1
AG ASSOCIATES Exhibit 10.32
- --------------------------------------------------------------------------------
INTERNATIONAL DISTRIBUTOR AGREEMENT
THIS AGREEMENT: made and entered into this 16th day of October, 1998, by and
between:
AG Associates, Inc. having its principal office at 4425 Fortran Drive, San Jose,
California, 95134, hereinafter referred to as "Company" and Metron Technology,
B.V., registered under the laws of The Netherlands, principal office at
Kabelstraat 19, NL-1322 AD Almere, Netherlands, hereinafter referred to as
"Distributor", agrees as follows:
1) APPOINTMENT AND ACCEPTANCE - Company hereby appoints the Distributor as its
authorized Distributor to sell and service the products (enumerated in
"Section 3" hereof in the Territory (defined in "Section 2" hereof), and
Distributor 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 - Distributor'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 eighty (180) days prior notice to Distributor.
The Company retains the right to designate Exhibit G "HOUSE ACCOUNTS" which
either shall not be eligible for Distributor sales activity and standard
commissions, or eligible for modified compensation at the discretion of the
Company.
3) PRODUCTS.- The Products of Company to be sold by the Distributor shall
include only systems and accessories and replacement parts, as listed in
Exhibit B, PRODUCTS REPRESENTED (the "Products").
4) PRICE AND TERMS OF PAYMENT
a) The price paid by Distributor for goods purchased from the Company for
resale shall be in accordance with Exhibit C, DISCOUNT SCHEDULE,
herewith attached and made a part hereof and the price for such goods
as set forth in the Company's Domestic Price List.
b) All Product prices are based on United States (U.S.) Price List in the
current Company Sales Handbook. The U. S. Price List may be changed
upon sixty (60) days prior notice to Distributor.
c) F.0.B. shall be San Jose, California.
d) Terms of payment are Net Forty-Five (45) Days from shipment. Payment
shall be made in U.S. dollars.
Page 1
2
AG ASSOCIATES
5) COMPUTATION OF DISCOUNT
a) "Order" shall mean a written commitment to purchase Company's Products
placed by customer in Distributor's Territory.
b) 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. Distributor shall be responsible for all
credit risks and collections. Distributor shall assist in collections.
Distributor 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 and must
have approval of an authorized Company officer prior to acceptance of
order. Verbal orders will not be accepted.
7) CANCELLATIONS - Cancellation of order is subject to cancellation penalty
referred 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 Distributor for use by Distributor or customers in the Territory
shall not be diverted by Distributor to other customers in or outside the
Territory in a manner contrary to U.S. Export Regulations. Distributor
shall notify Company promptly if Distributor becomes aware of any such
diversion by any of its customers.
Page 2
3
AG ASSOCIATES
9) DISTRIBUTOR'S OBLIGATIONS
a) Distributor 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) Distributor will conduct all of its business in its own name.
Distributor will pay all expenses whatever of its office and
activities and be responsible for the acts and expenses of its
employees.
c) Distributor shall maintain sufficient staff to serve the demands and
needs of selling company products, process support, and servicing of
Company Products. Distributor'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 and competitive
products.
d) Distributor 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. Distributor shall install and warrant all Company
Products sold by Distributor 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 Distributor, Distributor
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. AG factory personnel will support the first
installation of any new system type or major upgrade into the region.
e) Distributor shall purchase from Company and keep in its possession
Company Products shown in Exhibit D, DEMONSTRATION EQUIPMENT, attached
hereto, for customer demonstration use. Company agrees to grant
Distributor a discount on purchase of Demonstration Equipment.
Distributor shall not resell or lease Demonstration Equipment within
twelve (12) months of its delivery without a written agreement of
Company. Distributor 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 Distributor.
f) During the last week of the month, Distributor 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.
Page 3
4
AG ASSOCIATES
g) Distributor 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
Distributor shall be agreed upon with the Company officer during the
annual Distributor review.
h) If required by business conditions and customs of the Territory,
Distributor shall translate at Distributor'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, Distributor shall assign
to Company all its rights in all such translated materials, including
but not limited to, all related copyrights at no cost to Company and
Distributor shall turn over to Company all translated materials and
documentation.
i) Distributor shall assist Company in routinely updating the customers
and prospect database, including customer organization charts.
j) Distributor shall submit a annual written report in August of
competitive situation and functioning of Company Products in the
Territory. Distributor 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) Distributor 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 Distributor.
Distributor shall notify Company whenever taking on any additional
lines other than those now handled by the Distributor, 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 August twelve (12) month forecast.
l) Distributor's performance may be reviewed annually by Company officer
at the Distributor'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 ordered by Distributor to the location
directed as per Distributor's purchase order. Company shall supply its
customer with replacement parts for service under warranty as defined
in Section 14.
c) Company shall support Distributor in maintaining Company Products in
the Territory within the published specifications. Company shall
provide to Distributor service materials- schematics and other
documentation which will enable Distributor to maintain Company
Products in the 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 spare parts to the Territory on
all orders issued by Distributor.
d) Company shall assist Representative in service situations where
Representative's best efforts in handling normally occurring problems
related to business with
Page 4
5
AG ASSOCIATES
Company Products cannot be resolved. If Company assistance is required
in the Territory, Representative shall be responsible for all expenses
incurred by Company employees in traveling to and in the Territory. If
Company assistance is required on problems that are directly related
to basic system design, the Company will be responsible for all
expenses incurred. Company officer shall make the final determination
on whether a problem is normally occurring or a basic system design
problem. 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 Distributor for use in the Territory. Company shall also make
available to Distributor promotional materials, such as slide and
video tape presentations, prepared by Company for customer
presentations and training.
f) Company shall provide training for Distributor 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 Distributor, but Distributor 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 to Distributor shall be at prices and upon
terms established in the current Company 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 Distributor will be informed by certified mail or facsimile at least
sixty (60) days prior to such change, alteration, or amendment in price and
other items and conditions. Payment shall be made in U.S. dollars. F.O.B.
shall be San Jose, California.
a) Company shall furnish Distributor 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 Distributor
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 Distributor prior to the effective date of such treated as
price increases, above, and shall be effective as of the date of
notification
Page 5
6
AG ASSOCIATES
to Distributor. Distributor 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 Distributor. Company may,
but shall not be obligated to, make similar changes on any Company Products
or parts previously shipped to Distributor or to install or furnish any
other different parts than were contained therein when shipment was made.
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
Distributor shall not, nor shall Distributor authorize or knowingly
permit its customers to, disassemble and copy or manufacture any
Company Product or portion thereof or parts/accessory thereto.
Distributor shall notify Company in writing promptly if it discovers
any infringement of Company's rights in Company Products and
Distributor 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
Distributor shall give Company prompt notice of any third party claim
that Company Products as supplied by Company directly infringe any
third parity'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 Distributor 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 Customer or
Page 6
7
AG ASSOCIATES
Distributor, whichever is acting as 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 Distributor for the shipped replacement parts according to
terms and conditions of the Agreement.
Post-warranty service shall be provided by Distributor to its customers within
the Territory at industry rates and any parts used shall be purchased from the
Company. Distributor shall provide a price schedule to customers for all Company
Products sold in the Territory, including service and maintenance contracts.
c) Returns to Company
Distributor 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. Distributor 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 Distributor.
15. TRADEMARK AND TRADE NAME
Distributor agrees to use the names "Heatpulse", "Starfire", and/or
"STEAMpulse" and Company's corporate mark, logo and all trade names and
saying marks that Company may possess only in connection with Distributor's
marketing of Company Products during the term of this Agreement.
Distributor's use thereof shall be in accordance with Company's guidelines.
16. TERM OF AGREEMENT AND TERMINATION
This Agreement shall continue in force unless otherwise terminated. This
agreement shall not be terminated except by the terms outlined below. With
the exception of the termination outlined below, this agreement may be
modified or changed in which event the Distributor will be given a one
hundred eighty (180) day notice of change.
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 one hundred eighty (180) days notice.
This Agreement shall terminate immediately and automatically in the event
of (i) the insolvency, bankruptcy, or liquidation of Distributor, (ii) the
failure to meet Company expectations following a sixty (60) day notice, or
(iii) the general ineligibility of Distributor to participate in U.S.
export trade.
Upon termination of this Agreement, Distributor shall immediately return to
Company, or transfer to another party designated by Company, at
Distributor's expense, all sales promotion materials and aids as well as
any tools, equipment or other items loaned or furnished by Company to
Distributor in the course of conducting business pursuant to this
Agreement.
Until and unless another Distributor is appointed by Company in and for the
Territory, Distributor shall retain responsibility for providing warranty
and non-warranty service for Company Products installed in the Territory.
Distributor will also generally cooperate with
Page 7
8
AG ASSOCIATES
Company in arranging for the continuation of support for the users of
Company Products in the Territory.
Upon termination of this Agreement, Distributor 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.
Distributor shall not represent a principal in a competitive market for a
period of one year following notice of termination.
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 Distributor at the address current at the time
of notice.
b) Distributor Not Legal Agent
This Agreement does not constitute the Distributor the agent or legal
representative of Company for any purpose whatsoever. The Distributor
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
Distributor 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. Distributor 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. Distributor 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
International Distributor Agreement of the breach, termination or
invalidity thereof shall be settled by
Page 8
9
AG ASSOCIATES
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.
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.
DISTRIBUTOR COMPANY:
BY:
Derek R. Tomlinsbn
VP Sales & Marketing
TITLE:
DATE:
Page 9
10
AG ASSOCIATES
DISTRIBUTOR AGREEMENT
EXHIBIT "A"
SALES TERRITORY REPRESENTED
Representative's Territory shall be limited to:
West and East Europe, Israel
Page 10
11
AG ASSOCIATES
DISTRIBUTOR AGREEMENT
EXHIBIT "B"
PRODUCTS REPRESENTED
PRODUCT DESCRIPTION
1. Heatpulse Refurbished Automatic Systems (when available)
2. Heatpulse 8108 Rapid Thermal Processor
3. Heatpulse 8800 Rapid Thermal Processor
4. STEAMPulse Rapid Thermal Processor
5. Starfire Rapid Thermal Processing Systems
6. Replacement Parts and Accessories for Heatpulse Products
Page 11
12
AG ASSOCIATES
DISTRIBUTOR AGREEMENT
EXHIBIT "C"
COMMISSION SCHEDULE
Distributor may purchase equipment for Territory (Exhibit B, PRODUCTS
REPRESENTED) at then current published U.S. List Price in accordance with the
terms of this Agreement and as listed in the current Sales Handbook.
Domestic / U.S. List Price: As Published
Distributor Cost for Heatpulse Products: U.S. List Price X 0.8*
Distributor Cost for Spare Parts: U.S. List Price X 0.855
Spare parts ordered on the same purchase order as system orders are subject to
the same discount as the system.
All sales of Distributor's Preventive Service Package (PSP) shall be sold by the
Distributor to customer as an option to the Company Product, and shall not be
included in the base price of the system. Distributor sales price shall not
exceed U.S List Price.
* If Distributor uses exceptional price reductions in order to secure an order
or orders, the commission schedule may be altered downwards from US List X 0.8.
depending on the service commitment and circumstances surrounding the
negotiations. Sufficient proof of capability to provide Is' and 2nd level
escalation support as well as process support is required. AG will notify the
Distributor of this reduction prior to securing the order.
Page 12
13
AG ASSOCIATES
DISTRIBUTOR AGREEMENT
EXHIBIT "D"
DEMONSTRATION EQUIPMENT
None.
Page 13
14
AG ASSOCIATES
DISTRIBUTOR 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.
Page 14
15
AG ASSOCIATES
DISTRIBUTOR AGREEMENT
EXHIBIT "F"
TERMS AND CONDITIONS
See attached.
Page 15
16
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. I AAI:~6
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
Tide 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 fob. 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 fight 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 fight 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: 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 I I 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.
Page 16
17
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
Heatpulseproduct 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, EQUIOPMENT 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, PRODUCTSL
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 rexport 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 an authorized officer of
Reseller notwithstanding the foregoing, 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 may be 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.
Page 17
18
AG ASSOCIATES
DISTRIBUTOR AGREEMENT
EXHIBIT "G"
HOUSE ACCOUNTS
Intel, all domestic Fabs. IBM, all domestic Fabs.
Page 18
19
AG ASSOCIATES
DISTRIBUTOR AGREEMENT
EXHIBIT "H"
EXCEPTIONS TO STANDARD
CONTRACT
Exception to Item 4: PRICE AND TERMS OF PAYMENT
Payment terms are net 45 days from date of shipment.
Exception to Item 9: DISTRIBUTORS OBLIGATIONS
Monthly update of the rolling six-month forecast may be submitted using Metron's
format provided it contains the required information.
Distributor shall establish a central support location to act as the focal point
for AG Customer Support and Field Applications.
Distributor shall establish as part of the support organization a single AG
Product Manager for the AG territory.
Distributor shall establish a applications/process support position to work with
the Product Manager for the territory.
Exception to Item 10: COMPANY'S OBLIGATIONS
Company shall guarantee that, for a period of not less than seven (7) years
after shipment of Company Product, Company shall continue the delivery of spare
parts to the Territory on all orders issued by the Distributor.
AG Associates will accept the return of non-obsolete spare parts for up to 12
months following parts delivery, with the exception of custom ordered parts. AG
Associates will refund the purchase price less 15% restocking fee. Metron must
provide the original purchase order number in order to receive any refund. Parts
must be returned unused in their original packaging. Parts older than 12 months
will be accepted on a case by case basis at a refund value to be determined upon
request. At distributors request, AG Associates will review Distributor's
inventory to update inactive/ obsolete status.
Exception to Exhibit C: COMMISSION/DISCOUNT SCHEDULE
In the event that a customer places an order with AGA directly (such as Intel or
IBM) AG will compensate Metron for after sales support. Compensation will be
negotiated on an individual basis, with a target 20% compensation.
Negotiations carried out in USA by Company personnel may lead to distributor
discount reduction from 3.5% to 7%, depending upon Company involvement in
negotiation.
Page 19