DELIVER WAFERS PER SUNPOWER'S SPECIFICATIONS AT ANY TIME
DURING THE TERM, NORSUN SHALL FULFILL ITS ANNUAL QUANTITY OBLIGATIONS THROUGH
ITS DELIVERY OF INGOTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NO
INABILITY OF THE PARTIES TO AGREE ON PRICING OR QUANTITIES FOR WAFERS DURING THE
TERM SHALL AFFECT THE PARTIES' OBLIGATIONS WITH RESPECT TO INGOTS UNDER THIS
AGREEMENT.
5.5
SUBJECT TO THE PROVISIONS OF SECTIONS 5.3
AND 5.4, EITHER PARTY SHALL BE ENTITLED TO SEEK RECOVERY OF ITS DAMAGES FOR
FAILURE BY THE OTHER PARTY TO FULFILL ITS ANNUAL FIRM COMMITMENT OBLIGATIONS TO
THE EXTENT DESCRIBED IN SECTIONS 5.1 AND 5.2 WITH RESPECT TO ANY FISCAL YEAR.
5.6
PURSUANT TO THE POLYSILICON AGREEMENT
SECTION 9, NORSUN HAS ACKNOWLEDGED THAT SUNPOWER WILL BE CONTRACTING WITH
HEMLOCK SEMICONDUCTOR CORPORATION ("HEMLOCK") TO EXPAND HEMLOCK'S MANUFACTURING
FACILITY (THE "EXPANDED MANUFACTURING FACILITY") IN ORDER TO PRODUCE THE
POLYSILICON TO BE SUPPLIED UNDER THE POLYSILICON AGREEMENT. NORSUN ACKNOWLEDGES
THE POSSIBILITY OF DELAYS OR FAILURES IN HEMLOCK COMPLETING THE EXPANDED
MANUFACTURING FACILITY AND EXPRESSLY AGREES THAT NOTWITHSTANDING ANYTHING IN
THIS AGREEMENT TO THE CONTRARY, SUNPOWER SHALL HAVE NO LIABILITY TO NORSUN FOR
ANY SUCH DELAY OR FAILURE, INCLUDING FOR ANY SHORTFALLS IN DELIVERY OF
POLYSILICON RESULTING THEREFROM.
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
6
6.
PURCHASE ORDERS
6.1
SUNPOWER SHALL NO LATER THAN 30 DAYS PRIOR
TO EACH FISCAL YEAR ISSUE PURCHASE ORDERS ("PURCHASE ORDERS") FOR A TOTAL OF THE
ANNUAL QUANTITY FOR SUCH FISCAL YEAR.
6.2
EACH MONTH NORSUN SHALL ISSUE A RELEASE
IDENTIFYING THE MONTHLY QUANTITIES OF PRODUCTS TO BE DELIVERED.
SUCH RELEASE
SHALL BE CONSISTENT WITH THE DELIVERY SCHEDULE OF POLYSILICON RECEIVED BY
SUNPOWER FROM ITS SUPPLIERS AND WITH THE ANNUAL QUANTITIES SET FORTH IN SCHEDULE
2.
6.3
THE PURCHASE ORDERS SHALL, UNLESS OTHERWISE
AGREED IN WRITING BETWEEN THE PARTIES BE ISSUED MONTHLY AND SHALL AT A MINIMUM
CONTAIN THE FOLLOWING INFORMATION: (I) REFERENCE TO THIS AGREEMENT, (II)
IDENTIFICATION OF THE PRODUCTS BY PROPER NAME, PRICE, AND ANNUAL QUANTITY, (III)
DELIVERY INSTRUCTION AND DELIVERY PLACE, AND (IV) ISSUE DATE.
THE PURCHASE
ORDERS SHALL BE SENT BY ORDINARY MAIL, AND A COPY SHALL BE FORWARDED TO NORSUN
ON THE ISSUE DATE EITHER BY E-MAIL OR TELEFAX. FOR THE PERIOD FROM JANUARY 1,
2011 THROUGH DECEMBER 31, 2019, A PURCHASE ORDER SHALL BE BINDING FOR SUNPOWER
ONLY AFTER IT IS RECEIVED AND ITS CONDITIONS HAVE BEEN CONFIRMED BY NORSUN.
6.4
A PURCHASE ORDER SHALL BE SENT BY E-MAIL, OR
ALTERNATIVELY TELEFAX, AND REGULAR MAIL. IF NO OBJECTION TO THE PURCHASE ORDER
HAS BEEN RAISED BY NORSUN WITHIN 15 DAYS AFTER SUNPOWER'S ISSUE DATE, THEN SUCH
PURCHASE ORDER SHALL BE DEEMED ACCEPTED BY NORSUN.
7.
DISCREPANCIES
7.1
IN THE EVENT OF A DISCREPANCY BETWEEN THE
TERMS AND CONDITIONS OF THIS AGREEMENT AND THE INDIVIDUAL PURCHASE ORDER, THE
TERMS AND CONDITIONS OF THIS AGREEMENT SHALL PREVAIL UNLESS THE PARTIES IN
WRITING EXPRESSLY AGREE OTHERWISE.
8.
DELIVERY
8.1
THE PRODUCTS SHALL BE DELIVERED FCA AARDAL,
NORWAY (INCOTERMS 2000).
SUNPOWER SHALL INSTRUCT NORSUN