(i) “Territory” means the Territory specified in Schedule 1.          (j) “User Documentation” means end user documentation for the Products provided byEvergreen to Purchaser for distribution to end users with the Products.      **2. SCOPE**     This Agreement is intended by the Parties to serve as the operating requirements, terms andconditions regarding their respective business relationship. This Agreement and the terms andconditions set out in this Agreement shall prevail over the terms and conditions of any PurchaseOrder, acknowledgment form, general terms and conditions or other instrument (collectively, the“Other Instrument”) of either Party even if such Other Instrument purport to supersedethese terms unless such Other Instrument is agreed by both Parties and expressly references thisSection 2. Any other terms in Other Instruments in connection with orders or acknowledgements arehereby deemed to be material alterations and notice of objection to and rejection of them is herebygiven.      **3. ANNUAL AND QUARTERLY COMMITMENTS**          (a) **Annual Commitments**. Evergreen agrees to sell to Purchaser, and Purchaser agrees to buyProducts, in each case, on an annual, firm commitment basis, the aggregate quantities for thespecified years set forth on Schedule 1 (for each applicable year, the “AnnualCommitment”). Nothing in Section 3(b) (Quarterly Commitments) or Section 3(c)(Product TypeAllocation) shall require Evergreen to sell or Purchaser to purchase more than, or allow Purchaserto purchase or Evergreen to sell less than, the Annual Commitment. All quantities set out inAnnual Commitment refer to Products shipped by Evergreen in accordance with Section 6(a) throughthe respective year.          (b) **Quarterly Commitments.**No later than [****] of each calendar year, Purchaser shallprovide Evergreen with a binding forecast of the quantities of total Product and correspondingquantities of each Product type that Purchaser wishes to purchase in each respective Quarter ofsuch upcoming year (the “Quarterly Commitments”), which quarterly quantities shall bebetween twenty percent (20%) and thirty percent (30%) of the applicable Annual Commitment andshall, in the aggregate, equal Purchaser’s applicable Annual Commitment. NotwithstandingPurchaser’s forecast, Evergreen shall only be obligated to provide for shipment (i) in each Quarterfor Products of quantities between a minimum of twenty percent (20%) and up to a maximum of thirtypercent (30%) of the applicable Annual Commitment or (ii) on an annual calendar year basis, theapplicable Annual Commitment. Evergreen shall notify Purchaser within [****] business days ofreceipt of Purchaser’s forecast if Evergreen does not accept Purchaser’s forecast for the fullamount specified by Purchaser for each applicable Quarter in Purchaser’s forecast. [****]          (c) **Additional Orders**. If Purchaser wishes to order any quantities exceeding the AnnualCommitment, the Parties agree to enter into good faith negotiation on the delivery of suchquantities to the degree that Product is available and pricing can be negotiated.      **4. PURCHASE ORDERS**          (a) **In General.**Purchaser shall place Purchase Orders for and buy Products in
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accordance with the terms and conditions of this Agreement. Purchaser shall place PurchaseOrders at least four (4) months in advance of the respective requested shipment date. If Purchaserdoes not issue Purchase Orders for a Quarter which in the aggregate match the respective QuarterlyCommitments, Evergreen may issue Order Confirmations to the customer and ship the respectiveforecasted Quarterly Commitments for the respective Quarter, referencing this contract and theagreed Quarterly and Annual Commitments.          (b) **Placement of Orders and Acceptance.**Purchase Orders may be sent by telefax or otherelectronic media approved by Evergreen and shall specify Product type, quantity, destination, andrequested shipment date. Evergreen must accept such Purchase Orders by written notice or e-mailtransmission delivered to Purchaser within [****] business days following Evergreen’s receipt ofsuch Purchase Order. Unless Evergreen rejects any Purchase Order within [****] business days bywritten notice or e-mail transmission following Evergreen’s receipt of such Purchase Order, thePurchase Order is deemed to be accepted by Evergreen. Evergreen will specify the reason it rejectsany Purchase Order. In the case of rejections based on a requested shipment date which cannot besatisfied by Evergreen, the parties will work together to resolve the basis for Evergreen’srejection and Evergreen agrees that any unshipped portion of the applicable Quarterly Commitmentcovered by a Purchase Order provided to Evergreen will be shipped no later than the last day of theapplicable Quarter if the only cause for rejection of such Purchase Order was the requestedshipping date.          (c) **Shipment Date and Rescheduling.**Purchaser may reschedule for later shipment any PurchaseOrder; provided, however, that Purchaser shall not violate the other requirements of this Agreementincluding Section 3 (Annual and Quarterly Commitments) and that it is at least [****] working daysbefore the estimated ship date. For the avoidance of doubt, Purchaser shall not reschedulePurchase Orders such that Purchaser would request shipment in the respective Quarter of less thanthe Quarterly Commitments or otherwise violate the terms of this Agreement.          (d) **Placement of Orders by Affiliates.**Evergreen shall accept Purchase Orders meeting therequirements of this Agreement from third parties that are Affiliates of Purchaser’s, provided thatPurchaser has confirmed in writing that such third parties are Affiliates. Such Purchase Ordersshall be deemed to have been made by Purchaser under this Agreement. Purchaser shall beresponsible for the compliance with the terms and conditions of this Agreement, including payment,with respect to any such Purchase Order placed by its Affiliates, and shall indemnify and holdEvergreen harmless for any claims (i) against Evergreen by such Affiliates, except for claims tothe extent they result from Evergreen’s breach of this Agreement or the respective Purchase Orderor Evergreen’s conduct outside the scope of this Agreement, or (ii) arising from any breach of thisAgreement or the respective Purchase Order by Purchaser’s Affiliate. Notwithstanding theforegoing, in the event that Purchaser represents that an entity is an Affiliate of Purchaser fromwhich orders are to be accepted hereunder and has not revoked the authority to accept orders fromsuch Affiliate or informed Evergreen that such party is no longer an Affiliate, Evergreen shallhave the right to treat such orders as Purchase Orders by an Affiliate of Purchaser under thisSection 4(d) (Placement of Orders by Affiliates) notwithstanding such entity’s failure to actuallyqualify as an Affiliate as defined herein.
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      **5. PROVISION OF DATA**          (a) **End User Statistics and Performance Data**. Purchaser shall provide Evergreen withquarterly reports detailing location and channel in which the Products are sold and installed, butonly to the extent such information is known by Purchaser, easily transmittable to Evergreenwithout undue expense to Purchaser and may be provided by Purchaser to Evergreen without breach ofany applicable law. Subject to the foregoing provision, such reports shall be in a format andinclude information reasonably requested by Evergreen including without limitation locationinformation to the postal code level of the respective sales and installations. In addition, uponEvergreen’s reasonable request, Purchaser shall provide semi-annual performance monitoring data forall Purchaser’s installations for which monitoring data is available and easily transmittable toEvergreen without undue expense to Purchaser and provided that Purchaser has the right to sharesuch data. Any such data may only be used by Evergreen for general market research and technicalmonitoring purposes [****] All such data shall be considered Confidential Information within themeaning of Section 12(a).          (b) **Flash Test Data.**Evergreen shall provide Purchaser with Flash Test Data for the Productsin each shipment within three (3) days of shipment.     **6. SHIPMENT, TITLE AND RISK OF LOSS**          (a) **Shipment.**Except as otherwise may be agreed by Evergreen and Purchaser in writing,Evergreen will make the Products available for shipment under accepted Purchase Orders [****].Evergreen shall use commercially reasonable efforts to make the Products available for shipment inaccordance with the estimated shipment date provided in Evergreen’s acknowledgement.          (b) **Packaging.**All Products shall be prepared for shipment in a manner that followscommercially reasonable practices and is reasonably adequate to ensure safe arrival.          (c) **Title, Risk of Loss, Security Interest.**Title to the Products passes to Purchaser whengoods pass the ships rail and are on board the vessel at Evergreen’s shipping port, from whichpoint Purchaser is responsible for all risk of loss or damage, save that covered by the requiredshipping insurance paid for by Evergreen.     **7. PRODUCT CHANGES**     Evergreen shall have the right to make any changes to the Products that do not affect theform, fit or function of the Products without notice. In the event that proposed changes to theSpecifications that will affect the form, fit or function of the Products, Evergreen will informPurchaser at least ninety (90) days in advance prior to implementing such changes. Evergreen shallnot incur any liability thereby or any obligation to provide such changes or improvements onProducts purchased by Purchaser before such changes or improvements are implemented into theProducts. If such changes cause Purchaser (or its Affiliates) to cancel or modify Purchase Ordersbecause Purchaser’s (or Affiliates’) end users refuse to accept the Products as modified, thenPurchaser (or its Affiliates) will not incur any liability as a result of such change orcancellation in
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any Purchase Order and the Quarterly requirements represented by such changes orcancellations, as the case may be. [****]     **8. PRICES AND PAYMENT**          (a) **Product Prices.**Prices for the Products shall be as set forth in Schedule 1.Unless otherwise specified in Schedule 1, invoices for Products will be issued uponshipment.          (b) **Taxes.**Purchaser shall bear all sales taxes, including value added taxes, and any taxesand other duties in accordance with [****], unless Purchaser provides Evergreen with a validcertificate of exemption.          (c) **Payment.**Terms of payment are net [****] days from the date of shipment for all shipmentsin the first Quarter of any year during the term of this Agreement and [****] from the date ofshipment for all shipments in the other Quarters of any year during the term of this Agreement.All payments are non-refundable, except as set out in this Agreement and shall be made in Euros bywire transfer to an account designated by Evergreen to Purchaser. Evergreen reserves the right towithhold shipment or request advance payment or letter of credit arrangements in the eventPurchaser is delinquent in making payments. Late payments shall bear interest at the rate ofeighteen percent (18%) per year from the date due, accruing daily, or the highest rate permitted byapplicable law, whichever is less.     **9. TERRITORY**     Purchaser shall distribute the Products purchased from Evergreen hereunder solely in theTerritory. Purchaser shall not market, sell, or distribute the Products outside of the Territoryor to customers or end users outside the Territory, directly or indirectly, without the priorwritten approval of Evergreen.     **10. TERM AND TERMINATION;**[****]          (a) **Term.**This Agreement shall commence on the Effective Date and shall terminate on theTermination Date. The term of this Agreement shall be extended for additional periods of one (1)year if the Parties agree to minimum quantities and prices applicable to such years and the Partiesexecute a signed, written amendment of Schedule 1, which includes the quantities and pricesapplicable to such extended term. A copy of any such amended schedule shall be attached to thisAgreement. The Parties shall discuss whether such extensions are mutually agreeable starting ayear prior to the Termination Date.          (b) **Termination for Cause.**A Party (“Terminating Party”) may terminate this Agreement withimmediate effect by notice to the other Party (“Breaching Party”) on or at any time after theoccurrence of any Termination Event. “Termination Events” shall be defined as               (i) The Breaching Party passing a resolution for its winding up or dissolution or a court ofcompetent jurisdiction making an order for the Breaching Party’s dissolution;
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               (ii) The opening of insolvency proceedings against the assets of the Breaching Party or therefusal of the opening of insolvency proceedings due to a lack of assets or the appointment of anofficial receiver by a court or the taking possession or realisation of all or of a part of theBreaching Party’s assets by a creditor or by an official receiver appointed by a court or by asequestrator, or the implementation of measures of compulsory enforcement, irrespective of theirnature, provided that no such proceeding shall be a Termination Event if the proceeding has beendismissed before the Breaching Party received the notice of termination or if the proceeding hasbeen dismissed or if, within [****] days after the appointment without the consent or acquiescenceof the potentially Breaching Party reaching a settlement with of any trustee, receiver orliquidator of the potentially Breaching Party or of all its creditors; or;               (iii) The Breaching Party reaching a settlement with all its creditors other than for thepurpose of refinancing the Breaching Party in the ordinary course of business;               (iv) A material breach by the Breaching Party of its obligations under this Agreement, unlessthe Breaching Party cures such breach within sixty (60) days after receipt of written notice ofsuch material breach by the Terminating Party. A material breach by Evergreen shall include,without limitation, except in the case of a force majeure pursuant to Section 17(d), the followingevents:     (A) the failure of Evergreen to supply the quantities set out inQuarterly Commitments in any [****] Quarters in breach of this Agreement,     (B) the failure of Evergreen to supply Products with the Specifications(as defined herein), which failure shall be deemed to occur if [****] or moreof the Products that Evergreen delivers in [****] exhibit a common defect inmanufacture, workmanship, design or construction (other than defects that aresolely cosmetic in nature) which causes the Product to materially fail tomeet the Specifications; or     (C) the failure of Evergreen to pay any amount in a timely manner asrequired under this Agreement.A material breach by Purchaser shall include, without limitation, except in the case of a forcemajeure pursuant to Section 17(e), the following events:     (A) the failure of Purchaser to purchase the quantities set out inQuarterly Commitments in any two Quarters in breach of this Agreement; or     (B) the failure of Purchaser to pay any amount in a timely manner inbreach of this Agreement.          (c) **Effect of Termination.**Upon termination of this Agreement by the Terminating Party, theTerminating Party may, at its option, cancel all unshipped Purchase Orders without furtherobligation. Sections 1, 8, 10(c) and (d), 11 through 16(b) shall survive any termination of thisAgreement. In addition, any right or legal obligation of a Party contained in any addendum or
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amendment to this Agreement, that by its express term or nature would reasonably extend for aperiod beyond the term of the Agreement, shall also survive the termination of the Agreement forsuch extended period.          (d) **No Liability for Termination.**In the event of a permitted termination of this Agreement,neither Party shall be liable to the other, because of such termination, for compensation,reimbursement or damages on account of the loss of prospective profits or anticipated sales or onaccount of expenditures, inventory, investments, leases or commitments in connection with thebusiness or goodwill of the other Party. A termination shall not, however, relieve either Party ofobligations incurred prior to termination of this Agreement.          (e) [****]          (f) [****]      **11. INTELLECTUAL PROPERTY**          (a) **Ownership.**Either Party shall retain all rights to its intellectual property rights, inparticular to any patents, trademarks, know-how, copyrights, design rights and utility rights andall modifications and derivative works thereof (the “Intellectual Property Rights”).Evergreen shall grant to Purchaser a perpetual, non-exclusive, non-sublicensable and fully paid-uplicense to Evergreen’s Intellectual Property Rights to the extent such license is required for theuse, sale and distribution of the Products and the User Documentation by Purchaser or Purchaser’sAffiliates. Purchaser hereby agrees to assign, and does hereby assign, to Evergreen ownership ofall intellectual property rights in the Products and User Documentation to the extent thatPurchaser may obtain any rights therein or thereto. Purchaser shall have no liability forinfringement of Evergreen’s intellectual property rights based on resales of Products made by anyof Purchaser’s customers outside the Territory if Purchaser reasonably believed such customerswould not resell the Product outside the Territory.          (b) **Improvements.**Except as otherwise expressly agreed between the Parties, if Purchasermakes any Improvement (as defined below) to the Products or User Documentation or intellectualproperty rights therein, whether or not patentable, Purchaser shall grant and does hereby grant toEvergreen a perpetual, royalty-free, worldwide, non-exclusive license to make, have made, use,sell, offer to sell, sublicense and otherwise exploit such Improvement. As used herein,“Improvement” means any improvement, enhancement, modification, invention, trade secret,feedback or suggestion that is primarily based on, derived from or applicable to all or any part ofthe Products or User Documentation.          (c) **User Documentation.**Purchaser will not disclose or distribute any documentation providedby Evergreen except for documentation provided for that purpose, in particular User Documentation.User Documentation may be provided in hard copy form or on electronic media from which Purchasermay make additional copies except as expressly prohibited by Evergreen in writing. Purchaser shallnot modify the User Documentation without the prior written consent of Evergreen.
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          (d) **Trademarks.**The Parties may use each other’s trademarks, trade names, logos or servicemarks (collectively, “Trademarks”) in connection with such Party’s promotion anddistribution of Products only after obtaining the prior written consent of the other Party on acase-by-case basis, in its sole discretion, provided that Purchaser may identify Evergreen as themanufacturer and/or supplier of the Products, and Evergreen may identify Purchaser as a distributorof the Products, as the case may be, without the need for consent of the other Party. Each Party’suse of the other Party’s Trademarks shall fully comply with all guidelines that may be provided bythe other Party concerning the use of its Trademarks. All use of the Trademarks of one party bythe other shall inure solely to the benefit of the trademark holder, and neither party shall obtainany rights with respect to any of the Trademarks of the other. Purchaser and its direct andindirect customers shall retain the Trademarks as the Trademarks appear on the Products and UserDocumentation.          (e) **Proprietary Notices.**Purchaser shall not remove any copyright, patent, Trademark or otherproprietary notices, markings or legends from the Product or User Documentation and shall reproduceall such notices, markings and legends on all copies of the Product and User Documentationpermitted under this Agreement.          (f) **No Implied Licenses.**No licenses are granted to Purchaser or Evergreen under thisAgreement except as expressly set forth in this Section 11 (Intellectual Property), eitherexpressly or by implication, estoppel or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARERESERVED TO EVERGREEN OR PURCHASER, AS THE CASE MAY BE, OR THEIR RESPECTIVE LICENSORS.     **12. CONFIDENTIALITY**          (a) **Confidential Information.**“Confidential Information” means information in anyform that may be disclosed by a Party (“Disclosing Party”) to the other Party(“Receiving Party”) provided that it shall be either (i) marked as “Confidential” or“Proprietary” if disclosed to the Receiving Party in tangible form, or (ii) if disclosed orally, isreduced by the Disclosing Party to a writing conspicuously marked “Confidential” or “Proprietary”and given to the Receiving Party within thirty (30) days of such oral disclosure provided, however,that reports and/or information related to or regarding the Disclosing Party’s business plans,business methodologies, strategies, technology, specifications, development plans, customers,prospective customers, billing records, and products or services will be deemed ConfidentialInformation of the Disclosing Party even if not so marked or identified unless such information isthe subject of any of the exclusions set forth in Section 12(b). Any confidential or proprietaryinformation embodied in the Products, and the copyrights in and to the User Documentation areproprietary to Evergreen and, for that purpose, shall be deemed to be the Confidential Informationof Evergreen, whether or not marked as described above.          (b) **Exclusions.**Notwithstanding the provisions of Section 12(a) (Confidential Information),Confidential Information excludes information that the Receiving Party can demonstrate in writing:(i) is or becomes part of the public domain through no fault or breach of the Receiving Party; (ii)is rightfully known to the Receiving Party prior to receipt from the Disclosing Party, as shown byReceiving Party’s written records; (iii) is subsequently rightfully obtained by the
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Receiving Party from a third party that has the legal right to disclose such information tothe Receiving Party or (iv) is independently developed by the Receiving Party without use ofDisclosing Party’s Confidential Information and without the involvement of Receiving Party’semployees who had access to Disclosing Party’s Confidential Information. Receiving Party shall bepermitted to disclose Disclosing Party’s Confidential Information if such disclosure is required bylaw, provided that the Receiving Party provides the Disclosing Party with prompt written notice ofsuch requirement prior to such disclosure or, if a prior disclosure is not possible, without unduedelay after disclosure; or is permitted by the express terms of this Agreement, or by implicationin the case of the User Documentation.          (c) **Use and Disclosure.**Each Party agrees that it (i) shall use such Confidential Informationof the Disclosing Party only to the extent reasonably necessary to perform its obligations orexercise its rights under this Agreement and (ii) shall not disclose, or permit to be disclosedsuch Confidential Information, either directly or indirectly, to any third party except aspermitted under this Agreement or otherwise approved in writing by the Disclosing Party. EitherParty agrees to exercise at least reasonable care in protecting the Confidential Information of theother Party from unauthorized use and disclosure but in no event lass care than such Party takes toprotect its own Confidential Information. Notwithstanding the foregoing, Purchaser may disclosethe Product and User Documentation to third parties in connection with the marketing and sale ofthe Products pursuant to this Agreement.          (d) **Confidentiality of Agreement.**The terms and conditions of this Agreement shall be treatedas Confidential Information and shall not be disclosed to any third party, except (i) with theother Party’s consent, which shall not be unreasonably withheld; (ii) as may be required by law orregulation or in connection with public offerings or securities filings; (iii) in confidence, toits legal counsel, accountants, investors and financial advisors; (iv) in confidence, in connectionwith the enforcement of this Agreement or rights under this Agreement; and (v) in confidence, asreasonably required in connection with a financing or merger or acquisition of all or substantiallyall of the business or assets of Evergreen or Purchaser.          (e) **Publicity.**The contents of any press release or publicity disclosing any aspect or theexistence of the business relationship contemplated by this Agreement shall be subject to mutualagreement by the Parties. Neither Party shall issue any such press release or publicity withoutthe prior written consent of the other Party unless such disclosure is required by law.Notwithstanding the foregoing, the Parties shall discuss and cooperate to issue a mutually agreedupon press release promptly after execution of this Agreement.      **13. WARRANTY SERVICES**          (a) **Limited Product Warranty.**All Products covered by this Agreement will be warranted to theend user per the conditions of the standard Evergreen warranty statements provided with theProducts, a representative copy of which is attached hereto as Schedule 3. [****]Evergreen may modify such warranty from time to time in addition to providing differing warrantiesfor different products and markets. Except as agreed above, this warranty is to the end user;provided, however, that Evergreen agrees to process warranty claims made by end users of the
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Products forwarded to Evergreen from Purchaser in accordance in accordance with Section 13(b)(Warranty Claims).          (b) **Warranty Claims.**Purchaser and its service providers shall document and notify Evergreenof claims, questions or concerns Purchaser receives under Evergreen’s warranty with respect toProducts sold to Purchaser hereunder. Purchaser shall obtain information from the end user asreasonably requested by Evergreen to enable the Parties to determine whether the respective claimarises under the Evergreen warranty or arises from materials or services not provided by Evergreen.In the event of a claim by an end user under Evergreen’s warranty, Evergreen’s satisfaction of theclaim with respect to the end user shall be deemed to also satisfy any related claim with respectto Purchaser; [****]. Upon Purchaser’s request, Evergreen shall reasonably inform Purchaser as toEvergreen’s processing of respective warranty claims forwarded to Evergreen from Purchaser.          (c) **Limitations.**Notwithstanding anything to the contrary, the warranties provided byEvergreen do not apply to any Product which has been (i) altered by anyone other than Evergreen orpersonnel who are authorized by Evergreen or qualified to make repairs or (ii) used in combinationwith any other product if such use in combination results in the defect, (iii) damaged by improperenvironment, abuse, misuse, attempts to alter or repair without Evergreen’s authorization, accidentor negligence, or (iv) used in violation of this Agreement, the User Documentation, or Evergreen’sother written instructions, if any, provided prior to such use. Evergreen agrees to Purchaserinstalling and integrating the Products into solar technology solutions in accordance with thespecifications set out in the User Documentation.          (d) **Product Quality Inspection.**Evergreen shall perform a quality inspection to identifyobvious defects in Products before making the Products available for shipment to Purchaser. Theprogram shall be implemented in Evergreen’s reasonable discretion to address issues such asexcessive amounts of foreign material in the laminate of the Products, excessive amounts of cellswith chips, visible cracks in cells of Products, excessive scratches on the frame of panels andglass, broken leads, damaged insulation, damaged or broken junction-box or improperly fastenedframes.      **14. PRODUCT QUALITY**     Evergreen warrants that the Products are free from defects upon shipment, in particular,without limitations, free from excessive amounts of foreign material in the laminate of theProducts, excessive amounts of cells with chips, visible cracks in cells of Products, excessivescratches on the frame of panels and glass, broken leads, damaged insulation, damaged or brokenjunction-box, improperly fastened frames and comply with the Specifications of the Productspursuant to Schedule 2. Notwithstanding section 13 (b) above, Purchaser’s sole remedy for abreach of this Section 14 (Product Quality) shall be for Evergreen to repair or replace thenonconforming Products. Purchaser must notify Evergreen of the nonconformity within three (3)business days of Purchaser’s discovery or notice of the nonconformity. The Parties shall cooperatein good faith to address recurring issues regarding quality of the Products.
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     THE FOREGOING REMEDIES PROVIDED BY EVERGREEN ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANYBREACH OF WARRANTY AND THE EXPRESS WARRANTIES PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIESEXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,NON-INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY, OR FITNESS FORA PARTICULAR PURPOSE. ANY PROTOTYPES OR PRE-RELEASE PRODUCTS THAT MAY BE FURNISHED BY SUPPLIER AREFURNISHED “AS IS” WITH NO WARRANTIES OF ANY KIND.      **15. INDEMNIFICATION**          (a) **Infringement Indemnification by Evergreen.**Evergreen agrees to defend at its own expenseany action brought against Purchaser to the extent that it is based on a claim that the sale or useof Evergreen’s Product in the Territory directly infringes [****], and will pay any costs and damages finally awarded against Purchaser inany such actions which are attributable to such claim. Notwithstanding the foregoing, this Section15(a) (Infringement Indemnification by Evergreen) shall not apply to, and Evergreen shall have noliability for, any claim arising out of or relating to (i) the combination of any Product with anyequipment or device not furnished by Evergreen, or (ii) use of an Improvement or other itemsprovided to or requested by Purchaser, or (iii) any modification of any Product by anyone otherthan Evergreen or its authorized agents, or (iv) Purchaser’s failure to install or have installedchanges, revisions or updates as instructed and paid for by Evergreen, (v) Evergreen’s compliancewith Purchaser’s or an end user’s specifications, designs or instructions, or (vi) use of anyProduct in material violation of this Agreement, the User Documentation, or Evergreen’s reasonablewritten instructions, if any, received by Purchaser or end user prior to such use, in each case (i)through (vi) however only to the extent that the actions described in (i) through (vi) caused theinfringement of the third party Intellectual Property Rights or trade secret. Should any Productbecome, or in Evergreen’s opinion be likely to become, the subject of a claim of infringement,Purchaser shall permit Evergreen as Evergreen may elect in its sole discretion and at Evergreen’sexpense, to (i) procure for Purchaser the right to continue using such Product, (ii) replace ormodify the Product so that it becomes non-infringing or (iii) refund to Purchaser the amount paidfor any Products returned to Evergreen. Evergreen’s sole liability and Purchaser’s sole remedy forinfringement claims shall be to obtain indemnity under the provisions of this Section 15(a)(Infringement Indemnification by Evergreen); provided, however, in the event that Evergreen isunwilling or unable to procure for Purchaser the right to continue using such Product, or toreplace or modify the Product so that it becomes non-infringing, the Quarterly Commitments forProduct purchases shall be appropriately adjusted.          (b) **Indemnification by Purchaser.**Purchaser agrees to defend at its own expense any actionbrought against Evergreen to the extent that it is based on a claim arising out of or relating toany of the exclusions set forth in Sections 15(a) (i), (ii), (iii) (but only to the extent thatPurchaser carries out or authorizes such modifications ) (iv), (v) or (vi) or Purchaser’smarketing, warranties or distribution of the Products, and will pay any costs and damages finallyawarded against Evergreen in any such actions which are attributable to such claim.
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          (c) **Procedure.**Each Party’s (“Indemnifying Party‘s”) indemnificationobligation is subject to the conditions that (i) the other Party (“Indemnified Party”)notifies the Indemnifying Party in writing of any such claim without undue delay, and (ii) theIndemnified Party provides all information and assistance reasonably requested by the IndemnifyingParty for the defense and settlement of such claim. As long as the Indemnifying Party is defendinga claim, the Indemnified Party shall provide or cause to be provided to the Indemnifying Partyinformation reasonably requested by the Indemnifying Party relating to such claim and theIndemnified Party shall otherwise cooperate with the Indemnifying Party and its representatives ingood faith in order to effectively contest such claim. Indemnity claims under this section 15 shallnot become time-barred until 3 (three) months after final settlement of the respective underlyingactions or claims.      **16. LIMITATION OF LIABILITY**          (a) EXCEPT WITH RESPECT TO A MATERIAL BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH INSECTION 12 (CONFIDENTIALITY) AND A FAILURE TO DELIVER AS SET FORTH IN SECTIONS 3 AND 10(e), IN NOEVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KINDARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING FROM CONTRACT, TORT OR NEGLIGENCE,INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF GOODWILL, OR SUBSTITUTE PROCUREMENT, OR FORDAMAGES DUE TO DELAYS IN SHIPMENT, DELIVERY OR USE OF PRODUCTS PURCHASED HEREUNDER, WHETHER OR NOTSUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT THE DAMAGES FOR AFAILURE TO DELIVER AS REQUIRED IN SECTION 3 SHALL BE SUBJECT TO THE LIMITATIONS IN SECTION 10(e).          (b) EXCEPT FOR PURCHASER’S PAYMENT OBLIGATIONS OR A MATERIAL BREACH OF THE CONFIDENTIALITYOBLIGATIONS SET FORTH IN SECTION 12 (CONFIDENTIALITY), THE TOTAL AGGREGATE LIABILITY OF EACH PARTYARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING SECTIONS 13 (WARRANTY SERVICES) AND 15(INDEMNIFICATION)) SHALL NOT EXCEED THE TOTAL PURCHASE PRICE PAID BY PURCHASER TO SUPPLIER FOR THEPRODUCTS OR SERVICES TO WHICH SUCH CLAIM RELATES; [****]          (c) THESE LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIALPURPOSE OF ANY LIMITED REMEDY. THIS SECTION DOES NOT EXCLUDE LIABILITY FOR PERSONAL INJURY ORDEATH OR FOR WILFUL MISCONDUCT TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITEDUNDER APPLICABLE LAW.      **17. GENERAL**          (a) **Relationship**. The relationship of the Parties is that of independent contractors. Thereis no relationship of agency, partnership, joint venture, employment or franchise between theParties, and neither Party has the authority to bind or incur any obligation on the part of theother.
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          (b) **Governing Law; Dispute Resolution**. This Agreement shall be governed by and construedunder the laws of the Commonwealth of Massachusetts without reference to conflict of lawsprinciples, and not by the 1980 U.N. Convention on Contracts for the International Sale of Goods.Except as otherwise specified in this Agreement or the Schedules hereto, or as may be agreed by theParties, any dispute or claim arising out of or in connection with this Agreement or theperformance, breach or termination thereof shall be finally resolved by binding arbitration inaccordance with the then current rules of arbitration of the American Arbitration Association (the“Rules”) by three arbitrators selected in accordance with such rules. Such arbitration shall beheld in Boston, Massachusetts, and the proceedings and all pleadings, filings, written evidence,decisions and other relevant documents shall be in English. Any written evidence in a languageother than English shall be submitted with an English translation. Any final decision issued inthe arbitration shall be binding and conclusive upon the Parties to this Agreement and may beentered as a final judgment by any court of competent jurisdiction. Notwithstanding the foregoing,each Party may apply to any court of competent jurisdiction for a temporary restraining order,preliminary injunction, or other interim or conservatory relief, as necessary, without breach ofthis Section and without any abridgment of the powers of the arbitrator.          (c) **Export Laws**. Any and all obligations of Evergreen to provide Products, documentation, orother materials shall be subject in all respects to such United States laws and regulations asshall from time to time govern the license and delivery of technology and products abroad bypersons subject to the jurisdiction of the United States, including the Export Administration Actof 1979, as amended, any successor legislation, and the Export Administration Regulations issued bythe Department of Commerce, Bureau of Export Administration. Each Party warrants to the other thatit will comply with the Export Administration Regulations and other United States laws andregulations governing exports in effect from time to time. In the event Purchaser orders Productsother than Spruce Products only manufactured outside of the United States as contemplated inSection 6(a) (Shipment), Purchaser is solely responsible, at its own expense, for obtaining allnecessary import and re-export permits and certificates and for the payment of any and all taxesand duties imposed upon the movement and delivery of the Products.          (d) **Notices**. All notices or communications of any kind made or required to be given pursuantto this Agreement shall be in writing and delivered to the other Party at the address first setforth above, unless either Party gives notice to the other Party of a change of address. Noticesfor purposes of the Price Change Adjustments provided for in Schedule 1 shall be made byfacsimile and email as follows and shall be deemed delivered on the date sent (unless such date isnot a business day, in which case the notice shall be deemed delivered on the first business daythereafter):     In the case of notices to Evergreen:   Attention: J. Terry Bailey, Sr. Vice President  Christian M. Ehrbar, General CounselFacsimile +1 (508) 229-7722Email: tbailey@evergreensolar.com and cehrbar@evergreensolar.com
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     In the case of notices to Purchaser:   Attention: Matthias Belz, Managing DirectorFacsimile: +49 6061 9670 10Email: m.belz@ralos.de          (e) **Force Majeure**. Neither Party is liable for its failure or delay to perform itsobligations under the Agreement so long as the delay is due to strikes, wars, failure of suppliersor manufacturers, revolutions, acts of terrorism, fires, floods, explosions, earthquakes, shortagesin labor, components or materials caused by forces outside of the reasonable control of Evergreenor its vendors or suppliers, government regulations, or other causes beyond its reasonable control.          (f) **Assignment**. Neither Party may assign this Agreement without the prior written consent ofthe other Party, except that each Party may assign this Agreement to a successor in connection withthe transfer of all or substantially all of the business or assets of such Party, whether by sale,merger, operation of law or otherwise. Subject to the foregoing sentence, this Agreement will bebinding upon and inure to the benefit of the Parties, their successors and assigns. Notwithstandingthe foregoing, Evergreen may at any time and from time to time pledge or grant a security interestin all or any portion of its rights, title and interest under this Agreement as collateral securityto secure obligations of Evergreen; provided that no such pledge or grant of a security interestshall (a) release Evergreen from any of its obligations hereunder or (b) substitute any suchpledgee or grantee for Evergreen as a party hereto with any rights or remedies hereunder.          (g) **Language**. This Agreement is in the English language only, which language shall becontrolling in all respects, and all versions hereof in any other language shall not be binding onthe Parties. All communications and notices to be made or given pursuant to this Agreement shallbe in the English language.          (h) **Miscellaneous**. This Agreement contains the entire understanding of the Parties withrespect to the subject matter hereof and supersedes all prior agreements relating thereto, writtenor oral, between the Parties. Amendments to this Agreement must be in writing, signed by the dulyauthorized officers of the Parties. If any provision of this Agreement or a provision later onincluded in this Agreement be or become null and void as a whole or in part, or should a gap inthis Agreement become evident, this does not affect the validity is held by a court of competentjurisdiction to be contrary to law the remaining provisions. No waiver or modification of thisAgreement shall be valid unless in writing signed by each Party. The waiver of a breach of any termhereof shall in no way be construed as a waiver of any other term or breach hereof. This Agreementmay be executed in any number of counterparts, each of which shall be an original, but all of whichtogether shall constitute one instrument.[signature page follows]
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     IN WITNESS WHEREOF, Evergreen and Purchaser acknowledge that they have read this Agreement,including any Schedules, understand them and agree to be bound by their terms and conditionseffective as of the Effective Date.           **Evergreen Solar, Inc.**   **Ralos Vertriebs GmbH**   By: /s/ Richard M. Feldt   By: /s/ Mattias Belz    Name: Richard M. Feldt     Name: Mattias Belz    Title: Pres. & CEO     Title: Managing Director    Date: May 21, 2008     Date: 21/05/2008  ATTACHMENTS:Schedule 1 — Additional Terms