EXHIBIT 10.36
SUPPLY AGREEMENT
between Xxxxxx Chemie XX
Xxxxx-Xxxxxx-Xxxxx 0
00000 Xxxxxx
Xxxxxxx Xxxxxxxx of Germany
- hereinafter referred to as "WACKER" -
and Tianwei Yingli New Energy Resources Xx.Xxx
No. 3055 Middle Fuxing Road
Xxx Xxxx City
P.R.China (071051)
- hereinafter referred to as "BUYER" -
PREAMBLE
BUYER has requirements for polycrystalline Silicon. WACKER is willing to supply
BUYER with polycrystalline Silicon.
Now, therefore, in consideration of the foregoing and the mutual premises
hereinafter contained, WACKER and BUYER agree as follows:
1. PRODUCT
WACKER agrees to sell and deliver and BUYER agrees to purchase and take the
polycrystalline Silicon manufactured by WACKER as defined per specification set
forth in APPENDIX A (hereinafter referred to as "PRODUCT").
2. QUANTITIES
2.1 The BUYER shall make the agreed prepayment according to the payment
schedule set forth in APPENDIX X.
XXXXXX shall sell and deliver to BUYER and BUYER will purchase and take
from WACKER the annual quantities of PRODUCT set forth in APPENDIX A.
3. PRICES / PAYMENT TERMS
3.1 The prices for the PRODUCT are set forth in APPENDIX A.
3.2 The prices under Section 3.1 above shall be firm until 31.12.2018 and only
subject to change, if the relevant energy price index, defined in APPENDIX
C, increases or decreases by more than 20%. The agreed prices will be
adjusted by the rate (Euro/kg) as specified in the table in APPENDIX C.
2
3.3 WACKER shall invoice BUYER with each shipment of PRODUCT. BUYER shall pay
such invoices net within [-]* ([-]*) days from the date of such invoices.
4. DELIVERY
4.1 PRODUCT shall be delivered FOB German seaport (Incoterms 2000).
4.2 All deliveries of PRODUCT are subject to XXXXXX'x General Conditions of
Sale set forth in APPENDIX B and hereby made part of this Agreement,
provided, however, that if there is any conflict between the terms of this
Agreement and the said Conditions of Sale the terms of this Agreement
shall prevail.
4.3 The agreed annual quantities for the years 2010, 2011, 2012, 2013, 2014,
2015, 2016 2017 and 2018 will be shipped in about equal monthly
installments.
5. QUALITY / INSPECTION AND TESTING
5.1 The PRODUCT supplied by WACKER shall conform to the specifications set
forth in APPENDIX A.
5.2 It is understood and expressly agreed that the PRODUCT delivered by WACKER
hereunder are PRODUCTS of technical quality only and BUYER is exclusively
responsible for fitness for purpose, handling, use and application of the
PRODUCT.
5.3 Upon receipt of each shipment of PRODUCT BUYER shall inspect the PRODUCT.
Unless BUYER notifies WACKER within [-]*([-]*) days after the arrival of
the shipment at Buyer's premises or warehouse, that it does not conform to
the quantity ordered or XXXXXX'x certificate of quality does not conform
to the specifications set forth in APPENDIX A, said shipment shall be
deemed to have been delivered as ordered and XXXXXX'x certificate of
quality shall be deemed to conform to the specifications.
6. WARRANTY/LIABILITY
6.1 WACKER warrants solely that the PRODUCT delivered shall conform to the
specifications set forth in APPENDIX A. Except for the warranty provided
above, WACKER disclaims any and all other express or implied warranties
with respect to the PRODUCT, and any warranty of merchantability or
fitness for a particular purpose is expressly disclaimed.
6.2 BUYER's exclusive remedy and XXXXXX'x sole obligation for any claim or
cause of action arising under this Agreement because of defective PRODUCT
is expressly limited to either (i) the replacement of non-conforming
PRODUCT or the repayment of the purchase price of the respective quantity
of PRODUCT; OR (ii) payment not to exceed the purchase price of the
specific quantity of PRODUCT for which damages are claimed.
----------
* INFORMATION INTENTIONALLY OMITTED; CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR SUCH INFORMATION, AND SUCH INFORMATION HAS BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
3
Any remedy is subject to BUYER giving WACKER notice as provided for in
Section 5.3.
6.3 The parties agree that the remedies provided in this Agreement are
adequate and that except as provided for above, neither party shall be
liable to the other, whether directly or by way of indemnity or
contribution for special, incidental, consequential or other damages
arising from the breach of any obligation hereunder or for any other
reason whatsoever, including actions for tort, strict or product
liability, patent or trademark infringement except as provided for herein.
7. CONFIDENTIALITY
7.1 BUYER may use all the information disclosed by WACKER under this Agreement
only for the purposes contemplated herein.
7.2 BUYER agrees to keep secret such information and to take the necessary
measures to prevent any disclosure to third parties.
7.3 BUYER is responsible for assuring that secrecy is maintained by its
employees and agents.
7.4 The secrecy obligation does not apply to information
- where BUYER can prove that is or was known to BUYER prior to its
receipt;
- which is or has become generally available to the public prior to
its receipt;
- which is or has become generally available to the public without
being the result of a breach of this Agreement;
- which is in accordance with information BUYER received or got access
to from an entitled person without any obligation of secrecy;
- where WACKER approved the disclosure in a particular case in
writing.
7.5 The secrecy obligation shall survive the term of this Agreement.
8. SECURITY INTEREST
BUYER hereby grants WACKER a continuing security interest in any PRODUCT
and in the proceeds (including proceeds of sale or insurance) until the
entire purchase price for the PRODUCT currently or previously sold to
BUYER is paid and until all late payment interest, legal fees and expenses
required to enforce XXXXXX'x rights and any costs, expenses, taxes or
other charges required to be paid by BUYER to WACKER have been paid in
full. BUYER specifically agrees that WACKER may file one or more financing
statements or other documents and take all necessary or appropriate in
order to create, perfect, preserve or enforce XXXXXX'x security interest
in the PRODUCT pursuant to the Uniform Commercial Code and other
applicable law, and hereby grants to WACKER a power of attorney to execute
such statements or documents in BUYER's name. XXXXXX'x reasonable costs
and expenses (including, but not limited to, attorney's fees and expenses
for pursuing, searching for, receiving, taking, keeping, storing,
advertising and selling the PRODUCT shall be paid by BUYER who shall
remain liable for any
4
deficiency resulting from a sale of the PRODUCT and shall pay any
deficiency forthwith on demand. The requirement of reasonable notice of
sale shall be met if such notice is mailed and addressed to BUYER at its
last address appearing on XXXXXX'x records at least 30 days prior to the
date of sale.
9. FORCE MAJEURE
9.1 If either party should be prevented or restricted directly or indirectly
by an event of Force Majeure as hereinafter defined from performing all or
any of its obligations under this Agreement, the party so affected will be
relieved of performance of its obligations hereunder during the period
that such event and its consequences will continue, but only to the extent
so prevented, and will not be liable for any delay or failure in the
performance or any of its obligations hereunder or loss or damage whether
direct, general, special or consequential which the other party may suffer
due to or resulting from such delay or failure, provided always that
prompt notice is given by the affected party to the unaffected party by
facsimile or telephone of the occurrence of the event constituting the
Force Majeure, together with details thereof and an estimate of the period
of time for which it will continue.
9.2 The term Force Majeure shall include without limitation strike, labor
dispute, lock out, fire, explosion, flood, war (accident), act of god or
any other cause beyond the reasonable control of the affected party,
whether similar or dissimilar to the causes enumerated above.
10. ASSIGNMENT
This Agreement or any part thereof is not assignable by either party
without the prior written consent of the other party.
11. ENTIRE AGREEMENT
11.1 This Agreement constitutes the whole agreement between the parties as to
the subject matter thereof and no agreements, representations or
warranties between the parties other than those set out herein are binding
on the parties.
11.2 No waiver, alteration, or modification of this Agreement shall be valid
unless made in writing and signed by authorized representatives of the
parties.
12. SEVERABILITY
In the event, any provision of this Agreement shall be declared invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
13. HEADINGS
The headings of the articles of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part of this
Agreement or to affect the construction hereof.
5
14. DURATION / TERMINATION
14.1 This Agreement will commence on the 01.08.2007 and will endure for a
defined period of 11 (eleven) years and 5 (five) month.
15. APPLICABLE LAW/ JURISDICTION
This Agreement shall be construed and the legal relations between the
parties hereto shall be determined in accordance with the laws of Germany;
the application of the 1980 United Nations Convention on Contracts for the
International Sale of Goods is expressly excluded.
Exclusive place of jurisdiction shall be Munich.
Xxxxxx Chemie AG Tianwei Yingli New Energy Resources Co. Ltd
XXXXXX POLYSILICON
Date: July 4, 2007 Date: July 4, 2007
/s/ Xxxxx Shindlbeck /s/ Xxxxxxx Xxxxx /s/ Xxxxxxxxx Xxxx
-------------------------------------------------- -------------------------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxx Xxxxx
President Director Marketing & Sales
6
APPENDIX A
SOLARQRADE POLYSILICON
SPECIFICATION PCL-NCS (B)
Price EURO/kg
Calendar year Annual quantity (kg) FOB German Seaport
------------- -------------------- ------------------
2010 [-]* [-]*
2011 [-]* [-]*
2012 [-]* [-]*
2013 [-]* [-]*
2014 [-]* [-]*
2015 [-]* [-]*
2016 [-]* [-]*
2017 [-]* [-]*
2018 [-]* [-]*
PREPAYMENT SCHEDULE
The BUYER will prepay the amount of [-]*Euro/kg for the total above agreed
contract quantity. The invoices, regarding deliveries up to the annual agreed
quantity, will be reduced by [-]* Euro/kg with each shipment. So XXXXXX'x
invoice will state the above agreed prices on the invoice, but will make note,
that the BUYER has only to pay the invoice amount reduced by [-]* Euro/kg.
Regarding to the agreed annual quantities the total prepayment amount of Euro
[-]*([-]*) has to be paid according to the following schedule on the account
of Xxxxxx Chemie AG:
August 4th, 2007 Euro [-]*([-]*)
November 5th, 2007 Euro [-]*([-]*)
In case the BUYER does fail to take the full amount of the agreed annual
quantity in one respective calendar year, WACKER does not have to repay the not
absorbed outstanding prepayment (regarding the respective calendar year), BUYER
also doesn't have the right to set this prepayment against deliveries of the
following year.
----------
* INFORMATION INTENTIONALLY OMITTED; CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR SUCH INFORMATION, AND SUCH INFORMATION HAS BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
7
APPENDIX B
GENERAL CONDITIONS OF SALE
1. GENERALLY:
All our supplies and services as well as all contracts concluded with us are
exclusively subject to the following conditions of sale. Terms of the Purchaser
which contradict or which deviate from our sales terms and which are not
expressly recognised by us are not valid even if we do not expressly object to
them. Where a continuing business relationship exists, all future contracts,
supplies and services are also subject to our conditions of sale.
2. OFFER, CONCLUSION OF CONTRACT:
Our offers are subject to change and non-binding. Orders are only valid if
confirmed by us in writing or if recognised by us through the act of delivery.
Any additional verbal agreements, supplements and modifications are also only
valid if confirmed in writing.
3. DELIVERY, DEFAULT:
3.1 Unless otherwise agreed, any dates quoted for delivery are non-binding.
3.2 We are entitled to make partial deliveries as far as the Purchaser must
reasonably accept this in the circumstances of an individual case. The
corresponding invoices issued are payable without regard to whether
complete delivery has been made.
3.3 In the event delivery is delayed, the Purchaser may set us a reasonable
grace period with the notice that he rejects the acceptance of the
delivery item after expiry of the grace period. After the expiry of the
grace period, the Purchaser is entitled to cancel the contract of sale
through written notice or to request damages instead of performance.
At our request the Purchaser is obligated to state within a reasonable
period whether he cancels the contract due to delay in delivery, seeks
damages instead of performance or insists on performance.
3.4 Our liability is set forth in para. 9. Furthermore in the event of slight
negligence, our liability is limited to the invoice value of the
respective delivery item.
4. RETURN OF LOAN PACKAGING:
In the event of delayed return (meaning in the event normal uploading times are
exceeded) of loading equipment, loading banks and other loan packaging we
reserve the right to charge the Purchaser for the costs incurred by us.
5. PRICES:
5.1 Unless otherwise expressly agreed, prices are quoted "ex works" excluding
packaging and plus delivery and shipping costs as well as plus any
applicable Value Added Tax.
8
5.2 The prices valid on the day of dispatch shall apply.
Should the latter be higher than the contractual price, the Purchaser is
entitled to cancel the contract with regard to the quantities still to be
delivered. Cancellation shall be made within 14 days after notification of said
price increase.
6. PAYMENT:
6.1 The payment shall be made in Euro to one of our bank accounts indicated on
the reverse side.
6.2 Should Purchaser be in arrears with payment, interest for default shall be
due and payable at 12%, but at least 8% above the respective base interest
rate. We reserve the right to claim further damages. If the interest we
claim is higher than the statutory interest for delayed payment, the
Purchaser has the right to demonstrate lower damages just as we have the
right to show that greater damages were incurred.
6.3 Should Purchaser be in arrears with payment or should there be reasonable
doubts as to Purchaser's solvency or credit rating, we are -- without
prejudice to our other rights -- entitled to require payment in advance
for deliveries not yet made, and to require immediate payment of all our
claims arising from the business relation.
6.4 Bills of exchange and cheques shall be accepted upon separate agreement
and only by way of payment. All expenses incurred in this regard shall be
borne by the Purchaser.
6.5 Only uncontested or legally proved claims shall entitle the Purchaser to
set-off or withhold payment.
7. FORCE MAJEURE:
Events of Force Majeure, in particular strikes, lock outs, operation or
transport interruptions, including at our suppliers, shall suspend the
contractual obligations of each party for the period of the disturbance and to
the extent of its effects. Should the delays caused exceed a period of 6 weeks,
both parties shall be entitled to cancel the contract, with respect to the
contractual performance affected by such delays. No other claims exist.
8. QUALITY:
8.1 All our data, especially data relating to product suitability, processing
and use, as well as to technical support, have been compiled to the best
of our knowledge. The Purchaser, however, must still perform his own
inspections and preliminary trials.
8.2 The Purchaser undertakes to examine the goods immediately after delivery
with respect to any defects concerning quality and suitability of purpose
and object to ascertainable defects. Sample testing shall also be
performed if this can be reasonably expected of the Purchaser. Failure to
proceed in aforesaid manner shall result in the goods being regarded as
accepted.
9
8.3 Complaints must be made within 8 days after receipt of the goods. In case
of hidden faults, however, complaints are to be made immediately on
discovery, within one year after receipt at the very latest. Said claims
shall only be taken into consideration if and when made in writing and
with the relevant documentation attached. To comply with the time limit it
shall be sufficient if the complaint is sent in good time.
8.4 We are not liable on the basis of public statements by us, the
manufacturer or his agents, if we were not aware of the statement or were
not required to have knowledge thereof, the statement was already
corrected at the time of the purchase decision or the Purchaser cannot
show that the statement influenced his purchase decision.
8.5 We are not liable for defects which only marginally reduce the value or
the suitability of the object. A marginal defect exists in particular if
the defect can be removed by the Purchaser himself with insignificant
effort.
8.6 If the Purchaser requests replacement performance due to a defect, we may
choose whether we remove the defect ourselves or deliver a defect-free
object as a replacement. The right to reduce the price or cancel the
contract in the event of unsuccessful replacement performance shall remain
unaffected.
8.7 Where complaints are justified, the goods may only be returned to us at
our expense if after we receive notice of the defect we do not offer to
collect or dispose of the goods.
8.8 If increased costs arise because the Purchaser has transferred the goods
to a place other than his commercial place of business, we shall charge
the Purchaser for the increased costs in connection with the remedying of
the defect, unless the transfer corresponds to the designated use of the
object.
8.9 Damage and claims for reimbursement of expenses shall remain unaffected as
far as not excluded by para. 9.
8.10 All claims due to a defect are subject to a limitation period of one year
after delivery of the object. No warranty is made for used objects. The
statutory limitation period for objects which are used for a building
structure in accordance with their usual manner of use, and which cause
the defectiveness thereof, shall remain unaffected.
8.11 The rights of the Purchaser under Sections 478, 479 German Civil Code
remain unaffected.
9. LIABILITY:
Our liability is excluded, regardless of the legal grounds.
This shall not apply in the event of intentional actions or gross negligence by
us or our legal representatives or agents or in the event of breach of material
contractual duties.
In the event of a slightly negligent breach of material contractual duties, our
liability is limited to twice the invoice value of the respective delivery item.
For damages due to delayed performance para. 3.4 shall also apply. Our liability
for damages due to injury to life, the body or health, the
10
liability based on a guarantee and under mandatory statutory provisions, in
particular the Product Liability Act, remain unaffected.
10. RESERVATION OF OWNERSHIP:
10.1 The goods that have been sold remain our sole property until all
outstanding debts arising from the business connection with the Purchaser
have been paid in full. The Purchaser has power of disposal of the
purchased goods in the ordinary course of business, or he may process the
goods until revocation by us.
10.2 Reservation of ownership and power of disposal, as laid down in clause
10.1, also apply to the full value of the manufactured goods produced by
processing, mixing and blending or combining our goods. In each case we
qualify as the manufacturer. In cases where the goods are processed, mixed
and blended or combined with those of a third party, and where the
reservation of the latter continues to apply, then we acquire joint
ownership in proportion to the invoice value of those processed goods. If
security rights of a third party are in fact or in law below that share,
the difference will be to our benefit.
10.3 If the Purchaser resells our goods to third parties he hereby assigns the
entire resulting payment claim -- or in the amount of our joint share
therein (see para. 10.2) -- to us. In the event the parties agree on a
current account, the respective balance amounts shall be assigned.
However, the Purchaser shall be entitled to collect such payment claim on
our behalf until we revoke such right or until his payments are
discontinued. The Purchaser is only authorized to make assignment of these
claims -- even only for the purpose of collection by way of factoring --
with our express written consent.
10.4 The Purchaser shall immediately give notice to us if any third party
raises any claim with respect to such goods or claims which are owned by
us.
10.5 If the value of the collateral exceeds our accounts receivable by more
than 20% then we will release collateral on demand and at our discretion.
10.6 We are also entitled to take back goods on the basis of the reservation of
title, even if we have not previously cancelled the contract. If products
are taken back by way of the exercise of the reservation of ownership,
this shall not constitute cancellation of the contract.
10.7 If the laws of the country in which the goods are located after delivery
do not permit the Vendor to retain the title to said goods, but allow the
retention of other similar rights to the delivery item, the Purchaser
shall provide us with such other equivalent right. The Purchaser
undertakes to assist us in the fulfilment of any form requirements
necessary for such purpose.
11. PLACE OF FULFILMENT, APPLICABLE LAW AND JURISDICTION:
11.1 The originating point of the goods shall, in each case, be the place of
fulfilment for the delivery. Munich shall be the place of fulfilment for
payment.
11
11.2 Exclusively the laws of the Federal Republic of Germany shall apply
between the parties. The application of the 1980 United Nations Convention
on Contracts for the International Sale of Goods is expressly excluded.
11.3 If the Purchaser is a merchant or does not have a general place of
jurisdiction in Germany, the place of jurisdiction is Munich. We shall,
however, have the right to also bring a claim against the Purchaser at his
general place of jurisdiction.
Munich, 15th May 2002
12
APPENDIX C, PAGE 1 OF 2
Relevant Energy Price Index:
"BAFA Grenzubergangspreis" for natural gas
Source:
xxxx://xxx.xxxx.xx/XXXx/Xxxxxxxxxx/Xxxxxxx/Xxxxxxxxxxxxxxxxxx/
energiestatistiken,did=53736.html
Evaluation periods:
-- Arithmetic mean value out of 6 months
-- April to September for price adjustment of 1st half of the following year
-- October to March for price adjustment of 2nd half of year
-- Basis evaluation period: April 2006 -- September 2006
Price Adjustment Table:
CB ... Index value of Basis evaluation period
CN ... Index value of New evaluation period
Price Adjustment
CN/CB (%) EURO / kg
--------- ---------
< - 60 % [-]*
< - 40 % [-]*
< - 20 % [-]*
> + 20 % [-]*
> + 40 % [-]*
> + 60 % [-]*
> + 80% [-]*
etc. etc.
On the following example for the calculation of the price adjustment the
procedure is explained in more detail.
----------
* INFORMATION INTENTIONALLY OMITTED; CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR SUCH INFORMATION, AND SUCH INFORMATION HAS BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
13
APPENDIX C, PAGE 2 OF 2
EXAMPLE FOR CALCULATION OF PRICE ADJUSTMENT
(FLOWCHART)
