EX-10.5
EXECUTION COPY
BROOKS JAPAN ROBOT
SUPPLY AGREEMENT
This SUPPLY AGREEMENT (this "AGREEMENT") is made as of June 30, 2006 (the
"SIGNING DATE"), by and between YASKAWA BROOKS AUTOMATION, INC. a Japanese
corporation having its principal business office at 2-1 Kurosaki-shiroishi,
Yahatanishi-ku, Kitakyushu 806-0004 Japan ("BUYER") and BROOKS AUTOMATION, INC.,
a Delaware corporation, having its principal business office at 15 Elizabeth
Drive, Chelmsford, MA 01824 ("SELLER").
WHEREAS, Seller is engaged in, among other things, the business of
developing, designing, manufacturing and selling various semiconductor robotic
products; and
WHEREAS, Buyer is engaged in the business of selling various integrated
automation and subsystems for the semiconductor wafer manufacturing and related
industries to Japanese based enterprises; and
WHEREAS, Buyer is a joint venture established by Seller and Yaskawa
Electric Corporation, a Japanese corporation having its principal business
office at 2-1 Shiroishi, Kurosaki, Yahatanishi-ku, Kitakyushu, Japan ("YASKAWA")
pursuant to a Joint Venture Agreement dated May 8, 2006 (the "JV AGREEMENT") and
a Shareholders Agreement dated as of the Signing Date (the "SHAREHOLDERS'
AGREEMENT"); and
WHEREAS, Seller and Buyer desire to enter into an agreement whereby Seller
will supply certain Products (as hereinafter defined) to Buyer for resale.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties set forth below, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Seller and Buyer
agree as follows:
1. GRANT OF SALES RIGHTS.
1.1 Definitions.
"AGREEMENT" shall have the meaning set forth in the introductory
paragraph to this agreement.
"ASSUMED CUSTOMER PROGRAMS" shall mean Seller's Product programs with
Semiconductor Customers as set forth on Schedule B hereto.
"BROOKS PRODUCTS" means all vacuum robotics and other types of
products for the Semiconductor Industry that are listed under the heading
"Brooks Products" on Schedule A hereto; provided that the definition of
"BROOKS PRODUCTS" excludes (i) products specifically targeted to flat panel
display automation and motor and motion control products (including tables
driven by motion control products) on a stand-alone basis, and (ii)
articulated 6 (or more) axis robots.
"BUSINESS DAY" shall mean a day on which banks are open for business
in both Boston, Massachusetts and Tokyo, Japan.
"BUYER" shall have the meaning set forth in the introductory paragraph
to this Agreement.
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"CONFIDENTIAL INFORMATION" shall have the meaning set forth in Section
7.2 hereof.
"CUSTOMER AFFILIATE" shall mean any Subsidiary of a Primary Person,
which Primary Person has its principal offices located in Japan, wherever
such Subsidiary may be located.
"DELIVERY POINT" shall have the meaning set forth in Section 2.1
hereof.
"EFFECTIVE DATE" means the Operations Commencement Date, as defined in
the JV Agreement.
"INTELLECTUAL PROPERTY" shall have the meaning set forth in Section
10.1 hereof.
"JV AGREEMENT" shall have the meaning set forth in the recitals.
"OEM" means a Primary Person, which does not have its principal
offices located in Japan, or any of its Subsidiaries which do not have
their principal offices located in Japan, in either case that purchases
Products for the purpose of adding value by incorporating Products as a
minor component of a larger system that is sold by such Primary Person or
its Subsidiaries.
"PERSON" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association or joint venture.
"PRIMARY PERSON" shall mean a Person that is not under the control of
any other Person (other than an individual). A Person shall be deemed to
control another Person if the controlling Person owns 50% or more of any
class of voting securities (or other ownership interest) of the controlled
Person.
"PRODUCTS" means Yaskawa Products and/or Brooks Products, as
applicable.
"PURCHASE ORDER" shall have the meaning set forth in Section 3.1
hereof.
"QUARTERLY BUSINESS REVIEW" or "QBR" shall have the meaning set forth
in Section 1.3 hereof.
"SCARA" means Selective Compliant Articulated/Assembly Robot Arm.
"SELLER" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"SEMICONDUCTOR CUSTOMER" shall mean (i) all Primary Persons with
principal offices located in Japan that, either directly or through their
Customer Affiliates, are current or prospective purchasers or users of
Products and (ii) all Customer Affiliates it being agreed and acknowledged
by both parties that Seller shall not knowingly sell Products to any
customer (other than any OEM) for the purpose of selling or otherwise
distributing such Products to any Person that meets the criteria set forth
in clauses (i) or (ii) above.
"SEMICONDUCTOR INDUSTRY" means the design, development, manufacture,
assembly, use, sale, repair, installation, testing, quality control,
inspection or calibration of equipment or tools (including software), and
all components and subassemblies thereof, that are used in the design,
development, manufacture, patterning, assembly, testing or packaging of
semiconductor,
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magnetic media, magnetic storage, and optical devices as well as reticles
and masks used in connection therewith.
"SHAREHOLDERS' AGREEMENT" shall have the meaning set forth in the
recitals.
"SIGNING DATE" shall have the meaning set forth in the introductory
paragraph to this Agreement
"SPECIFICATIONS" shall have the meaning set forth in Section 5.1
hereof.
"SUBSIDIARY" of any Person shall mean each of the Persons that,
directly or indirectly, through one or more intermediaries, is owned or
controlled by such Person. A Person shall be deemed to control another
Person if the controlling Person owns 50% or more of any class of voting
securities (or other ownership interest) of the controlled Person.
"YASKAWA PRODUCTS" means all atmospheric SCARA robotics products for
the Semiconductor Industry that are under the heading "Yaskawa Products" on
Schedule A provided that the definition of "YASKAWA PRODUCTS" (i) excludes
products specifically targeted to flat panel display automation and motor
and motion control products (including tables driven by motion control
products) on a stand-alone basis (ii) excludes articulated 6 (or more) axis
robots and (iii) for the avoidance of doubt, excludes Brooks Products.
1.2 GRANT. Seller hereby grants to Buyer the exclusive right to market and
distribute the Products to Semiconductor Customers. Buyer shall use its best
efforts to promote, sell and service the Brooks Products to the Semiconductor
Customers and to maintain adequate facilities and personnel as may be necessary
to sell and support the Brooks Products, including, but not limited to, calling
on and training Semiconductor Customers, collecting market data and acting as a
liaison between the Semiconductor Customer and Seller with respect to
Semiconductor Customers' technical, engineering and delivery requirements
relating to the Brooks Products. Buyer shall use such efforts to sell Yaskawa
Products as Buyer may deem in its best interests from time to time, in its sole
discretion. Seller agrees to use commercially reasonable efforts to customize
the Brooks Products to promote sales in the Japanese market as Buyer or its
Semiconductor Customers may request from time to time. For the avoidance of
doubt, the parties acknowledge that Seller shall have the right to market and
distribute (i) any products specifically targeted to flat panel display
automation and motor and motion control products (such as tables driven by
motion control products) on a stand alone basis to any customer, including
Semiconductor Customers and (ii) any products, including without limitation the
Products, to customers other than Semiconductor Customers.
1.3 QUARTERLY BUSINESS REVIEWS. Buyer and Seller shall appoint key
personnel of each party to meet quarterly to discuss the status of the parties'
performance under this Agreement relating to Brooks Products, to raise any
concerns and to discuss and plan for future business opportunities involving the
sale of Brooks Products to Semiconductor Customers (such meetings, herein
referred to as "QUARTERLY BUSINESS REVIEWS" or "QBRS"). In such meetings, Buyer
and Seller shall use good faith efforts to resolve any disputes or concerns
regarding the supply and sale of the Brooks Products to the mutual satisfaction
of the parties. For the avoidance of doubt, this Section 1.3 shall not apply to
Yaskawa Products.
1.4 DEVELOPMENT OR CUSTOMIZATION. If Buyer and Seller agree that Seller
will perform design or development work for Buyer, then a separate design and
development agreement will be entered into between the parties, which agreement
shall address ownership of resulting intellectual property rights in detail.
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2. PRICE AND PAYMENT.
2.1 PRICE. All prices for Products purchased by Buyer under this Agreement
shall be agreed by Buyer and Seller on a customer-by-customer,
Product-by-Product basis. All prices shall be payable in U.S. dollars, FCA
(Incoterms 2000), Seller's plant (the "DELIVERY POINT").
2.2 PAYMENT. Invoices for the Products shall be issued to Buyer upon
delivery of the Products to the Delivery Point. Payment shall be made by Buyer
by wire transfer to such account as Seller shall designate from time to time in
writing to Buyer within one hundred fifty (150) days after delivery of the
Products to the Delivery Point. Any amounts not paid within 5 Business Days
after the due date for such payment shall bear interest from and after the due
date to the date of payment at the rate of 1 1/2 % per month or the highest rate
permitted by law, whichever is less, and all such amounts shall be due and
payable upon demand by Seller.
3. ORDERS AND FORECASTS.
3.1 PURCHASE ORDERS. "PURCHASE ORDER" shall mean a written or electronic
order for the Products or any other equivalent process by which Buyer orders
quantities of the Products and spare Parts required to perform repair services
from Seller. It is contemplated that, from time to time, Purchase Orders in
forms prepared by Buyer, may be used in ordering the Products and that there may
be included in such forms certain stipulations, conditions or agreements not
otherwise contained herein. It is expressly understood and agreed that the
provisions of this Agreement shall be deemed a part of each Purchase Order
accepted by Seller and, unless otherwise mutually agreed in writing, any
provision in any Purchase Order which is inconsistent with, contrary or in
addition to, or which otherwise adversely materially alters or increases
Seller's or Buyer's obligations under this Agreement shall be deemed amended or
deleted, as the case may be and that the terms of this Agreement shall control.
Seller shall ship only the quantities of the Products ordered by Buyer in the
applicable Purchase Order, unless otherwise agreed in writing by Buyer and
Seller in accordance with Sections 3.3 and 3.4 of this Agreement. All Buyer
Purchase Orders shall specify the quantity of the Products, the shipment date,
and all other relevant information necessary to effectuate delivery of the
Products to the Delivery Point. Seller shall accept all Purchase Orders that are
submitted in conformance with this Agreement. Unless otherwise agreed by Buyer
and Seller on a case by case basis, Seller will deliver the ordered Products to
the Delivery Point eight (8) weeks after receipt of the Purchase Order issued in
accordance with the terms of this Agreement; provided, however, that, with
respect to quantities of Products ordered under any Purchase Order issued in
accordance with the terms of this Agreement that result in a quantity of Product
ordered in a given month in excess of 130% of the average amount forecasted for
said month in each Buyer forecast provided during the most recent two months of
the preceding 6 month forecast period, Seller shall only be bound to a lead time
for delivery of such excess quantity of Products on the Purchase Order as Buyer
and Seller may agree for such Products on a case by case basis. Except as
provided below, no Purchase Order shall be subject to cancellation or reduction
after acceptance by Seller. Seller agrees that it shall be responsible for late
delivery and quality damages under any Assumed Customer Programs if (i) such
damages are the fault of Seller and (ii) Buyer actually is required by a
claimant to pay such damages.
3.2 FORECASTS AND PURCHASE ORDER SCHEDULE. In order to meet Buyer's
requirements and in order to assist Seller in its supply chain and inventory
management, the parties agree to the following forecast and Purchase Order
schedule.
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DESCRIPTION COMMITMENT
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PURCHASE ORDER LEAD TIMES-Buyer will Binding and subject to cancellation or
issue Purchase Orders to Seller not reduction after acceptance by Seller
less than 8 weeks prior to the date only in accordance with Section
on which shipment of the Products 3.3 below.
from the Delivery Point is required.
Seller shall not be obligated to
accept or fulfill any Purchase Order
which is received by Seller less than
8 weeks prior to the date on which
shipment is required, unless
otherwise agreed by Seller in writing
on a case by case basis.
SIX (6) MONTH ROLLING FORECAST - At Non-binding forecast for production
least every two weeks, Buyer will scheduling purposes only.
provide Seller with a good faith
forecast of its actual anticipated
monthly requirements of the Products
for the six month period following
the 8 week period covered by Purchase
Orders (as set forth above).
ANNUAL FORECAST - By no later than Non-binding forecast for planning
August 15 of each year, Buyer will purposes only.
provide Seller with a forecast of
Buyer's anticipated requirements of
the Products for each fiscal year of
Seller (October 1 through September
30)
3.3 CANCELLATION. Buyer may cancel a Purchase Order at any time. In such
event, the cancelled Products will incur cancellation charges as follows:
Finished Goods: 100% of the then applicable price will be paid in exchange
for delivery of the Finished Goods as purchased Product hereunder, it being
mutually agreed that Seller will not deliver Finished Goods to Buyer until
Seller has successfully completed the pre-shipment testing of such Finished
Goods;
WIP: 50% of the then applicable finished goods price attributable to the
WIP;
Raw Material: 0% if returnable to the supplier or Buyer purchases Products
utilizing such Raw Material within 6 months of cancellation, but otherwise
100% of the original applicable price attributable to the Raw Material.
"FINISHED GOODS" are defined as completely manufactured and/or assembled
Products at the time of the cancellation. "WIP" is defined as incompletely
manufactured and/or assembled Products at the time of the cancellation. "RAW
MATERIAL" is defined as only those materials needed to make a Part and any
purchased Parts. For the purposes of this Agreement, "PART" means a component
line item on a bill of materials. Parts are collectively assembled to produce a
Product. The above defined cancellation charges are in lieu of any other
obligation of Buyer arising as a result of the cancellation. All amounts accrued
above are payable within sixty (60) days of Seller's delivery of an invoice to
Buyer. Finished Goods will be invoiced upon delivery of the Finished Goods to
the Delivery Point.
3.4 RESCHEDULING DELIVERY OF PRODUCTS. Buyer may request rescheduling of
the delivery date of any Product scheduled for shipment to the Delivery Point.
Rescheduling of Products by Buyer will incur fees as follows:
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(i) If Buyer requests an earlier delivery date than the currently
scheduled date, Seller must approve or reject the new delivery date. Seller will
promptly advise Buyer if it approves or rejects the requested new delivery date,
and along with any approval will indicate any additional charges that will be
imposed on Buyer as a result of the change.
(ii) If Buyer requests a later delivery date than the currently
scheduled date, Seller approval is not required and no additional charges will
be imposed on Buyer as a result of such rescheduling; so long as the rescheduled
delivery date does not extend more than three months beyond the originally
scheduled delivery date. Buyer will use good faith efforts to avoid rescheduling
deliveries in a manner that would cause a product to be delivered in a different
Seller fiscal quarter than the originally scheduled delivery date.
3.5 COPY EXACT; END OF LIFE.
(a) Copy Exact. Buyer requires that any and all changes to the product and
components be submitted to Buyer for review 180 days before the planned cut-in
date of the change. Change notification must be processed per a process
determined by the Steering Committee of the Buyer.
(b) End of Life. Seller will keep Buyer fully informed relative to the
Product roadmap and Product life cycle. Buyer will be notified of end of life at
least 12 months (or a lesser time as the parties may agree on a
product-by-product basis from time to time) in advance and provided last buy
privileges at the time of end of life.
4. SHIPMENT AND RISK OF LOSS.
4.1 SHIPMENT. The standard method of shipment shall be ocean carrier;
provided, however, Products will be shipped by air at Buyer's request and
expense. Seller shall ship Products or cause Products to be shipped from its
manufacturing facilities to the Delivery Point on or before the ship date(s) set
forth in the applicable Purchase Order. Prior to shipment, Seller will conduct
the pre-shipment testing contemplated by Section 6.3 hereof and will include its
standard shipment test report with each shipped Product.
4.2 TITLE. Risk of loss shall pass to Buyer according to Incoterms 2000
"FCA" and title shall transfer concurrently therewith.
5. WARRANTY.
5.1 SPECIFICATIONS. The term "SPECIFICATIONS" shall mean all, or any part,
of the detailed description of Products provided with the Product and any other
specifications agreed upon by Seller and Buyer. All Specifications shall be in
writing.
5.2 WARRANTY.
5.2.1 WARRANTY. Seller warrants that the Products will (i) conform to
the Specifications, and (ii) will be free from defects in materials,
workmanship and designs (but only as to designs provided by Seller and not
designs provided by Buyer) for a period of eighteen (18) months from the
date of the bill of lading for such Product. The term of the warranty set
forth in the previous sentence shall be shortened or extended to the extent
that Buyer has assumed a shorter or longer term warranty under any Assumed
Customer Program. This warranty is limited to Buyer, as the original
purchaser of the Product, and cannot be assigned or transferred to any
third person, without Seller's express, prior written consent, it being
agreed and acknowledged that Buyer will make warranties to its
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Semiconductor Customers based on Seller's warranties hereunder and that
Buyer shall continue to be the beneficiary of the warranties even after
Buyer distributes Products to its Semiconductor Customers. No person is
authorized to amend or expand this warranty or to grant any other warranty
on behalf of Seller. Seller shall not be responsible for any repair,
replacement or material charges incurred by Buyer or others within the
period of this warranty, or otherwise, unless Seller gives its prior
written consent to the incurring or payment of such charges. Seller's sole
responsibility and liability with respect to any Product under this
warranty shall be, at Seller's option, the repair or replacement of any
Product which fails to comply with the terms of this warranty or, in the
event Seller determines that such Product cannot be repaired or replaced,
the refund to Buyer, through payment or credit, of the purchase price paid
by Buyer for such defective or non-conforming Product. At Seller's request,
Buyer shall return and/or hold any Product claimed to be defective or
non-conforming for inspection, repair or replacement by Seller. Seller
shall inspect such Products, and Products found not to be defective or
non-conforming shall be returned to Buyer at Buyer's cost and expense.
Products found to be defective or non-conforming within such warranty will
be repaired or replaced at no charge to Buyer or, at Seller's option, Buyer
shall receive the aforesaid refund/credit for the purchase price of such
Product. Buyer acknowledges and agrees that Seller shall have no warranty
obligations, and Buyer shall not assert any claim against Seller, with
respect to defects or non-conformities arising out of (i) modifications to
and/or unintended uses of a Product made by Buyer or Buyer's Semiconductor
Customers or third parties where such modifications and/or uses have not
been previously authorized in writing by Seller, (ii) the improper
installation and operation of a Product according to Seller's manual(s) and
instruction(s) or (iii) repairs made by Buyer or its agents or Buyer's
Semiconductor Customers.
5.2.2 LIMITATIONS OF WARRANTY AND REMEDIES. EXCEPT AS EXPLICITLY
STATED IN THIS SECTION 5, SELLER MAKES NO OTHER WARRANTIES, STATUTORY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND
FITNESS FOR A PARTICULAR PURPOSE AND, EXCEPT FOR SELLER'S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 5.3 HEREOF, THE PROVISIONS OF THIS SECTION 5
SHALL BE SELLER'S SOLE AND EXCLUSIVE OBLIGATION WITH REGARD TO DEFECTIVE OR
NONCONFORMING PRODUCTS COVERED BY THE WARRANTY.
5.3 INDEMNITY
5.3.1 BY SELLER. Except to the extent Products are manufactured to
designs or specifications of Buyer, Seller agrees to indemnify, defend (or,
at its option, settle) and hold Buyer, Buyer's officers, directors and
employees and Buyer's Semiconductor Customers harmless from liability or
damages, costs and attorneys' fees awarded a third party against Buyer for
(i) infringement of any U.S. or Japanese patent, copyright, trademark or
any trade secret of such third party by the use, manufacture, importation,
offering for sale or sale of Products or any part thereof in the form in
which such Product was furnished by Seller to Buyer hereunder and (ii)
damages or losses arising out of or otherwise in connection with the
Products delivered by Seller to Buyer or its Semiconductor Customers
hereunder not conforming to the warranties provided hereunder (I) for
injury to or death of any person or (II) property damage suffered or
allegedly suffered by any person or entity, provided that Buyer has given
Seller notice of any such claim or suit for infringement asserted against
Buyer promptly after the date Buyer first receives any notice of claim of
infringement, and Buyer has permitted Seller to control the defense of such
claim or suit. Buyer
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shall provide reasonable cooperation and assistance to Seller with respect
to such defenses at Seller's expense. In the case the use or sale of the
Product, or any part thereof, is, or may be, enjoined, Seller will, at its
own expense, and at its option, either: (a) procure for Buyer and Buyer's
Semiconductor Customers the right to continue to sell and use the Product;
or (b) modify the Product, so that it becomes non-infringing; or, if
neither (a) nor (b) is commercially practicable, (c) accept return of the
Product and refund to Buyer the purchase price and the transportation and
installation cost, if any, thereof. In no event shall Seller be liable for
any patent or other infringement to the extent (i) based upon the sale or
use of the Products for purposes other than for which they are sold by
Seller to Buyer, or (ii) for any infringement arising out of any
modification to a Product by Buyer, Buyer's Semiconductor Customers or
third parties where such modification has not been expressly previously
authorized in writing by Seller. The foregoing shall constitute the sole
liability of Seller to Buyer (or those asserting claims through or on
behalf of Buyer) for patent or other intellectual property infringement.
5.3.2 BY BUYER. (a) With respect to any designs or specifications
which Buyer provides to Seller and requests Seller to use or incorporate in
connection with the manufacture or sale of Products, and/or with respect to
any modification made by Buyer to the Product, Buyer agrees to indemnify,
defend (or, at its option, settle) and hold Seller and Seller's officers,
directors and employees, harmless from any liability for damages, costs and
attorneys' fees awarded a third party against Seller for infringement of
any U.S. or Japanese patent, copyright, trademark or any trade secret of
such third party by the use, manufacture, importation, offering for sale or
sale of Products, provided that Seller has given Buyer notice of any such
claim or suit for infringement asserted against Seller promptly after the
date Seller first receives any notice of claim of infringement, and Seller
has permitted Buyer to control the defense of such suit. Seller shall
provide reasonable cooperation and assistance to Buyer with respect to such
defense at Buyer's expense. In the case the use or sale of such designs or
specifications, or any part thereof, is, or may be, enjoined, Seller shall
cease all use, manufacture, having manufactured, importation, offering for
sale and sale of any products utilizing such designs or specifications.
(b) The Buyer agrees to defend, indemnify and hold harmless Seller and
its Affiliates and its officers, directors, employees, successors and
assigns from and against any and all losses, demands, claims, liabilities,
obligations and expenses (including punitive damages) incurred by or
threatened against Seller and its Affiliates and its officers, directors,
employees, successors and assigns, due to claims by the Buyer or any third
party (including, but not limited to Semiconductor Customers and any agents
or distributors) arising out of any act or omission of the Buyer,
including, but not limited to, (i) modifications to and/or unintended uses
of a Product made by Buyer or its subcontractors where such modifications
and/or uses have not been previously authorized in writing by Seller, (ii)
the improper installation of a Product by Buyer or its subcontractors or
(iii) repairs of a Product made by Buyer or its subcontractors, in each
case solely to the extent that Buyer's or its subcontractors' act or
omission was a contributing cause of the damage or loss, whether or not the
claim arose during the term of, or after the expiration or termination of
this Agreement.
5.3.3 APPORTIONMENT. In the event a claim is based partially on an
indemnified claim described in Sections 5.3.1 or 5.3.2 above and partially
on a non-indemnified claim, or is based partially on a claim indemnified by
Seller pursuant to Section 5.3.1 above and partially on a claim indemnified
by Buyer pursuant to Section 5.3.2 above, any payments and reasonable
attorney fees incurred in connection with such claims are to be apportioned
between the parties in accordance with the degree of cause attributable to
each party.
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5 .4 LAWS AND REGULATIONS. Seller represents and warrants that all the
Products have been or shall be produced, packaged and delivered in compliance
with the applicable requirements of federal, state and local laws, regulations,
ordinances and administrative orders and rules of the United States and all
other countries in which the Products are produced, packaged or delivered.
Seller shall secure any and all permits, governmental licenses and inspections
necessary for the manufacture and delivery of the Products hereunder.
5.5 NO WAIVER. Acceptance, inspection or payment by Buyer shall in no event
constitute a waiver of Buyer's rights and remedies with regard to any
subsequently discovered defect or nonconformity.
5.6 COMPLIANCE. Throughout the term of this Agreement, for all Products
that Seller, on or prior to the Signing Date, tested, certified and supplied
with a Declaration of Conformance or Declaration of Incorporation in conformance
with the requirements for any CE marked product, Seller shall continue to
perform such testing, certification and supply to Buyer. For all other Products,
such testing and certification shall be performed as agreed in the Development
Agreement for such Product.
6. WARRANTY AND SUPPORT SERVICES
6.1 BUYER SERVICES.
6.1.1 REPAIR AND WARRANTY SUPPORT SERVICES. During the applicable
warranty period or any subscription by a Semiconductor Customer to
post-warranty support services from Buyer, Buyer will (i) provide phone or
other technical support to Semiconductor Customers to whom Buyer has sold
Products, (ii) inspect, remove and replace Products with applicable FRUs or
replacement units provided by Seller, (iii) where agreed by Seller, repair
Products in exchange for payment of a mutually agreed fee by Seller on a
case by case basis, (iv) accept provision of retrofits from Seller and
assist the Semiconductor Customer with the installation of such retrofits
at Buyer's standard professional services rates to be paid by Seller, (v)
if Buyer and Seller do not agree that Buyer shall repair a Product, or if
Buyer cannot repair such Product, return the Product to Seller as
contemplated by Section 6.5 below and (vi) such sales and other support as
Buyer and Seller may agree on a case by case basis, with or without
additional fees payable by Seller as may be agreed by the parties in each
case (collectively, the "BUYER SERVICES"). Buyer agrees that Buyer will
perform the Buyer Services in a professional and workmanlike manner and in
accordance with generally accepted industry standards. The repair and
warranty services set forth in Section 6.1.1 (ii), (iii) and (iv) shall be
performed only by authorized repair personnel who have been trained by
Seller and pursuant to Seller's rules and procedures for inspection,
diagnosis and repair provided at the time of Seller's training. In the
event that Buyer has undertaken the repair of a Product and is unable to
complete such repair, then Seller shall have no obligation to pay Buyer for
such repair services. For the avoidance of doubt, "Buyer Services" shall
not include any services relating to Products sold by Seller to
Semiconductor Customers in any manner other than through Buyer pursuant to
this Agreement, unless (i) Seller requests that Buyer provide Buyer
Services for such Products on a case by case basis and (ii) Buyer and
Seller agree in writing on fees payable by Seller to Buyer for the
provision of such Buyer Services.
6.1.2 INVENTORY AND SPARES. Buyer shall stock, and Seller shall
supply, sufficient inventory of Parts and FRUs to meet Buyer's and Seller's
warranty obligations under this Agreement or to Semiconductor Customers
that purchase Products from Buyer; Seller hereby consents to Buyer
utilizing such Parts and FRUs to perform repair, replacement and support
services for Semiconductor Customers at (i) for any repair, replacement or
support covered by, or within the scope of, Seller's warranties or other
support obligations hereunder, Buyer's cost of obtaining the applicable
spares and replacements plus services rates to be agreed upon by the
parties from time to
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time for Buyer's (or its subcontractor's) time in performing such services
to be paid by Seller within 75 days of receipt of Buyer's invoice and (ii)
for any other repair, replacement or support, fees agreed by Buyer and the
Semiconductor Customer. If Buyer and Seller cannot agree on services rates
for a repair under clause (i) of this Section 6.1.2, then Buyer will not be
obligated to perform the repair services and may return the applicable
Product to Seller for repair.
6.2 SELLER SERVICES. Seller will provide the following services to Buyer
("SELLER SERVICES"):
6.2.1 TRAINING. Seller will provide Buyer with training, at Seller's
facility in the United States, to the extent necessary for Buyer to provide
the Buyer Services to Semiconductor Customers. Such training shall
be at Seller's expense. Such training shall be provided in English. Buyer
shall be responsible for its own travel, lodging and other expenses in
attending such training.
6.2.2 DOCUMENTATION. Seller shall provide Buyer with information and
service instructions and all documentation, manuals and spare parts lists
that relate to Seller's Products, as in effect from time to time. All such
documentation shall be provided in Japanese. Product information shall be
provided in both English units and metric units. Notwithstanding the
foregoing, for existing Products sold to existing customers, documentation
and product information will be provided in a manner consistent with the
standard practice in effect for such customer prior to the Effective Date,
unless the customer requests otherwise.
6.2.3 SPARES. Buyer shall stock sufficient spare Products, FRUs and
Parts as needed to meet all of Seller's warranty and repair services
obligations under this Agreement, subject to Seller's supply of such
Products, FRUs and Parts as contemplated by Section 6.1 above and Seller's
provision of training as contemplated by this Section 6.2.
6.2.4 UPGRADES. Seller shall provide upgrades from time to time as
agreed on a customer by customer basis, at mutually agreed rates.
Seller agrees that Seller will perform the Seller Services in a
professional and workmanlike manner and in accordance with generally
accepted industry standards.
6.3 INSPECTION AND TEST AT SELLER'S FACILITIES. All Products purchased by
Buyer are subject to inspection and test procedures, as set forth in the
Specification for the Product or as otherwise agreed by the parties in writing,
and conducted by Seller, and, if Buyer so elects, also observed by Buyer, before
to the applicable Products are shipped from Seller's factory. Inspection and
test requirements will be agreed in writing by the parties. Seller shall provide
Buyer with written certification that the Product tested has passed the final
inspection and complies in all respects with the requirements described in the
Specifications. From time to time, Buyer's Semiconductor Customers may request
the right to review Seller's facilities and operations for the purpose of
qualification and inspection of the Products. Seller agrees to permit such
Semiconductor Customer surveys. Buyer shall provide Seller with written notice
of such request. Such notice shall contain the names of the individuals making
the visit, and the desired date of the visit. Buyer is permitted to accompany
the Semiconductor Customer during these Semiconductor Customer surveys.
Notwithstanding any inspection and testing at Seller's premises, all Products
purchased by Buyer are subject to Buyer's inspection and test (qualification) at
Buyer's or its Semiconductor Customer's premises before final acceptance ("Final
Acceptance Testing"). Final Acceptance Testing requirements will be agreed in
writing by the parties.
6.4 NOTIFICATION; PRODUCT RETURNS. During the applicable warranty period or
any support subscription period, Buyer shall notify Seller promptly in writing
of any alleged defect in a Product, with
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specificity. If Buyer and Seller agree that such defect requires that Buyer
provide such Product to Seller for repair and/or replacement (such agreement not
to be unreasonably withheld), then Seller shall provide an RMA number for such
Product within twenty-four hours of such agreement. Seller acknowledges and
agrees that more complicated repairs will often need to be performed by Seller,
particularly in the first few years of this Agreement as Buyer becomes more
familiar with the repair of Brooks Products. Upon receipt of such RMA number,
Buyer will forward the defective Product to Seller, FCA Buyer's North American
facility, with written specifications of the claimed defect. If the defect is
under warranty or under a current support subscription contemplated in Section
6.5 below, Seller will ship the repaired or replaced Product to Buyer, as
quickly as is practical, but not later than 20 Business Days from the date
Seller received the Product from Buyer. If the average timeframe for completion
of such repair or replacement by Seller of all Products then in Seller's
possession or control exceeds 20 Business Days at any point during the term of
this Agreement, Seller and Buyer shall promptly review and discuss (whether in
person or by phone or e-mail) the reasons for such delay and, unless Seller and
Buyer mutually agree that there are good reasons for the delay that are outside
of the reasonable control of Seller, then Buyer shall have the right to deliver,
and Seller shall promptly acknowledge in writing, debit memos (which memos shall
be sufficient to transfer title in the applicable Products from Buyer to Seller
until return of the repaired Products to Buyer and put such Products on Seller's
books and remove such Products from Buyer's books) to Seller for all Products
then in inventory as a result of such delays and all Products that are
subsequently not repaired or replaced in the required 20 Business Day period. If
Seller is subject to debit memos under this Section 6.4 but completes repairs so
that the average timeframe for completion of such repair or replacement by
Seller of all Products then in Seller's possession or control no longer exceeds
20 Business Days, the Buyer will issue no further debit memos for additional
Products under repair unless and until Seller again exceeds the 20 Business Days
threshold, in which case the above debit memo process shall repeat. During the
applicable warranty or support subscription period, Seller shall be responsible
for all freight charges and duties in connection with the return of a Product
under this Section 6.4 and shipment of the repaired or replaced Product to
Buyer. Seller's warranty period for a Product shall toll during repair of a
Product by either Seller or Buyer and shall restart upon either Buyer's
completion of the fix for such Product or Seller's shipment of the repaired
Product back to Buyer or its Semiconductor Customer.
6.5 SUPPORT AVAILABILITY; POST-WARRANTY SUPPORT. Seller shall maintain
support capabilities for each Product for a period of 5 years following the
delivery date of the last such Product hereunder. On a Product by Product basis,
post-warranty services that are identical to the warranty services applicable
during the applicable warranty period will be provided to Buyer by Seller on an
annual subscription basis and shall be provided in accordance with terms and
conditions as may be negotiated in good faith between Seller and Buyer from time
to time.
7. EMBEDDED SOFTWARE LICENSE AND CONFIDENTIAL INFORMATION.
7.1 EMBEDDED SOFTWARE LICENSE. The software included in the Products (the
"EMBEDDED SOFTWARE") is licensed and not sold. Seller hereby grants to Buyer a
non-exclusive, royalty-free, perpetual license to use the Embedded Software only
in the operation of the Product in which it was delivered. Such Embedded
Software may not be copied for use in any equipment other than the Products.
Copies may be made for archival purposes only. Such Embedded Software and any
copies thereof, and all copyright, trade secret, patent, trademark and other
intellectual or industrial property rights therein, is and shall remain the sole
property of Seller. The ideas and the expressions thereof contained in the
Embedded Software are confidential and proprietary information and trade secrets
of Seller and/or its licensors that are disclosed to Buyer in confidence. Buyer
shall not cause or permit reverse engineering, disassembly or decompilation of
the Embedded Software or disclosure, copying, display, loan, publication,
transfer of possession (whether by sale, exchange, gift, operation of law or
otherwise) or other dissemination of the Embedded Software, in whole or in part,
to any third party without prior written consent of Seller. Buyer shall not
modify, enhance
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or otherwise change or supplement the Embedded Software. Buyer will be permitted
to sublicense to Semiconductor Customers the Embedded Software solely for the
operation of the Products sold by Buyer to Semiconductor Customers hereunder,
provided that the sublicense is effected by agreement signed before the Embedded
Software is provided and only if the sublicense includes the same provisions as
used herein.
7.2 CONFIDENTIALITY. Each party ("RECEIVING PARTY") agrees to keep
confidential and not disclose or use except in performance of its obligations
under this Agreement, confidential or proprietary information related to the
other party's ("DISCLOSING PARTY") technology or business that the Receiving
Party learns in connection with this Agreement and any other information
received from the other, including without limitation, to the extent previously,
currently or subsequently disclosed to the Receiving Party hereunder or
otherwise, information relating to products or technology of the Disclosing
Party or to the Disclosing Party's business (including, without limitation data,
know-how, processes, ideas, inventions (whether patentable or not), all
information relating to customers and customer transactions and other technical,
business, financial, customer and product development plans, forecasts,
strategies and information), all of the foregoing, "Confidential Information".
Confidential Information shall not include information the Receiving Party can
document (a) is in or (through no improper action or inaction by the Receiving
Party or any affiliate, agent or employee) enters the public domain (and is
readily available without substantial effort), or (b) was rightfully in the
Receiving Party's possession or known by it prior to receipt from the Disclosing
Party, or (c) was rightfully disclosed to the Receiving Party by another person
without restriction, or (d) was independently developed by the Receiving Party
by persons without accessing such information and without use of any
Confidential Information of the Disclosing Party. Each party, with prior written
notice to the Disclosing Party, may disclose such Confidential Information to
the minimum extent possible that is required to be disclosed to a governmental
entity or agency in connection with seeking any governmental or regulatory
approval, or pursuant to the lawful requirement or request of a governmental
entity or agency, provided that reasonable measures are taken to guard against
further disclosure, including without limitation, seeking appropriate
confidential treatment or a protective order, or assisting the other party to do
so. Each party shall use reasonable precautions to protect the other's
Confidential Information and employ at least those precautions that such party
employs to protect its own confidential or proprietary information.
8. TERM AND TERMINATION.
8.1 TERM. The term of this Agreement shall commence on the Effective Date
and shall continue in full force and effect until the termination of the JV
Agreement.
8.2 TERMINATION. Notwithstanding the foregoing, and in addition to any
other rights of termination set forth herein, this Agreement may be terminated
only as provided in the Shareholders' Agreement.
8.3 OBLIGATIONS UPON TERMINATION. The termination of this Agreement shall
not discharge, affect, or otherwise modify the rights and obligations of parties
established or incurred prior to the termination hereof or the right of either
party to pursue any and all legal remedies it may have against the other party
and such remedies shall survive the termination of the Agreement.
9. NON-SOLICITATION.
During the term of this Agreement and for a period of 1 year after expiration or
termination of this Agreement, neither party will employ, attempt to employ or
solicit the employment of, any employee of or consultant to of the other party
or otherwise induce or attempt to induce any employee of or consultant to leave
the employ of other.
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10. MISCELLANEOUS.
10.1 INTELLECTUAL PROPERTY. Seller shall have the sole ownership of
Intellectual Property relating to the Products sold by Seller hereunder and the
sole right to obtain, hold and renew, in its own name and/or for its own
benefit, patents, copyrights, trademarks, trade secrets, registrations and/or
other appropriate protection with respect to any of the Products sold by Seller
hereunder. As used herein, "INTELLECTUAL PROPERTY" means any and all patents and
rights to patent, copyrights, trademarks, trade secrets, Confidential
Information of Seller, know-how and proprietary information of any kind or
nature whatsoever. Buyer stipulates and agrees that under this Agreement Buyer
will acquire no right, title or interest in or to any of such Intellectual
Property, except as expressly provided in writing by the parties.
10.2 AUTHORITY. By signing this document, the undersigned represent that
they have been duly authorized to execute this document on behalf of their
respective corporations.
10.3 COUNTERPARTS. This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement, and will become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other.
10.4 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by
and in accordance with the internal laws of the State of New York, excluding:
(i) its conflicts of laws principles; (ii) the United Nations Convention on
Contracts for the International Sale of Goods; (iii) the 1974 Convention on the
Limitation Period in the International Sale of Goods (the "1974 Convention");
and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11,
1980. Disputes relating to any provision of this Agreement shall be handled in
accordance with the dispute resolution procedures of the Shareholders'
Agreement.
10.5 LIMITATION AND DISCLAIMER OF LIABILITY.
(a) EXCEPT WITH RESPECT TO: (1) EITHER PARTY'S BREACH OF CONFIDENTIALITY
OBLIGATIONS, (2) DAMAGES ARISING FROM EITHER PARTY'S VIOLATION OF THE
INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY OR (3) INDEMNIFICATION
OBLIGATIONS UNDER SECTION 5.3.1 (EXCEPT FOR SECTION 5.3.1(ii)(II)) AND SECTION
5.3.2(A)HEREUNDER WITH RESPECT TO DAMAGES OR LOSSES, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER
THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES
INCLUDING WITHOUT LIMITATION LOST PROFITS IN CONNECTION WITH THE SUBJECT MATTER
OF THIS AGREEMENT OR ANY PURCHASE ORDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY,
IN NO EVENT WILL EITHER PARTY OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES,
CUSTOMERS AND AGENTS, INCUR ANY LIABILITY RELATED TO OR ARISING OUT OF THIS
AGREEMENT OR THE PRODUCTS, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN
CONTRACT, WARRANTY, RELIANCE, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY,
EXCEEDING (I) $5,000,000 PER CLAIM NOR (II) $10,000,000 IN THE AGGREGATE IN ANY
CALENDAR YEAR. HOWEVER, FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 5.3.1
(EXCEPT FOR SECTION 5.3.1(ii)(II)) AND SECTION 5.3.2(A) AND FOR
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CORPORATE WILLFUL MISCONDUCT OF A PARTY, THERE IS NO LIMITATION ON THE AMOUNT OF
SUCH PARTY'S LIABILITY.
10.6 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended,
nor will it be construed, to confer any rights or benefits upon any person
(including, but not limited to, any employee or former employee of Buyer or
Seller) other than the parties to this Agreement, and no other person will have
any rights or remedies under this Agreement.
10.7 ENTIRE AGREEMENT. This Agreement and the Schedule(s) annexed hereto,
contain the entire agreement between the parties with respect to its subject
matter, and there are no agreements or understandings between the parties other
than those set forth or referred to in this Agreement, and in the various
Schedules and/or attachments to same.
10.8 EXPENSES. Except as set forth in this Agreement, all legal and other
costs and expenses incurred in connection with this Agreement will be paid by
the party incurring such costs and expenses.
10.9 FORCE MAJEURE. Neither party shall be responsible for any delay or
failure to perform any provision of this Agreement arising from causes beyond
its reasonable control, including, without limitation, labor disputes, civil
commotion, war, (declared or undeclared), riot, severe weather, heavy snow,
floods, acts of God, governmental rules, laws, requisitions, mobilizations,
embargoes, fires, explosions, shortages of transportation, inability to obtain
freight space, unavailability of raw materials and restrictions on the use of
power. The party relying on this paragraph as an excuse for nonperformance of
its obligations hereunder shall use all reasonable efforts promptly to remove or
remedy the cause giving rise to such nonperformance.
10.10 NOTICES. All notices hereunder shall be in writing and delivered
personally, by documented overnight courier delivery service or by fax (with
confirmation of receipt), in each case, to the appropriate address or number as
set forth below.
IF TO SELLER: IF TO BUYER:
Brooks Automation, Inc. Yaskawa Brooks Automation, Inc.
15 Elizabeth Drive 2-1 Kurosaki-shiroishi, Yahatanishi-ku
Chelmsford, Massachusetts Kitakyushu 806-0004 Japan
01824 U.S.A. Attention: ______________________
Attention: Thomas Grilk, Esq. Fax: ____________________________
Fax: (978) 262-2511
WITH COPY TO: WITH COPY TO:
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IF TO SELLER: IF TO BUYER:
Brooks Automation, Inc. Yaskawa Brooks Automation, Inc.
15 Elizabeth Drive 2-1 Kurosaki-shiroishi, Yahatanishi-ku
Chelmsford, Massachusetts Kitakyushu 806-0004 Japan
01824 U.S.A. Attention: _______________________
Attention: Thomas Grilk, Esq. Fax: _____________________________
Fax: (978) 262-2511
WITH COPY TO: WITH COPY TO:
WilmerHale
60 State Street Masuda, Funai, Eifert & Mitchell, Ltd.
Boston, Massachusetts 02109 203 N. LaSalle Street, Suite 2500
Attention: Mark G. Borden Chicago, IL 60601-1262
Fax: (617) 526-5000 Attention: Mary W. Shellenberg
Fax: 312-245-7467
And
WilmerHale
60 State Street
Boston, Massachusetts 02109
Attention: Mark G. Borden
Fax: (617) 526-5000
or to such other address and/or to the attention of such other person as the
intended recipient may designate by written notice in accordance with this
provision. Notices shall be effective upon receipt.
10.11 NONASSIGNMENT. Neither this Agreement, nor any right, duty, term or
obligation thereof, may be assigned by either party to any individual or entity,
without the prior written consent of the other party hereto. For the purposes of
this Agreement, a change of control of a party, including through a sale or
transfer of all or a portion of such party's voting securities shall constitute
an assignment. This Agreement shall be binding upon and inure to the benefit of
the parties' successors and assigns.
10.12 HEADINGS; DEFINITIONS. The Section headings contained in this
Agreement are inserted for convenience of reference only and will not affect the
meaning or interpretation of the Agreement. All references to Sections contained
herein mean Sections of this Agreement unless otherwise stated. All capitalized
terms defined herein are equally applicable to both the singular and plural
forms of such terms.
10.13 AMENDMENTS AND WAIVERS. This Agreement may not be modified or amended
except by instrument or instruments in writing signed by the party against whom
enforcement of the modification or amendment is sought. Wavier of compliance
with any term or provision of this Agreement must be in writing. Waiver of a
breach of any term or provision of this Agreement will not be construed as a
waiver of any subsequent breach. Consummation of the transactions contemplated
by this Agreement will not constitute a waiver of any prior breach of the
Agreement.
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10.14 SEVERABILITY. If at any time any provision of this Agreement is or
becomes illegal, invalid, void or unenforceable in any respect under the law of
any jurisdiction, neither the legality, validity, or enforceability of the
remaining provisions hereof nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be affected or
impaired thereby, and the remainder of the provisions of this Agreement will
remain in full force and effect. The parties will endeavor in good faith
negotiations to replace any invalid, illegal, void or unenforceable provision
with a valid, legal and enforceable provision, the effect of which comes as
close as possible to the invalid, illegal, void or unenforceable provision.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this BROOKS JAPAN ROBOT SUPPLY
AGREEMENT to be executed by their duly authorized representative on the date set
forth above.
BROOKS AUTOMATION, INC. YASKAWA BROOKS AUTOMATION, INC.
By: /s/ Edward C. Grady By: /s/ Hiroyuki Ougi
--------------------------------- ------------------------------------
Title: President Title: President
------------------------------ ---------------------------------
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