THEIR RESPECTIVE WHOLLY-OWNED OR MAJORITY OWNED SUBSIDIARIES.
EACH
PARTY FURTHER AGREES TO USE THE SAME DEGREE OF CARE TO AVOID PUBLICATION OR
DISSEMINATION OF THE CONFIDENTIAL INFORMATION DISCLOSED TO SUCH PARTY UNDER THIS
AGREEMENT AS IT EMPLOYS WITH RESPECT TO ITS OWN CONFIDENTIAL INFORMATION, BUT AT
ALL TIMES SHALL USE AT LEAST REASONABLE CARE TO PROTECT AGAINST DISCLOSURE.
11.2
CONFIDENTIAL INFORMATION DOES NOT AND SHALL NOT
INCLUDE INFORMATION THAT:
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11.2.1
WAS ALREADY KNOWN TO THE RECEIVING PARTY AT
THE TIME SUCH INFORMATION IS DISCLOSED BY THE OTHER PARTY;
11.2.2
WAS OR BECAME PUBLICLY KNOWN THROUGH NO
WRONGFUL ACT OF THE RECEIVING PARTY;
11.2.3
WAS RIGHTFULLY RECEIVED FROM A THIRD PARTY
WITHOUT RESTRICTION;
11.2.4
WAS INDEPENDENTLY DEVELOPED BY THE RECEIVING
PARTY;
11.2.5
WAS APPROVED FOR RELEASE BY WRITTEN
AUTHORIZATION OF THE PARTY DISCLOSING SUCH INFORMATION UNDER THIS AGREEMENT; OR
11.2.6
WAS REQUIRED BY LEGAL OR FINANCIAL REPORTING
PURPOSES TO BE DISCLOSED; PROVIDED, HOWEVER, THAT THE PARTY BEING REQUIRED TO
DISCLOSE SHALL, IF CIRCUMSTANCES PERMIT, PROVIDE ADVANCED NOTICE TO THE OTHER
PARTY.
12.
WARRANTY
12.1
NORSUN WARRANTS THAT THE PRODUCTS WILL BE FREE
FROM DEFECTS AND WORKMANSHIP, AND CONFORM TO THE SPECIFICATIONS SET FORTH IN
SCHEDULE 1, PROVIDED THAT NORSUN IS NOTIFIED OF ANY DEFECTS OR NON-CONFORMITY
WITHIN THIRTY (30) DAYS AFTER DELIVERY AND THAT THE DEFECT OR NON-CONFORMITY IS
SHOWN TO BE DUE TO NORSUN'S FAULTY DESIGN, WORKMANSHIP, MATERIAL OR PACKAGING.
12.2
IF ANY PRODUCTS FAIL TO CONFORM TO THIS WARRANTY,
THEN NORSUN WILL, AT SUNPOWER'S OPTION, EITHER REFUND OR REPLACE SUCH PRODUCTS.
FOR VALID WARRANTY CLAIMS ALL ASSOCIATED SHIPPING AND RETURN COSTS SHALL BE PAID
BY NORSUN.
13.
INDEMNIFICATION
13.1
NORSUN SHALL INDEMNIFY SUNPOWER AGAINST ANY AND
ALL COSTS, LOSS AND LIABILITY FOR ALL PERSONAL INJURY AND PROPERTY DAMAGE CAUSED
BY THE PRODUCTS (WHETHER PERFORMED ON THE PREMISES OF NORSUN OR SUNPOWER OR
ELSEWHERE) AND SHALL DEFEND AT ITS SOLE COST AND EXPENSE ANY ACTION BROUGHT
AGAINST SUNPOWER AS A RESULT OF ANY SUCH PERSONAL INJURY OR PROPERTY DAMAGE.
NORSUN SHALL CARRY AND MAINTAIN INSURANCE COVERAGE SATISFACTORY TO COVER THE
ABOVE, AND UPON SUNPOWER'S REQUEST, SHALL FURNISH SUNPOWER WITH EVIDENCE OF SUCH
INSURANCE.
13.2
NORSUN SHALL DEFEND, AT ITS OWN EXPENSE, ANY SUIT
OR CLAIM THAT MAY BE INSTITUTED AGAINST SUNPOWER OR ANY CUSTOMER OF SUNPOWER FOR
ALLEGED INFRINGEMENT OF PATENTS, TRADE SECRETS, COPYRIGHTS OR OTHER INTELLECTUAL
PROPERTY RIGHTS RELATING TO THE MAINTENANCE, SALE OR USE OF THE PRODUCTS, AND
NORSUN SHALL INDEMNITY SUNPOWER AND ITS CUSTOMERS FOR ALL COSTS AND DAMAGES
ARISING OUT OF SUCH ALLEGED INFRINGEMENT.
14.
FORCE MAJEURE
14.1
NEITHER PARTY SHALL BE LIABLE FOR DELAYS OR
FAILURES IN PERFORMANCE OF THEIR OBLIGATIONS
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UNDER THIS AGREEMENT ARISING OUT OF OR RESULTING FROM ACTS OF GOD, ACTS OF THE
OTHER PARTY, ACTS OF THE GOVERNMENT, THE PUBLIC ENEMY OR EVENTS OF WAR, FIRE,
FLOOD, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES,