LOST REVENUES AND PROFITS, EVEN IF EITHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS
SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED
REMEDY SET FORTH ABOVE.
16
PATENTS.
IN NO CASE SHALL SUNPOWER BE LIABLE TO DEFEND OR PAY ANY AWARD OF DAMAGES
ASSESSED AGAINST NORSUN IN ANY SUIT OR CAUSE OF ACTION ALLEGING THAT THE USE OF
THE POLYSILICON INFRINGES ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY
THIRD PARTY.
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17
TAXES.
ANY TAX OR OTHER GOVERNMENT CHARGE NOW OR IN THE FUTURE LEVIED UPON THE
PRODUCTION, SALE, USE OR SHIPMENT OF THE POLYSILICON MAY, AT SUNPOWER'S OPTION,
BE ADDED TO THE PURCHASE PRICE.
18
FORCE MAJEURE.
NEITHER OF THE PARTIES SHALL BE LIABLE FOR DELAYS OR FAILURES IN PERFORMANCE OF
THEIR OBLIGATIONS UNDER THIS AGREEMENT ARISING OUT OF OR RESULTING FROM CAUSES
BEYOND ITS CONTROL.
SUCH CAUSES INCLUDE, BUT ARE NOT LIMITED TO, ACTS OF GOD,
ACTS OF THE OTHER PARTY, ACTS OF THE GOVERNMENT OR THE PUBLIC ENEMY, FIRE,
FLOOD, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, SEVERE
WEATHER, OR DEFAULT OR FAILURE OF SUPPLIERS
(INCLUDING ANY FAILURE OF
SUNPOWER'S SUPPLIERS TO DELIVER POLYSILICON RELEVANT TO THIS AGREEMENT,
PROVIDED, HOWEVER, THAT SUCH NON-DELIVERY IS BEYOND SUNPOWER'S REASONABLE
CONTROL). IN THE EVENT OF ANY SUCH DELAY OF SUNPOWER'S PERFORMANCE, NORSUN SHALL
HONOR ITS OBLIGATIONS HEREUNDER AS SOON AS SUNPOWER IS ABLE TO PERFORM.
19
CHOICE OF LAW.
THE AGREEMENT IS MADE IN, AND SHALL BE GOVERNED AND CONTROLLED IN ALL RESPECTS
BY THE LAWS OF THE STATE OF MICHIGAN, USA (SPECIFICALLY DISCLAIMING THE U.N.
CONVENTION CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS) AND ALL DISPUTES,
INCLUDING INTERPRETATION, ENFORCEABILITY, VALIDITY, AND CONSTRUCTION, SHALL BE
DETERMINED UNDER THE LAW OF THE STATE OF MICHIGAN, WITHOUT REGARD TO ANY
CONFLICT OF LAW PROVISIONS.
20
CHOICE OF FORUM.
THE PARTIES SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE U.S. DISTRICT
COURT FOR THE EASTERN DISTRICT OF MICHIGAN FOR ALL DISPUTES ARISING, DIRECTLY OR
INDIRECTLY, UNDER THIS AGREEMENT.
21
WAIVER.
EITHER PARTY'S FAILURE TO EXERCISE A RIGHT OR REMEDY OR SUCH PARTY'S ACCEPTANCE
OF A PARTIAL OR DELINQUENT PAYMENT OR DELIVERY SHALL NOT OPERATE AS A WAIVER OF
ANY OF SUCH PARTY'S RIGHTS OR THE OTHER PARTY'S OBLIGATIONS UNDER THE AGREEMENT
AND SHALL NOT CONSTITUTE A WAIVER OF SUCH PARTY'S RIGHT TO DECLARE AN IMMEDIATE
OR A SUBSEQUENT DEFAULT.
22
SEVERABILITY.
IF ONE OR MORE OF THE PROVISIONS OF THIS AGREEMENT SHALL BE FOUND, BY A COURT
WITH JURISDICTION, TO BE ILLEGAL, INVALID OR UNENFORCEABLE, IT SHALL NOT AFFECT
THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY OF THE REMAINING PROVISIONS OF
THIS AGREEMENT.
THE PARTIES AGREE TO ATTEMPT TO SUBSTITUTE FOR ANY ILLEGAL,
INVALID OR UNENFORCEABLE
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11
PROVISION A LEGAL, VALID OR ENFORCEABLE PROVISION THAT ACHIEVES TO THE GREATEST
EXTENT POSSIBLE THE ECONOMIC OBJECTIVES OF