have
parent companies in the United States of America (U.S.) and/or affiliate
companies and/or subsidiary companies in the U.S. Company will provide
Representative with copies of all quotations submitted to all customers
above described together with information such as date of shipments and
scheduled acceptance test of equipment/systems to be performed by
Company's and/or Representative's field engineers. Company will advise
Representative and customer of the shipment date so that the irrevocable
letter of credit can be transmitted to the Company at least thirty (30)
days prior to the shipping date. If Company notifies customer of its
acceptance or rejection of an order, a copy shall be transmitted to the
Representative.
Customer shall place purchase orders to Company in writing, specifying
quantities, model or part number, pricing and any other pertinent
information for each item ordered. Process and/or mechanical
specifications to be met by Company Products must be included, when
applicable.
The acceptance of an order by customer shall be based on terms and
conditions stated on the terms and conditions of the order acknowledgment.
(See Exhibit F, TERMS AND CONDITIONS)
7) CANCELLATIONS - cancellation of order is subject to cancellation penalty
referred to in Terms and Conditions of that order. See Exhibit F, TERMS
AND CONDITIONS.
8) U.S. EXPORT CONTROL. Company Products are controlled by the United States
(U.S.) Department of Commerce (DOC), U.S. Export Administration Act.
Items shipped to Representative for use by Representative or customers in
the Territory shall not be diverted by Representative to other customers
in or outside the Territory in a manner contrary to U.S. Export
Regulations. Representative shall notify Company promptly if
Representative becomes aware of any such diversion by any of its
customers.
9) REPRESENTATIVE'S OBLIGATIONS
a) Representative shall maintain a place of business in the Territory,
which shall include a service department and use its best efforts
and devote such time as may be reasonably necessary to service,
sell, and promote the sale of Company Products within the Territory.
b) Representative will conduct all of its business in its own name.
Representative will pay all expenses whatever of its office and
activities and be responsible for the acts and expenses of its
employees.
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c) Representative shall maintain sufficient staff to serve the demands
and needs of selling company products, process support, and
servicing (1st and 2nd level escalation support) of Company
Products. Representative's staff shall be conversant with the
technical language conventional to Company Products and similar
equipment in general, and shall develop sufficient knowledge of the
semiconductor manufacturing and research market, of Company Products
and of products competitive with Company Products (including
specifications, features and benefits) so as to be able to explain
in detail to customers the differences between Company Products and
competitive products.
d) Representative shall maintain at its own expense an efficient
installation and maintenance service capability, and a sufficient
replacement part inventory to support Company Products installed in
the Territory. Representative shall install and warrant all Company
Products sold by Representative in the Territory. Such installation
and warranty work shall be performed free of charge to customers. In
the case where customer requests installation of Company Product by
a Company field service engineer in lieu of Representative,
Representative must request in writing that original Quotation of
Company Products to customer be increased by an amount appropriate
to cover such installation and operator's start-up training, or
absorb cost of trip, including expenses.
e) Representative shall purchase from Company and keep it its
possession Company Products shown in Exhibit D, DEMONSTRATION
EQUIPMENT, attached hereto, for customer demonstration use. Company
agrees to grant Representative a discount on purchase of
Demonstration Equipment. Representative shall not resell or lease
Demonstration Equipment within twelve (12) months of its delivery
without a written agreement of Company. Representative shall order
replacement demonstration equipment from Company at time of receipt
of customer's purchase order or lease agreement on Demonstration
Equipment. When sold, Demonstration Equipment will be declared as
used equipment by Representative.
During the last week of the month, Representative shall provide
Company with the following information regarding the potential sales
of Company Products in the Territory. In addition to the following
information, the Regional Manager may provide a written request of
additional requirements.
I. A monthly update of the rolling six-month forecast using
Company forms. All sales prospects including customer name,
specific product, process and applications, status,
probability of ordering Company Products and probable month of
ordering. Also, lost order reports shall be submitted monthly.
II. In February and August, a twelve-month forecast which shall
include the quantity of each Company Product to be ordered
during each of the months.
g) Representative shall exhibit Company Products at appropriate trade
or technical shows in the Territory, when approved by both parties
and provided that Company provides appropriate equipment and/or
exhibit materials. Shows in the forthcoming year which shall be
attended by Representative shall be agreed upon with the Company
officer during the annual Representative review.
h) If required by business conditions and customs of the Territory,
Representative shall translate at Representative's expense Company
advertising and promotional materials, as well as the operator and
service manuals of Company Products into the language(s) of the
Territory. When this Agreement is terminated, Representative shall
assign to Company all its rights in all such translated materials,
including but
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not limited to, all related copyrights at no cost to Company and
Representative shall turn over to Company all translated materials
and documentation.
i) Representative shall assist Company in routinely updating the
customers and prospect database, including customer organization
charts
j) Representative shall promptly submit a annual written report in
August of competitive situation and functioning of Company Products
in the Territory. Representative shall also advise Company promptly
of any new information concerning Company, Company Products and
their sales, including any charges, complaints or claims about
Company or Company Products.
k) Representative shall not, without Company's prior written consent,
handle products which, in the opinion of Company are competitive
with the Products of Company being handled by the Representative.
Representative shall notify Company whenever taking on any
additional lines other than those now handled by the Representative,
or whenever his relationship is terminated with any other
Manufactures which it now represents. A line card of companies
represented will be provided with the twelve month forecast.
1) Representative shall not, without Company's prior written approval,
alter, enlarge, or limit orders, make representations or guarantees
concerning Company's Products or accept the return of, or make any
allowance for such Products.
m) Representative's performance may be reviewed annually by Company
officer at the Representative's place of business.
10) COMPANY'S OBLIGATIONS
a) Company shall be solely responsible for the design, development,
supply, production and performance of its Products.
b) Company shall deliver Products and replacement parts ordered by
Representative directly to customer. Company shall supply
replacement parts ordered by Representative for service under
warranty at no charge to Representative, with shipping charges
prepaid by Company as defined in Section 14.
c) Company shall support Representative in maintaining Company Products
in the Territory within the published specifications. Company shall
provide to Representative service manuals, schematics, and other
documentation, which will enable Representative to maintain Company
Products in their territory. Company shall guarantee that, for a
period of not less than five (5) years after shipment of Company
Product, Company shall continue the delivery of replacement parts to
customers in the Territory on all orders issued by Representative's
customers.
d) Company shall service Company Products. Company employees will visit
Territory from time to time at Company expense on business initiated
by Company.
e) Company shall provide reasonable quantities of promotional
literature, such as product brochures, data sheets, application
notes, bibliography of technical articles and article reprints, at
no charge to Representative for use in the Territory. Company shall
also make available to Representative promotional materials, such as
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slide and video tape presentations, prepared by Company for customer
presentations and training. Company shall provide training for
Representative sales and service personnel in Product features and
various other aspects of Company Products. All training shall take
place at or originate from Company offices during regularly
scheduled training courses. Training shall be made at no charge to
Representative, but Representative shall be responsible for travel
expenses and all expenses of its employees during such training.
g) Company shall supply Distributor with a list of sales and service
objectives and time frame for meeting the objectives.
h) Company shall supply Distributor with a protocol for communicating
with AG Associates.
11) PRICES - TERMS OF SALE. All sales shall be at prices and upon terms
established in the current Sales Handbook and it shall have the right, in
its sole discretion, from time to time, to establish, change, alter or
amend price and other terms and conditions of sale providing that the
Representative will be informed by mail or facsimile at least thirty (30)
days prior to such change, alteration, or amendment in price and other
items and conditions. Representative shall not accept orders in Company's
name, make price alterations or amendment in price or other items and
conditions. Payment shall be made in U. S. dollars. F.O.B. shall be San
Jose, California.
a) Company shall furnish Representative from time to time with copies
of its price lists, as applicable. Company domestic price lists
establish prices of Company Products and replacement parts sold to
U. S. customers for installation and use in the United States and
serve as basis for calculation of all selling prices. Company
international price lists established prices of Company Products and
replacement parts sold directly to foreign customers, or to U. S.
purchasing offices of foreign customers, or to U. S. customers for
installation and use outside of the United States, and serve for
reference purposes of all foreign customers.
b) In the event of price increase, Company agrees to notify
Representative at least sixty (60) days in advance of the effective
date of such price increase. Such price increase will not apply to
firm orders placed by customer prior to the effective date of such
price increase. Decreases in trade-in value or other customer
credits shall be treated as price increases, above, and shall be
effective as of the date of notification to Representative.
Representative agrees to pass any decrease notification through to
customers.
12) CHANGE OF DESIGN
Company reserves the right to change the design of Company Products or
parts thereof at any time without notice to the Representative. Company
may, but shall not be obligated to, make similar changes on any Company
Products or parts previously shipped to Representative and customer, or to
install or furnish any other different parts than were contained therein
when shipment was made.
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13) PROPRIETARY RIGHTS
a) Confidential Information and Trade Secrets
Each party agrees to use best efforts, and at least the same care
that is used to protect its own confidential information of like
importance, to prevent unauthorized use, dissemination and
disclosure of other party's trade secrets and confidential
information.
b) Company Products
Representative shall not, nor shall Representative authorize or
knowingly permit its customers to, disassemble and copy or
manufacture any Company Product or portion thereof or
parts/accessory thereto. Representative shall notify Company in
writing promptly if it discovers any infringement of Company's
rights in Company Products and Representative shall provide Company
with all reasonable assistance, at Company's expense, if Company
initiates legal action in the Territory to protect its proprietary
rights in Company Products.
c) Third Party Claims
Representative shall give Company prompt notice of any third party
claim that the Company Products as supplied by Company directly
infringe any third party's patent, copyright or trade secret under
the laws of the Territory.
14. WARRANTY
a) Warranty Terms
Company products are warranted to customer according to terms of
standard Company warranty in effect on the date of shipment. Service
warranty will be provided by Representative to customer within the
Territory; parts warranty will be provided by the Company. Details
of current warranties are detailed in "Exhibit E".
b) Supply of Replacement Parts
Company shall supply replacement parts ordered by customer for
service under warranty at no charge, with shipping charges prepaid
by Company. Such warranty part deliveries shall be subject to prompt
return of defective parts to Company for warranty status
determination, shipping charges prepaid by shipper. In cases when no
defects are found, or defects are judged by Company to be caused by
events other than those covered by Company warranty as set forth in
this Agreement, or defective parts are not returned to Company
within thirty (30) days of replacement part shipment, Company shall
bill shipper for the shipped replacement parts according to terms
and conditions of the Agreement.
Post-warranty service shall be provided by Representative to
customers within the Territory at industry rates and any parts used
in such service shall be purchased from the Company. Representative
shall provide a price schedule to customers for all Company Products
sold in the Territory, including service and maintenance contracts.
c) Returns to Company
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Customer may return Company Products to Company for service. Such returns
may be made only after issuance by Company of a Return Material
Authorization (RMA) number. Customer shall be responsible for all costs of
returning Company Products to Company for warranty service, as well as for
all costs of returning repaired Company Products to Customer.
15. TRADEMARK AND TRADE NAME
Representative agrees to use the names "Heatpulse" and Company's corporate
mark, logo and all trade names and saying marks that Company may possess
only in connection with Representative's marketing of Company Products
during the term of this Agreement. Representative's use thereof shall be
in accordance with Company's guidelines.
16. TERM OF AGREEMENT AND TERMINATION
This Agreement shall continue in force for the length of time designated
in Exhibit E, TERM OF AGREEMENT, unless otherwise terminated. This
Agreement shall terminate when either party serves written notice to the
other, by registered or certified mail, of his intention to terminate this
Agreement upon ninety (90) days notice.
This Agreement shall terminate immediately and automatically in the event
of (i) the insolvency, bankruptcy, or liquidation of Representative, (ii)
the failure to meet Company expectations following a sixty (60) day
notice, or (iii) the general ineligibility of Representative to
participate in U. S. export trade.
Upon termination of this Agreement, Representative shall immediately
return to Company, or transfer to another party designated by Company, at
Representative's expense, all sales promotion materials and aids as well
as any tools, equipment or other items loaned or furnished by Company to
Representative in the course of conducting business pursuant to this
Agreement.
Until and unless another Representative is appointed by Company in and for
the Territory, Representative shall retain responsibility for providing
warranty and non warranty service for Company Products installed in the
Territory. Representative will also cooperate with the Company in
arranging for the continuation of support for the users of Company
Products in the Territory. Commissions paid for Products sold in the
Territory included warranty and non-warranty services.
Upon termination of this Agreement, Representative shall promptly furnish
Company with the complete list of installations of Company Products and
all future prospects, including name, address and principal application(s)
and service arrangements of each user.
Representative shall not represent a principal in a competitive market for
a period of one year following termination.
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17. INTERPRETATION AND ENFORCEMENT
a) Notices
Any notice, request, demand, or other communication required or
permitted hereunder shall be deemed to be properly given when
mailed, postage prepaid, or when deposited with a public telegraph
company for transmittal or when sent by facsimile or telex, charges
prepaid, addressed to Company or Representative at the address
current at the time of notice.
b) Representative Not Legal Agent
This Agreement does not constitute the Representative the agent or
legal representative of Company for any purpose whatsoever. The
Representative is not granted any right or authority to assume or to
create any obligation or responsibility, expressed or implied, on
behalf of or in the name of Company or to bind Company in any
manner.
Nothing in this Agreement shall be construed to constitute the
Representative as a partner, employee or agent of Company nor shall
either party have any authority to bind the other in any respect, it
being intended that each shall remain an independent contractor
responsible only for its own actions. Representative shall not,
without the Company's prior written approval, make representations
or guarantees on behalf of the Company regarding the Company's
products.
18. COMPLETENESS OF INSTRUMENT
This Agreement contains the entire understanding of the parties, and shall
supersede any other oral or written agreements and shall insure to the
benefit of Company's successors and assigns. It may not be modified in any
way without the written consent of both parties. Representative shall not
have the right to assign this Agreement in whole or in part without
Company's written consent.
19. CONSTRUCTION OF AGREEMENT
The validity, construction, and performance of this Agreement shall be
governed by and construed in accordance with the laws of the State of
California, excluding that body of law applicable to conflict of laws. In
the event that any provision of this Agreement shall be held by a court of
law or an arbitrator to be illegal or unenforceable, the remaining
provisions of this Agreement shall remain in full force and effect.
Any dispute, controversy or claim arising out of or relating to this Sales
Representative Agreement of the breach, termination or invalidity thereof
shall be settled by arbitration in accordance with the rules of the
American Arbitration Association as then in effect. The arbitration shall
take place in the San Francisco-San Jose, California area.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written in multiple counterparts, each of which shall be
considered an original.
REPRESENTATIVE COMPANY
BY: Derek R. Tomlinson
TITLE: Vice President of Sales & Marketing
DATE:
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REPRESENTATIVE AGREEMENT
EXHIBIT"A"
SALES TERRITORY REPRESENTED
Representative's Territory shall be limited to:
People's Republic of China
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REPRESENTATIVE AGREEMENT
EXHIBIT"B"
PRODUCTS REPRESENTED
PRODUCT DESCRIPTION
1. Heatpulse 610 Rapid Thermal Processor
2. Heatpulse Refurbished Automatic Systems (when available)
3. Heatpulse 4 1 OOS Rapid Thermal Processor
4. Heatpulse 8108 Rapid Thermal Processor
5. Heatpulse 8800 Rapid Thermal Processor
6. AG Associates Next Generation RTP System scheduled to be released
calendar Q 1, '97
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REPRESENTATIVE AGREEMENT
EXHIBIT "C"
COMMISSION SCHEDULE
Representative will earn sixteen (16%) commission on the sale of assigned
Company Products (Exhibit B, PRODUCTS REPRESENTED) according to the terms of
their Agreement. Commission shall be computed on the "net invoice price" of the
Company's Product sold by the Representative (Exhibit D, TERMS OF SALE).
Commission rate shall be sheltered from the first five (5) percent of discount
allowed the customer.
Commissions shall be earned on all orders for Company Products that are listed
in Exhibit C, COMMISSION SCHEDULE, and sold by the Representative.
A. For discounts given by distributor of <10%, a bonus will be added to
Distributor's commission. Bonus = .5 (Sales Price - AG's Final Price*)
B. > 10 - 15% Discount: commission remains as per agreement.
C. For Discounts given by distributor of greater than 15%, a penalty will be
deducted from Distributor's commission.
Penalty = .5 (AG's Final Price* - Sales Price)
Bonus Example - 8% Discount
List Price Sales Price
Heatpulse Model 8108 $646,600
Slip-Free $ 51,972
QuartzPak $ 14,481
Total Purchase Order Amt: $713,053
Maximum Allowable Discount 15% $106,958
$606,095 $656,009
.5 ($656,009 - $606,095) = $24,957 Bonus
Penalty Example - 18% Discount
List Price Sales Price
Heatpulse Model 8108 $646,600
Slip-Free $ 51,972
QuartzPak $ 14,481
Total Purchase Order Amt: $713,053
Maximum Allowable Discount 15% $106,958
$606,095 $584,703
.5 ($606,095 - $584,703) = $10,696 Penalty
*AG's Final Price defined as .85 List Price
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REPRESENTATIVE AGREEMENT
EXHIBIT"D"
DEMONSTRATION EQUIPMENT
None.
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REPRESENTATIVE AGREEMENT
EXHIBIT"E"
HEATPULSE WARRANTY
Company products are warranted to customer according to terms of standard
Company warranty in effect on the date of shipment. Warranty shall be for
fifteen (15) months effective from date of shipment unless stated otherwise in
purchase order. See Exhibit F, TERMS CONDITIONS.
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REPRESENTATIVE AGREEMENT
EXHIBIT"F"
TERMS AND CONDITIONS
See attached.
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TERMS AND CONDITIONS OF SALE
1) SCOPE
The following terms and conditions (Term's & Conditions of Sale") and any
liability hereto expressly apply to and limit the liability of AG
Associates (Seller) for all quotations, orders, acceptances, sales and
deliveries by Seller. No terms and conditions or other understandings,
whether oral or written, in any way purporting to vary the Terms &
Conditions of Sale shall be binding on Seller unless stated in a writing
signed by a duly authorized officer of Seller. Any provisions or
conditions of Buyer's order form which are in any way inconsistent with or
in addition to the Terms & Conditions of Sales (except those provisions
specifying quantity, describing the items ordered and shipping
instructions only) shall not be deemed an acceptance of such term or
condition or binding on Seller and shall not apply to sales hereunder.
Seller's failure to object to any term or condition contained in any
communication from Buyer shall not be deemed an acceptance of the Terms &
Conditions of Sale.
2) QUOTATIONS, ORDERS, ACCEPTANCES
A quotation is Seller's offer to sell, expressly conditioned upon
Buyer's agreement to the Terms & Conditions of Sale by a written
acknowledgment by implication or by acceptance of or payment for goods
ordered hereunder. A quotation is valid for thirty (30) days from the date
indicated thereon (unless specifically indicated otherwise) after which
date Seller reserves the right to change it in any and all respects.
Stenographic and clerical errors are subject to correction at all times.
The Terms & Conditions of Sales are included in an order
acknowledgment sent to Buyer upon receipt of an order. All orders for
shipment from an entity located outside the United States must be
accompanied by a confirmed, irrevocable letter of credit drawn on an
United States bank acceptable to Seller. All orders are subject to final
acceptance by Seller at its home office in San Jose, California. Seller's
acceptance of Buyer's order is expressly conditioned upon Seller's assent
to any terms contained in this acceptance different from or in addition to
the terms stated in Buyer's order.
3) CANCELLATION
Cancellation by Buyer of firm orders for all standard systems and
components are subject to a 25% cancellation charge. Cancellation by Buyer
of firm orders received for all systems and/or components manufactured to
Buyer's specifications (Custom Systems) will be subject to the
cancellation charges as set forth in Seller's quotation, but in no case
shall be less than 25%.
The Buyer acknowledges that the amount of damage sustained by Seller
is a result of Buyer's cancellation in breach hereof would be impractical
or extremely difficult to fix, and that the charge set forth hereunder for
cancellation are reasonable under the present circumstances. In addition
to collection of cancellation charges as liquidated damages as set forth
hereunder. Seller shall have available all remedies at equity and law in
the event Buyer cancels an order hereunder.
4) TAXES
Quoted prices for goods do not include sales, use excise or similar
taxes. Unless otherwise agreed to be Seller, Buyer hereby assumes all
responsibility for and agrees to pay and hold Seller harmless from any and
all such sales, use, excise or other taxes or assessments imposed by any
federal, state or local governmental authority upon the transactions
covered hereby, whether or not such items appear on any invoice submitted
by Seller.
5) TERMS OF PAYMENT
Unless otherwise agreed to in writing by Seller, payment shall be
due net thirty (30) days after shipment of goods. If there is to be more
than one shipment hereunder, pro rata payment shall become due thirty (30)
days after each such shipment without regard to other deliveries. Time of
payment is of the essence. All payments shall be in U.S. funds. Interest
at the maximum rate permitted by law may be added to any overdue amounts
owed to Seller.
If in the opinion of Seller, the financial condition of Buyer at any
time does not justify continuance of production or shipment on the terms
or payment previously specified, Seller may, in its sole discretion,
require full or partial payment in advance. If Buyer becomes insolvent, or
bankruptcy or other debtor's relief proceedings are instituted by or
against Buyer, or Buyer makes an assignment for the benefit of creditors
or is unable to meet its obligations as they become due, any such event
shall be deemed a material default hereunder, entitling Seller to cease
performance under this order and to avail itself of all legal and
equitable remedies it may have against Buyer.
If the date of shipment of goods is delayed beyond the date
specified in the purchased order or contract of sale at the request of
Buyer for any reason, the full payment may, at the sole discretion of
Seller, become due upon expiration of thirty (30) days after the shipment
date specified in the purchase order or contract of sale.
For goods manufactured to Buyer's specifications, unless stated
otherwise, Buyer shall make an initial payment of not less than 25% of the
purchase price with progress payments and final payments to be made
according to a mutually agreed upon written schedule.
6) DELIVERY, RISK OF LOSS, SHIPMENT DATES
Title to shipments will pass to the Buyer upon acceptance by the
carrier. All risk of loss for the goods passes to Buyer when the goods are
delivered to the carrier f.o.b. point of shipment. In all cases, risk of
loss or damage to any goods in transit shall fall upon Buyer, whose
responsibility it shall be to file claims with the carriers, who will be
deemed Buyer's agents. Seller accepts no responsibility and shall not be
responsible for any claims filed with it. Unless Seller receives specific
instructions from Buyer, Seller will exercise its own discretion in
selecting the method of shipment. Shipment dates specified by Buyer or
Seller shall be approximations only and Seller shall incur no liability
whatsoever for failure to ship on such dates. Shipment dates are the date
of shipment from the point of manufacture. Seller reserves the right to
make deliveries of goods in installments. All prices are net and do not
include any transportation or insurance costs, which will be separately
invoiced and paid by Buyer.
7) SUBSTITUTION
Seller reserves the right to make changes in details of design or
construction which in its opinion constitute an improvement over goods
ordered, provided the purchase price shall not be increased thereby.
8) SUBCONTRACTING, CHANGES OF SOURCES
Seller reserves the right in its sole discretion to subcontract any
or all of the work to be performed hereunder or change sources of
material.
9) DEFAULT BY BUYER
In the event of default by Buyer, Seller may decline to make further
shipments without in any way affecting Seller's rights hereunder. If
despite any default by Buyer, Seller elects to continue to make shipments,
Seller's action shall not constitute a waiver or any default by Buyer or
in any way affect Seller's remedies.
10) NON-CONFORMITY OF GOODS
In the absence of written notice by Buyer to the contrary, all goods
will be deemed accepted by Buyer within thirty (30) days after receipt.
Buyer may reject goods or revoke its acceptance of goods in the event of
material, specification or process non-conformity, provided Seller is
notified in writing within thirty (30) days of Buyer's receipt of the
goods. Seller retains the right to correct any non-conformity in
accordance with the Warranty provisions of Paragraph II below. No term or
condition stated herein shall alter the terms or conditions of payment.
11) LIMITED WARRANTIES
Except as stated below, Seller warrants that the components of the
Heatpulse product systems whether manufactured by Seller or another
manufacturer, are free from defects in material and workmanship. As a sole
remedy for breach of this warranty, during the Warranty period (as defined
below), Seller or its authorized service agent will repair or replace,
without charge, any component or assembly of components that is found by
Seller to be defective in material or workmanship. The Warranty Period
shall begin on the shipment date and end (i) fifteen months from the date
of shipment in all new Heatpulse systems, (ii) ninety days from date of
shipment for all new spare component parts. Seller warrants the tungsten
halogen lamps unconditionally for 3 years from the date of shipment. The
warranties contained in this section II extend only to the original use
purchaser. This warranty DOES NOT apply to the following:
a) To any Heatpulse product where the product has been misused, abused
or used in an application for which it was not designed and or
specified.
b) To defects or damage occurring as a direct or indirect result of the
use of any unauthorized replacement part or the performance of any
maintenance or service by any one other than an authorized service
agent supplied by Seller.
c) Consumables that are a component part of the Heatpulse product. No
goods shall be returned to Seller for warranty adjustment without
prior authorization from Seller. Warranty labor will be provided
during normal business hours of 8:00am to 5:00pm, Monday through
Friday. In order to honor the 15 month warranty for Heatpulse
systems, the customer is required to perform the recommended
preventive maintenance (PM) on the system. AG Associates will
perform PM training during system start-up.
Any products returned pursuant to Seller's authorization will be
shipped to Seller's plant by Buyer at Buyer's expense for Seller's
confirmation of defective goods. Seller will pay return freight if it is
determined that the adjustment is covered under the warranty.
19
SELLER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED OTHER THAN THOSE
STATED ABOVE. SELLER EXCLUDES AND BUYER HEREBY WAIVES, TO THE EXTENT
PERMITTED BY LAW, ANY AND ALL IMPLIED WARRANTIES, INCLUDING (BUT NOT
LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
No employee or representative of Seller is authorized to change or
otherwise grant any warranty other than the standard warranty stated
above. No affirmation, representation, promise or warranty concerning the
Heatpulse product or its use in any process shall be binding upon Seller
unless such affirmation, representation, promise or warranty is stated in
writing signed by an officer of Seller prior to acceptance or Buyer's
purchase order.
Buyer's sole and exclusive remedy for the breach of any warranty
concerning the Heatpulse product or its components or parts shall be
repair or replacement of the defective part or component. Seller shall
determine whether to repair or replace the goods.
12) LIABILITY OF SELLER
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR TO ANYONE ELSE FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF GOODS, COST OF SUBSTITUTED
FACILITIES, EQUIPMENT OR SERVICES, OR PERSONAL INJURY DAMAGES, WHICH
ARISE OUT OF OR IN CONNECTION OF THE SALE, USE OR PERFORMANCE OF GOODS
DELIVERED HEREUNDER, WHETHER THE CLAIM IS IN CONTRACT WARRANTY, TORT,
PRODUCTS LIABILITY OR OTHERWISE. IN NO CASE SHALL THE LIABILITY OF THE
SELLER EXCEED THE ACTUAL COST OF THE GOODS DELIVERED BY SELLER PURSUANT TO
AN ORDER BY BUYER.
13) INFRINGEMENT INDEMNITY
Seller expressly disclaims any liability to Buyer for infringement
by the goods furnished hereunder of any patent, trademark, copyright or
data rights. In no event shall Seller have any liability to Buyer, its
successors, assigns, agents, customers or users for losses or damages,
(including royalties for semiconductor chip products), including costs and
expenses (including attorneys' fees), which may be incurred on account of
any suit claim, judgment or demand involving an infringement or alleged
infringement of any patent rights in the use or disposition of goods
supplied hereunder.
With regard to goods made to the order of Buyer's designs,
specifications or instructions, Buyer shall indemnify, defend and hold
Seller harmless against any damage, cost, loss, or expense, including
reasonable attorneys' fees, resulting from any claim, suit or proceedings
brought by any person or entity for infringement of patents, copyrights,
trademarks, trade names, proprietary rights or for unfair competition
arising from Seller's compliance with Buyer's designs, specifications or
instructions.
This provision states the entire rights of the Buyer and the entire
obligation of the Buyer and Seller regarding infringement and shall
survive expiration or termination of this agreement.
14) INFORMATION
Drawings, data, designs, inventions, computer software and other
technical information supplied by Seller to Buyer shall remain Seller's
property and shall be held in confidence by Buyer. Such information shall
not be reproduced used or disclosed to others by Buyer without Seller's
prior written consent and shall be returned to Seller upon demand. Any
information which Buyer may disclose to Seller with respect to use of the
goods covered by this order shall be deemed to have been disclosed as part
of the consideration for this order and Buyer shall not assert any claim
against Seller by reason of Seller's use thereof.
15) TRADEMARK
Buyer shall not, without the express advance written permission of
Seller, permanently or temporarily affix either the trademark or the trade
name of Seller to any products manufactured by Buyer or any advertising
pertaining to such products. Buyer shall not remove or modify any
trademark, trade name, trademark notices, trade secret notices or
copyright notices or any proprietary or confidential legends, labels,
notices and markings placed on any goods manufactured by Seller or on any
materials related to such goods.
16) UNITED STATES EXPORT LAWS.
Sales of goods by Seller and any subsequent resale or re-export of
the goods are subject to and conditioned upon compliance with the U.S.
Export Administration Act (the "Act") and the applicable regulations
thereunder, as well as any other laws of the United States related to the
export of commodities and technical data. Upon request of Seller, Buyer
shall obtain all U.S. export licenses required to export the goods and
technical data and approvals for resale and re-export. Buyer may not,
directly or indirectly, export or re-export the goods or any technical
data relating to the goods or any direct product of the foregoing to any
person, except in strict compliance with the Act and other applicable U.S.
laws.
17) FORCE MAJEURE
Seller shall not be liable for delay in delivery or failure to deliver or
failure to perform due to any cause beyond Seller's reasonable control,
including (but not limited to ) fire, explosion, flood, riot, strike or
other differences with workers, shortage of utilities, facilities,
materials or labor, trade embargo, transportation delay, break down or
accident, acts of God or the public enemy, compliance with or other action
taken to carry out the intent or purposes of any law or regulation, act of
Buyer, acts of civil or military authority, or war.
18) GOVERNING LAW
The validity, construction and performance of the Terms & Conditions of
Sale shall be governed by and construed in accordance with the laws of the
State of California, excluding that body of law applicable to conflict of
laws. In the event that any provision of the Terms & Conditions of Sale or
the application of any such provision shall be held by a court of law to
be unenforceable, the remaining provisions of the Terms & Condition of
Sale shall remain in full force and effect.
19) ASSIGNMENT
Buyer shall not have the power or the right to assign any quotation or
order or any interest therein or any rights thereunder without the prior
written consent of Seller.
20) ENTIRE AGREEMENT
This document and any attachments and documents specifically
referred to herein constitute the entire agreement between Buyer and
Seller and supersede all prior representations, understandings and
agreements as to the subject matter hereof. No other document, including
Buyer's purchase order, shall be part of this agreement, even if referred
to, unless specifically agreed to by Seller in writing by a duly
authorized officer of Seller. Notwithstanding the foregoing, if the
provisions here of conflict with the provisions of a distribution or sales
representative agreement entered into between Buyer and Seller pertaining
to the goods covered hereby, the terms of such distribution or sales
representative agreement shall prevail to the extent of the conflict. No
right that the Seller has hereunder maybe waived or modified except by
Seller in writing. A waiver by Seller of any default or failure to comply
with the Terms & Conditions of Sale shall not be deemed to be a continuing
waiver and shall apply solely to the instant to which the waiver is
directed.
21) ARBITRATION
Any dispute, controversy or claim arising out of or relating to the Terms
& Conditions of Sale or the breach, termination or invalidity thereof
shall be settled by arbitration in accordance with the rules of the
American Arbitration Association as then in effect. The arbitration shall
take place in the San Francisco - San Jose, California area.
20
AG ASSOCIATES
REPRESENTATIVE AGREEMENT
EXHIBIT "G"
HOUSE ACCOUNTS
Intel, all domestic Fabs. IBM, all domestic Fabs.
Page 19
21
AG ASSOCIATES
REPRESENTATIVE AGREEMENT
EXHIBIT "H"
EXCEPTIONS TO STANDARD CONTRACT
None.
22
AG ASSOCIATES
REPRESENTATIVE AGREEMENT
AMENDMENT#1
THIS AMENDMENT TO THE INTERNATIONAL REPRESENTATIVE AGREEMENT: made and entered
into this 1st day of October, 1997, by and between:
AG Associates having its principal office at 4425 Fortran Drive, San Jose,
California, 95134, hereinafter referred to as "Company" and Silicon
International principal office at Suite 303, Four Seas Building, 208-212 Nathan
Road, Kowloon, Hong Kong hereinafter referred to as "Representative", agrees to
the modifications as follows:
1. EXHIBIT "B", PRODUCTS REPRESENTED
REPRESENTATIVE COMPANY
BY:
Derek R. Tomlinson
Vice President of Sales & Marketing TITLE:
DATE:
23
AG ASSOCIATES
REPRESENTATIVE AGREEMENT
EXHIBIT "B"
PRODUCTS REPRESENTED
(Amended 10/1/96)
PRODUCT DESCRIPTION
1. Heatpulse 610 Rapid Thermal Processor
2. Heatpulse Refurbished Automatic Systems (when available)
3. Heatpulse 41 OOS Rapid Thermal Processor
4. Heatpulse 8108 Rapid Thermal Processor
5. Heatpulse 8800 Rapid Thermal Processor
6. AG Associates Next Generation RTP System scheduled to be released calendar Q
1, '97
7. Upgrades/Retrofits as follows:
A. Ceramic Shield Upgrade
B. ez-DTC Retrofit
C. High Throughput Package Upgrade
D. Performance Package Upgrade
E. 8108 -> 8800 Upgrade
F. Any single order upgrade/retrofit -> $200,000