CONFIDENTIAL TREATMENT REQUESTED
HSC/MEMC AGREEMENT
This Agreement is made this 27th day of December, 1994, by and between Hemlock
Semiconductor Corporation, having its principal place of business at 00000
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 ("HSC" or "Supplier") and MEMC Electronic
Materials, Inc. having its principal place of business at 000 Xxxxx Xxxxx (City
of X'Xxxxxx), X.X. Xxx 0, Xx. Xxxxxx, Xxxxxxxx, 00000 ("MEMC" or "Customer").
Whereas, HSC and MEMC desire to enter into this Agreement to govern the terms of
the sale by HSC to MEMC of Polycrystalline Silicon;
Now, therefore, in consideration of the mutual obligations stated herein, it is
hereby agreed as follows:
1. DEFINITIONS:
1.1 Actual Purchases means the number of tons of Material shipped by
Supplier to MEMC and MEMC Affiliates during a specified period, and
includes any Stockpile quantities shipped during that period.
1.2 Base Purchase Quantity for the calendar years 1995 - 1999 of this
Agreement is as follows:
Year Base Purchase Quantity
---- ----------------------
1995 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1996 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1997 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1998 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1999 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1.3 The Base Unit Price for the Base Purchase Quantity for the calendar
years 1995 - 1999 of this Agreement is as follows:
Year Base Unit Price Ceiling Price*
---- --------------- -------------
1995 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1996 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1997 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1998 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1999 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
*Provided the implicit price deflactor of GDP as calculated in section 6.4
does not exceed [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED
SEPARATELY WITH THE SEC]. The Adjusted Base unit price shall not exceed the
ceiling price for the year indicated.
1.4 Contract Purchase Quantity is defined in paragraph 5.1.
1.5 Specified period means the period from January 1, 1995 through and
including December 31, 1999.
1.6 Material means the Polycrystalline Silicon identified in Appendix I.
1.7 MEMC Affiliate means (i) any business entity that, directly or
indirectly, through one or more intermediaries, owns or control at
least forty percent (40%) of the voting stock of MEMC; or (ii) any
business entity in which MEMC directly or indirectly, through one or
more intermediaries, owns, controls or has a partnership interest in
at least forty percent (40%) of the assets or voting stock of that
entity; or (iii) any business entity that is a successor (whether by
change of name, dissolution, merger, consolidation, reorganization or
otherwise) to any such entity or its business and assets.
1.8 Minimum Purchase Quantity for the calendar years 1995 - 1999 of this
Agreement is as follows:
Year Minimum Purchase Quantity
---- -------------------------
1995 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1996 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1997 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1998 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1999 [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH THE SEC]
1.9 Stockpile is defined in Section 9.
2. SCOPE:
2.1 Customer agrees to purchase from Supplier, and Supplier agrees to sell
to Customer, the Polycrystalline Silicon identified in Appendix I
("Material"). MEMC Affiliates may, at their option, purchase from
Supplier pursuant to this Agreement but shall not be required to do
so. Purchases by, or on behalf of, MEMC Affiliates shall be credited
against the Minimum Purchase Quantity. Every year MEMC will provide
Supplier with the Contract Purchase Quantity for the following
calendar year, pursuant to the provisions of paragraph 5.1. Each year
MEMC and any MEMC Affiliate electing to purchase during that year will
issue a Purchase Order incorporating by reference the terms and
conditions of this Agreement; Release Orders will be issued quarterly
pursuant to the provisions of Section 8.
2.2 In consideration of the foregoing commitment, Supplier agrees to
participate in the MEMC SUPPLIER IMPROVEMENT PROCESS, as set forth in
the document dated March 20, 1989 (which may be revised by MEMC from
time to time), and understands that its continuing participation in
this program is a condition to Customer's obligation to purchase
hereunder.
3. TERM: This Agreement is effective commencing January 1, 1995 and shall
continue until December 31, 1999. On or before December 31, 1996, the parties
shall begin to negotiate in good faith the prices and other terms and conditions
which shall apply after December 31, 1999. If the parties are unable to agree to
revised prices and terms and conditions on or before December 31, 1997, then
this Agreement shall terminate effective December 31, 1999. This Agreement
supercedes the former supply agreement dated November 18, 1991.
4. SPECIFICATIONS: The current specifications for the Materials are set forth in
Appendix I ("Specifications"). Supplier understands that Customer manufactures
its products to the specifications of its customers and that such specifications
are subject to change. It is expected that new or more stringent specifications
for Supplier's Materials will, in good faith, be necessary during the term of
this Agreement so that Customer will able to respond to its customers'
requirements and be able to improve the quality of its products. Supplier has
committed technical resources to reducing the impurities in the Materials to the
levels shown on Appendix II. Supplier will promptly review any changes made by
Customer to the Specifications along with Customer's requested schedule to
implement the revised Specifications, and, within sixty (60) days, will either
(i) accept, indicating the time required to implement the revised
Specifications, or (ii) reject those changes in writing. Customer will consider
the changes accepted if no written objections are received within the sixty (60)
day review period. Supplier's consent shall not be unreasonably withheld. In the
event that Supplier does not accept said revised Specifications, or in the event
that the revised Specifications are not implemented within the time period
requested by Customer; and further provided that another supplier can met the
revised Specifications, then Customer may purchase less than the Minimum
Purchase Quantity.
5. QUANTITY:
5.1 The Contract Purchase Quantity for the calendar year 1995 shall be
[CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH
SEC]. Prior to October 1 of each successive year MEMC will provide
Supplier with notification of the Contract Purchase Quantity for the
following year, specifying an amount no less than the current year's
Actual Purchases and no greater than the lesser of [CONFIDENTIAL
MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC] times the
current year's Actual Purchases or the Base Purchase Quantity for the
following year. Although, if the parties agree, the Actual Purchases
may exceed [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED
SEPARATELY WITH SEC] of the Contract Purchase Quantity for a given
year, for the purposes of this calculation Actual Purchases will be
deemed not to exceed [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED
SEPARATELY WITH SEC] of the Contract Purchase Quantity.
5.2 Supplier shall offer for sale to Customer [CONFIDENTIAL MATERIAL HAS
BEEN DELETED AND FILED SEPARATELY WITH SEC] of the Contract Purchase
Quantity and Customer shall be obligated to purchase the Minimum
Purchase Quantity for the year. Furthermore, in each calendar quarter,
Customer must purchase at least [CONFIDENTIAL MATERIAL HAS BEEN
DELETED AND FILED SEPARATELY WITH SEC] of the Contract Purchase
Quantity and no more than [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND
FILED SEPARATELY WITH SEC] of the Contract Purchase Quantity. In any
given year, upon Supplier's request, Customer will release Supplier
from its obligation to offer to sell the Material to the extent that
Customer does not intend to purchase; and upon Customer's request,
Supplier will release Customer from its obligation to purchase to the
extent that there are other purchasers for the Material.
6. PRICING:
6.1 In the event that the Actual Purchases for a given year are less than
the Base Purchase Quantity for that year, then the Base Unit Price
will be increased for all Material purchased in that year as follows:
More than or equal to
[CONFIDENTIAL MATERIAL
HAS BEEN DELETED AND FILED [CONFIDENTIAL MATERIAL HAS BEEN
SEPARATELY WITH SEC] of the DELETED AND FILED SEPARATELY
Base Purchase Quantity WITH SEC]
Less than [CONFIDENTIAL
MATERIAL HAS BEEN DELETED
AND FILED SEPARATELY WITH
SEC] and more than
or equal to [CONFIDENTIAL
MATERIAL HAS BEEN DELETED [CONFIDENTIAL MATERIAL HAS BEEN
AND FILED SEPARATELY WITH DELETED AND FILED SEPARATELY
SEC] of the Base Purchase WITH SEC] additional for
Quantity each Kg. purchased
Less than [CONFIDENTIAL
MATERIAL HAS BEEN DELETED
AND FILED SEPARATELY WITH
SEC] and more than or equal
to [CONFIDENTIAL MATERIAL [CONFIDENTIAL MATERIAL HAS BEEN
HAS BEEN DELETED AND FILED DELETED AND FILED SEPARATELY
SEPARATELY WITH SEC] of the WITH SEC] additional for
Base Purchase Quantity each Kg. purchased
Less than [CONFIDENTIAL
MATERIAL HAS BEEN DELETED [CONFIDENTIAL MATERIAL HAS BEEN
AND FILED SEPARATELY WITH SEC] DELETED AND FILED SEPARATELY
of the Base Purchase WITH SEC] additional for each
Quantity Kg. purchased
6.2 The invoice unit price will be set for the first calendar quarter of
the year according to the Contract Purchase Quantity for the year. In
each quarterly Release Order (referenced in Paragraph 8.1 below),
Customer will forecast its purchases for the entire calendar year;
these forecasts will be used for the sole purpose of determining the
invoice unit price for the following quarter. At the end of the year,
if the invoice unit price differs from the unit price calculated using
the Actual Purchases for the year, then the appropriate credit or
debit will be issued by Supplier to Customer's account on or before
December 31 of the relevant year.
6.3 Unless changed pursuant to the provisions of this Section 6, the price
shall not be increased during the Initial Term of this Agreement.
6.4 If the Implicit Price Deflator of the GDP increased more than
[CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC]
in the prior year, then the Base Unit Price will be increased to
partially offset inflationary increases. The calculation will be made
in the following manner: every year the first revision, first quarter
value (May announcement) will be compared with the corresponding value
for the prior year. The Base Unit Price will be increased
[CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC]
for each whole percent that the Implicit Price Deflator increase
exceeds [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH SEC], effective from and after January 1 of the year following
the year in which the increase of more than [CONFIDENTIAL MATERIAL HAS
BEEN DELETED AND FILED SEPARATELY WITH SEC] occurred. Beginning
[CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH
SEC], the whole amount of the implicit price deflator of the GNP for
the prior year shall be used for calculating the base unit price
adjustment. Beginning [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND
FILED SEPARATELY WITH SEC], the Base Unit Price will be increased
[CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC]
for each [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY
WITH SEC] that the Implicit Price Deflator increases.
6.5 Customer shall be liable for or shall reimburse Supplier for federal,
state and local sales, excise and use taxes or their equivalent, as
applicable. Taxes payable by Customer shall be billed as a separate
line item on the invoice.
6.6 Supplier represents that prices for the Materials furnished to
Customer under this Agreement are no less favorable than the prices
Supplier charges to other customers for the same or comparable
grade/quality Polycrystalline Silicon, in the same or less quantities.
If during the Term of this Agreement, Supplier sells Polycrystalline
Silicon of comparable grade/quality to another customer at a lower
price or on more favorable provisions, then Supplier will offer the
same terms to Customer. This Section shall be implemented as follows:
(a) On or before January 30 Supplier shall notify Customer of more
favorable terms given to other customers in the preceding
calendar year.
(b) If Supplier gives more favorable terms to more than one other
customer, Customer must select the terms given to one of the
customers which it deems most favorable.
(c) The more favorable terms, if accepted by Customer, shall be
applied against future purchases by Customer.
This Section shall not apply to spot quantity sales of less than 25 tons, to
sales made to Supplier's Joint Venture partners, sales made under the provisions
of agreement which also include technology purchases or sales made to the U.S.
Government.
No more than once per calendar year, Customer may engage an independent
certified auditor to audit the records of Supplier solely to ascertain
compliance with this provision. Auditor will comply with reasonable
confidentiality agreements and will report to Customer only whether Supplier has
or has not complied with this Section. If the auditor reports that Supplier has
not complied with this Section, all costs of the audit will be borne by the
Supplier. Supplier will cooperate as necessary for the conduct of this audit.
7. INVOICES: Invoices shall be rendered to the billing address set forth on the
Release Order and shall include the number of tons of Material sold and
delivered to Customer. Any credits due may be applied by Customer against
Supplier's invoice with appropriate information attached. Any credits due
Customer that are not so applied for any reason shall be refunded by Supplier
within thirty (30) days after the date the credit arose. Customer shall pay
Supplier any undisputed amounts due within thirty (30) days of the later of the
receipt of Supplier's invoice or the receipt of the Material.
8. RELEASE ORDERS:
8.1 At least sixty (60) days prior to each calendar quarter, MEMC will
issue a Release Order to Supplier. Each Release Order shall be deemed
to incorporate this Agreement and specify the Materials to be
delivered during the next three months along with the delivery
schedule and any special delivery instructions. MEMC may specify that
Materials be delivered to any facility of an MEMC Affiliate.
8.2 Supplier shall promptly acknowledge each Release Order in writing.
Supplier may reject a Release Order only if (i) Customer fails to
provide the ordering information required by this Agreement, (ii)
Customer does not correctly state pertinent prices or other amounts,
or (iii) the Release Order contains non-preprinted terms and
conditions that impose commercially unreasonable obligations on
Supplier. If Supplier rejects a Release Order, it shall inform
Customer in writing of the specific grounds for such rejection.
8.3 The Release Order shall be deemed accepted unless Supplier has
rightfully rejected the Release Order within ten (10) days after the
date on which the Release Order was issued. No changes by Supplier to
a Release Order, including adjustment of price or the shipment dates,
shall be effective unless agreed upon in writing by Customer. If
Customer does not agree to the changes proposed by Supplier, and if
Supplier does not have any of the grounds permitted by this Agreement
for rejection of a Release Order, the Release Order shall be accepted
by Supplier as submitted by Customer.
8.4 Customer may cancel a Release Order in whole or in part without
liability if a cancellation notice is sent to Supplier no less than
twenty (20) days before the scheduled shipment. Supplier will do all
that is reasonable under the circumstances to accommodate any request
for a schedule change.
9. INVENTORY: Supplier will maintain [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND
FILED SEPARATELY WITH SEC] tons of Material for delivery to Customer in addition
to the Contract Purchase Quantity for that year and in addition to the
quantities specified in the Release Order ("Stockpile"). No more frequently than
every [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC] and
upon receipt of a Purchase Order, Seller will ship this Stockpile to Buyer. Upon
agreement of the parties the Stockpile level maintained by Supplier for Customer
may be changed.
10. SHIPMENT:
10.1 Shipments will be made F.O.B. Hemlock, Michigan, freight collect.
Title and risk of loss or delay shall pass to Customer upon Supplier's
delivery to the carrier at the shipping point.
10.2 Supplier shall insure that the Materials are properly packed and
marked and shipped in suitable containers. Unless otherwise agreed by
the parties, all shipments will be in truck loads.
10.3 The scheduled shipment date will be specified in the Release Order. In
the event that Supplier fails to ship ordered Materials within three
(3) working days of the scheduled shipment date, and if in the opinion
of Customer, the respective plant is in risk of needing said Material
to continue uninterrupted production, Supplier will expedite the
shipment. In such an event, Supplier will issue a credit to Customer
for the difference between the shipment costs for the method of
transportation originally specified by Customer in the Release Order
and costs required to expedite the shipment. Customer may refuse to
accept Material shipped more than seven (7) days prior to the
scheduled shipment date.
10.4 Customer shall furnish written shipping instructions to Supplier no
later than ten (10) days prior to the scheduled shipment date. In the
absence of such instructions, Supplier may chose a carrier and ship to
the address specified on the face of this document, at Supplier's
expense.
11. TECHNICAL COOPERATION:
11.1 Customer and Supplier shall each name a technical coordinator. The
technical coordinators shall provide the principal interface between
Customer and Supplier on technical matters and they may clarify,
explain and provide further details as required for the performance of
this Agreement, but they shall have no authority to make any
agreements between them which change any of the terms and conditions
of this, or any other agreement between the parties. Supplier agrees
that work related to this Agreement shall be the primary assignment
for its technical coordinator, which shall take priority over any
other assignment. The parties may mutually agree to increase or
decrease these commitments.
11.2 Every quarter, or as requested by either party, the parties will meet
to discuss common problems and concerns, the progress made and to set
the priorities for the next period.
11.4 The parties will work on improving packaging, handling, and shipping
processes to eliminate surface contamination and to alleviate
environmental concerns. If the parties agree, there may be an
additional handling charge for any resulting new process.
11.5 Supplier shall provide Customer with at least ninety (90) days written
notice of any significant proposed change in raw materials or methods
of manufacture employed in producing any Material sold hereunder; the
reasons for the proposed change; and the effect which Supplier
estimates such change will have upon the Specifications for the
Materials. If Customer objects to the proposed change and Supplier
elects to make such change despite Customer's objection or if Supplier
makes such a change without prior notification to Customer, then
Customer will be excused from any obligation to purchase from Supplier
under this Agreement. Supplier understands that any significant change
in processing will require re-qualification of Supplier's materials.
Customer's obligations hereunder shall xxxxx during such
re-qualification period. Improvements in quality resulting from
efforts to continuously control existing processes are not considered
to be changes in process.
12. CONFIDENTIALITY:
12.1 During the performance of this Agreement, each party may disclose
information to the other party which the disclosing party considers
confidential and proprietary ("Confidential Information"). Each party
agrees that: (i) it shall not disclose any Confidential Information
which it receives from the disclosing party to any third party or to
any personnel of either party except those who require access to such
Confidential Information to accomplish the purpose of this Agreement;
and (ii) it shall not use the Confidential Information disclosed by
the other party for any purpose other than the purposes for which that
Confidential Information was disclosed to it.
12.2 Confidential Information shall not include, and neither party shall
have any obligation with respect to information which: (i) is known to
the receiving party at the time of receipt from the disclosing party
as shown by documentary evidence; or (ii) is rightfully obtained by
the receiving party from a third party having no obligation to the
disclosing party; or (iii) is either published or otherwise available
to the public at the time of its receipt by the receiving party from
the disclosing party or later becomes published or available to the
public other than by a breach of this Agreement; or (iv) was
discovered, developed or invented by the receiving party independently
of the information received hereunder from the disclosing party.
12.3 The obligations in this Section 12 shall extend for ten (10) years
beyond the termination of this Agreement.
13. WARRANTY:
13.1 Supplier warrants that the Materials delivered under this Agreement
will conform to the applicable Specifications, will be free from
defects in material and workmanship, and when used by Customer will
produce silicon wafers that consistently conform to customers'
requirements.
13.2 Upon notice by Customer to Supplier of a breach of the foregoing
warranty, Supplier shall promptly instruct Customer to either dispose
of said Materials or return said Materials to Supplier, freight
collect. At Customer's option, Supplier will either issue a credit for
the defective Materials or replace said Materials at Supplier's
expense, including all shipping and handling costs. [CONFIDENTIAL
MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC]. In the event
that said Materials are, at Customer's discretion, required to ensure
continued uninterrupted production, then Supplier will take all
necessary steps to expedite delivery of the replacement Materials. The
breach of the warranty of any portion of a lot shall be sufficient
grounds to reject the entire lot.
13.3 Supplier agrees to hold Customer harmless and indemnify Customer from
and against any and all liability, loss, cost, claim, suit, judgement
or expense including reasonable attorney's fees arising out of or in
any way related to an infringement of any patent or copyright or a
violation of any trade secret or other proprietary right of any third
party in any of the items provided to Customer pursuant to this
Agreement.
14. FORCE MAJEURE: Neither party shall be liable for delay in performance or
non-performance caused by circumstances beyond the reasonable control of the
party affected including, but not limited to, acts of God; fire; flood; war;
government regulations, direction, or request; or inability to obtain packaging
or raw material or equipment. The party so affected shall provide the other
party with written notice thereof within a reasonable time of the occurrence.
The party receiving notice may elect to (i) terminate, without further
liability, the applicable Release Orders as to Materials not already delivered,
or (ii) suspend the time for performance. In the absence of a written notice,
the second option will be deemed to have been elected. Notwithstanding the
foregoing, Customer, by written notice to Supplier, may reduce the Contract
Purchase Quantity by an amount no greater than the quantity which was either not
shipped or suspended pursuant to the provisions of this paragraph.
15. CLAIMS: It is the intent of the parties that any disputes relating to this
Agreement be resolved in an amicable manner, fair and equitable to both parties
under the circumstances. If a dispute should arise between the parties relating
to this Agreement which cannot be resolved by the personnel directly involved,
either party may invoke the provisions of this section by sending a written
notice stating the dispute in clear and concise language and designating its
executive officer who shall have appropriate authority to be its representative
in negotiations. The party receiving the notice shall, within five (5) business
days, serve its notice upon the invoking party, designating its executive
officer with similar authority to be its representative, and stating its
counter-statement of the dispute. After the exchanges of notices, the designated
executive representatives will establish a mutually convenient date for
conciliation. Prior to the executive representatives' meeting, either side may
make reasonable requests for information pertaining to the defined dispute
provided such requests are not burdensome to comply with and can be accomplished
within two business days. At such conciliation, the parties will in good faith
endeavor to settle the dispute. Unless the other party objects, a party may
enlist one additional person to attend the conciliation to assist. Unless
otherwise agreed by the parties, if the parties are unable to resolve the matter
between them within seven (7) business days following the first meeting of the
designated executive representatives, either party may initiate litigation.
Nothing said during the conciliation sessions shall be admissible in a court of
law, since all such sessions were undertaken as settlement efforts. Once
invoked, this procedure is mandatory.
16. HARDSHIP: If during the term of this Agreement, either Party believes that
(a) the price of the Products supplied under this Agreement with due
consideration to the Annual Purchase Commitment is grossly out of line based on
conditions then existing in the marketplace, (b) the volume commitments are not
consistent with market conditions, or (c) the quality of any products supplied
under this agreement deviates from the level attained by the state of the art
available to suppliers of comparable products, the parties shall meet at the
request of either to negotiate in good faith to resolve such issues with
appropriate remedial action. It is understood that neither Party shall be
obligated to change any term of this Agreement, unless both Parties are in
agreement.
17. GENERAL:
17.1 Notice. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be sufficiently given if
delivered in person, via telex, fax, or if sent by overnight courier,
by Air Mail, registered or certified, addressed to the appropriate
party at the following respective addresses (or at such addresses as
the parties may later specify):
If to Supplier addressed to: Hemlock Semiconductor Corporation
00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Vice President Marketing & Sales & Quality
If to Customer addressed to: MEMC Electronic Materials, Inc.
X.X. Xxx 0
000 Xxxxx Xxxxx
Xx. Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxx
Corporate VP Quality & Facilities
cc: MEMC Electronic Materials, Inc.
X.X. Xxx 0
000 Xxxxx Xxxxx
Xx. Xxxxxx, Xxxxxxxx 00000
Attn: Vice President & General Counsel
17.2 Assignment. Either party may assign or transfer its rights and
delegate its obligations hereunder to the purchaser of, or successor
to, all or substantially all of its assets. Except as set forth in the
preceding sentence, neither party may, whether by operation of law or
otherwise, assign or otherwise transfer any of its rights nor delegate
any of its obligations under this Agreement without the other party's
prior written consent. Any attempted assignment, transfer, or
delegation without such consent shall be void and of no benefit, and
will not be binding upon the parties hereto and their respective
successors and assigns.
17.3 Order of Precedence. In the event of an conflict the handwritten or
hand-typed provisions on the face of Customer's Purchase Order or
Release Order shall govern; but such terms shall be in effect for that
Purchase Order or Release Order only. Any preprinted terms and
conditions on a Purchase Order or on Supplier's quotation,
acknowledgment, or invoice shall be deemed superseded and deleted.
17.4 Modifications. This Agreement shall not be varied by any oral
agreement or representation or by other than an instrument in writing
of subsequent date, executed by both parties by their duly authorized
representatives.
17.5 Waiver. The failure of either party to exercise any of its rights or
to enforce any of the provisions of this Agreement on any occasion
shall not be a waiver of such right or provision, nor affect the right
of such party thereafter to enforce each and every provision of this
Agreement.
17.6 Severability. If any provision of this Agreement is invalid or
unenforceable under applicable law, such provision shall be modified
to the extent necessary to cure its invalidity and this Agreement as
so modified shall continue in full force and effect.
17.7 Headings. The headings are inserted for convenience only and shall not
limit or affect any of the terms hereof.
17.8 Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and supersedes all previous agreements between
the parties with respect to the subject matter hereof.
17.9 Relationship. Except as expressly provided, this Agreement does not
create any relationship of agency, partnership or employment between
the parties.
17.10Governing Law. The validity of this Agreement and any Purchase Order,
the construction and enforcement of their terms and the interpretation
of the rights and duties of the parties shall not be governed by the
provisions of the 1980 U.N. Convention on Contracts for the
International Sale of Goods, but instead shall be governed by the
internal law of the State of Missouri. Any action relating to this
Agreement or any Purchase Order or Release Order issued under it shall
be brought in an appropriate court in the United States.
MEMC Electronic Materials, Inc. Hemlock Semiconductor Corporation
BY /s/ Xxxxxx X. Xxxxxxxx BY /s/ Xxxxx X. XxXxxxxxx
TITLE President & COO TITLE President & CEO
DATE 1/26/95 DATE 4/20/95
