*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission
(English Translation of the Original Contract in Chinese)
Exhibit 4.44
POLYSILICON SUPPLY AGREEMENT
BY AND BETWEEN
JIANGSU ZHONGNENG POLYSILICON TECHNOLOGY DEVELOPMENT CO., LTD.
AND
JIANGSU LINYANG SOLARFUN CO., LTD.
SERIAL NUMBER ON THE SIDE OF THE SELLER:
SERIAL NUMBER ON THE SIDE OF THE BUYER:
JUNE 22, 2008
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*Confidential Treatment Requested. The redacted material has been separately
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(English Translation of the Original Contract in Chinese)
This Polysilicon Supply Agreement is executed by the following parties on June
22, 2008.
Jiangsu Zhongneng Polysilicon Technology Development Co., Ltd., a company
incorporated in the People's Republic of China with its legal address at Xx.00,
Xxxxxxxx Xxxx, Xuzhou Economic Development Zone, Jiangsu Province, PRC
(hereinafter referred to as "SELLER").
Jiangsu Linyang Solarfun Co., Ltd., a company incorporated in the People's
Republic of China with its legal address at 000, Xxxxxxx Xxxx, Xxxxxx, Xxxxxxx
Xxxxxxxx, PRC (hereinafter referred to as "BUYER").
The Buyer and the Seller are each hereinafter also referred to as the "Party"
and, collectively as the "Parties".
PREAMBLE
WHEREAS, the Buyer intends to engage in a long-term trade relationship with the
Seller and to purchase certain quantities of solar grade polysilicon from the
Seller, and the Seller intends to be a supplier and to sell certain quantities
of solar grade polysilicon to the Buyer; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, the
Seller and the Buyer agree as follows:
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(English Translation of the Original Contract in Chinese)
1. DEFINITIONS
As used herein, unless otherwise agreed in the clauses of this Agreement, or
defined by the context, the following terms shall have the following meaning:
1.1 AGREEMENT means this Polysilicon Supply Agreement, including all Exhibits
hereto, as it may be amended, modified or supplemented from time to time
in accordance with its terms.
1.2 TERM OF THIS AGREEMENT means the period from the Effective Date of this
Agreement to the expiry date of it, which is the effective term of this
Agreement.
1.3 BUSINESS DAY means any day on which companies in the PRC are generally
open for business, including a Saturday or Sunday which the PRC government
temporarily declares to be a working day ("Working Rest Day"), but
excluding a statutory holiday, or a Saturday or Sunday other than a
Working Rest Day.
1.4 EFFECTIVE DATE means the date the Parties duly sign this Agreement.
1.5 AGREEMENT YEAR means each calendar year during the Term of this Agreement,
i.e. from January 1 to December 31. The first Agreement Year shall be from
the Effective Date to December 31, 2008.
1.6 AFFILIATE or AFFILIATES means any company which is directly or indirectly
controlled by, or under the same control with, controls or jointly
controls another company with, each Party.
1.7 The term "CONTROL" as used in the preceding Clause 1.6 means, with respect
to a corporation, the right to exercise, directly or indirectly, fifty
percent (50%) or more of the voting rights attributable to the shares of
such corporation.
1.8 LOSS or LOSSES means any and all damages, fines, fees, taxes, penalties,
deficiencies, losses (including lost profits or diminution in value) and
expenses, including interest, reasonable expenses of investigation, court
costs, reasonable fees and expenses of attorneys, accountants and other
experts or other expenses of any proceedings or of any claim, default or
assessment (such fees and expenses to include all fees and expenses,
including fees and expenses of attorneys, incurred in connection with (i)
the investigation or defense of any third party claims, (ii) asserting or
disputing any rights under this Agreement against any Party hereto or
otherwise, or (iii) settling any action or proceeding or threatened action
or proceeding).
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(English Translation of the Original Contract in Chinese)
1.9 INTELLECTUAL PROPERTY means all the rights from any of the following
items: invention, discovery, improvement, utility, model, copyrightable
work, industrial design or mask work, algorithm, data structure, trade
secrets or know-how, confidential information, or any idea having
commercial value. Intellectual Property shall also include any trademark,
trade dress, trade name, domain name, or other marks that serve to
identify and distinguish goods or services as coming from, or falling
under the control of, a single source. Intellectual Property shall include
all rights of whatsoever nature in computer software and data, all
intangible rights or privileges of a nature similar to any of the
foregoing in every case in any part of the world, and all rights in any
applications and granted registrations for any of the foregoing rights.
1.10 CHINA or PRC means the People's Republic of China. But in this Agreement,
shall not include Hong Kong , Macao, or Taiwan district.
1.11 RENMINBI or RMB means the lawful currency of China.
1.12 LAWS means the laws, regulations, rules, and other legislative, executive
or judicial notices, decisions or pronouncements binding on either Party,
or in relation to the subject matter of this Contract.
1.13 PRODUCTS means the solar grade polysilicon as defined in Products
specification in Exhibit A of this Agreement. The Seller agrees to sell
and deliver and the Buyer agrees to buy and acquire the Products with such
specification.
1.14 PAYMENT means the total amount of the price (net price) of the Products
and the tax borne by the Buyer per each invoice of Seller to Buyer.
1.15 ADVANCE PAYMENT shall have the meaning as defined in Clause 3.5.1 of this
Agreement.
1.16 TOTAL AGREEMENT PRICE means the tax-included total price as stipulated in
Exhibit B.
2. GENERAL PROVISIONS
2.1. The Preamble in the above context and Exhibits attached hereto constitute
an integral part of this Agreement.
2.2. Headings preceding the text, articles and clauses hereof have been
inserted solely for convenience and reference and shall not be construed
to affect the meaning, construction or effect of this Agreement.
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2.3. During the Term of this Agreement, the Buyer shall purchase, accept and
pay for the Products, subject to the terms and conditions herein.
2.4. During the Term of this Agreement, the Seller shall sell and deliver the
Products, subject to the terms and conditions herein.
2.5. Term of this Agreement shall be from the Effective Date to December 31,
2015, and unless early terminated or canceled in accordance with the terms
of this Agreement, this Agreement shall continue in full force until both
Parties have completed their obligations as detailed herein.
2.6. Take or Pay Agreement. This Agreement is a "take or pay agreement" such
that Buyer is absolutely and irrevocably required to accept and pay for
the contracted volume of Products per year in the Term of this Agreement
at the prices set forth in Exhibit B, except as otherwise provided in this
Agreement. In the event that Buyer fails to perform its contracted volume
(including but not limit to: fails to order contracted volume and fails to
pay the account payable) in a given year, the Seller is entitled to, at
the end of that given year, give payment notice to the Buyer regarding the
difference between the ordered and the contracted volume per Exhibit B at
their full contract price and the Buyer is liable to pay such full price
for the contracted but not ordered Products for the given year as
specified in that notice within thirty (30) days of the notice date. The
Buyer specifically acknowledges and accepts that it will be liable for the
full purchase price of volume differentia between the ordered and the
contracted volume. Upon the payment of aforesaid price, the ownership of
the relevant Products shall be transferred to the Buyer and delivered in
accordance with the provisions in this Agreement. The Buyer should pick up
the Products on time pursuant to this Agreement. In such case, the Seller
shall bear no liabilities in delay delivery and the Buyer should bear all
the risk, loss and liabilities arisen, and the Buyer is obligated to
compensate for all the loss and expenses suffered by the Seller. In the
event that the Seller obtain all the payment and interest as stipulated in
this Clause through reselling the Products pursuant to the second
paragraph of Clause 3.6.4 of this Agreement and being compensated by the
Buyer for the cost and Loss, the Seller shall not claim the payment
pursuant to the afore-said provisions for the difference volume.
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2.7. Except the two circumstances as specified hereinafter, the Buyer shall not
resell Products or be a reseller or distributor of Products supplied by
Seller without prior written consent from the Seller: (i) the Buyer use
Products for its purpose of production, or: (ii) the Buyer resell or
distribute Products to its Affiliates.
2.8. The Buyer may transfer the Products obtained in terms of this Agreement in
part or in total to one or more of its Affiliates and to avoid any doubt,
specifically to the entity Jiangsu Yangguang Jingyuan Technology Co., Ltd.
If the Buyer transfers the Products obtained in terms of this Agreement in
part or in total to its other Affiliates other than Jiangsu Yangguang
Jingyuan Technology Co., Ltd., it should give a one-month prior notice to
the Seller. Except otherwise agreement reached between them, the Seller
bears no obligations and liabilities under this Agreement to the
Affiliates.
3. SUPPLY OF PRODUCTS
3.1 Products
The Products to be supplied under this Agreement shall meet the
specification as stipulated in Exhibit A to this Agreement or the
specification which have been amended and executed by the Parties at the
time of supply. The specifications set forth in Exhibit A may be amended
only in writing upon the agreement of the Seller and the Buyer.
3.2 Price
3.2.1 The price of Products during the Term of this Agreement shall be fixed as
set forth in Exhibit B. The Parties hereto agree that upon the execution
of this Agreement, neither Party may require the adjustment of the said
price by the other Party for any grounds.
3.2.2 The price in this Agreement shall be quoted as VAT-included price (the
Value Added Tax rate is [*]), and subject to adjustment when issuing an
invoice if any change of the Value Added Tax rate is made by the
government. The price shall not include any expense for transportation,
insurance and other logistic procedures, or any other tax borne by the
Buyer.
3.3 Volume
3.3.1 The volume of Products supplied during the Term of this Agreement shall be
set forth in Exhibit B, provided, however, Seller may through prior
written notice at the beginning [*] days of each quarter adjust the supply
plan of the Products supplied in every quarter ("quarter" referred to as
each period of three months from July 2008, and so forth) within [*]% of
the total volume of the products supplied in the past three months in a
given quarter. The Seller shall make up for the short supply to the
scheduled volume within [*] of the following quarter. In this case the
Seller shall not bear liability for breach of the agreement. In addition,
the parties hereto agree that upon the execution of this Agreement,
neither Party may require the adjustment of the said volume by the other
Party for any grounds. Otherwise, Seller shall be responsible for the
damages pursuant to Clause 8, this agreement. The Products shall
be invoiced in accordance with Clause 3.5.3 hereunder. In case there are
delays in delivery, the Products can be priced with the scheduled price of
delivery date and the price difference can be deducted by the Buyer from
upcoming payments.
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(English Translation of the Original Contract in Chinese)
3.4 Quality
3.4.1 The quality standard of the Products under this Agreement shall follow
Products specification in Exhibit A to this Agreement. In case of any
dispute arising concerning the Products' quality, the Parties shall
entrust official authentication institute for an authentication report and
the authentication report shall prevail in respect of the quality of the
Products. If the deficiencies of the Products are proved according to the
authentication report, the expenses and costs shall be ultimately borne by
the Seller; and if the deficiencies of the Products are proved
non-in-existence according to the authentication report, the expenses and
costs shall be ultimately borne by the Buyer.
The parties hereto expressly agree that the quality standard of the
Products under this Agreement shall follow Products Specification in
Exhibit A to this Agreement from the Effective Date, which should be
adjusted after [*] months from the first delivery of the Products by the
Parties; in case that no consensus has been reached between the Parties
within [*] from the negotiating date, the Parties shall strive for
collecting the top three producers of solar grade polysilicon in the
mainland of PRC within [*] and adjust the Exhibit A according to the
average specification of these specifications from the top three
producers. The Seller shall be included in the top three and its
specification shall be taken as a reference should its production rank the
top three; in case consensus between the Parties regarding the adjustment
of the specification in Exhibit A is not yet reached with the time
abovementioned, the Parties shall be responsible to separately purchase
[*] kilograms of products as sample from the top three producers and
deliver these samples to official authentication institute for
authentication report(s), the charge of which should be apportioned
between the Parties. The Parties shall make effort to obtain the
consequent average specification of the top three producers products as
specified in the authentication report(s) in the shortest time and the
consequent average specification shall be applied in the adjustment of the
Exhibit A. The adjusted specification shall be effectively applied from
the [*] day from the receipt of the authentication report(s) for the
samples supplied by the top three producers. To avoid any doubt, the
receipt of the authentication report(s) by any Party shall be deemed the
receipt of the authentication report(s) by Parties.
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(English Translation of the Original Contract in Chinese)
3.4.2 From [*] after the date of the first delivery, Seller shall provide the
verification reports with each delivery. Buyer is entitled to verify these
Products pursuant to Clause 3.6.6.
3.5 Payment
3.5.1 Advance Payment. The Buyer agrees to pay [*] as Advance Payment, of which
the interest shall not be calculated and the Seller shall own all the
interest herein. Unless otherwise stipulates in the context of this
Agreement, the Advance Payment is unrefundable, and irrevocable. The term
of paying the Advance Payment shall be the same as the term stipulated in
Exhibit B. Unless otherwise specified in this Agreement, the Buyer
explicitly acknowledges and accepts that: after execution of this
Agreement, the Seller shall not be responsible to return all or part of
the Advance Payment to the Buyer in any case. The Advance Payment shall be
deducted for Payment to Products only in situations specified in this
Agreement. The Parties herein explicitly agree that: the Buyer is entitled
to deduct monthly [*] of the Advance Payment as Payment to Products from
[*] up to the date that the total amount of the Advance Payment is
thoroughly deducted. If the Advance Payment is deducted as liquidated
damages or compensation for any losses due to the Buyer's breach of
contract, the deduction as the Payment of the Products shall be commenced
only after the deduction of the liquidated damages or compensation for any
losses. The Seller shall return the residual amount of the Advance Payment
to the Buyer within [*] after its performance of this Agreement finished
or early cancellation or termination of this Agreement because of the
breach by the Seller.
If the Buyer breaches the Agreement, the Seller shall have right to deduct
relevant liquidated damages or loss compensation from the Advance Payment,
and request the Buyer to pay an amount equal to the deduction to replenish
the Advance Payment, non-performance of which shall be deemed as a breach
of this Agreement and the Buyer shall be responsible to assume the
liability pursuant to Clause 8.3 of this Agreement.
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3.5.2 Payment. The Buyer shall make the Payment to the Seller before the Seller
delivers the Products in accordance with the Exhibit B, the Seller is
entitled to refuse the delivery of the Products if the Buyer does not pay
adequately. The Seller is obligated to deliver the corresponding Products
to the Buyer within [*] days from the date of its receipt of the Payment.
The Seller shall make reasonable efforts to deliver the monthly scheduled
volumes in [*] equally spread lots.
3.5.3 After the Buyer makes the full Payment to the Seller each time, the Seller
shall issue relevant invoice for the use of value-added-tax with the value
of the paid amount at that time to the Buyer within [*] days. The property
rights of the Products shall be owned by the Seller before the Payment is
fully settled.
3.6 Delivery
3.6.1 All deliveries shall be made in accordance with the delivery schedule
specified in Exhibit B.
3.6.2 All Products purchased and sold hereunder shall be delivered at Seller's
location or other locations ordered by the Seller (e.g. workshop, factory
or storehouse). All risk of Losses to such Products shall be transferred
to Buyer upon the date of any delivery herein.
3.6.3 Transportation and Insurance. The Buyer is liable for the transportation
and insurance of the Products at its own cost.
3.6.4 In the event of a delay in delivery due to Buyer's request or due to
Buyer's failure to collect the Products at the delivery date, the Seller
is entitled to place such Products in escrow to notarial authorities or
seal up the Products for storage at the Buyer's cost. Once the Products
are in escrow or sealed up, the risk of the Products shall transfer to the
Buyer, and the Buyer shall bear the expense of escrow or the sealed
storage. If the Buyer delays for more than [*] days to collect the
Products, it shall be considered as irrevocable acceptance of the
Products, and the Seller has the right to dispose the Products at a
reasonable price and the proceeds belong to the Seller.
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In the event that the Buyer fails to purchase Products from the Seller in
accordance with the volume of this Agreement in a given month, the Seller is
entitled to resell the unpurchased Products to other buyers in the domestic or
overseas market at its own discretion, and the Buyer shall be liable to pay the
margin between the resale price and scheduled price in this Agreement and the
expenses resulting from the resale. If the Seller don't sell the Products to the
Buyer pursuant to this agreement ,and the Buyer have the right to purchase the
margin volume of Products that the Seller sold except Clause 3.3.1 of this
agreement. The Seller agrees to be liable to the additional cost suffered by the
Buyer in its purchasing Products from other sellers from the spot market on
account of Seller's short supply. The Buyer agrees that it will not claim any
other damages and compensation under this Agreement against the Seller in the
event that the Seller compensate it for afore-said additional cost.
3.6.5 In the event that the Seller is delayed to deliver the Products as
stipulated in Clause 4.4 of this Agreement, the Buyer shall permit the
Seller to reasonably extend the delivery term for a period no less than
[*] days and no more than [*] days, which should be noticed explicitly by
the Buyer. The Seller shall not be responsible for any liability of breach
of this Agreement during the extension period. If the Seller fails to
deliver the scheduled Products upon the expiration of the extension
period, it shall be charged with the liability for delay delivery as
specified in Clause 8.3.
The Seller shall have right to deliver partly upon the consent of the
Buyer.
3.6.6 Inspection. The Buyer shall process the inspection and issue a written
notice of Products' flaws to the Seller in [*] after delivery . (The rules
of inspection herein is only applicable to the inspection of ploysilicon
and the Parties herein disagree to apply the inspection rules of silicon
chips to the inspection of polysilicon). If there is discontent, the Buyer
should submit the writing notice of the flaw Products. Once exceed the
time limit, the Products delivered shall be deemed to be up to standard,
and the Buyer shall accept all the Products unconditionally.
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3.6.7 As additional remedy to Buyer, in the event that Seller delivers [*]
times in a calendar quarter Products that fail to meet specification in
Exhibit A, Seller will pay to Buyer liquidated damages, which equals to a
delivery free of charge of [*] of the quantity of the Products that fail
to meet specification in Exhibit A, which excludes any other liabilities
borne by the Seller, including but not limited to the liquidated damage
under this Agreement. The test results shall be obtained from a recognized
laboratory (according to Clause 3.4.1 hereof.).
3.6.8 The Parties acknowledge and explicitly agree that: the Seller in only
liable to provide the Products according to the Exhibit A of this
Agreement, and the responsibilities for the fitness of the Products for
special purpose, and the processing, use, and application of the Products
should be solely assumed by the Buyer.
3.7 Warranty
3.7.1 The Parties hereto agree and acknowledge that all risks arising out of
the fluctuation of the product prices shall be borne by the Parties
respectively, and Buyer is obligated to purchase and Seller is obligated
to provide the Products contracted during the Term of this Agreement.
3.7.2 Qualification warranty. The Seller makes its warranty for the
qualification of delivered Products to the extent permitted and required
under Exhibit A. In the event that the delivered Products do not meet the
specification as specified in Exhibit A, the Seller shall be liable for
exchange of Products up to the specification in Exhibit A within [*] days
upon the request of the Buyer. If the Seller fails to exchange within the
aforesaid period, it shall be liable for liquidated damages in accordance
with Clause 8.4. Except the warranty abovementioned, any implied or
express warranty from the Seller for the qualification of Products or
warranty for the future proper sale of Products or fitness for a
particular purpose are specifically excluded from this Agreement.
(a) According to the related provisions of this Agreement, in the event
that the Buyer suffers any claims or suits arising from any
deficiencies of the Products, the remedial right of the Buyer and
the liabilities and obligations of the Seller are absolutely limited
to: (i) making exchange for the disqualified Products or paying back
the sum of money paid for them, or (ii) paying damages with a sum of
money not exceeding the purchase price of the involved Products
resulting in the claims or suits. As a condition precedent to the
exercitation of the remedial right of the Buyer, the Buyer should
give a prior notice to the Seller pursuant to the relevant
provisions of this Agreement.
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(b) Parties agree that the remedies stipulated in this Agreement are
sufficient and exclusive. Save for these indemnification obligations
of the Parties as stipulated in this Agreement, one Party shall not
be liable to any special damages, incidental damages, indirect
damages or any other damages suffered by the other Party resulting
from its disobeying by the obligations under this Agreement or other
reasons excluded from this Agreement, including suit of
infringement, strict liability, liability for products and
infringement of trademark. The Buyer agrees that except the
circumstance that the Products may be transferred pursuant to Clause
2.8 of this Agreement, it will not transfer, permit to use, confer
or make other behavior to let a third party have the Products,
otherwise it will bear all the liabilities by itself, such as
liabilities in related with patent, and Loss suffered by the Seller
on account of its afore-said behavior.
4. FORCE MAJEURE
4.1 Events of Force Majeure
If a Party delays or fails in performance of any obligation of this
Agreement, completely due to causes beyond its reasonable control, and the
Party who delays or fails in performance is in compliance with the
requirement of Clause 8 of this Agreement and is of no fault or
negligence, the Party shall not be liable for such delays or failures in
performance and shall not be deemed as breaching this Agreement. The
aforesaid causes include, but are not limited to, force majeure, war,
riot, explosion, fire, changes of Laws, acts or nonfeasance of the
government inducing the delays or failures in performance of this
Agreement (generally referred to as "Force Majeure"). Provided the matters
(the delays or failures in performance) of the carriers, distributors, or
suppliers of the Buyer, which results in the delays or failures in
performance of the Buyer, are completely caused by aforesaid events of
Force Majeure, it shall also be deemed as the delays or failures in
performance induced by the Force Majeure under this clause. The parties
agree to continue performing their obligations as soon as the events of
Force Majeure disappear, and to deduct the non-performance period caused
by Force Majeure and postpone the Agreement accordingly.
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4.2 Notice and Response
The Party experiencing the Force Majeure shall promptly give written
notification to the other Party. Such notification shall include a full
and complete explanation of the Force Majeure and its cause, the status of
the Force Majeure, and the actions such Party is taking and proposes to
take to overcome the Force Majeure. The Party experiencing the Force
Majeure shall exercise due diligence in endeavoring to overcome any delay
caused by Force Majeure and shall undertake reasonable measures to make up
the time delayed by the Force Majeure without additional compensation from
the other party. In the event that Seller is unable to resume production
within [*] days after the date of such force majeure event, Buyer shall
have the right to terminate this Agreement without bearing any liability
for breaching this Agreement and Seller shall not return the balance of
the Advance Payment only if the Buyer is not in liabilities or bears any
risk.
4.3 Effect of Force Majeure
Except as otherwise provided in this Agreement, if any Party delays or
fails in performance of any obligation of this Agreement due to occurrence
of Force Majeure, its term of performing this Agreement shall be prolonged
to include the reasonable time which is needed to overcome the events of
Force Majeure.
4.4 Exemptions
The Seller shall choose to delay delivery without bearing default
liabilities in the following circumstance:
4.4.1 The Seller schedules maintenance [*] times per year. The schedule
for each maintenance will be announced at least [*] in advance. Smaller
delivery delays may occur at the time of these maintenance. Parties will
discuss and agree in good faith the resulting schedule changes.
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5. INTELLECTUAL PROPERTY
Any and all drawings, data, designs, tooling, equipment, procedures,
engineering changes, inventions, trade secrets, copyrights, mask works,
source code, object code, patents, patent applications, know-how, computer
and/or product software(including part softwares) , trademarks and all
other information, technical or otherwise which was developed, made or
supplied by or for Seller in the development, production or manufacture of
the Products, will be and remain the sole property of Seller (or its
licensors, if any), and in any way nothing in this Agreement shall be
construed as granting intellectual property regarding the Products (to
Buyer). Buyer agrees not to reverse engineer any Product purchased
hereunder.
6. CONFIDENTIALITY
6.1 The Parties acknowledge and agree that the terms of this Agreement and
certain information exchanged between them pertaining to this Agreement,
including information regarding research, technology, product
developments, marketing plans or conditions, products information,
business strategies, and the like, constitutes "Confidential Information"
of the Party disclosing the information. The purpose of the exchange of
the Confidential Information is to allow the Parties to perform their
obligations and responsibilities under this Agreement. During the term of
this Agreement, and for a period of [*] years following its termination or
expiration, except as required by applicable laws, regulation or rules of
any securities exchange, the Party received any Confidential Information,
and its employees, agents, attorneys, financial advisors, officers,
directors and shareholders who shall receive such Confidential Information
(hereinafter referred as to "Receiving Parties") shall not, except with
the prior written consent of the disclosing Party, use, divulge, disclose
or communicate, to any person, firm, corporation or entity, in any manner
whatsoever, the terms of this Agreement or any Confidential Information of
the disclosing Party; provided, however, that each Party may use, divulge,
disclose or communicate the terms of this Agreement or Confidential
Information of the disclosing Party to its affiliates if such affiliates
undertake to keep such information strictly confidential in accordance
with stipulations of this Agreement and each affiliate has a "need to
know". Each Party further agrees to use the same degree of care to avoid
publication or dissemination of the Confidential Information disclosed to
the other Party under this Agreement as it employs with respect to its own
Confidential Information, but at all times one party shall use at least
reasonable care to protect against disclosure of Confidential Information
of the opposite Party. Confidential Information does not and shall not
include information that:
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(a) was already known to the Receiving Parties at the time such
information is disclosed by the other Party;
(b) was or became publicly known without Receiving Parties' faults;
(c) was rightfully received from a third party without restriction;
(d) was independently developed by the Receiving Parties;
(e) was approved for release by written authorization of the Party
disclosing such information under this Agreement; or
(f) was required by legal or financial reporting purposes to be
disclosed; provided, however, that the Party being required to
disclose shall, if circumstances permit, provide advance notice to
the other Party and shall allow the other Party a reasonable
opportunity to oppose such disclosure, if appropriate.
6.2 The Parties shall treat such Confidential Information as confidential,
each Party shall not recopy or use such Confidential Information unless in
necessity of fulfilling its obligations under this Agreement. One Party
shall return all Confidential Information to the other Party upon
completion of such obligations for its use, or upon the request of the
other Party.
6.3 The Parties acknowledge and agree that the illegal use or disclosure of
the Confidential Information may cause irreparable injury to Disclosing
Party for which its loss may not be adequately remedied by Laws, and that
any actual or contemplated breach of this clause will entitle Disclosing
Party to obtain immediate injunctive relief prohibiting such breach, in
addition to any other rights and remedies available to it.
6.4 The Parties (including the Affiliates procuring Confidential Information
under this Agreement) agree that, each Party shall comply with the
obligations and liabilities concerning Confidential Information under this
Agreement, one Party shall not, without obtaining the prior consent from
the other Party, issue or release any announcement, report, declaration,
or message about this Agreement or any transaction or clause of this
Agreement. However, any Party or its Affiliates may disclose the contents
of this Agreement according to and within the extent of the compulsive
requirements of its local Laws and applicable Laws. Both Parties
understand that listing rules from the respective stock exchanges allow
significant time for alignment with the other Party on how to disclose
such required information in related with this Agreement that may contain
Confidential Information of the other Party, and that this alignment shall
be sought. After achieving a mutual consent on the details of the news
report, the Parties shall report the subscription and contents of this
Agreement through press.
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*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission
(English Translation of the Original Contract in Chinese)
7. OWNERSHIP AND USE OF DRAWINGS, DOCUMENTS AND OTHER ITEMS
All drawings, blueprints, dies, patterns, tools, printing plates and any
other items or documents prepared or constructed by the Seller to develop,
produce or manufacture the Products hereunder shall be the sole property
of the Seller, and promptly upon the expiration, termination or
cancellation of this Agreement, shall be delivered to the Seller. The
Buyer shall use all drawings, blueprints, dies, patterns, tools, printing
plates and any other items or documents prepared or constructed by Seller
solely for the purposes of this Agreement and shall not use any of such
items for the benefit of any third party.
8. TERMINATION
8.1 Buyer understands and acknowledges that Seller is, on the basis of trust
to the Buyer and estimation to the Buyer's demand, making substantial
capital investments to expand its manufacturing capabilities in order to
satisfy Buyer's demand for the Products. The Parties acknowledge it is
their sincere intent that the risks on the fluctuation of the product
prices shall be borne by the Parties respectively, and Buyer is obligated
to purchase and Seller is obligated to provide the contracted volumes over
the Term of this Agreement. Accordingly, the basis and circumstances under
which the parties can terminate this Agreement prior to the expiration of
the Term of this Agreement is expressly limited to the terms of this
Clause 8.
8.2 Seller understands and acknowledges that Seller is, on the basis of trust
to the Buyer and estimation to the Buyer's demand, making substantial
capital investments to expand its manufacturing capabilities. The parties
acknowledge it is their sincere intent that the risks on the fluctuation
of the product prices shall be borne by the Parties respectively, and
Buyer is obligated to purchase and Seller is obligated to provide the
contracted volumes over the Term of this Agreement. Accordingly, the basis
and circumstances under which the parties can terminate this Agreement
prior to the expiration of the Term of this Agreement is expressly limited
to the terms of this Clause 8.
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*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission
(English Translation of the Original Contract in Chinese)
8.3 Damages for the delayed payment of the Buyer
If the Buyer delays to make the Advance Payment of Products, the Buyer shall be
liable to pay [*] of payable amount as liquidated damages per delayed day,
and if the delayed period expires [*] days, the Seller shall be entitled to
terminate this Agreement anytime thereafter. In case the Seller terminates
this Agreement, the Buyer shall bear liquidated damages of [*] of the total
amount of contracted price stipulated in Exhibit B of this Agreement in
addition to the accumulated amount of the aforesaid liquidated damages for
Advance Payment. The Seller shall also have the right not to terminate this
Agreement and the liquidated damages should be accumulatively calculated. The
accumulated amount of aforesaid liquidated damages for Advance Payment shall
be calculated from the day after the scheduled payment date up to the date of
actual payment;
If Buyer delays to make any Payment, Seller shall issue a notice within [*] days
after the scheduled payment date to ask Buyer to rectify default, and Buyer
shall rectify default in time. In case Buyer fails to rectify the default
within [*] days after date of Seller's notice informing late Payment, the
Buyer shall be liable for [*] of the delayed Payment as liquidated
damages per delayed day as of the [*] delayed day, if the Buyer delays to
pay the Payment for [*] or more days, the Seller may terminate this Agreement
anytime thereafter. In case Seller terminates this Agreement, Seller shall
claim Buyer for, in addition to the accumulated amount of the aforesaid
liquidated damages, an amount of liquidated damages equal to residual Payment
for the un-purchased volume of Products within the committed volume during
the Term of this Agreement as stipulated in Exhibit B; or Seller shall make
such requests to the Buyer: (a) to pay the accumulated amount of the
aforesaid liquidated damages; and (b) the residual Advance Payment paid by
the Buyer shall be forfeited by the Seller; and (c) to pay an amount of
liquidated damages equal to [*] of the unpaid amount of the total contracted
price stipulated in Exhibit B. The Seller shall also have the right to not
terminate this Agreement and the liquidated damages stipulated in section (a)
of this clause should be accumulatively calculated.
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*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission
(English Translation of the Original Contract in Chinese)
8.4 Damages for Seller's default
Except stipulations in Clause 3.3, the Seller doesn't supply the Products
in conformity with Exhibit A according to the agreed volume Products of
the Agreement and if the Seller's delivery delays or falls short of
contracted volume of the Products in conformity with the specification
under this Agreement, the Buyer shall, within [*] days, issue notice to
ask Seller to rectify default, the Seller shall rectify default in time,
if the Seller fails to do so within [*] days, the Seller shall be liable
for [*] of the Payment of undelivered Products as liquidated damages per
delayed day as of the [*] delayed day, if the Seller fails to deliver for
[*] or more days, Buyer shall be entitled to terminate this Agreement
anytime thereafter. In case the Buyer terminates this Agreement, the Buyer
shall make such requests to the Seller: (a) to pay the aforesaid
liquidated damages accumulatively, and (b) Seller shall return the
residual Advance Payment paid by the Buyer to the Buyer, and pay [*] of
the residual Advance Payment to the Buyer as liquidated damages, and (c)
(i) in the period of [*] to pay [*] of the unpaid amount of the Total
Agreement Price stipulated in Exhibit B as liquidated damages; and (ii) in
the period of [*], pay [*] of the unpaid amount of the Total Agreement
Price stipulated in Exhibit B as liquidated damages. The Buyer shall also
have the right to not terminate this Agreement and the liquidated damages
stipulated in section (a) of this clause should be accumulatively
calculated.
8.5 The Parties hereto agree and acknowledge that all Losses arising out
of the said breaches have been anticipated at the conclusion of this
Agreement, and agree that the calculation methods for Losses therefrom
shall be the same with those of liquidated damages. The Parties hereto
agree to waive the rights set forth in Article 114 of Contract Law of the
People's Republic of China to petition to court of the payment or
non-payment of balances between the higher liquidated damages and the
lower Losses or vice versa.
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*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission
(English Translation of the Original Contract in Chinese)
9. NOTICE
All certificates or notices required hereunder shall be given in writing
and addressed or delivered to the representative specified herein below.
Notices shall be deemed received (a) upon delivery, when personally
delivered; (b) upon receipt, when sent via registered or certified mail;
and (c) the next business day, when sent via overnight courier. Copies of
all general correspondence regarding this Agreement shall also be sent to
following representatives:
Notices to Seller:
------------------
Jiangsu Zhongneng Polysilicon Technology Development Co., Ltd.
Xx.00, Xxxxxxxx Xxxx, Xuzhou
Economic Development Zone, Jiangsu,
PRC
Xx. Xxx Guomin
General Manager
Notices to Buyer:
-----------------
Jiangsu Linyang Solarfun Co., Ltd.
000 Xxxxxxx Xxxx, Xxxxxx,
Xxxxxxx Xxxxxxxx,XXX
Mr. Fan Xiaochuan General Purchase Supervisor
Buyer or Seller may change the representative designated to receive notice
hereunder by written notice to the other Party. All correspondence and
transmittals between the Parties shall be executed pursuant to
coordination procedures that shall be developed by the Parties.
10. LANGUAGE
The Parties hereby confirm that this Agreement shall be prepared in
Chinese and English. Both languages are consistent and binding. In case
disputes arise, the Chinese version should prevail.
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*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission
(English Translation of the Original Contract in Chinese)
11. CHOICE OF LAWS
This Agreement shall be governed by and construed in accordance with the
Laws of PRC, excluding the non-PRC laws and rules regarding collision of
choice of law.
12. ARBITRATION
Except as otherwise provided in this Agreement, any dispute, controversy
or claim arising out of or in connection with this Agreement, or the
breach, termination or validity thereof, shall be finally settled by the
China International Economic and Trade Arbitration Commission, Shanghai
Commission ("CIETAC") under the then effective PRC arbitration rules of
CIETAC. The place of arbitration shall be Shanghai, and the language used
in the arbitral proceedings shall be Chinese Mandarin.
The arbitration panel shall consist of three arbitrators. The arbitral
award made and granted by the arbitration panel shall be final, binding
and incontestable and may be used as sole basis for enforcement in a court
having competent jurisdiction. All costs of arbitration (including,
without limitation, those incurred in the appointment of arbitrator
according to the principle that loser pays and attorney fees ) shall be
apportioned in the arbitral award.
13. NON-WAIVER
The failure of either Party to demand strict performance of the terms
hereof or to exercise any right conferred hereby shall not be construed as
a waiver or relinquishment of its rights to assert or rely on any such
term or right in the future.
14. SEVERABILITY
In the event that any provision of this Agreement is deemed as a matter of
Laws to be unenforceable or null and void, such unenforceable or void
portion of such provision shall be deemed severable from the Agreement and
the remainder of the Agreement shall continue in full force and effect.
15. ASSIGNEMENT
Neither Seller nor Buyer shall assign, subcontract or otherwise delegate
any of their rights or obligations hereunder without the other Party's
prior written consent. Any such assignment without the other Party's
consent shall be void.
16. SURVIVAL
All warranties, remedial obligations, indemnities, and confidentiality
rights and obligations provided herein shall survive the cancellation,
expiration or termination hereof.
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*Confidential Treatment Requested. The redacted material has been separately
filed with the Securities and Exchange Commission
(English Translation of the Original Contract in Chinese)
17. AMENDMENTS
No amendment, modification or waiver of any term hereof shall be effective
unless set forth in a writing signed by both Buyer and Seller.
18. ENTIRE AGREEMENT
This Agreement, which includes this cover contract and the Exhibits
hereto, constitutes the entire agreement of the Parties with respect to
the subject matter herein and supersedes any prior or contemporaneous
agreement or understanding between the Parties.
There are currently no other agreements in place between the Parties
concerning this subject matter.
19. EFFECTIVENESS
This Agreement will become effective as of the date the Parties execute it.
SIGNATURE PAGE
Seller: Jiangsu Zhongneng Polysilicon Technology Development Co., Ltd.
/s/ Xxxxxxx Xxx
-------------------------
seal
Authorized representative
Date:
Buyer: Jiangsu Linyang Solarfun Co., Ltd.
/s/ Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx
------------------------------------
seal
Authorized representative
Date:
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