DAYS;
C)
IN THE EVENT OF A TERMINATION OF THE
WAFER/INGOT AGREEMENT (OTHER THAN TERMINATION BY NORSUN PURSUANT TO SECTION 21.3
THEREOF); OR
D)
SUNPOWER'S THIRD PARTY SUPPLIERS FAIL TO
SUPPLY POLYSILICON TO SUNPOWER FOR ANY REASON OR ANY AGREEMENTS PROVIDING FOR
SUCH SUPPLY TERMINATE FOR ANY REASON.
10.4
SECTIONS 1, 6 (TO THE EXTENT OF ANY DUE AND UNPAID
INVOICES), 7, 10 THROUGH
23, AND 25 THROUGH 27 SHALL SURVIVE ANY TERMINATION OF
THIS AGREEMENT.
11
CONFIDENTIALITY.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE TERMS OF THIS AGREEMENT AND CERTAIN
INFORMATION EXCHANGED BETWEEN THEM PERTAINING TO THIS AGREEMENT, INCLUDING
INFORMATION REGARDING RESEARCH, TECHNOLOGY, PRODUCT DEVELOPMENTS, MARKETING
PLANS OR CONDITIONS, PRODUCTS, BUSINESS STRATEGIES, AND THE LIKE, CONSTITUTE
"CONFIDENTIAL INFORMATION" OF THE PARTY DISCLOSING THE INFORMATION.
THE PURPOSE
OF THE EXCHANGE OF THE CONFIDENTIAL INFORMATION" IS TO ALLOW THE PARTIES TO MEET
THEIR OBLIGATIONS AND RESPONSIBILITIES UNDER THIS AGREEMENT.
DURING THE TERM OF
THIS AGREEMENT, AND FOR A PERIOD OF 15 YEARS FOLLOWING ITS TERMINATION OR
EXPIRATION, EXCEPT AS REQUIRED BY APPLICABLE LAW, REGULATION OR RULES OF ANY
SECURITIES EXCHANGE, THE PARTY RECEIVING ANY CONFIDENTIAL INFORMATION, AND ITS
EMPLOYEES, ATTORNEYS, FINANCIAL ADVISORS, OFFICERS, DIRECTORS AND SHAREHOLDERS
WHO SHALL RECEIVE SUCH CONFIDENTIAL INFORMATION SHALL NOT, EXCEPT WITH THE PRIOR
WRITTEN CONSENT OF THE DISCLOSING PARTY, USE, DIVULGE, DISCLOSE OR COMMUNICATE,
TO ANY PERSON, FIRM, CORPORATION OR ENTITY, IN ANY MANNER WHATSOEVER, THE TERMS
OF THIS AGREEMENT OR ANY CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY;
PROVIDED, HOWEVER, THAT EACH PARTY MAY USE, DIVULGE, DISCLOSE OR COMMUNICATE THE
TERMS OF THIS AGREEMENT OR CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY TO
WHOLLY-OWNED OR MAJORITY OWNED SUBSIDIARIES IF SUCH SUBSIDIARIES UNDERTAKE TO
KEEP SUCH INFORMATION STRICTLY CONFIDENTIAL IN ACCORDANCE WITH THIS SECTION 11
AND EACH SUBSIDIARY HAS A "NEED TO KNOW".
THE PARTIES WILL BE LIABLE FOR ANY
BREACH OF THIS SECTION 11 BY ANY OF 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
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
8
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.
CONFIDENTIAL INFORMATION DOES NOT AND SHALL NOT INCLUDE INFORMATION THAT:
11.1
WAS ALREADY KNOWN TO THE RECEIVING
PARTY AT THE TIME SUCH INFORMATION IS DISCLOSED BY THE OTHER PARTY;
11.2
WAS OR BECAME PUBLICLY KNOWN THROUGH
NO WRONGFUL ACT OF THE RECEIVING PARTY;
11.3
WAS RIGHTFULLY RECEIVED FROM A THIRD
PARTY WITHOUT RESTRICTION;
11.4
WAS INDEPENDENTLY DEVELOPED BY THE
RECEIVING PARTY;
11.5
WAS APPROVED FOR RELEASE BY WRITTEN
AUTHORIZATION OF THE PARTY DISCLOSING SUCH INFORMATION UNDER THIS AGREEMENT; OR
11.6
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
PASS-THROUGH WARRANTY.
12.1
NORSUN'S WARRANTY