Exhibit 10.5

CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

PURCHASE AGREEMENT

SOFTWARE AND RELATED SERVICES

 

 

INTEL:		Intel Corporation (and all Intel subsidiaries and affiliates), hereinafter “Buyer” or “Intel”)
Located at:		5000 W.Chandler Blvd. Chandler, AZ 85226
SUPPLIER:		Apache Design Solutions, Inc (hereinafter “Supplier’)
Located at:		2645 Zenker Road San Jose, CA 95134

 

Addenda attached hereto and incorporated herein by reference (Mark “X” where applicable):		x		Terms and Conditions of Purchase Agreement - Services
		x		A		Scope of Services, Prices/Rates
		x		B		Software Maintenance and Support
		x		C		Supplemental Provisions
		x		D		Protection of Intel’s Assets
		x		E		Certificate of Originality
		¨		F		Assignment of Intellectual Property
		¨		G		Source Code Escrow
		¨		H		Enhanced Data Security
		x		I		Contingent Worker Provisions

Buyer may license Software and/or purchase Services and Supplier shall provide the Software and/or Services as described in Addendum A, at prices specified, and in accordance with the Terms and Conditions of this Agreement All Purchase Orders issued to Supplier by Buyer during the term of this Agreement shall be governed only by the Terms and Conditions of this Agreement notwithstanding any preprinted terms and conditions on Supplier’s acknowledgment or Buyer’s Purchase Order. Any additional or different terms in Supplier’s documents are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given When Buyer is a subsidiary or affiliate of Intel, the obligations of the parties run between such subsidiary and affiliate and the Supplier, and not between Intel Corporation and the Supplier.

 

INTEL						SUPPLIER: Apache Design Solutions, Inc.
Signature		/s/ Etan Gopstein				Signature		/s/ Craig Shirley

Printed Name		Etan Gopstein				Printed Name		CRAIG SHIRLEY

Title		EDA Sr. Supplier Engagement Mgr.				Title		VP Sales

Date		June 30, 2008				Date		June 30, 2008

 

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GENERAL TERMS AND CONDITIONS

 

 

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ADDENDUM A

SOFTWARE DESCRIPTION, SPECIFICATION, PRICE

[*]

For products not specifically addressed above, [*].

Training:

Apache will provide “as needed” training as part of its support and services

License Usage:

All licenses purchased under this agreement [*].

Payment Terms:

All software purchases are eligible for [*] payments if they meet the following criteria:

Software purchases are eligible for “[*]” payment terms if [*].

Example: If an incremental software purchase is made in [*] for [*], the calculation would be as follows:

[*]

This purchase would be eligible for [*].

Remix:

All licenses purchased under this agreement are eligible for [*] during the term of this agreement. Intel reserves the right to correct errors resulting from the [*] reconfiguration process within [*] after receipt of licenses received from that reconfiguration. Intel will provide Apache with a minimum [*] lead time to generate and deliver license files. In addition, Intel has up to [*] which can be used at any time during the contract term. [*]

In addition, Intel has up to [*].

[*]

Purchase Details for Contract Term November 1, 2008 through October 31, 2011:

Intel intends to purchase [*] of software from Apache by [*], to be effective November 1, 2008 valid through October 31, 2011. Unique to purchases made from this contract for lease license software valid at any time during the term of November 1, 2008 through October 31, 2011, the initial [*] commitment will be subdivided as follows on a per year basis:

[*]

At Intel’s discretion, [*].

The Base Commitment is [*]. The Base Commitment must [*]. For pool purposes [*].

Example, [*]. The base commitment is equivalent to [*].

The [*].

If during a [*] and separate from a reconfiguration process ([*]) Intel wishes to utilize available [*], Intel can request additional licenses and utilize available [*] by one of the following two options:

[*]

Additional Purchases:

Under this agreement, at any time during the contract term Intel can purchase additional [*] which will be added to the “[*] commitment” available for Intel to utilize consistent with terms in this agreement. Bundles of [*] may be purchased and subsequently exchanged for Apache products with each [*] having a value of [*]. Costs for [*] exchanged for Apache products will be the same as the U.S. dollar costs identified in product pricing above.

All [*] purchased as part of this agreement must be consumed by contract expiration date.

[*]

 

[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

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[*]:

Apache wishes to [*]. To enable this capability, Apache agrees to provide Intel [*]. These “[*]” can only be used for [*] and are not for production purposes. Example, beginning in [*], Intel’s annual business commitment will be [*]. This would entitle Intel to [*] tool suites, and Intel would earn its [*]when the Intel annual business volume increases to [*]. A tool suite consists of [*].

[*]

 

[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

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ADDENDUM B

SUPPORT AND MAINTENANCE SERVICE

 

SERVICE SHALL BEGIN        June 30, 2008		SERVICES SHALL END        October 31, 2011

 

1.

COMPENSATION: So long as Intel pays the fees for Services as listed in Addendum A, Supplier shall provide such Services to Intel. Intel and Supplier agree that the compensation which Supplier will receive for Services provided to Intel is listed on Addendum A. Intel shall not be responsible for any amount greater than the amount listed in Addendum A. Supplier shall be responsible for any and all payments to Supplier’s subcontractors utilized in the performance of these Services. No additional billable activities will occur until and unless Intel issues a purchase order requesting such activities.

 

2.	SOFTWARE SUPPORT AND ERROR LISTINGS: Supplier agree to provide Intel with:

 

A.

All Releases, Updates and Upgrades for each Software program described in Addendum A. Software Releases, Updates and Upgrades shall be provided on magnetic tape, tape cartridge or other formats as requested by and acceptable to Intel.

B.

All necessary system reconfiguration Releases for hardware compatibility and support to ensure that the Software remains compatible with manufacturer’s operating system software.

C.

Qualified telephone support available twenty-four (24) hours a day by seven (7) days a week for the Software.

 

D.

Supplier’s hotline telephone numbers: (            )

If the Software fails to conform to the specifications set forth in Addendum A, Supplier agrees to use best efforts to modify the Software to conform to the Specifications, and to respond to general questions from Buyer regarding the use and functionality of the Software, according to the procedure and priority levels set forth below, as determined by Buyer.

 

Priority Level		Critical		Urgent		Routine
Priority Level Definition		A problem preventing the operation of a major function of the Software.		A problem impairing the operation of a major function of the Software.		A problem impacting a minor, yet desired, specified function or feature of the Software.
Required Response		Supplier shall respond within 1 hour and provide a correction to the error within 24 hours from notice.		Supplier shall respond within 24 hours and provide a correction to the error within 72 hours from notice.		Supplier shall respond within 72 hours and provide a correction to the error within 15 business days from notice.

 

E.

Downtime for Software shall not exceed [*] for any one Software installation. If the Software downtime period exceeds [*] in a [*] period. Supplier agrees that an extra [*] maintenance will be provided at no cost to Intel for each such downtime period. Such extension shall not relieve Supplier of its duties or obligations under this Agreement.

 

F.

Supplier will promptly supply Intel’s designated contact person (listed in Section 5) with all revisions or upgrades of Software application manuals and guides issued on a priority basis, together with a list of known Software errors and their respective solutions. This list will be distributed by Intel to its employees with a need to know.

 

3.	APPLICATION SUPPORT: Supplier agrees to provide Intel with:

 

A.

Qualified telephone support available for Software and applications inquiries, with responses provided within one (1) business day . Supplier’s hotline telephone number is: (    )

 

B.

Supplier’s best efforts to verify any Software error within [*] alter receiving notification of the error by Intel. If Supplier requires a test case to verify a Software error. Supplier shall verify the error within [*] after receipt of a test case from Intel.

 

C.

On-site visits for applications support within [*] when an on-site visit is required to remedy any Software error(s) due to non-compliance with Supplier’s performance specifications described in Addendum ‘A”.

 

D.

Supplier’s Software application models, Updates and Upgrades as they become available.

 

E.

If Supplier decides to cease production and/or support for any Software, Supplier shall promptly notify Intel and provide a Software conversion methodology to any new or replacement product(s) Supplier will offer. Upon Supplier’s discontinuance of the Software offering, Supplier will either continue to fully support the current Software for as long as Intel uses the Software or convert Intel over to use of the replacement product(s) at no additional charge.

 

4.

DEFAULT; If Supplier defaults on the support obligations set forth above. Supplier agrees to deliver to Intel the most current version of the Source Code and notes for the Software within forty-eight (48) hours of Intel’s written notice to Supplier. Such Source Code shall thereafter be included in the Software. Intel’s receipt of Source Code shall not vitiate Supplier’s duty to perform under this Agreement.

 

5.

CONTACTS

The following initial contact persons will facilitate Service scheduling, communications and notifications between Intel and Supplier. Either party may change its contact person by written notice to the other party.

 

INTEL:

SUPPLIER:

Name

Telephone No.

Name

Telephone No.

Location

Facsimile No.

Location

Facsimile No.

 

[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

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ADDENDUM C

SUPPLEMENTAL PROVISIONS

This Addendum serves to amend the Purchase Agreement – Software and Related Services (including the General Terms and Conditions that form a part thereof, the “Agreement”). This Addendum shall form a part of the Agreement, and the following provisions will govern and supersede any conflicting provisions in the Agreement. Any capitalized term used herein and not defined herein will have the meaning set forth in the Agreement. Except as expressly modified in this Addendum C, all other provisions of the Agreement remain in full force and effect.

 

1)	License Grant: (Section 3 of the Agreement) Buyer and Supplier agree to modify this section with the following language:

 

•

Section 3(B) of this Agreement is amended to add the following language at the end of the section: “Intel will not attempt, or allow others under its control to attempt, to obtain or derive information from or about the Software through disassembly, decompiling, reverse engineering, or other means.”

 

2)	Pricing: (Section 4 of the Agreement) Buyer and Supplier agree to modify this section with the following language respectively:

 

•

Section 4(A) of the Agreement is deleted in its entirety and replaced with the following language: “License Fees and Service Rates (hereinafter “Prices”) are set forth in Addendum A and shall remain fixed for a period of [*] from the effective date of this Agreement.”

 

•

Section 4(B) of the Agreement is deleted in its entirety and intentionally left blank.

 

3)	Invoicing and Payment: (Section 5 of the Agreement) Buyer and Supplier agree to modify this section with the following language:

Section 5(A) of the Agreement is deleted in its entirety and replaced with the following language: “Payment is made when Buyer’s EDI funds transfer initiated. Buyer shall make payments within [*] after Buyer’s receipt of the proper original invoice or Buyer’s receipt of Software or performance of Services, whichever is later.”

 

4)	Delivery, Purchase Orders, and Scheduling: (Section 8 of the Agreement) Buyer and Supplier agree to modify this section with the following language:

 

•

Section 8(A) of the Agreement is amended to add the following language at the end of the section: “Any preprinted general terms or conditions on Buyer’s purchase order or Supplier’s quotations in conflict with the terms and conditions of this Agreement are specifically excluded from this Agreement and shall have no force or effect.”

 

5)	Intellectual Property Indemnification: (Section 11 of the Agreement) Buyer and Supplier agree to modify this section with the following language:

 

•

Section 11(C) of the Agreement is deleted in its entirety and replaced with the following language: “If a third party’s claim endangers or disrupts Intel’s use of the Software, Supplier shall, at Intel’s

 

[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

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option within reason and at no charge to Intel, (a) obtain a license so Intel may continue use of the Software; (b) modify the Software to avoid the infringement; (c) replace the Software with a compatible, functionally equivalent and non-infringing product.”

 

6)	Indemnification: (Section 14 of the Agreement) Buyer and Supplier agree to modify this section with the following language:

 

•

Section 14(B) of the Agreement is amended to add the following language at the end of the section: “Supplier’s indemnification obligations under this section shall not apply to the extent such claims or liabilities arise out of or result from Intel’s reckless or willful misconduct.”

 

7)	Right to Develop: (Section 24 of the Agreement) Buyer and Supplier agree to modify this section with the following language:

 

•

Section 24 of the Agreement is amended to add the following language at the beginning of the first sentence in the section: “Subject to the Confidentiality provisions of this Agreement and Supplier’s intellectual property rights, …”

 

8)	Survivability: (Section 32 of the Agreement) Buyer and Supplier agree to modify this section with the following language:

 

•

Section 32 of the Agreement is deleted in its entirety and replaced with the following language: “The following sections shall survive termination or expiration of this Agreement: Sections 1, 3 (except section 3(a), 4, 6, 7, 9(B)(i), 9(B)(iii), 10, 11, 14, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and Paragraph 4C. In addition, any right or legal obligation of a party contained in any Addendum or Amendment, which by its express term or nature would reasonably extend for a period beyond the term of the Agreement, shall also survive the termination of the Agreement for such extended period.

 

9)	Limitation on Liability: (Section 33 shall be created as a new section of the Agreement) Buyer and Supplier agree to add this section to the contract as follows:

 

•

Section 33 is added to the Agreement and reads as follows: “In no event will either party be liable to the other party for consequential damages (including loss of revenues and profits), nor will either party be liable to the other party for any punitive or exemplary damages unless a court of competent jurisdiction determines that such damages resulted from a party’s reckless or willful misconduct.”

 

10)	Support and Maintenance Service: (Addendum B of the Agreement) Buyer and Supplier agree to modify this addendum with the following language:

 

•

Qualified telephone support pursuant to Section 2(C) of Addendum B shall only be available during Supplier’s normal business hours, which is 9 a.m. through 6 p.m. Pacific Time, Monday-Friday (except recognized holidays). The “Required Response” for “Critical” Priority Level pursuant to Section 2(D) of Addendum B shall be modified to read: “Supplier shall respond within 1 hour during its normal business hours and use its best efforts, within reasonable business practice, to provide a correction to the error within [*] from receipt of notice”; and for “Urgent” Priority Level shall be modified to read: “Supplier shall respond within [*] during its normal business hours and use its best efforts, within reasonable business practice, to provide a correction to the error within [*] from receipt of notice.”

 

[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

 

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ADDENDUM D

PROTECTION OF INTEL’S ASSETS

Supplier agrees to safeguard Intel’s classified (i.e., Intel Confidential, Intel Secret, Intel Restricted Secret and Intel Top Secret) and proprietary information as set out in the body of the parties’ Agreement and relevant Unescorted Access Application forms for badges. Supplier also agrees to use and apply Intel’s information protection methods stated below in this Addendum in the performance of Supplier’s work. Supplier agrees that this performance standard applies to all Intel classified and proprietary information, regardless of the medium (Intel’s or Supplier’s) in or on which it is retained or communicated and to software that is licensed by Intel for its internal use.

Supplier is not automatically granted access to Intel classified and proprietary information, networks or software. However, authorization to use or access Intel information, network (the Intel Intranet), software, or telecommunications may be granted by the Intel information owner if access is necessary and directly related to Supplier’s scope of work or duties. Unless specifically authorized, Supplier may not use or access Intel classified or proprietary information that may be happened upon or inadvertently discovered while performing work under this Agreement. Neither may a Supplier or Supplier’s employee control an Intranet web site at Intel.

Supplier shall not modify Intel classified or proprietary information, software, hardware, or telecommunications without the explicit permission of the Intel employee responsible for the resource, with the exception of contract-related requirements or resources that allow for individual customization (e.g., Microsoft Windows user features). Supplier’s employees, agents, or subcontractors may not disclose Intel classified or proprietary information to their co-workers, except for disclosure to those similarly bound to protect Intel’s intellectual property who have a need to know to fulfill this Agreement,

Supplier cannot use a non-Intel managed system to connect to the Intel network without an Intel-approved waiver obtained by the Intel management sponsor. Any Intel classified or proprietary information in Supplier’s possession must be erased from the non-Intel managed system on or before termination or expiration of the Agreement.

This Addendum outlines the Intel’s minimum requirements for protection methods for all Intel classified or proprietary information and software that Supplier’s personnel may come in contact with. Intel recognizes that the correct and proper protection of its information rests with its employees and Suppliers who have been authorized access. Failure to comply with these requirements will provide grounds for immediate termination of this Agreement by Intel.

For further information or questions, contact your Intel management sponsor.

 

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ADDENDUM E

CERTIFICATE OF ORIGINALITY

This Certificate of Originality must be completed by Supplier when furnishing software material (program product or offering and related documentation, or other software material) for Intel.

One Certificate of Originality can cover one complete product, even if that product includes multiple modules. However, a separate Certificate of Originality must be completed for the code and another for its related documentation (if any.)

Please leave no questions blank. Write “not applicable” or “N/A” if a question is not relevant to the furnished software material.

 

1.	Name of the software material (provide complete identification, including version, release and modification numbers for programs and documentation): RedHawk 8.1, Totem 8.1 and Sentinel 8.1 platforms

 

2.	Was the software material or any portion thereof written by any party other than you, or your employees working within their job assignment?

Yes            X                 No                                If Yes, provide the following information

 

(a)		Indicate if the whole of the software material or only a portion thereof was written by such party, and identify such
		portion: CASI solver.

 

(b)

Specify for each involved party:

 

(i)

Name:NA

(ii)

Company: Computational Applications and System Integration Inc.

(iii)

Address: 2001 South First Street, Champaign, IL 61820

(iv)

If the party is a company, how did it acquire title to the software material (e.g., software material was written by company’s employees as part of their job assignment)? Written by the company’s employees.

(v)

If the party is an individual, did s/he create the software material while employed by or under contractual relationship with another party? Yes                 No      X

If Yes, provide name and address of the other party and explain the nature of the obligations:                                  

 

(c)

How did you acquire tittle to the software material written by the other party? Purchased license

 

3.	Was the software material or any portion thereof derived from any third party’s pre-existing material(s)?

Yes                 No       X    

 

		If Yes, provide the following information for each of the pre-existing materials:
(a)		Name of the materials:		NA

(b)		Owner:		NA

(c)		How did you get the right to use the pre-existing material (s)		NA

 

4.	Identify below, or in an attachment, any other circumstances which might affect Intel’s ability to reproduce and market this software product, including:

 

(a)		Confidentiality or trade secrecy of pre-existing materials:		NA

(b)		Known or possible royalty obligations to others:		NA

(c)		Pre-existing material developed for another party or customer (including government) where you may not have
		retained full rights to the material:		NA

(d)		Materials acquired from a person or company possibly not having title to them:		NA

(e)		Other circumstances:		NA

 

SUPPLIER:		Apache Design Solutions, Inc.

Signature:		/s/ S. Craig Shirley

Printed Name		S. Craig Shirley

Title		VP Worldwide Sales
Date		June 30, 2008

 

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ADDENDUM F

ASSIGNMENT OF INTELLECTUAL PROPERTY

In consideration of the disclosure of Intellectual Property and Confidential Information of Intel and the compensation paid by Intel to (“Assigner”) under the Intel Corporation Purchase Agreement - Software & Related Services No.         , effective          (“Agreement” the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

Assignor has created or obtained exclusive title to the following work(s) (hereinafter “Work”) entitled:

1.

2.

In this Agreement, “Work” means all works, including literary works, pictorial, graphic and sculptural works, architectural works, works of visual art, mask works, and any other work that may be the subject matter of copyright protection; advertising and marketing concepts; information; data; formulas; designs; models; drawings; computer programs; including all documentation, related listings, design specifications, and flowcharts, trade secrets, and any inventions including all processes, machines, manufactures and compositions of matter, and any other invention that may be the subject of patent protection: and all statutory protection obtained or obtainable thereon including those in foreign countries.

The undersigned hereby assigns to Intel all right, title, and interest to all Work created by Assignor arising our of or utilized by the Assignor in the performance of the Agreement, and the ownership of the same shall be vested solely in Intel. In respect to copyrights, this assignment shall be effective for the entire duration of the copyrights and shall include, but not be limited to all rights to derivative works. Assignor waives all rights of attribution, and integrity for specific works created by Assignor under the Agreement in respect of all marketing, advertising, and commercial uses thereof.

Assignor represents and warrants that the Work is original; that neither the Assignor’s interest in the Work nor the copyright therein is encumbered or subject to any undisclosed lien or charge; and that Assignor is free to make the present assignment and has no legal obligation or prior commitment which is inconsistent with this Agreement.

 

ASSIGNOR
Signature:
Printed Name:
Date:

 

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ADDENDUM G

SOURCE CODE ESCROW

 

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ADDENDUM H

ENHANCED DATA SECURITY

 

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ADDENDUM I

CONTINGENT WORKER PROVISIONS

COMPLIANCE WITH LAWS

Seller shall comply with all national, state, and local laws and regulations governing the manufacture, transportation, export, and/or sale of Items and/or the performance of services in the course of this Agreement. If Seller is a US Supplier, such laws and regulations may include those of, but not be limited, to the US Department of Commerce, including US Export Administration regulations, the US Securities Exchange Commission, the US Environmental Protection Agency and the US Department of Transportation regulations applicable to Hazardous Materials. Seller shall comply with all applicable laws regarding non-discrimination in terms and conditions of employment, payment of minimum wage and legally mandated employee benefits and compliance with mandated work hours. Supplier shall comply with all employment and labor laws when providing services, and must provide its employees with legal right to work in the country in which they are working.

Supplier shall comply with all applicable laws regarding non-discrimination in terms and conditions of employment, payment of minimum wage and legally mandated employee benefits and compliance with mandated work hours. Supplier shall comply with all applicable laws regarding employment of underage or child labor and shall not employ children under the age of 16. Supplier represents and agrees that it is in compliance with Executive Order 11246 and implementing Equal Opportunity regulations, the Vietnam Era Veterans’ Readjustment Assistance Act as amended by the Veterans Employment Opportunities Act of 1998 (to include Vietnam-era Veterans and other Veterans who served on active duty during a war or campaign or expedition for which a campaign badge has been authorized), and the Immigration Act of 1987, unless exempted or inapplicable. Supplier agrees to fully comply with Buyer’s Code of Conduct and EICC policy as set forth at supplier.intel.com.

Supplier shall make all deductions for taxes, worker’s compensation, and other deductions from Contractor’s income received for services as required by any applicable tax code or law, or any other governmental tax laws, and shall make all such payments to the applicable authority.

Neither Supplier nor any of it subsidiaries will export/re-export any technical data, process, product, or service, directly or indirectly (including the release of controlled technology to foreign nationals from controlled countries), to any country for which the United States government or any agency thereof requires an export license or other government approval without first obtaining such license.

For services provided in the U.S., Supplier agrees not to provide foreign nationals (non U.S. citizens or U.S. permanent residents) as employees or Contingent Workers for work on any Buyer site unless that foreign national is covered under a valid U.S. Export License or is not exposed to controlled technology. Additionally, for services provided outside of the U.S., the Supplier agrees not to provide foreign nationals as employees or contractors for work on any Buyer site unless that foreign national is a citizen or permanent resident of the country of that Buyer site or the foreign national is covered under a valid U.S, Export Authorization or the foreign national is not exposed to controlled technology or the foreign national does not require a valid U.S. Export License.

It is a requirement of this Agreement that the Supplier shall be responsible for obtaining all such approvals, authorizations, permits and licenses and shall indemnify and hold Intel harmless from any failure lo comply with such requirement.

SOLE COMPENSATION

Supplier acknowledges and agrees that Supplier’s sole compensation is as set forth in this Agreement and that neither Supplier nor of Supplier’s employees are entitled to participate in any of Buyer’s benefit plans, including but not limited to stock option plans, stock participation plans, profit sharing, retirement or pension plan contributions or savings or medical plans.

INDEPENDENT CONTRACTOR

In performing Services under this Agreement, Supplier is an independent contractor and its personnel and other representatives shall not act as nor be agents or employees of Buyer. As an independent contractor, Supplier will be solely responsible for determining the means and methods for performing the required Services. Seller shall have

 

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complete charge and responsibility for personnel employed by Seller; however, Buyer reserves the right to instruct Supplier to remove from Buyer’s premises immediately any of Supplier’s personnel who are in breach of this contract. Such removal shall not relieve Supplier of its obligation to provide Services under this Agreement.

INDEMNIFICATION

If Seller is performing Services under this Agreement, Seller shall, to the fullest extent permitted by law, protect, defend, indemnify, and hold Buyer harmless from and against any and all claims, liabilities, demands, penalties, forfeitures, suits, judgments, and the associated costs and expenses (including attorney’s fees), which Buyer may hereafter incur, become responsible for, or pay out as a result of: death or personal injury (including bodily injury) to any person, destruction or damage to any property, contamination of or adverse effects on the environment, and any clean up costs in connection therewith, or any violation of law, governmental regulation or orders, to the extent caused by (i) Supplier’s breach of any term or provision of this Agreement; (ii) any negligent or willful acts, errors, or omissions by Seller, its employees, officers, agents, representatives, or subcontractors in the performance of this Agreement; or (iii) dangerous defects in Items or Services.

The foregoing indemnity shall include any claim made or threatened, whether by legal proceedings or otherwise, against Intel by a third party on the grounds that any person supplied or engaged by Supplier is or was deemed to be an employee of Intel. Supplier further agrees that if Buyer is required by law or otherwise to include Supplier or any Supplier’s employees in any of Buyer’s benefit plans or provide severance benefits under law, Supplier shall reimburse Buyer for the actual amount required to be paid, or the fair market value of any benefit received by Supplier or Supplier’s employees arising from work performed under this Agreement.

INSURANCE

Without limiting or qualifying Supplier’s liabilities, obligations, or indemnities otherwise assumed by Supplier pursuant to this Purchase Order, Supplier shall maintain, at its sole cost and expense, with companies acceptable to Buyer, commercial general liability and automobile liability insurance with limits of liability not less than $1,000,000.00 per occurrence and including liability coverage for bodily injury or property damage (1) assumed in a contract or agreement pertaining to Supplier’s business and (2) arising out of Supplier’s product, Services, or work. Supplier’s insurance shall be primary, and any applicable insurance maintained by Buyer shall be excess and non-contributing. The above coverages shall name Buyer as additional insured. Supplier shall also maintain statutory workers’ compensation coverage, including a broad form all states endorsement in the amount required by law, and employers’ liability insurance in the amount of $1,000,000.00 per occurrence. Such insurance shall include an insurer’s waiver of subrogation in favor of Buyer. If Supplier is providing any professional service to Buyer, Supplier shall maintain professional liability insurance (including errors and omissions coverage) with liability limits not less than $1,000,000.

COMPLIANCE TO CONTINGENT WORKFORCE POLICY

Suppliers who provide services for Intel and who assigned its employees to Intel’s premises to provide the said services are responsible for complying with Intel’s global contingent workforce policy. This includes but is not limited to adhering to requirements for site and network access and complying with all relevant restrictions on placement at Intel, which includes waiting periods to satisfy workforce stabilization guidelines and adherence to the 12 month rule (or as otherwise advised) for staff augmentation workers. All of the guidelines are found on supplier.intel.com under CW Supplier Policy.

COMPLIANCE TO INTEL’S DRUG FREE WORKPLACE DIRECTIVE

Buyer is committed to fulfilling its legal and ethical responsibility to maintain a safe and efficient working environment on Buyer premises. Supplier shall actively support Buyer’s objective to provide “risk free” and “drug free” environment for Buyer’s employees, Supplier, and Contractors. Supplier shall comply with Intel’s drug free work place directive as outlined in the contingent workforce policy on supplier.intel.com.

Pre-Access Drug Screening

Suppliers who provide services in the United States, Costa Rica and Argentina shall ensure that all contingent workers assigned to the Intel account shall pass a drug screen test (urine analysis) within seventy-two (72) hours after the suppliers have identified the contingent workers to be assigned to Intel. This applies to all contingent workers who will be providing services on Intel premises, or have access to Intel network or assets. Any contingent worker who does not successfully pass the screen test within seventy two (72) hours in these countries will be denied access to all Intel’s premises. Supplier should refer to the Contingent Workforce Supplier Policy at supplier.intel.com for more details.

 

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SECURITY

Supplier confirms that, to the best of its knowledge and efforts, all Supplier employees and subcontractors set to perform work, or already performing work, if so permitted, at an Intel facility have met all Intel site access and security standards, including, but not limited to cooperation with access paperwork and completion of any required Intel orientation, and that Supplier has or will perform all relevant screening requirements. Supplier shall contact the local badging office or reference the contingent workforce supplier policy at supplier.intel.com for details, prior to assigning employees to positions requiring on-site access.

Where not prohibited by law, Buyer may at Buyer’s expense choose to conduct one or more additional background investigations during the Supplier personnel’s engagement and that such personnel who do not pass will be denied access to Buyer’s facilities. Supplier must provide personnel willing to submit to the background investigation, willing to provide all relevant documentation, and must pass such investigation.

COMPLIANCE WITH ORIENTATION/BADGING GUIDELINES

Supplier is responsible for ensuring that supplier and all of its employees and subcontractors comply with all Intel access and security requirements, including but not limited to cooperation with access paperwork, relevant screening requirements, and completion of any required orientation required by buyer. Supplier should refer to local badging office and the contingent workforce supplier policy at supplier.intel.com for details.

 

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