Exhibit 10.122


 


[***]
Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.


 


 


AGREEMENT


 


THIS AGREEMENT is made this 5th
day of September 2002 by and between XINYI GROUP (GLASS) CO. LTD. (“Licensee”)
and SOUTHWALL TECHNOLOGIES INC. (“Southwall”) for certain rights to Southwall’s
technology and purchase of Southwall’s Product (as defined below) in accordance
with the terms and conditions set forth below.


 


WHEREAS


 


(A) Southwall produces and
manufactures the “Product” which is used in the manufacturing of the “XIR®
Laminated Glass Units” (as defined below).


(B) Southwall is the sole title
holder to patents and trademarks registered in its favor, which are further
described in Exhibit 1.


(C) Southwall is the developer
and holder of certain proprietary and confidential trade secrets relating to
the Product and XIR® Laminated Glass Units.


 


NOW IN CONSIDERATION OF THE
ABOVE PREMISES AND COVENANTS, THE PARTIES HERETO AGREE AS FOLLOWS:


 


1.             DEFINITIONS:


 


For the purpose of this
Agreement, the definitions set forth in this Clause shall apply to the
respective capitalized terms:


 


(a)           “Agreement” shall mean this agreement and all exhibits and
schedules attached hereto:


 


(b)           “Architectural Applications” shall mean all kinds of
stationary buildings, decorations, fixtures, structures and related parts or
products into which the “XIR® Laminated Glass Units” are incorporated or
applied.


 


(e)           “Automotive Applications” shall mean the original
equipment manufacturer (“OEM”) market and automotive replacement glass market
for supplying XIR® Laminated Glass Units to be incorporated or applied into
automobiles and motor vehicles, including passenger cars, buses, trucks, trains
and light transit railway trains.


 


(k)           “Best Practices” shall refer to the manufacturing
processes and techniques used in the production of XIR® Laminated Glass Units.
These processes shall include but are not limited to equipment used, material
storage, material handling and laminated glass fabrication. The Guidelines
provided by Southwall to the Licensee should be considered as a general guide
to Best Practices. The Licensee shall follow the Guidelines or may choose to
deviate from the Guidelines to assure that laminated glass incorporating the
Product manufactured in its plant, with its equipment, and its particular
process is manufactured in accordance with the Best Practices required under
the Guidelines.


 

















 


 


(e)           “Guidelines” shall mean the most current XIR® Lamination
Guidelines which Southwall shall provide to the Licensee being based upon
Southwall’s assessment of the manufacturing best practices and quality
standards required for acceptable production of XIR® Laminated Glass Units
incorporating the Product. Southwall may, from time to time, make modifications
to the Guidelines, in which case Southwall will give the Licensee not less than
sixty (60) days written notice prior to such modifications.


 


(g)           “Patents” shall mean all those patents described in Exhibit
1 hereto and any foreign counterparts, continuations, continuations in part,
renewals or replacements thereof.


 


(d)           “Product” shall mean the XIR® transparent solar control
films as listed on Exhibit 2 attached hereto.


 


(i)            “Proprietary Information” shall include all information,
data, technology, concepts, patents, equipment, techniques, know-how,
manufacturing processes, ideas or inventions (whether or not patented or
patentable) embodied in or related to the Product, XIR® Laminated Glass Units,
or the manufacturing of the same.


 


(i)            “Proprietary Technical Materials” shall mean all
writings, including documentation, the Guidelines, instructions, correspondence
or other data relating to the Product, XIR® Laminated Glass Units, or
Proprietary Information save and except such already incorporated into or
merged with the products or semi-products of the Licensee.


 


(d)           “Territory” shall mean the People’s Republic of China,
which includes the Hong Kong Special Administrative Region and Macau Special
Administrative Region.


 


(j)            “Trademarks” shall include all those trademarks described
in Exhibit 1 hereto and any renewals or replacements thereof.


 


(h)           “XIR® Laminated Glass Units” shall mean all kinds of glass
structures incorporating the Product in a laminated glass configuration, which
are manufactured in accordance with the Best Practices.


 


 


2.             GRANT OF RIGHTS


 


Subject to the terms of this
Agreement, Southwall hereby appoints the Licensee (i) as its sole and exclusive
agent and authorized manufacturer of XIR® Laminated Glass Units for Automotive
Applications, and (ii) as its agent and authorized manufacturer of XIR®
Laminated Glass Units for Architectural Applications, in so far as the Licensee
shall make the minimum annual purchases in accordance with Clause 7 hereof and
hereby grants to the Licensee a license to use Southwall’s Proprietary
Information, including the Guidelines, as well as the Patents and the
Trademarks described in this Agreement for the sole purpose of manufacturing
and selling XIR® Laminated Glass Units for Automotive Applications and
Architectural Applications.


 

















 


 


The Licensee may only carry out
the manufacture of XIR® Laminated Glass Units in its own manufacturing
facilities for the time being in commercial operation on the date of signing of
this Agreement.


 


For avoidance of doubt:


 


(a)                                  Licensee may only manufacture
the XIR® Laminated Glass Units in the Territory;


 


(b)                                 Licensee may sell the XIR®
Laminated Glass Units in the Territory or every where of the world;


 


(c)                                  Southwall shall not manufacture
XIR® Laminated Glass Units or permit to be manufactured or authorize others to
so manufacture the same within the Territory, however Southwall shall not be
liable for the sale and distribution pursuant to the existing agreements or
arrangements Southwall has reached or made with the companies (the names of
which are specifically mentioned in the Exhibit 13 hereto) within the Territory
of any XIR film supplied to those companies prior to the commencement of the
term of this Agreement.


 


(d)                                 Southwall reserves the right to
sell its products and XIR® Laminated Glass Units directly to other purchasers
or authorized manufacturers or distributors, OEMs or their representatives or
distributors or other distribution or licensing channels anywhere other than
the Territory;


 


(e)                                  if the Licensee shall discover
that any other persons or firms or companies (“wrongdoers”) manufacture or sell
or distribute or deal with XIR® Laminated Glass Units or the Product or any
goods or products similar or identical thereto or which infringe the Trademarks
and/or the Patents or amount to passing off against XIR® Laminated Glass Units
or the Products anywhere within the Territory, Southwall shall at the request
of the Licensee take appropriate action, by way of legal proceedings or
otherwise, to restrain or prevent or prohibit the wrongdoers from so further
manufacturing, selling, distributing or dealing with or infringing or passing
off the same in order to give full protection to the Licensee’s rights and
interest as the sole and exclusive agent and authorized manufacturer of
Southwall as aforesaid in the Territory.


 


(f)                                    Notwithstanding the foregoing
provisions, any right granted hereunder to the Licensee for manufacturing and
selling XIR® Laminated Glass Units for Architectural Applications is not
exclusive.


 


(g)                                 the Licensee may use and apply
both the Trademarks as well as the Licensee’s own trademarks to the XIR®
Laminated Glass Units when the Licensee manufactures or sells the same.


 


(h)                                 Southwall acknowledges that it
is aware of the possibility that some customers of the Licensee may
specifically require the Licensee to use or apply only the trademarks of the
customers to the XIR® Laminated Glass Units (in relation to the customers’
final products which are manufactured by incorporating the XIR® Laminated Glass
Units). In such case, the Licensee shall notify Southwall in writing about the
same and Southwall shall not unreasonably withhold its consent to the
Licensee’s application of such trademarks of the customers to the said final
products.


 


 

















 


3.             MARKETS FOR THE PRODUCT


 


Subject to the terms and
conditions of this Agreement, the XIR® Laminated Glass Units may be
manufactured for and sold for Automotive Applications and Architectural
Applications. The Licensee has been granted to have the sole and exclusive
rights for the manufacture and sale of XIR® Laminated Glass Units for
Automotive Applications in the Territory and non-exclusive rights for the
manufacture and sale of XIR® Laminated Glass Units for Architectural Applications
for a term of four (4) years as mentioned in Clause 11 hereof below.


 


4.             OBLIGATIONS OF THE LICENSEE


 


In order to develop the full
sales potential of the XIR® Laminated Glass Units, the Licensee agrees that it
will perform at its costs and expenses the following duties:


 


(a)           Initial manufacturing - The Licensee shall begin
manufacturing on or before 15th November 2002.


 


(b)           Quality - The Licensee’s manufacture of the XIR® Laminated
Glass Units shall be in accordance with the Best Practices. The Licensee shall
conduct a thorough inspection of all XIR® Laminated Glass Units, including
regular sample testing in its own laboratories, prior to the shipment of such
products by the Licensee. The XIR® Laminated Glass Units that do not conform
with the Best Practices in any respect shall not be sold or shipped to the
customers.


 


(c)           Technical Visits - Southwall shall have the right, on
reasonable prior written notice and during normal business hours, to visit the
Licensee’s place of business and any and all places where the Licensee
manufactures to stores XIR® Laminated Glass Units to verify that the Licensee
is in compliance with its obligations under this Agreement, including without
limitation to verify that the Licensee’s manufacture of XIR® Laminated Glass
Units is in accordance with the Best Practices. If the Licensee’s manufacture
of XIR® Laminated Glass Units does not follow the Best Practices, Southwall may
withhold the right to distribute XIR® Laminated Glass Units until the
deficiency is corrected.


 


(d)           Designation of XIR® Laminated Glass Units - The Licensee
will at all times designate the XIR® Laminated Glass Units and the Product by
the correct names (as determined by Southwall, by giving not less than ninety
(90) days’ prior written notice of any changes) and identify the Product as a
product of Southwall. The Licensee shall mark XIR® Laminated Glass Units with
Southwall’s Patent markings and Trademarks in accordance with the Guidelines
furnished by Southwall. These Trademarks will be featured in all sales,
advertising, ad promotional activities and materials. The Licensee shall not
apply any other trademarks, brand names or other markings (than such of the
Licensee’s own) to the XIR® Laminated Glass Units or any part or component of
the XIR® Laminated Glass Units without the prior written consent of Southwall.


 


(e)           Marketing - In order to rapidly and effectively develop
the market for XIR® Laminated Glass Units, the Licensee agrees to use its best
efforts as commercially reasonable to commercialize and market XIR® Laminated
Glass Units throughout their customary trading area and to:


 

















 


 


 


1)                                      publish collateral and sales
support materials in the predominant language(s) of their customary trading
area within three (3) months after the commencement of manufacturing;


 


2)                                      train sales personnel to sell
XIR® Laminated Glass Units with materials from Southwall under the terms,
conditions and at the prices set forth in Exhibit 7 hereto so far as it is
practicable to do so.


 


3)                                      participate in all reasonable
exhibitions and promotion opportunities so far as it is practicable to do so.


 


f)             General Conduct - The Licensee shall at all times
conduct its business in a businesslike manner and shall not engage in any
deceptive, misleading, illegal or unethical business practice or any practice
that will reflect unfavorably on Southwall, XIR® Laminated Glass Units, or the
Product.


 


5.             OBLIGATIONS OF SOUTHWALL


 


In order to assist the Licensee
in the rapid and successful commercialization of XIR® Laminated Glass Units,
Southwall agrees to provide the following support and assistance to the
Licensee at Southwall’s costs and expenses except where noted below. The
language of all communications and materials supplied by Southwall will be in
English.


 


(a)           Guidelines - Southwall shall provide one copy of the
Guidelines and an additional copy for each approved production facility to the
Licensee prior to the execution of this Agreement.


 


(b)           Technical Visit - Southwall shall provide periodical
technical visits, including a minimum of one visit of up to two (2) days each
year for process review and additional consultation as requested by the
Licensee. Additional visits for assistance the Licensee may be arranged at the
request of the Licensee at the Licensee’s expense in accordance with Exhibit 5
hereto.


 


(c)           Marketing Materials - Southwall shall supply its marketing
collateral materials (in English) and demonstration equipment under the terms,
conditions and at the prices set forth in Exhibit 4 hereto. Additional
materials described in Exhibit 4 will be made available to the Licensee upon
request. Southwall reserves the right to change these documents from time to
time provided that the items and prices included shall be similar to those
offered to Southwall’s other similarly situated licensees.


 


(d)           General Conduct - Southwall shall at all times conduct its
business in a businesslike manner and shall not engage in any deceptive,
misleading, illegal or unethical business practice or any practice that will
reflect unfavorably on the Licensee, XIR® Laminated Glass Units, or the
Product.


 


(e)           Protection of the Licensee’s Rights - Southwall shall
protect the Licensee’s rights as its sole and exclusive agent and authorized
manufacturer of XIR® Laminated Glass Units in the Territory for Automotive
Applications and as its agent and authorized manufacturer of XIR® Laminated
Glass Units in the Territory for Architectural Applications in the manner
stipulated in Clause 2 above hereof.


 

















 


 


(f)            General Support - Southwall shall provide the necessary
support and relevant and necessary expertise and knowledge and technologies and
information in relation to the manufacture or improvement of XlR® Laminated
Glass Units to the Licensee by providing updated Guidelines and updated
technological information to the Licensee.


 


6.             LICENSE FEE


 


In lieu of a license fee, the
Licensee hereby agrees to purchase the minimum quantities of Product as
specified in Clause 7 below hereof.


 


7.             MINIMUM PURCHASE OF PRODUCT


 


(a)           Subject to the terms and conditions of this Agreement, the
Licensee hereby agrees to purchase during the term of this Agreement the
minimum quantity of the Product specified below:


 


	
  Period

  	
   

  	
  Minimum Annual Purchase

  	
   

  	
  Cumulative Purchase

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1st year from the date of
  this Agreement until the first anniversary

  	
   

  	
  80,000
  square metres

  	
   

  	
  80,000
  square metres

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2nd year after expiry of the
  said 1st year

  	
   

  	
  120,000
  square metres

  	
   

  	
  200,000
  square metres

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3rd year after expiry of the
  said 2nd year

  	
   

  	
  180,000
  square metres

  	
   

  	
  380,000
  square metres

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4th year after expiry of the
  said 3rd year

  	
   

  	
  230,000
  square metres

  	
   

  	
  610,000
  square metres

  	
   

  



 


(b)           The Licensee will purchase the Product subject to the
terms and conditions of this Agreement. If the Licensee shall fail to make the
minimum purchase set forth above during a period of more than two (2)
consecutive years, Southwall may, at its sole discretion, terminate this
Agreement in accordance with the procedures set forth in Clause 12(a) of this
Agreement.


 


(c)           Subject to the terms and conditions of this Agreement,
Southwall shall arrange shipment and delivery of the Product to the Licensee
within nine (9) weeks (or such other period as the Licensee may accept) after
the date of the Licensee giving the order to purchase the Product.


 


8.             PRICE


 


(a)                                  Purchase Price - The purchase
price for the Product sold hereunder shall initially be such as set forth on
Southwall’s Price Schedule attached hereto as Exhibit 6.


 

















 


 


 


(b)                                 Price Changes - After expiry of
the initial 6 months of the term of this Agreement, Southwall may change the
prices to be charged for the Product sold hereunder at any time by amending its
published Price Schedule and giving the Licensee sixty (60) days prior written
notice of such amendment, provided however that the prices specified in Exhibit
6 may not be increased to become more than such prices at which Southwall for
the time being sells the Product (or similar product) to its other similar
licensees in Asia, and shall not in any event be increased or decreased by more
than 5% per year (after expiry of the said initial 6 months). If Southwall
shall increase the prices during the initial 6 months of the term of this
Agreement, or shall increase the prices to become more than such prices at
which Southwall for the time being sells the Product (or similar product) to
its other similar licensees in Asia or shall increase the prices by more than
5% per year as aforesaid, the Licensee shall have the right to immediately
terminate this Agreement. Any changes in prices made by Southwall shall be
effective after expiry of sixty (60) days after the date of giving notice of
such changes to the Licensee.


 


9.             TERMS AND CONDITIONS OF SALE


 


This Agreement and all sales of
Product hereunder by Southwall to the Licensee shall be subject to Southwall’s
XIR® Laminated Film Terms and Conditions, a copy of which is attached hereto as
Exhibit 7. Such Terms and Conditions shall govern in the event of any
inconsistencies with any other document (except the body of this Agreement
which shall govern the construction of this Agreement) received by the Licensee
or Southwall prior to or after receipt of an Order Acknowledgement (set forth
in Exhibit 14).


 


10.          WARRANTY


 


(a)                                  Warranty - Southwall gives in
favour of the Licensee the warranty with respect to the Product contained in
the XIR® Laminated Film Limited Warranty attached hereto as Exhibit 8. The
disclaimers and limitations set forth in Southwall’s XIR® Terms and Conditions
are incorporated herein by reference and attached hereto as Exhibit 7.


 


(b)                                 Sole and Legal Owner -
Southwall warrants and declares that it is and was at all material times the
sole legal and beneficial owner of the Trademarks and Patents and shall renew
and maintain its rights in respect thereof in full effect throughout the term
of this Agreement. Southwall shall produce the certified true copies of the
relevant certificates or documents (duly issued by the relevant government
authority(s) or department(s)) in proof of its rights and ownership of the
Trademarks and Patents to the Licensee prior to the execution of this
Agreement.


 


(c)                                  Maintenance of Legal and
Beneficial Ownership - Subject to the XIR® Limited Warranty, Southwall
undertakes warrants and covenants with the Licensee that Southwall shall
continue to maintain its legal and beneficial ownership of the Trademarks and
Patents during the Term or the Renewed Term of this Agreement and shall
indemnify the Licensee in full for any failure to maintain such ownership or
entitlement of Southwall in respect of the Trademarks and/or Patents which
shall become non-subsisting or cease to


 

















 




exist as a result of Southwall’s failure to maintain the Patents or renew the
Trademarks during the Term and the Renewed Term of this Agreement.


 


11.          TERM AND TERMINATION


 


(a)                                  Term - The term of this Agreement
shall be for a period of four (4) years commencing from September 5, 2002;
until September 5, 2006, 5 PM, US Pacific Standard Time (the “Term”).


 


(b)                                 Renewed Term - This Agreement
may be renewed for one-year periods (each a “Renewed Term”) by mutual written
consent by the authorized officers of the parties 60 days before the end of the
Term or the Renewed term, which consent shall not be unreasonably withheld if
both parties have properly complied with their obligations under this
Agreement.


 


(c)                                  Termination - The parties may
terminate this Agreement as follows:


 


(1)                                  By either Southwall or
Licensee: At any time by giving ninety (90) days written notice to the other
party. In such case of termination, neither party shall be responsible to the
other for any compensation, damages, losses or otherwise by reason of the
termination save and except the situation mentioned in Clause 10 above hereof.


 


(2)                                  By the Licensee: The Licensee
may terminate this Agreement by giving not less than ten (10) days’ prior written
notice to Southwall upon occurrence of any of the following events:


 


i)                                         Southwall ceases to function as
a going concern or to conduct its operations in the normal course of business;


 


ii)                                      Southwall makes a general
assignment of all or a substantial portion of its assets to a receiver or to
satisfy the claims of its creditors pursuant to any judgment or order of the
court, or has become insolvent or goes into liquidation or bankruptcy;


 


iii)                                   Southwall fails to manufacture
the Product in accordance with the prescribed performance and quality standards
set forth in the “Product Specifications”, which are attached as part of
Exhibit 9 hereto, or fails to deliver the Product within the periods of time
agreed, provided that such failure continues for 60 days after the Licensee
gives notice of such failure to Southwall;


 


iv)                                  Southwall breaches a covenant,
term or condition herein, and fails to cure or remedy such breach within 60
days of the written notice given by the Licensee.


 


(c)                                  By Southwall - Southwall may
terminate this Agreement, by giving not less than 15 days’ written notice to
the Licensee, upon occurrence of any of the following events:


 


i)                                         the Licensee ceases to function
as a going concern or to conduct its operations in the normal course of business;


 


ii)                                      The Licensee makes a general
assignment of all or a substantial portion of its assets to a receiver or to
satisfy the claims of its creditors pursuant to any judgment or order of court,
or has become insolvent or goes into liquidation or bankruptcy;


 


iii)                                   The Licensee fails to
manufacture XIR® Laminated Glass Units in accordance with the Best Practices,
provided that such failure continues for further 60 days after the Licensee
receives notice from Southwall of such failure. In no event shall the


 

















 




Licensee continue production of any XIR® Laminated Glass Units intended for
sale incorporating the Product from the time of the Licensee’s receipt of such
notice until Southwall has determined that no further production problems
exist, but such determination shall not be unreasonably withheld nor delayed.


 


iv)                                  The Licensee fails to commence
the manufacture of XIR® Laminated Glass Units within the period of time set
forth in Clause 4(a) above hereof.


 


v)                                     The Licensee breaches a
material covenant, term or condition herein, and fails to cure or remedy such
breach within sixty (60) days of written notice given by Southwall.


 


12.          EFFECT OF TERMINATION OR EXPIRATION


 


(a)                                  Termination of Rights - All
rights of the Licensee hereunder shall terminate immediately upon any
termination or expiration of this Agreement. Within 30 days of any termination
or expiration of this Agreement, the Licensee shall promptly return to
Southwall all and any materials supplied to the Licensee, including, but not
limited to the Guidelines, marketing collateral materials and technical data
and an authorized officer of the Licensee shall certify in writing that the
Licensee has destroyed all copies thereof. All obligations as to
confidentiality and all restrictions imposed on the Licensee by this Agreement
or any incorporated warranty, remedy or liability limits or disclaimers in this
Agreement, the XIR® Laminated Film Terms and Conditions or the Guidelines (save
and except otherwise provided therein or herein) shall survive termination or
expiration of this Agreement. In addition, upon any such termination or
expiration, the Licensee shall cease using Southwall’s name and Proprietary
Information, including Trademarks, and shall provide to Southwall a certificate
of an authorized officer of the Licensee certifying that the Licensee has
complied with the requirements of this Clause 12(a).


 


(b)                                 Exception - It is expressly
understood and agreed that all obligations set forth under this paragraph shall
not apply where any of the Guidelines, technical data, materials or know-how,
and in general, all information supplied by Southwall under this Agreement have
become general or public knowledge not because of the Licensee’s breach of any
terms or conditions of this Agreement.


 


(c)                                  Termination by Southwall - Upon
termination of this Agreement by Southwall, the Licensee must at the option and
costs of Southwall return all unsold Product (which has not been incorporated
into any XIR® Laminated Glass Units) to Southwall within thirty (30) days of
termination or expiration of this Agreement and such Product shall be in the
same condition as it was delivered to the Licensee.


 


(d)                                 Termination by Licensee - Upon
termination of this Agreement by the Licensee, the Licensee may at its own
option return all unsold Product (which has not been incorporated into any XIR®
Laminated Glass Units) to Southwall within thirty (30) days of termination or
expiration of this Agreement and is in the same condition as such in which it
was delivered to the Licensee. Transportation costs shall be borne by
Southwall. In case that the Licensee does not choose to return the unsold
Product, all payments for such Product shall be due and payable immediately and
be paid to Southwall.


 


(e)                                  Termination is not the sole
remedy under this Agreement and, whether or not termination is effected, all
other remedies will remain available.


 

















 


 


13.          TRADEMARKS; MARKINGS


 


(a)                                  Trademarks - Subject to the
terms of this Agreement, the Licensee is hereby granted to have non-exclusive
permission to use during the term of this Agreement the Trademarks used by
Southwall in connection with the Product and XIR® Laminated Glass Units,
provided however, that the Licensee will in no way represent or imply that it
is acting on behalf of Southwall. Such permission is expressly limited to uses
by the Licensee necessary to the performance of the Licensee’s obligations
under this Agreement and for the benefits of the Licensee conferred upon it
under this Agreement, and the Licensee hereby admits and recognizes Southwall’s
exclusive ownership of such marks and names and the value of such marks and
names, both worldwide and specifically in the Territory in which the Licensee
sells products incorporating the Product. Such permission with respect to any
particular Trademark is further limited to the period in which Southwall uses
such Trademark. The Licensee shall be entitled to use, under the same terms and
conditions as provided for under this Agreement, any and all such trademarks or
trade names which shall be used in future by Southwall which replace the
Trademarks, so far as the Licensee can enjoy the same protection of its rights
and benefits in its use of such Trademarks as it is entitled hereunder.


 


The
Licensee shall use reasonable efforts to provide to Southwall not less than one
(1) week (if no physical testing of the advertising and sales promotion
materials is required) or 3 weeks (if physical testing of such materials is
required) prior to publication a copy of such materials.


 


(b)                                 No Additional Rights - Except
as expressly set forth in Clause 2 or other relevant provisions of this
Agreement, no additional rights are granted or implied by this Agreement under
any parents, copyrights, trade secrets, know-how, ideas or other property
rights owned or controlled by Southwall or under which Southwall has rights.


 


14.          PROPRIETARY INFORMATION; PROPRIETARY
TECHNICAL MATERIALS CONFIDENTIAL INFORMATION


 


(a)                                  Proprietary Information -
Except as set forth under the terms and conditions of this Agreement, all
Proprietary Information and Proprietary Technical Materials provided by or
attributable to Southwall under this Agreement are the property of and are
proprietary to Southwall. The Licensee shall use Southwall’s Proprietary
Information and Proprietary Technical Materials only as expressly allowed in
this Agreement and the Proprietary Notice set forth in the Guidelines. Except
as set forth herein and in the Guidelines, the Licensee shall not copy or
reproduce, or transfer, assign, sub-license, loan, disclose or otherwise make
available any or all Southwall’s Proprietary Information or Proprietary
Technical Materials to any person or other entity without the prior written
consent of Southwall to the specific act to be taken.


 


(b)                                 Confidentiality - Southwall and
the Licensee agree that they will not disclose to any third party, firm or
corporation proprietary know-how, information or technical data received from
one another. This obligation shall not apply, however, to the information that
is (i) otherwise publicly available, (ii) lawfully in the possession of either
Southwall or the Licensee, as applicable, prior to disclosures by one another,


 

















 


 




(iii) rightfully received by either Southwall or the Licensee, as applicable,
from third parties, or (iv) independently developed by either Southwall or the
Licensee, as applicable.


 


This
Agreement and its contents are considered confidential and proprietary.
Disclosure of the subject and negotiations leading up to the signing of this
Agreement, or disclosure of its final contents to a third party will be
considered as a breach of this Clause 14.


 


15.          LIMITATION OR REMEDIES AND DAMAGES


 


Unless otherwise expressly
agreed hereunder and as far as permissible under the applicable laws, neither
party shall be responsible or liable with respect to any subject matter of this
Agreement or any attachment, product order, schedule or terms and conditions
related thereto under any contract, gross negligence, strict liability or other
theory, including: (a) the costs of procurement of substitute goods, services
or technology, or (b) any indirect, incidental or consequential damages
including but not limited to loss of revenues and loss of profits, or (c) any
force majeure event as described in Exhibit 10.


 


16.          GENERAL


 


(a)                                  Independent Contractor - The
Licensee will act as an independent contractor under the terms of this
Agreement and not as an agent or legal representative of Southwall for any
purpose, and the Licensee has no right or authority to assume or create any
obligation of any kind, express or implied, on behalf of Southwall to the
customers of the Licensee or to any other person.


 


(b)                                 Product Changes - Southwall
reserves the right to make design modifications in the Product at any time (but
shall not be obligated to implement such modifications in the Product that has
been previously delivered to the Licensee) provided that Southwall shall give
not less than 30 days’ prior written notice of such design modifications to the
Licensee.


 


(e)                                  Notices - All notices,
requests, consents and other communications required or permitted under this
Agreement shall be in writing and shall be deemed effective upon receipt when
mailed by registered or certified mail, return receipt requested, and postage
prepaid, or transmitted by telegram, telex or facsimile transmission if
confirmed by such mailing, to the Licensee and/or Southwall at their respective
addresses set forth on the page of signatures hereof. Either party may change
its address from time to time for purposes of notices hereunder by giving written
notice to the other party in accordance with this Clause.


 


(d)                                 Assignment - The Licensee shall
have no authority to and shall not assign, transfer or sub-license this
Agreement or any license, right or obligation hereunder, including by purchase,
merger or operation of law, without the prior written consent of Southwall.


 


(e)                                  No Waiver - The failure by
either party to enforce at any time any of the provisions of this Agreement, or
to exercise any election or option provided herein,


 

















 


 




shall in no way be construed as a waiver of such provisions or option, nor in
any way to affect the validity of this Agreement or any part thereof, or the
right of either party thereafter to enforce each and every such provision.


 


(f)                                    No Other Warranty or
Representation - Both parties hereby acknowledge that they have not entered
into this Agreement in reliance upon any warranty or representation by any
person or entity except for the warranties or representations specifically set
forth herein.


 


(g)                                 Compliance with Foreign Governments
- The Licensee represents, warrants and agrees to Southwall that neither this
Agreement (or any term thereof) nor the performance or exercise of rights under
this Agreement, is restricted by, contrary to, in conflict with, ineffective
under, or affects Southwall’s proprietary rights (or the duration thereof)
under, or will require any compulsory licensing for granting the Licensee the
license and rights hereunder for its manufacture, sale or distribution of the
XIR® Laminated Glass Units in the Territory under, any law or regulation of any
organization or government entitled located in the Territory, and if such
restriction, inconsistency, conflict, ineffectiveness or effect on Southwall’s
proprietary rights (or the duration thereof) do exist or such compulsory
licensing is so required thereunder, the Licensee shall use its best efforts or
endeavours to comply with the legal requirements to overcome or get rid of or
remove or (if it is reasonably and legally practicable) comply with such
restrictions and resolve such inconsistency or conflict or to make this
Agreement (or any term thereof) or the performance or exercise of the rights
hereunder legally possible and effective and to protect Southwall’s proprietary
rights (or the duration thereof) or to get or obtain the necessary compulsory
licensing as may be legally required (as the case may be).


 


Southwall
represents, warrants and agrees to the Licensee that neither this Agreement (or
any term thereof) nor the performance or exercise of rights under this
Agreement, is restricted by, contrary to, in conflict with, ineffective under,
or will require any compulsory licensing under any law or regulation or rules
or legislation of any organization or government entity or court or relevant
authority(s) or department(s) located inside the United States of America.


 


(h)                                 Governing Law and Legal Actions
- This Agreement shall be governed by and construed according to the laws or
rules or principles of the English (UK) law.


 


(i)                                     Arbitration - Any controversy
or claim arising out of or relating to this Agreement, or the alleged breach
thereof, shall be subject to the rules of the Singapore International
Arbitration Centre, settled by arbitration situated in Singapore and
administered by permitted arbitration service as the parties shall mutually
agree within ten (10) days of any request by any party for submission of a
matter to arbitration. Judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. This agreement to arbitrate
is specifically enforceable. Any arbitration shall be conducted by three
arbitrators, with each of Southwall and the Licensee nominating one arbitrator
and the remaining arbitrator being nominated by the mutual agreement of the
arbitrators nominated by Southwall and the Licensee. Within twenty (20) days
after receipt of any arbitration notice, the parties shall name their
respective arbitrator. Within twenty (20) days after the naming of the two
arbitrators, the third arbitrator shall be named. If either party fails


 

















 




to name its respective arbitrator, or if the third arbitrator is not named, or
within twenty (20) days after any arbitrator resigns or otherwise ceases to
serve as such, a replacement arbitrator is not named by the party that originally
named such arbitrator, such arbitrator as to which agreement cannot be reached
or as to which a timely appointment is not made shall be named by the remaining
arbitrators. The parties agree that, if either party initiates any arbitration
proceedings to obtain any payments, benefits, rights or injunctive or other
relief related to this Agreement, the prevailing party shall be entitled to
recover all reasonable attorneys fees and other related expenses incurred by
that party to the extent that party is successful in the proceedings.


 


(j)                                     Dollar Amount - Unless
otherwise expressly provided, all dollar amounts in this Agreement are stated
in, and shall be interpreted to be, dollars of the currency of the United
States of America.


 


(k)                                  Invalidity Clause - The
invalidity of any portion of this Agreement or its Exhibits shall not be deemed
to affect the validity of any other portion of this Agreement or Exhibits.


 


(1)                                  Entire Agreement - This
Agreement, including all exhibits and schedules hereto and the Guidelines,
constitute the entire agreement and understanding between the parties
concerning the subject matter hereof and supersede all prior agreements,
negotiations and understandings of the parties with respect hereto. No
representation, promise, modification or amendment (save as such expressly
mentioned herein or to be made or given in accordance with the terms and
conditions of this Agreement) shall be binding upon either party as a warranty
or otherwise unless in writing and signed on behalf of each party by a duly
authorized representative. Although the Licensee may use its standard purchase
order form to give any other notice provided for hereunder, the said order or
notice will be governed by the terms and conditions of this Agreement, and any
term or condition set forth in any such standard form which is inconsistent
with or in addition to the terms and conditions of this Agreement shall have no
force or effect unless they shall be accepted by Southwall in writing.


 


	
   

  	
  SOUTHWALL TECHNOLOGIES, INC.

  1029 Corporation Way Palo
  Alto,

  CA 94303 U.S.A.

   

  	
   

  	
  XINYI GROUP CO. LTD,

  Room 2007, Concordia Plaza,

  Science Museum Road,

  Tsimshatsui East, Kowloon,

  Hong Kong

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SEALED with the Common Seal
  of

  SOUTHWALL TECHNOLOGIES, INC.

  and SIGNED by Sicco Westra, its duly

  authorized Director(s)/representative(s)

  /Senior Vice President, Marketing & Sales:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SIGNED by

  its duly authorized Director/

  representative:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ SICCO WESTRA

  	
   

  	
  /s/ [ILLEGIBLE]

  



 























 


List of Exhibits


 


	
  Exhibit 1

  	
   

  	
  XIR® Film Patents and
  Trademarks

  
	
   

  	
   

  	
   

  
	
  Exhibit 2

  	
   

  	
  XIR® Films

  
	
   

  	
   

  	
   

  
	
  Exhibit 3

  	
   

  	
  XIR® Laminated Film Licensees

  
	
   

  	
   

  	
   

  
	
  Exhibit 4

  	
   

  	
  Sales Support System

  
	
   

  	
   

  	
   

  
	
  Exhibit 5

  	
   

  	
  Technical and Marketing
  Assistance

  
	
   

  	
   

  	
   

  
	
  Exhibit 6

  	
   

  	
  Price Schedule

  
	
   

  	
   

  	
   

  
	
  Exhibit 7

  	
   

  	
  XIR® Terms and Conditions

  
	
   

  	
   

  	
   

  
	
  Exhibit 8

  	
   

  	
  XIR® Limited Warranty

  
	
   

  	
   

  	
   

  
	
  Exhibit 9

  	
   

  	
  XIR® Product Specification

  
	
   

  	
   

  	
   

  
	
  Exhibit 10

  	
   

  	
  Force Majeure

  
	
   

  	
   

  	
   

  
	
  Exhibit 11

  	
   

  	
  Banking Information

  
	
   

  	
   

  	
   

  
	
  Exhibit 12

  	
   

  	
  Proprietary Notice and
  Disclaimer “Lamination Guidelines”

  
	
   

  	
   

  	
   

  
	
  Exhibit 13

  	
   

  	
  Existing Agreements

  



 


Xinyi XIR®
Exhibits


 


1

















 


 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Southwall
  Technologies

  	
   

  	
  02/02

  	
   

  	
  XIR® Laminated Film

  
	
  Exhibit I

  	
   

  	
   

  	
   

  	
  Patents and
  Trademarks

  



 


 


XIR®
Laminated Film Patents


 


	
  United States:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1. #4,799,745

  	
   

  	
  issued January 24, 1989

  
	
  2. #5,071,206

  	
   

  	
  issued December 10, 1991

  
	
   

  	
   

  	
   

  
	
  Canada:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1. #1,335,086

  	
   

  	
  issued April, 1995

  
	
   

  	
   

  	
   

  
	
  South Korea:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1. #90-702113

  	
   

  	
  pending issue

  
	
   

  	
   

  	
   

  
	
  Brazil:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1. #8,907,876

  	
   

  	
  issued January 23, 1989

  
	
   

  	
   

  	
   

  
	
  European Patent Organization (Germany, UK, France,
  Belgium, etc):

  
	
   

  	
   

  	
   

  
	
  1. #0454666

  	
   

  	
  issued November 15, 1995

  
	
   

  	
   

  	
   

  
	
  Japan:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1. #4290176

  	
   

  	
  issued March 19, 1999

  



 


 


XIR®
Laminated Film Trademarks


 


1. XIR®


 


2. Heat Mirror®


 


3. California Series®


 


Xinyi XIR®
Exhibits


 


2

















 


 


	
  Southwall
  Technologies

  	
   

  	
  02/02

  	
   

  	
  XIR® Laminated Films

  
	
  Exhibit 2

  	
   

  	
   

  	
   

  	
   

  



 


 


 


SOUTHWALL TECHNOLOGIES INC.


 


XIR® FlLMS


 


 


Automotive XIR® Films


XIR® 75


XIR® 70


XIR® 70 HP


 


Architectural XIR® Films


XIR® 72-41


XIR® 72-47


 


 


 


Xinyi XIR®
Exhibits


 


3

















 


 


 


	
  Southwall
  Technologies

  	
   

  	
  02/02

  	
   

  	
  List of
  Fabricators

  
	
  Exhibit 3

  	
   

  	
   

  	
   

  	
   

  



 


 


XTR® Laminated Film Fabricators


 


 


	
  1. 

  	
  Cricursa (Cristalerias Curvados S.A.)

  Pol. Ind. Coll do la Manya

  E-08400 Granollers
  (Barcelona)

  Spain

  	
   

  	
  7.

  	
  Prak S.A.

  Avenida Libertador 2, Piso 3B

  (1001) Buenos Aires

  Argentina

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2. 

  	
  GlasPro

  9401 Ann Street.

  Santa Fe Springs, CA 90670

  USA

  	
   

  	
  8.

  	
  Cristacurva

  Calle 9 No. 114

  Colonia Seattle

  Zapopan, Estado Jalisco

  Mexico

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3. 

  	
  Glassform

  P.O. Box 492

  Cheltenham, Victoria 3192

  Australia

  	
   

  	
  9.

  	
  Southern
  Star Class

  No. 5 Lai Yuen Road

  Sheku, Shehzhen

  China

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Tsai Fa
  Holding Company

  11, Tuas Ave. 6

  Singapore 2263

  	
   

  	
  10.

  	
  PFG Building
  Glass

  P.O. Box 111

  Springs 1560

  Republic of South Africa

   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5. 

  	
  HGP
  Industries

  5115 East Hartford Street

  Tampa, Florida

  USA

  	
   

  	
  11.

  	
  Dlubak

  P.O. Box 510

  520 Chestnut Street

  Blairsville, PA. 15717

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6. 

  	
  Romag
  Security Laminators

  Leadgate Industrial Estate

  Leadgate, Co Durham DH8 7RS

  England

  	
   

  	
  12.

  	
  Glasspec

  Lot 12686, Kawasan Perindu

  Tuanku Jaafar, 71450

  Seremban, Negeri Sembllan

  Darul Khusus, Malaysia

   

  



 


 


Xinyi XIR®
Exhibits


 


4

















 


 


XIR® Laminated Film Fabricators


 


	
  14.

  	
  Gulf Glass

  P.O. Box 6022

  Sharjah, United Arab Emirates

  	
   

  	
   

  	
   

  



 


 


 


 


 


Xinyi XIR®
Exhibits


 


5

















 


 


 


	
  Southwall
  Technologies

  	
   

  	
  02/02

  	
   

  	
  XTR®
  Laminated Film

  
	
  Exhibit 4

  	
   

  	
   

  	
   

  	
  Sales
  Support System

  



 


 


XIR® Sales Support System


 


	
  Demonstration Equipment

  	
   

  	
  Price
  (US$)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.
  Beam Splitter

  	
   

  	
  595.00

  	
   

  
	
  2.
  BTU Meter

  	
   

  	
  60.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Brochures

  	
   

  	
  Price (US$)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.
  Sweet’s Catalog (International)

  	
   

  	
  20.00 (50 units)

  	
   

  
	
  2.
  XIR® Laminated Glass

  	
   

  	
  20.00 (50 units)

  	
   

  



 


 


Xinyi XIR®
Exhibits


 


6

















 


 


	
  Southwall
  Technologies

  	
   

  	
  02/02

  	
   

  	
  XIR®
  Laminated Film

  
	
  Exhibit 5

  	
   

  	
   

  	
   

  	
  Technical
  and Marketing Assistance

  



 


Technical and Marketing Assistance


 


Certain amounts of technical
and marketing assistance are provided at no charge under the terms of this
Agreement.


 


Additional technical and
marketing assistance call be scheduled at the request of the Xinyi. Costs of
air travel, meals, and lodging for such assistance shall be billed at
Southwall’s actual cost or may be furnished by Xinyi.


 


 


 


Xinyi XIR®
Exhibits


 


7

















 


	
  Southwall
  Technologies

  	
   

  	
  Effective 09/02

  	
   

  	
  XTR®
  Laminated Film

  
	
  Exhibit 6

  	
   

  	
   

  	
   

  	
  Price
  Schedule

  



 


XIR® Film
Price, (CIF to USA Encapsulator, designated by Xinyi)


 


Film width is available in 1.80
meters and 2.00 meters. Buyer will be required to purchase the full width of
all XIR film orders, regardless of the final configuration of the film
delivered.


 


	
  Film type

  	
   

  	
  Base Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XIR®
  75 (Automotive) 

  	
   

  	
  $[***]
  / (sf)

  $[***] / (m2)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XIR®
  70 (Automotive) 

  	
   

  	
  $[***]
  / (sf)

  $[***] / (m2)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XIR®
  70-HP (Automotive) 

  	
   

  	
  $[***]
  / (sf)

  $[***] / (m2)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XIR®
  72-41 (Architectural) 

  	
   

  	
  $[***]
  / (sf)

  $[***] / (m2)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  XIR®
  72-47 (Architectural) 

  	
   

  	
  $[***] / (sf)

  $[***] / (m2)

  	
   

  



 


 


Credit for
Defects


 


Film defects will be mapped and
flagged by Southwall across the web by a black marking pen. Defects longer than
40 feet will be cut out. XINYI will be invoiced for the total amount of film
shipped, minus the defective material.


 


Shipment Lead
Times


 


All regular orders for XIR®
film are subject to a typical lead time of eight weeks after receipt of order,
depending of film width, and additional processing requirements. Please contact
Southwall for lead times for product requirements greater the 10,000 (m2).


 


Xinyi XIR®
Exhibits


 


8

















 


 


	
  Southwall
  Technologies

  	
   

  	
  XIR® Laminated Film

  
	
  Exhibit 7

  	
   

  	
  Terms and
  Conditions

  



 


SOUTHWALL TECHNOLOGIES INC,


XIR® TERMS
AND CONDITIONS


 


This documents sets forth the
terms and conditions of the Agreement between Xinyi and Southwall Technologies
Inc. (“Southwall”) for the purchase of Southwall’s XIR® film products.


 


1.             SCOPE.  
The terms and conditions set forth herein apply to all of Xinyi’s
purchases of Southwall’s XIR® products from Southwall. Southwall expressly
rejects and does not accept any inconsistent or additional terms set forth in
any writing by Xinyi preceding or succeeding the date hereof except for a
written agreement succeeding this document executed by an authorized officer of
Southwall.


 


2.             DELIVERY.  
Delivery will be CIF to an USA Encapsulator, designated by Xinyi.
Southwall shall ship the products in Southwall’s standard shipping packages to
an USA Encapsulator designated by Xinyi on Xinyi’s Purchase Order. Unless
otherwise instructed in writing by Xinyi, Southwall will select the carrier.
Shipping dates, if any, set forth in Southwall’s Purchase Order Confirmation
are approximate only and represent Southwall’s best estimate of the time
required to make shipment.  Southwall
shall deliver to the USA Encapsulator designated by Xinyi the Product as
ordered by Xinyi in its Purchase Order within 9 weeks from the date of receipt
of the Purchase Order, PROVIDED that: (i) if Southwall shall not deliver the
Product to the USA Encapsulator designated by Xinyi for further 2 weeks after
expiration of the said 9 weeks, Southwall shall pay to Xinyi liquidated damage
which is equivalent to 2% per week of the total amount of the price payable for
the Product ordered by Xinyi under the said Purchaser Order Confirmation; (ii)
Southwall shall not be liable to pay the said liquidated damage of 2% per week
if Southwall shall successfully deliver the Products to Xinyi within the said
further 2 weeks; (iii) the maximum aggregated amount of such liquidated damage
so payable by Southwall to Xinyi shall not exceed totally 16% of the total
amount of the price so payable for the Product so ordered during a period of 8
weeks after expiration of the said weeks; (iv) if Southwall shall not deliver
the Product so ordered to Xinyi within further 4 weeks after expiration of the
said 9 weeks, Xinyi shall have the option (but is not obligated) to cancel its
Purchase Order for the Product so ordered, so that Southwall shall in such
event refund to Xinyi in full the money paid by Xinyi (if any) for the purchase
of the Product so ordered but not so delivered. Southwall may deliver any
products in installments.


 


3.             ACCEPTANCE.  
Xinyi shall inspect all products and may, in accordance with the
recommendations set forth by Southwall, reject any products which fail in


 


Xinyi XIR®
Exhibits


 


 


9

















 


 


any significant respect to meet
Southwall’s current acceptance specifications set forth.


 


4.             PAYMENT.  
During the initial 6 months from the commencement of the term of this
Agreement, the Xinyi shall pay the price for purchase of the Product so ordered
by cash or cheque in advance. After expiration of the said initial 6 months,
the Xinyee shall pay the price for purchase of the Product so ordered by way of
“irrevocable” stand-by letter of credit issued in favour of Southwall with a
credit period of 60 days after the date of receipt of the Products by the
processor to whom Southwall delivers the Product for processing purpose before
delivery to the Xinyi.  Buyer shall pay
all applicable non-US taxes and duties upon or measured by the sale of XIR®
film, regardless of how or by whom levied. Xinyi shall pay Southwall interest
on the outstanding balance on all overdue accounts until paid in full, at the
rate determined by the Federal Reserve Bureau of USA or the usual banking
lending rate for the time being, whichever is lower. Payment shall be made for
the products without regard to whether Xinyi has made or may make any
inspection or use of the products.


 


 


 


 


Xinyi XIR®
Exhibits


 


 


10

















 


 


	
  Southwall
  Technologies

  	
   

  	
  XlR® Laminated Film

  
	
  Exhibit 7

  	
   

  	
  Terms and
  Conditions (page 2)

  



 


 


5.             TAXES.  
Xinyi shall bear all applicable federal, state, municipal and other
taxes (such as sales, use, value added or similar taxes); all customs duties,
imposts, and similar charges; and all personal property taxes assessable on the
products after delivery to the Xinyi’s designated port. Unless Xinyi provides
Xinyi’s resale permit or certificate number with its order, Xinyi will be
invoiced for the appropriate sales and use taxes.


 


6.             SECURITY 
INTEREST.   Southwall retains
a purchase money security interest in the products (and replacements) and all
proceeds and products thereof until the full purchase price therefor (including
taxes and additional charges) has been paid. Southwall shall have with respect
to such items the rights of a secured party pursuant to the English (UK) law, including
the right to repossess and remove such items without prejudice to any other
rights Southwall may have at law or in equity.


 


 


 


Xinyi XIR®
Exhibits


 


 


11

















 


 


	
  Southwall
  Technologies

  	
   

  	
  XIR® Film

  
	
  Exhibit 8

  	
   

  	
  Warranty

  



 


 


SOUTHWALL TECHNOLOGIES INC.


 


XIR® LIMITED WARRANTY


 


This document includes the XIR®
Limited Warranty. This warranty shall only apply to XIR® transparent solar
control films manufactured and sold by Southwall during the terms of this
Agreement.


 


1.             IDENTITY OF WARRANTOR AND WARRANTEE.   The warranty is extended by SOUTHWALL


to XINYI for XIR® transparent
solar control films.


 


2.             WARRANTY.      Southwall
warrants that the XIR® film delivered to Xinyi and used in Xinyi’s manufacture
of laminated glass containing XIR® films will meet the original specification
for a period of 120 months (10 years) from date of shipment of XIR®
film to Xinyi. Southwall XIR® film is covered on a straight-line pro-rated
basis over 120 months from the date of shipment against film degradation
as well as against defects in material or workmanship. In the event Xinyi’s
warranty is of a shorter duration than 120 months (10 years), Southwall’s
warranty shall be limited by the extent and duration of Xinyi’s warranty.


 


3.             REPLACEMENT.   In the event that a quantity of XIR® is found by Southwall to not
meet the specifications, and Xinyi demonstrates to Southwall’s reasonable
satisfaction that all warranty requirements have been met and that no warranty
exclusions apply, Southwall shall, at no cost to Xinyi, furnish Xinyi with an
equal quantity of XIR® in replacement of the defective quantity, F.O.B.
Southwall’s plant.


 


4.             EXCLUSIONS.      Southwall’s
XIR® film warranty does not extend to any laminated glass products, separately
or as part of a glazing system, that have been improperly handled or installed.


 


No warranty is extended for
XIR® film if perimeter with gaskets are not supplementary wet sealed between
the glass incorporating XIR® films and the gasket, all around the weather side.
Furthermore, the warranty is void if there is any evidence of injury to the
factory applied perimeter edge seal of the laminated glass incorporating XIR®
films or in the event the Laminated Glass units do not feature an adequate edge
cut back as described in the Southwall “Lamination Guidelines” as described in
Section 1.e) of the Supply Agreement.


 


 


Xinyi XIR®
Exhibits


 


 


12

















 


 


	
  Southwall
  Technologies

  	
   

  	
  XIR® Laminated Film

  
	
  Exhibit 8

  	
   

  	
  Warranty
  (page 2)

  



 


 


                NOTWITHSTANDING THE ABOVE, AND IN NO EVENT SHALL
SOUTHWALL BE LIABLE FOR LOSS OF PROFITS, LOSS OF USE OR INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL THE LIABILITY OF SOUTHWALL ARISING IN
CONNECTION WITH ANY PRODUCTS SOLD HEREUNDER OR WITH THE DELIVERY, INSTALLATION,
USE, REPAIR, OR PERFORMANCE OF THE SAME (WHETHER SUCH LIABILITY ARISES FROM A
CLAIM BASED ON A CONTRACT, WARRANTY, TORT OR OTHERWISE) EXCEED THE ACTUAL
AMOUNT PAID BY THE PURCHASER FOR THE XIR® FILM PRODUCTS DELIVERED HEREUNDER
UPON WHICH THE CLAIM IS BASED.


 


5.             OTHER RIGHTS AND REMEDIES.


 


                THIS LIMITED WARRANTY CONTAINS XINYI’S EXCLUSIVE
REMEDY AND REPRESENTS A FULFILLMENT OF ALL SOUTHWALL’S LIABILITY WITH REGARD TO
XIR® FURNISHED TO XINYI. ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED OR
ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE,
ARE EXCLUDED AND THERE ARE NO WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT SHALL SOUTHWALL BE LIABLE FOR LOSS OF PROFITS,
LABOR TO REPLACE GLASS CONTAINING XIR® OR REMANUFACTURE OF GLASS CONTAINING
XIR®, LOSS OF USE, INTERRUPTION OF BUSINESS OR OTHER CONSEQUENTIAL OR SPECIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF XIR® OR FOR BREACH OF
ANY PROVISIONS OF THIS AGREEMENT, WHETHER ALLEGED AS BREACH OF CONTRACT OR
TORTIOUS CONDUCT.


 


 


Xinyi XIR®
Exhibits


 


 


13























 


[LOGO]


 


XIR®-75 Product
Specification


 


1.0          OPTICAL PERFORMANCE


 


 


	
  PARAMETER

  	
   

  	
  REQUIREMENT

  XIR®-75 BLUE

  	
   

  	
  TEST

  METHOD

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Transmission (Tvis) Ill A, 2 deg

  	
   

  	
  76.0% </= Tvis
  </= 79.5%

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Transmission (Tsol)

  	
   

  	
  Tsol </= 52.5%

  	
   

  	
  ASTM E 424

  (Perry-Moon)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Reflection, metallized side

  (Rvis) Ill A, degrees

  	
   

  	
  Rvis </= 11.5%

  	
   

  	
  IS0 9050

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Reflection, metallized side (Rsol)

  	
   

  	
  Rsol >/= 23.0%

  	
   

  	
  ASTM E 424

  (Perry Moon)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reflection Color (metallized side)

  R a* (Ill D65, 10 degrees)

  R b*

  	
   

  	
  -6.0 </= R a* </=
  -2.0

  -6.3 </= R b* </= -2.3

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Substrate Shrink: (coated film only)

  	
   

  	
  50 micron

  	
   

  	
  DIN 55543 as

  
	
  Machine Direction (MD)

  	
   

  	
  0.30% </= average </= 0.45%

  	
   

  	
  modified by STI

  
	
  Cross Machine Direction (TD or CMD)

  	
   

  	
  Individual: 0.25 - 0.55%

  	
   

  	
  and performed

  
	
   

  	
   

  	
   

  	
   

  	
  at Southwall

  
	
   

  	
   

  	
   

  	
   

  	
  Technologies Inc.

  
	
   

  	
   

  	
  25 micron

  	
   

  	
   

  
	
   

  	
   

  	
  To be defined after further trials.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Note: The Optical Performance is measured in a standard glass laminate,
composed of the following:


2.1mm clear float
glass

0.38mm PVB

XIR-75 Film

0.38mm PVB

2.1mm clear float glass


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 

















 


[LOGO]


 


	
  XIR®-75 Product Specification

  	
   

  	
  Page 2 of 4

  



 


 


	
  PARAMETER

  	
   

  	
  REQUIREMENT

  XIR®-75 GREEN

  	
   

  	
  TEST

  METHOD

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Transmission (Tvis) Ill A, 2 deg

  	
   

  	
  75.5% </= Tvis
  </= 79.5%

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Transmission (Tsol)

  	
   

  	
  Tsol </= 52.5%

  	
   

  	
  ASTM E 424

  (Perry-Moon)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Reflection, metallized side

  (Rvis) Ill A, 2 degrees

  	
   

  	
  Rvis </= 12.0%

  	
   

  	
  IS0 9050

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Reflection, metallized side (Rsol)

  	
   

  	
  Rsol >/= 23.0%

  	
   

  	
  ASTM E 424

  (Perry Moon)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reflection Color (metallized side)

  R a* (Ill D65, 10 degrees)

  R b*

  	
   

  	
  -9.5 </= R a* </=
  -3.5

  -4.5 </= R b* </= -0.5

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Substrate Shrink:

  	
   

  	
  50 micron

  	
   

  	
  DIN 55543 as

  
	
  Machine Direction (MD)

  	
   

  	
  Averages:

  	
   

  	
  modified by STI

  
	
  Cross Machine Direction (TD or CMD)

  	
   

  	
  0.25% - 45% (MD)

  	
   

  	
   

  
	
   

  	
   

  	
  0.25% - 45% (TD)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Note: The Optical Performance is measured in a standard glass laminate,
composed of the following:


2.1mm clear float
glass

0.38mm PVB

XIR-75 Film

0.38mm PVB

2.1mm clear float glass


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 


 

















 


[LOGO]


 


	
  XIR®-75 Product Specification

  	
   

  	
  Page 3 of 4

  



 


 


2.0          PHYSICAL DEFECTS


 


2.1                                 Any physical defects which, in the
judgment of the Material Review Board (MRB) or its designee, reduces the
performance of the XIR product in an unacceptable way or causes a cosmetic flaw
that would not be acceptable to an end user is rejectable.


 


3.0          ROLL CONFIGURATION


 


                Follow the
instructions listed in CRS0088 unless otherwise noted in the
purchase order.


 


3.1                                 Length: as specified on PO.


 


3.2                                 Width: as specified on PO.


 


3.3                                 Core.


 


3.3.1                        Material: ABS, Sonoco D, G or equivalent
cores, sealed end.


 


3.3.2                        Inside diameter: 6.03” nominal.


 


3.3.3                        Length: Product width 1.8M or 2.0 M.


 


3.3.5                        Telescoping: Not to exceed 0.125 in.


 


4.3.6                        Wrap Orientation: For substrates. 2mil,
the coated side will be out.


 


4.0          PACKAGING/SHIPPING


 


4.1                                 Products of standard length and width
will be packaged in conformance with standard commercial practices to ensure
protection during shipping.


 


4.2                                 A roll map of each finished roll, showing
the location of all splices, is to be sent with the roll. Also, a data
certificate listing optical performance against the technical specification is
to be sent with each roll.


 


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 

















 


 


 


[LOGO]


 


	
  XIR®-75 Product Specification

  	
   

  	
  Page 4 of 4

  



 


5.0          PART NUMBER


 


                901-0300 XIR-75
GREEN AUTO 72” (1.8M)


 


                901-0302 XIR-75
GREEN AUTO 79” (2.0M)


 


                900-0014 XIR-75
BLUE AUTO 72” (1.8M)


 


                900-0013 XIR-75
BLUE AUTO 79” (2.0M)


 


5.1                                 SUBSTRATE: The qualified substrates are
clear, optical grade, biaxially orient Polyethylene Terephthalate (PET) polyester.


 


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 

















 


 


[LOGO]


 


XIR®-70 Product
Specification


 


1.0          OPTICAL PERFORMANCE


 


 


	
  PARAMETER

  	
   

  	
  REQUIREMENT

  XIR®-70

  	
   

  	
  TEST

  METHOD

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Transmission (Tvis) Ill A, 2 deg

  	
   

  	
  71.0% </= Tvis
  </= 75.0%

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Transmission (Tsol)

  	
   

  	
  Tsol </= 46.0%

  	
   

  	
  ASTM E 424

  (Perry-Moon)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Reflection, metallized side

  (Rvis) Ill A, degrees

  	
   

  	
  Rvis </= 9.5%

  	
   

  	
  IS0 9050

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Reflection, metallized side (Rsol)

  	
   

  	
  Rsol >/= 22.0%

  	
   

  	
  ASTM E 424

  (Perry Moon)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reflection Color (metallized side)

  R a* (Ill D65, 10 degrees)

  R b*

  	
   

  	
  -4.7 </= R a* </=
  -0.7

  -2.0 </= R b* </= +2.0

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Substrate Shrink: (coated film only)

  	
   

  	
  50 micron

  	
   

  	
  DIN 55543 as

  
	
  Machine Direction (MD)

  	
   

  	
  0.30% </= average </= 0.45%

  	
   

  	
  modified by STI

  
	
  Cross Machine Direction (TD or CMD)

  	
   

  	
  0.30% </= average </= 0.45%

  	
   

  	
  and performed

  
	
   

  	
   

  	
   

  	
   

  	
  at Southwall

  
	
   

  	
   

  	
  Individual: 0.25 - 0.55%

  	
   

  	
  Technologies Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  25 micron

  	
   

  	
   

  
	
   

  	
   

  	
  To be defined.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Note: The Optical Performance is measured in a standard glass laminate,
composed of the following:


2.1mm clear float
glass

0.38mm PVB

XIR-75 Film

0.38mm PVB

2.1mm clear float glass


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 


 

















 


[LOGO]


 


	
  XIR®-70 Product Specification

  	
   

  	
  Page 2 of 3

  



 


 


2.0          PHYSICAL DEFECTS


 


2.1                                 Any physical defects which, in the
judgment of the Material Review Board (MRB) or its designee, reduces the
performance of the XIR product in an unacceptable way or causes a cosmetic flaw
that would not be acceptable to an end user is rejectable.


 


3.0          ROLL CONFIGURATION


 


                Follow the
instructions listed ill CRS0088
unless otherwise noted in the purchase order.


 


3.1                                 Length: as specified on PO.


 


3.2                                 Width: as specified on PO.


 


3.3                                 Core.


 


3.3.1                        Material: ABS, Sonoco D, G or equivalent
cores, sealed end.


 


3.3.2                        Inside diameter: 6.03” nominal.


 


3.3.3                        Length: Product width 1.8M or 2.0M.


 


3.3.5                        Telescoping: Not to exceed 0.125 in.


 


4.3.6                        Wrap Orientation: For substrates. 2mil,
the coated side will be out.


 


4.0          PACKAGING/SHIPPING


 


4.1                                 Products of standard length and width
will be packaged in conformance with standard commercial practices to ensure
protection during shipping.


 


4.2                                 A roll map of each finished roll, showing
the location of all splices, is to be sent with the roll. Also, a data
certificate listing optical performance against the technical specification is
to be sent with each roll.


 


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 

















 


[LOGO]


 


	
  XIR®-70 Product Specification

  	
   

  	
  Page 3 of 3

  



 


 


5.0          PART NUMBER


 


                901-1087 XIR-70
AUTO 2 mil (50 micron) (1.8M)


 


                901-2101 XIR-70
AUTO 1 mil (25 micron) (1.8M)


 


                900-0302 XIR-70
AUTO 2 mil (50 micron) (2.0M)


 


                900-0284 XIR-70
AUTO 1 mil (25 micron) (2.0M)


 


5.1                                 SUBSTRATE: The qualified substrates are
clear, optical grade, biaxially orient Polyethylene Terephthalate (PET)
polyester.


 


 


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 


 

















 


[LOGO]


 


XIR®-70HP Product
Specification


 


1.0          OPTICAL PERFORMANCE


 


 


	
  PARAMETER

  	
   

  	
  REQUIREMENT

  XIR®-70HP

  	
   

  	
  TEST

  METHOD

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Transmission (Tvis) Ill A, 2 deg

  	
   

  	
  71.0% </= Tvis
  </= 75.0%

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Transmission (Tsol)

  	
   

  	
  Tsol </= 39.0%

  	
   

  	
  ASTM E 424

  (Perry-Moon)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Reflection, metallized side

  (Rvis) Ill A, degrees

  	
   

  	
  Rvis </= 10.0%

  	
   

  	
  IS0 9050

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Reflection, metallized side (Rsol)

  	
   

  	
  Rsol >/= 30.0%

  	
   

  	
  ASTM E 424

  (Perry Moon)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reflection Color (metallized side)

  R a* (Ill D65, 10 degrees)

  R b*

  	
   

  	
  -5.0 </= R a* </=
  -1.0

  -2.0 </= R b* </= +2.0

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Substrate Shrink: (coated film only)

  	
   

  	
  50 micron

  	
   

  	
  DIN 55543 as

  
	
  Machine Direction (MD)

  	
   

  	
  0.30% </= average </= 0.45%

  	
   

  	
  modified by STI

  
	
  Cross Machine Direction (TD or CMD)

  	
   

  	
  0.30% </= average </= 0.45%

  	
   

  	
  and performed

  
	
   

  	
   

  	
   

  	
   

  	
  at Southwall

  
	
   

  	
   

  	
  Individual: 0.25 - 0.55%

  	
   

  	
  Technologies Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  25 micron

  	
   

  	
   

  
	
   

  	
   

  	
  To be defined.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Note: The Optical Performance is measured in a standard glass laminate,
composed of the following:


2.1mm clear float
glass

0.38mm PVB

XIR-75 Film

0.38mm PVB

2.1mm clear float glass


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 


 

















 


[LOGO]


 


	
  XIR®-70HP Product Specification

  	
   

  	
  Page 2 of 3

  



 


 


2.0          PHYSICAL DEFECTS


 


2.1                                 Any physical defects which, in the
judgment of the Material Review Board (MRB) or its designee, reduces the
performance of the XIR product in an unacceptable way or causes a cosmetic flaw
that would not be acceptable to an end user is rejectable.


 


3.0          ROLL CONFIGURATION


 


                Follow the
instructions listed in CRS0088
unless otherwise noted in the purchase order.


 


3.1                                 Length: as specified on PO.


 


3.2                                 Width: as specified on PO.


 


3.3                                 Core.


 


3.3.1                        Material: ABS, Sonoco D, G or equivalent
cores, sealed end.


 


3.3.2                        Inside diameter 6.03” nominal.


 


3.3.3                        Length: Product width 1.8M or 2.0M.


 


3.3.5                        Telescoping: Not to exceed 0.125 in.


 


4.3.6                        Wrap Orientation: For substrates. 2mil,
the coated side will be out.


 


4.0          PACKAGING/SHIPPING


 


4.1                                 Products of standard length and width
will be packaged in conformance with standard commercial practices to ensure
protection during shipping.


 


4.2                                 A roll map of each finished roll, showing
the location of all splices, is to be sent with the roll. Also, a data
certificate listing optical performance against the technical specification is
to be sent with each roll.


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 


 

















 


[LOGO]


 


	
  XIR®-70HP Product Specification

  	
   

  	
  Page 3 of 3

  



 


 


5.0          PART NUMBER


 


                900-0273 XIR-70 HP
AUTO 2 mil (50 micron) (1.8M)


 


                901-0276 XIR-70 HP
AUTO 2 mil (50 micron) (2.0M)


 


                901-0300 XIR-70 HP AUTO 1 mil (25 micron) (1.8M)


 


                900-0301 XIR-70
AUTO 1 mil (25 micron) (2.0M)


 


5.1                                 SUBSTRATE: The qualified substrates are
clear, optical grade, biaxially orient Polyethylene Terephthalate (PET) polyester.


 


 


	
  Southwall
  Technologies Inc. Headquarters

  	
   

  	
  Southwall
  Technologies Inc. Dresden, Germany Office

  
	
  1029 Corporation Way Palo Alto, CA 94303

  	
   

  	
  Southwallstrasse 1D-01900 Grossroehrsdorf

  
	
  Phone (650) 962-9111 • Fax (650) 967-0182

  	
   

  	
  Phone 49 (0) 35952 44 0 • Fax 49 (0) 35952 44 321

  



 


XIR® is a registered
trademark of Southwall Technologies Inc.


 

















 


 


	
   

  	
   

  	
  72-47 laminated film

  



 


Product Specification
XIR-72-47 Laminated


 


1.0          OPTICAL PERFORMANCE


 


	
  Visible Tranmission (Tvis)

  	
   

  	
  >/= 72%

  	
   

  	
  ASTM E 891

  (ILL C, 2 degrees)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Transmission (Tsol)

  	
   

  	
  </= 37%

  	
   

  	
  ASTM E 891

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Reflection (Rvis)

  	
   

  	
  </= 9.5%

  	
   

  	
  ASTM E 891

  (ILL C, 2 degrees)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Reflection (Rsol)

  	
   

  	
  >/= 24%

  	
   

  	
  ASTM E 891

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ra* (ILL D65, 10 degrees)

  	
   

  	
  -2.7+/- 2.0

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rb* (ILL D65, 10 degrees)

  	
   

  	
  0.0+/- 2.0

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shading Coefficient

  	
   

  	
  0.56

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Heat Gain Coefficient 

  (Solar Factor)

  	
   

  	
  0.47

  	
   

  	
   

  



 


 


2.0          PHYSICAL DEFECTS


 


Any physical defects, which in the judgment of the Material Review
Board (MRB) or its designee, reduces the performance of the XIR product in an
unacceptable way or causes a cosmetic flaw that would not be acceptable to an
end user is rejectable.


 


 


[LOGO]


 


US: 800.365.8794 • US Int’l 650 962.9111 • Belgium +32 67649 955 •
Germany +49 35952 440 • 3977 Bayshore Road, Palo Alto, CA 94303


 

















 


 


 


	
   

  	
   

  	
  72-41 laminated film

  



 


Product Specification
XIR-72-41 Laminated


 


1.0          OPTICAL PERFORMANCE


 


	
  Visible Tranmission (Tvis)

  	
   

  	
  >/= 72%

  	
   

  	
  ASTM E 891

  (ILL C, 2 degrees)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Transmission (Tsol)

  	
   

  	
  </= 37%

  	
   

  	
  ASTM E 891

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Visible Reflection (Rvis)

  	
   

  	
  </= 9.5%

  	
   

  	
  ASTM E 891

  (ILL C, 2 degrees)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Reflection (Rsol)

  	
   

  	
  >/= 24%

  	
   

  	
  ASTM E 891

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ra* (ILL D65, 10 degrees)

  	
   

  	
  -2.7+/- 2.0

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rb* (ILL D65, 10 degrees)

  	
   

  	
  0.0+/- 2.0

  	
   

  	
  ASTM E 308

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shading Coefficient

  	
   

  	
  0.56

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Solar Heat Gain Coefficient (Solar Factor)

  	
   

  	
  0.41

  	
   

  	
   

  



 


 


2.0          PHYSICAL DEFECTS


 


Any physical defects, which in the judgment of the Material Review
Board (MRB) or its designee, reduces the performance of the XIR product in an
unacceptable way or causes a cosmetic flaw that would not be acceptable to an
end user is rejectable.


 


 


[LOGO]


 


US: 800.365.8794 • US Int’l 650 962.9111 • Belgium +32 67649 955 •
Germany +49 35952 440 • 3977 Bayshore Road, Palo Alto, CA 94303


 

















 


	
   

  	
   

  	
  72-41 laminated film

  



 


Product Specification
XIR-72-41 Laminated


 


 


3.0          ROLL CONFIGURATION


 


Unless otherwise specified in the Customer Requirement Specification
(CRS) or otherwise noted in the purchase order (PO).


 


3.1                                 Length: as specified on PO


 


3.2                                 Width: as specified on PO


 


3.3                                 Core:


 


3.3.1                        Material: ABS or Sonocco D, G or equivalent cores, sealed end.


 


3.3.2                        Inside diameter: 6.03” nominal


 


3.3.3                        Length: Product width +4cm (+1.5”)


 


3.4                                 Splices: Allowed per CRS.


 


3.5                                 Telescoping: Not to exceed 3mm (0.125”)


 


3.6                                 Wrap Orientation: For substrates 2 mil the coated side
will be out.


 


4.0          PACKAGING/SHIPPING


 


4.1                                 Products of standard length and width
will be packaged in conformance with standard commercial practices to ensure
protection during shipping.


 


4.2                                 Product is shipped as specified in the
CRS or as otherwise noted in PO.


 


4.3                                 A roll map of each finished roll, showing
the location of all splices, is to be supplied with the roll. Also, a data
certificate listing optical performance against the technical specification is
to be sent with each roll.


 


5.0          PART NUMBER


 


                900-0274 XIR
Laminated 72-41, 1.8m (72”)


 


                900-0275 XIR
Laminated 72-41, 2.0m (79”)


 


* Specification subject to change without notice


 


[LOGO]


 


US: 800.365.8794 • US Int’l 650 962.9111 • Belgium +32 67649 955 • Germany
+49 35952 440 • 3977 Bayshore Road, Palo Alto, CA 94303


 


 

















 


	
   

  	
   

  	
  72-47 laminated film

  



 


Product Specification
XIR-72-47 Laminated


 


 


3.0          ROLL CONFIGURATION


 


Unless otherwise specified in the Customer Requirement Specification
(CRS) or otherwise noted in the purchase order (PO).


 


3.1                                 Length: as specified on PO


 


3.2                                 Width: as specified on PO


 


3.3                                 Core:


 


3.3.1                        Material: ABS or Sonocco D, G or equivalent cores, sealed end.


 


3.3.2                        Inside diameter: 6.03” nominal


 


3.3.3                        Length: Product width +4cm (+1.5”)


 


3.4                                 Splices: Allowed per CRS.


 


3.5                                 Telescoping: Not to exceed 3mm (0.125”)


 


3.6                                 Wrap Orientation: For substrates 2 mil the coated side
will be out.


 


4.0          PACKAGING/SHIPPING


 


4.1                                 Products of standard length and width
will be packaged in conformance with standard commercial practices to ensure
protection during shipping.


 


4.2                                 Product is shipped as specified in the
CRS or as otherwise noted in PO.


 


4.3                                 A roll map of each finished roll, showing
the location of all splices, is to be supplied with the roll. Also, a data
certificate listing optical performance against the technical specification is
to be sent with each roll.


 


5.0          PART NUMBER


 


                900-0187 XIR
Laminated 72-47, 1.8m (72”)


 


                900-0304 XIR
Laminated 72-47, 2.0m (79”)


 


* Specification subject to change without notice


 


[LOGO]


 


US: 800.365.8794 • US Int’l 650 962.9111 • Belgium +32 67649 955 •
Germany +49 35952 440 • 3977 Bayshore Road, Palo Alto, CA 94303


 


 

















 


	
  Southwall
  Technologies

  	
   

  	
  XIR®
  Laminated Film

  
	
  Exhibit
  10

  	
   

  	
  Force Majeure Exclusion

  



 


 


Force Majeure Exclusion


 


Grounds of relief from liability:


 


1.                                       A party is not liable for a failure to
perform any of his obligation in so far as he proves:


 


a.                                       that the failure was due to an impediment
beyond his control; and


 


b.                                      that be could not reasonably be expected
to have taken the impediment and its effects upon his ability to perform into
account at the time of the conclusion of the contract; and


 


c.                                       that he could not reasonably have avoided
or overcome it or at least its effects.


 


2.                                       An impediment within paragraph (1) above,
may result from events such as the following, this enumeration not being
exhaustive:


 


a.                                       war, whether declared or not, civil war,
riots and revolutions, acts of piracy, acts of sabotage;


 


b.                                      natural disasters such as violent storms,
cyclones, earthquakes, tidal waves, floods, destruction by lightning;


 


c.                                       explosions, fires, destruction of
machines, of factories and of any kind of installations;


 


d.                                      boycotts, strikes and lock-outs of all
kinds, go-slows, occupation of factories and premises, and work stoppages which
occur in the enterprise of the party seeking relief;


 


e.                                       acts of authority, whether lawful or
unlawful, apart from acts for which the party seeking relief has assumed the
risk by virtue of other provisions of the contract; and apart from the matters
mentioned in paragraph 3 below.


 


3.                                       For the purposes of paragraph (1) above,
and unless otherwise provided in the contract, impediment does not include lack
of authorizations, of licenses, of entry or residence permits, or of approvals
necessary for the performance of the contract and to be issued by a public
authority of any kind whatsoever in the country of the party seeking relief.


 


Xinyi XIR® Exhibits


 


 


19

















 


	
  Southwall
  Technologies

  	
   

  	
  XIR® Laminated
  Film

  
	
  Exhibit
  10

  	
   

  	
  Force Majeure Exclusion (page 2)

  



 


 


Duty to notify


 


4.                                       A party seeking relief shall as soon as
practicable after the impediment and its effects upon his ability to perform
became known to him give notice to the other party of such impediment and its
effect on his ability to perform. Notice shall also be given when the ground of
relief ceases.


 


5.                                       The ground of relief takes effect from
the time of the impediment or, if notice is not timely given from the time of
notice. Failure to give notice makes the failing party liable in damages for
loss which otherwise could have been avoided.


 


Effects of grounds of relief


 


6.                                       A ground of relief under this clause
relieves the failing party from damages, penalties and other contractual
sanctions, except from duty to pay interest on money owing as long as and to the extent that the
ground subsists.


 


7.                                       Further it postpones the time for
performance, for such period as may be reasonable, thereby excluding the other
party’s right, if any, to terminate or rescind the contract. In determining
what is a reasonable period, regard shall be had for the failing party’s
ability to resume performance, and the other party’s interest in receiving
performance despite the delay. Pending resumption of performance by the failing
party, the other party may suspend his own performance.


 


8.                                       If the grounds of relief subsist for more
than such period as the parties provide, (the applicable period to be specified
here by the parties), or in the absence of such provision for longer than a
reasonable period, either party shall be entitled to terminate the contract
with notice.


 


9.                                       Each party may retain what he has
received from the performance of the contract prior to the termination. Each
party must account to the other for any unjust enrichment resulting from such
performance. The payment of the final balance shall be made without delay.


 


Xinyi XIR® Exhibits


 


 


20

















 


 


	
  Southwall
  Technologles

  	
   

  	
  XIR®
  Laminated Film

  
	
  Exhibit
  11

  	
   

  	
  Banking Information

  



 


 


BANK
WIRE TRANSFER INSTRUCTIONS


 


for


 


Southwall
Technologies Inc.


 


CUPERTINO NATIONAL BANK


3945 Freedom Circle


Suite 1000


Santa Clara, CA 95054


 


ABA Routing # 121141152


 


For the Account of:


 


                Southwall
Technologies Inc.


                Acct
# 003-109453


                Attn: Mr. Robert
Freeman


                Ref. Invoice #


 


 


Xinyi XIR® Exhibits


 


 


21

















 


 


	
  Southwall
  Technologies

  	
   

  	
  XIR® Proprietary

  
	
  Exhibit
  12

  	
   

  	
  Notice and Disclaimer

  



 


 


Proprietary Notice and Disclaimer –
“Lamination Guidelines”


 


The laminated glass production information (“Know-how”) described in
the “Lamination Guidelines’’ concerns the manufacture of solar control
laminated glass units containing XIR® transparent solar reflective film. The
Guidelines include designs, material specifications, equipment specifications,
manufacturing methods, test methods, test results, application guides,
performance data, marketing data and other information. The recipient of this
information will give this Know-how the same security and protection given to
the recipients’ own proprietary information.


 


The Guidelines are based upon both SOUTHWALL experience in laminating
glass and knowledge gained from others which together comprise SOUTHWALL’s view
of the manufacturing and quality standards required for acceptable production
of laminated solar control glass units incorporating XlR® transparent solar
reflective film. It is SOUTHWALL’s belief that this information represents
industry best practices. SOUTHWALL has not independently researched or verified
the accuracy of information gained from others and makes no representations
concerning the reliability, durability, fitness, and/or effectiveness of a
particular product resulting from manufacturing processes that incorporate any
of the information described herein. It is the manufacturer’s responsibility to
determine if any or all such information can be used in its processes to
fabricate laminated solar control glass meeting all of its product
requirements. SOUTHWALL does not represent that laminated glass units made
following these guidelines are fit for any specific purpose, or specific
application.


 


SOUTHWALL does not warrant the results obtained from the use of all or
any portion of the Guidelines by the manufacturer, and hereby disclaims any
liability for personal injury, property damage or product insufficiency arising
from the manufacturer’s use of the information contained in the Guidelines.
XINYI agrees that it will hold SOUTHWALL completely harmless in the event that
units made following the Guidelines exhibit failures or deficiencies.


 


 


 


Xinyi XIR® Exhibits


 


 


22

















 


 


	
  Southwall Technologies

  	
   

  	
  Existing
  Agreements

  
	
  Exhibit 13

  	
   

  	
   

  



 


 


Southwall has existing worldwide, non-exclusive XIR® Laminated Glass Unit
manufacturing Agreements for Automotive Applications with the following
companies :


 


                Saint Gobain Sekurit – Contract until
12/2003. Contract will be automatically extended by two years if both parties
fulfill their respective obligations within the Agreement.


 


                Pilkington PLC – Contract until
4/2004. Contract can be extended by two years upon mutual written consent,
which consent shall not be unreasonably withheld if both parties have properly
complied with their obligations under the Agreement.


 


                Splintex
/ Glaverbel S.A. – 2005


 


 


Xinyi XIR® Exhibits


 


 


23