diligently, duly and properly perform and complete such services in accordance with and subject to the terms of this Agreement. Buyer may, at any time during the Term, by written notice to Seller, exercise any of the Options set forth in Exhibit 10. Except for the corresponding price for such Option set forth in ?Exhibit 10, Seller shall not be entitled to any additional payment or any Extension of Time or other adjustment to the dates for performance under this Agreement as a result of Owner’s exercise of any Options in accordance with this Section 10. 11.
INTELLECTUAL PROPERTY RIGHTS
(a) Seller represents and warrants to Buyer that the Goods to be supplied by Seller
under this Agreement do not and will not violate or infringe any Intellectual Property Rights or other rights of third parties.
(b) Seller grants Buyer an irrevocable, royalty-free and transferable license to all
Intellectual Property Rights necessary for the use or resale of Goods purchased by Buyer under this Agreement.
(c) Seller shall defend and indemnify Buyer against all liability and expenses
(including attorneys' fees) arising from any claim that Goods furnished by Seller infringes any third party Intellectual Property Rights.
(d) If any claim of infringement impairs Buyer's ability to operate any power
generation facility into which Goods purchased from Seller are incorporated, Seller shall promptly and at its expense:
(i) (ii)
secure such rights as are necessary to allow use of the Goods; modify infringing Goods to make them non-infringing; or
(iii) substitute the Goods with non-infringing equipment satisfying the
Specifications,
in each case as required to enable operation of the power generation facility, failing which Buyer may exercise any of the above options and recover the associated reasonable and documented costs as a debt immediately due and payable from Seller.
12.
SUBCONTRACTING
Seller may not without prior written consent from Buyer (which consent shall not be
unreasonably withheld) subcontract to any unaffiliated entity any part of, and shall in any event remain fully responsible for performance of, its obligations under this Agreement; provided that Buyer shall be deemed to have consented to any such subcontracts in effect as of the Effective Date and fully disclosed to Buyer prior to execution of this Agreement.
13.
CONFIDENTIALITY
(a) Each Party undertakes to the other to keep confidential all information (written or
oral) concerning the business and affairs of the other which it has obtained or received as a result
NY:13068283.1 8
of discussions leading up to entry into this Agreement (including the terms of this Agreement), or which it has obtained during the course of this Agreement, except any information that is:
(i) subject to an obligation to disclose under law, or that is required to be
disclosed by any competent regulatory authority, by notice or otherwise; or
(ii)
13; or (iii)
in the public domain other than as a result of a breach of this Section 13. already in its possession other than as a result of a breach of this Section (b) Each Party undertakes to the other to take all steps that are necessary from time to
time to ensure compliance with the provisions of this Section 13 by its employees, agents and subcontractors.
(c) Each Party shall promptly notify the other Party of any obligation the first Party
may have to disclose confidential information under Section 13(a)(i). If Seller receives a notice of pending disclosure from Buyer in accordance with the preceding sentence, Seller shall be entitled to request from Buyer reasonable modifications to this Agreement as Seller deems reasonably necessary in light of such disclosure obligation.
(d) The obligations stated in this Section 13 shall survive the expiration or
termination of this Agreement for an additional 5 year period.
14.
COMPLIANCE
Seller shall comply fully with the representations and warranties set forth in Exhibit 9 which have the same force and effect as though set forth herein in full.
15.
TERM AND TERMINATION
(a) This Agreement shall commence on the Effective Date and, subject to the
provisions of this Section 15, continue until satisfaction by the parties of all obligations hereunder (the “Term”).
(b) Either party may terminate this Agreement effective immediately upon written
notice to the other party if the other party:
(i) commits a material breach of this Agreement which, if capable of remedy,
has not been remedied within 30 days of receipt by the other party of a notice specifying the breach and requiring its remedy; or
(ii) becomes bankrupt or insolvent, goes into liquidation, has a receiving or
administration order made against it, compounds with its creditors, or carries on business under a receiver, trustee or manager for the benefit of its creditors, or suffers any analogous event in any jurisdiction.
NY:13068283.1 9
(c) On expiry or termination of this Agreement for any reason, except with respect to
any rights or obligations that have accrued prior to such expiry or termination or any provisions of this Agreement that are expressed to take effect in whole or in part on or after expiry or termination, neither party shall have any further obligations to the other party under this Agreement.
16. (a)
FORCE MAJEURE
In this Agreement, “Force Majeure” means an exceptional event or circumstance: (i)
which is beyond a party's control;
(ii) which such party could not reasonably have provided against before
entering into the Agreement;
(iii) which, having arisen, such party could not reasonably have avoided or
overcome; and
(iv)
which is not substantially attributable to the other party.
Notwithstanding any other provision of this Agreement, the following events are deemed not to be “Force Majeure”:
(v) strikes or other employee disturbances affecting only Seller's or its
subcontractors’ or suppliers’ employees;
(vi)
any acts or omissions by the affected party's suppliers or subcontractors;
(vii) economic hardship; or
(viii) shortages or price fluctuations (including as a result of currency
fluctuations) with respect to materials, supplies or components of equipment or other works.
(b) If either Party is delayed in performance of its obligations hereunder by reason of
Force Majeure, such Party shall promptly notify the other Party of the event or circumstances constituting the Force Majeure and, having given notice timely, shall be entitled to an extension of performance hereunder by a period equal to the length of the delay caused by such Force Majeure, provided that such Party shall at all times use all reasonable endeavors to minimize any such delay.
(c) If delivery of the Goods is delayed by more than 120 days by reason of Force
Majeure, Buyer shall be entitled to terminate this Agreement without any future liability to Seller.
17.
INDEMNITIES AND LIMITATION OF LIABILITY
(a) Each Party shall defend and indemnify the other Party and its officers,
representatives, directors and employees from and against any liability or expense (including
NY:13068283.1 10
attorneys' fees) associated with third party personal injury, death or property damage where and to the extent such results from the negligence or willful misconduct of the first Party.
(b) Neither Party shall be liable to the other Party for any indirect, special or
consequential loss or damage, provided that the foregoing waiver shall not apply to the indemnification or liquidated damages obligations contained herein. Furthermore, Seller’s liability to Buyer under any theory of liability except for liability under Section 17(a) above shall not exceed two times the aggregate price payable by Buyer under this Agreement, and Seller's liability to Buyer for Delay Liquidated Damages shall not exceed 20 percent of the aggregate price payable by Buyer under this Agreement.
18.
ASSIGNMENT
Neither Party may, without the prior written consent of the other Party (not to be
unreasonably withheld), assign, transfer, charge or deal in any similar manner with this Agreement or its rights or obligations or any part of them under this Agreement, except that (i) either Party may without consent assign its rights or transfer its obligations under this Agreement in case of a merger or group reorganization; (ii) Buyer may without consent assign its rights or transfer its obligations under this Agreement in whole or in part to any affiliate or to any third party contractor under contract to construct the electricity generating facilities into which the Goods will be installed for Buyer or any of its affiliates, and upon such assignment or transfer Buyer shall be released in full of all obligations so assigned or transferred; and (iii) Buyer may without consent collaterally assign its rights or transfer its obligations under this Agreement to any lender. Seller agrees that at the reasonable request of Buyer, Seller will, without further consideration, promptly execute and deliver or cause to be executed and delivered to Buyer such assistance or assignments, consents or other instruments, in form and substance satisfactory to Buyer, as Buyer may reasonably deem necessary or desirable to facilitate any assignment or transfer of its rights or obligations under this Agreement pursuant to clauses (ii) or (iii) of the preceding sentence.
19.
DISPUTES
(a) Any dispute or matter in question between the Parties arising out of or related to
this Agreement or the breach, termination or validity thereof (a “Dispute”) shall be resolved pursuant to the procedures set forth in this Section 19. (i) either Party shall provide notice to the other Party of the existence of the
Dispute (the “Dispute Notice”);
(ii) the Parties’ designated representatives shall attempt to resolve the Dispute
through mutual agreement within 30 days following receipt of the Dispute Notice; (iii) in the event the Parties’ designated representatives do not resolve the
Dispute through mutual agreement within such 30 day period, a Vice President of each of the Parties, each with authority to negotiate and resolve the Dispute, shall meet, either in person or by telephonic conference, within the subsequent 30 day period and shall attempt to resolve the Dispute through mutual agreement within such period;
NY:13068283.1 11
(iv) in the event the procedure referenced in clause (iii) does not resolve the
dispute within such subsequent 30 day period, each Party, without further delay, shall have the right to submit the Dispute to arbitration in accordance with the following procedures:
如果条款三所述步骤不能在随后的30天内解决纠纷，每一方不得拖延，有权根据下列步骤请仲裁方仲裁。
(A) the proceedings shall (1) take place in New York, New York; (2) be
conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect (the “Rules”) (except to the extent modified hereby); (3) consist of an arbitration panel composed of (x) an individual experienced in and knowledgeable of the photovoltaic solar industry selected by Buyer, (y) an individual experienced in and knowledgeable of the photovoltaic solar industry selected by Seller and (z) an individual experienced in and knowledgeable of the photovoltaic solar industry selected by each of the individuals selected by Buyer and Seller in clauses (x) and (y), respectively and any arbitrator not timely appointed shall be appointed by the AAA in accordance with the Rules (such panel, the “Arbitration Panel”); 诉讼应该1、在纽约提起诉讼2、根据美国仲裁协会商业仲裁规定进行仲裁3、仲裁团由一名买方选出的对光电太阳能产业熟悉的有经验人士、一名卖方选出的对光电太阳能产业熟悉的有经验人士和一名由以上两位有经验人士选出的对光电太阳能产业熟悉的个人组成。并以美国仲裁协会规定为依据行事。
(B) at least 10 business days before the arbitration hearing, the Parties shall
exchange and provide to the Arbitration Panel written proposals for the amount of money damages or other relief they would offer or demand, as applicable, and that they believe to be appropriate, with respect to each issue subject to a Dispute. Any time prior to the close of the arbitration hearing, the Parties remain free to exchange revised written proposals of offers or demands, which will supersede all prior proposals. Within one business day of the close of the arbitration hearing, the Parties shall exchange written proposals, which shall supersede all prior proposals, for the amount of money damages or other relief they would offer or demand, as applicable, and that they believe to be appropriate, with respect to each issue subject to a Dispute. In rendering the arbitration award, the arbitrators will select between the Parties’ last proposals on each issue, choosing the proposal that the arbitrators find more reasonable and appropriate; 在听证会召开至少10个工作日前，双方须交流向仲裁团提供损失数额及其它合适的书面资料。在仲裁听证之前，双方可以自由交换修改后的出价和要求，这些可以取代之前所有的提议。在仲裁听证会结束的当天工作日内，双方须交换书面提议，这份提议将替代之前所有提议。仲裁者将在双方提交的提议中进行合理选择，做出最终裁决。
(C) the Arbitration Panel shall have no authority or power to enter an award
which is in conflict with any of the provisions of this Agreement. The
NY:13068283.1
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