TOYO TOYO Company Ltd

 

 

UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 

FORM 6-K

 

REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934

 

For the month of November 2024

 

Commission File Number: 001-42153

 

TOYO Co., Ltd

 

5F, Tennoz First Tower

2-2-4, Higashi-Shinagawa, Shinagawa-ku

Tokyo, Japan 140-0002

(Address of Principal Executive Offices)

 

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.  

 

Form 20-F ☒          Form 40-F ☐

 

 

 

EXPLANATORY NOTE

 

Acquisition of Solar Plus Technology Texas LLC

 

On November 25, 2024, TOYO Solar LLC (“TOYO Solar”), a Delaware limited liability company and wholly-owned subsidiary TOYO Co., Ltd, a Cayman Islands exempted company (the “Company”), entered into that certain Membership Interest Purchase Agreement (the “Membership Interest Purchase Agreement”) with Solar Plus Technology, Inc., a Delaware corporation (“Seller”) and SG GREEN DEVELOPMENT PTE. LTD., an entity organized under the laws of Singapore (“SG Green”).

 

Pursuant to the Membership Interest Purchase Agreement, Seller agrees to sell to TOYO Solar all of the issued and outstanding membership interests held by Seller in Solar Plus Technology Texas LLC, a Texas limited liability company (“Solar Plus LLC”), and, in exchange, TOYO Solar agrees to issue to Seller 24.99 Class B units of TOYO Solar. As a result, TOYO Solar became the sole member of Solar Plus LLC and has two members, (i) TOYO Holdings LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“TOYO Holdings US”), holding 75.01% of the membership interests of TOYO Solar, with $19.96 million as a capital contribution to be made by TOYO Holdings US within one year of the signing, and (ii) Seller holding the remaining 24.99% of the membership interests of TOYO Solar, with 100% of the membership interests of Solar Plus LLC valued at $6.65 million as a capital contribution to be made within one year of the signing. The Class B units of TOYO Solar will be issued pursuant to the exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended.

 

Solar Plus LLC has completed the phase 1 construction of a solar module plant at a leased facility with 567,140 square feet located in the Houston metropolitan area, Texas (the “Texas Facility”). The Texas Facility is expected to commence its first 1.0 GW of commercial production by the middle of 2025 and to increase the production capacity to 2.5 GW by the end of 2025, in anticipation of a strong order pipeline from U.S. customers.

 

This acquisition aligns with the Company’s mission to expand its footprint in the U.S. to be closer to the majority of its clients, meet the demand for American-made solar panels, and contribute to the growing demand for secure, sustainable energy solutions as demands on the grid continue to rise.

 

The foregoing description of the Membership Interest Purchase Agreement are qualified in their entirety by reference to the full text of such Membership Interest Purchase Agreement.

 

 

Master Supply Agreements

 

On November 26, 2024, the Company announced that each of two wholly owned subsidiaries of the Company, TOPTOYO INVESTMENT PTE. LTD., a Singapore private company limited by shares (“TOPTOYO SG”) and Toyo America LLC, a Delaware limited liability company (“Toyo America” and together with the Company, TOPTOYO SG and the Company’s subsidiaries, “TOYO Group”), entered into a master supply agreement with two subsidiaries of a solar module manufacturer (collectively, the “Buyer”) dated November 18, 2024, respectively (collectively, the “Master Supply Agreements”).

 

The Buyer is a prominent solar module manufacturer with solar module manufacturing units in India and manufacturing facility in Texas. The terms and conditions of these two Master Supply Agreements are substantially the same. Pursuant to the Master Supply Agreements, TOYO Group agrees to sell a total of 999 MW of N-TYPE cells against purchase orders placed by the Buyer from time to time during the term of the Master Supply Agreements, as applicable, for a total purchase price of $137.86 million. There will be additional associated purchase orders expected by the Buyer which would result in aggregated transaction value of approximately $150 million. TOYO Group agrees to issue a written confirmation of its receipt of each purchase order from the Buyer within three (3) days. If TOYO Group fails to issue such confirmation within three (3) days, it is deemed that TOYO Group has accepted such purchase order. The Buyer has the right to withdraw any purchase order prior to TOYO Group’s acceptance or deemed acceptance. Both TOYO Group and the Buyer should use their commercially reasonable efforts to coordinate logistical related matters for the delivery of cells pursuant to delivery schedules for each purchase order.

 

The foregoing descriptions of the Master Supple Agreements are qualified in their entirety by reference to the full text of such Master Supple Agreements, respectively.

 

This Form 6-K contains forward-looking statements. Forward-looking statements include, but are not limited to, statements that express the Company’s intentions, beliefs, expectations, strategies, predictions, or any other statements related to the Company’s future activities, or future events or conditions. These statements are based on current expectations, estimates and projections about the Company’s business based, in part, on assumptions made by its management. These statements are not guarantees of future performances and involve risks, uncertainties and assumptions that are difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in the forward-looking statements due to numerous factors, including those risks discussed in documents that the Company files from time to time with the Securities and Exchange Commission. Any forward-looking statements speak only as of the date on which they are made, and the Company undertakes no obligation to update any forward-looking statement to reflect events or circumstances after the date of this Form 6-K, except as required not by law.

 

 

EXHIBIT INDEX

 

Exhibit No.		Description
10.1		Membership Interest Purchase Agreement dated November 25, 2024, by and among TOYO Solar LLC Solar Plus Technology, Inc. and SG GREEN DEVELOPMENT PTE. LTD.
10.2*		Master Supply Agreement dated November 18, 2024, by and between TOPTOYO INVESTMENT PTE. LTD. and the Buyer
10.3*		Master Supply Agreement dated November 18, 2024, by and between Toyo America LLC and the Buyer
99.1		Press Release dated November 25, 2024.
99.2		Press Release dated November 26, 2024.

 

*	Portion of this exhibit has been omitted in accordance with Item 601(b)(10)(iv) of Regulation S-K

 

 

Signature

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

	TOYO Co., Ltd
	By:	/s/ Junsei Ryu
	Name:	Junsei Ryu
	Title:	Director and Chief Executive Officer

 

Date: November 29, 2024

 

 

4

Exhibit 10.1

  

MEMBERSHIP INTEREST PURCHASE AGREEMENT

 

between

 

SOLAR PLUS TECHNOLOGY, INC.

 

and

 

TOYO SOLAR LLC

 

and, solely for the purposes of Article III, Article V, Article VI, Article VII, and Article VIII,

 

SG GREEN DEVELOPMENT PTE. LTD

 

dated as of

 

November [●], 2024.

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I PURCHASE AND SALE		1
Section 1.01	Purchase and Sale	1
Section 1.02	Consideration	1
ARTICLE II CLOSING		2
Section 2.01	Closing	2
Section 2.02	Seller Closing Deliverables	2
Section 2.03	Buyer Closing Deliverables	2
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER		3
Section 3.01	Organization and Authority of Seller	3
Section 3.02	Organization, Authority, and Qualification of the Company	3
Section 3.03	Capitalization	3
Section 3.04	No Subsidiaries	4
Section 3.05	No Conflicts or Consents	4
Section 3.06	Financial Statements	4
Section 3.07	Undisclosed Liabilities	5
Section 3.08	Absence of Certain Changes, Events, and Conditions	5
Section 3.09	Material Contracts	5
Section 3.10	Real Property; Title to Assets	6
Section 3.11	Intellectual Property	6
Section 3.12	Material Customers and Suppliers	7
Section 3.13	Insurance	7
Section 3.14	Legal Proceedings; Governmental Orders	8
Section 3.15	Compliance with Laws; Permits	8
Section 3.16	Environmental Matters	9
Section 3.17	Employee Benefit Matters	9
Section 3.18	Employment Matters	10
Section 3.19	Taxes	11
Section 3.20	Books and Records	12
Section 3.21	Brokers	12
Section 3.22	Full Disclosure	12

 

 

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER		13
Section 4.01	Organization and Authority of Buyer	13
Section 4.02	No Conflicts; Consents	13
Section 4.03	Investment Purpose	13
Section 4.04	Brokers	13
ARTICLE V COVENANTS		14
Section 5.01	Confidentiality	14
Section 5.02	Letters of Credit	14
Section 5.03	Further Assurances	14
ARTICLE VI TAX MATTERS		15
Section 6.01	Tax Actions	15
Section 6.02	Transfer Taxes	15
Section 6.03	Tax Sharing Agreements	15
Section 6.04	Tax Indemnification	15
Section 6.05	Cooperation and Exchange of Information	15
Section 6.06	Intended Tax Treatment	15
Section 6.07	Survival	15

 

 

ARTICLE VII INDEMNIFICATION		16
Section 7.01	Indemnification by Seller and SG Green	16
Section 7.02	Indemnification by Buyer	16
Section 7.03	Certain Limitations	16
Section 7.04	Indemnification Procedures	17
Section 7.05	Payments	18
Section 7.06	Survival	18
Section 7.07	Cumulative Remedies	18
Section 7.08	Effect of Investigation	18
ARTICLE VIII MISCELLANEOUS		19
Section 8.01	Expenses	19
Section 8.02	Notices	19
Section 8.03	Interpretation; Headings	20
Section 8.04	Severability	20
Section 8.05	Entire Agreement	20
Section 8.06	Successors and Assigns	20
Section 8.07	No Third-Party Beneficiaries	20
Section 8.08	Public Announcements.	20
Section 8.09	Amendment and Modification; Waiver	20
Section 8.10	Governing Law; Arbitration	21
Section 8.11	Specific Performance	22
Section 8.12	Preparation of Disclosure Schedules	22
Section 8.13	Counterparts	22

 

 

MEMBERSHIP INTEREST PURCHASE AGREEMENT

 

This Membership Interest Purchase Agreement (this “Agreement”), dated as of November [●], 2024, is entered into between Solar Plus Technology, Inc., a Delaware corporation (“Seller”), TOYO Solar, LLC, a Delaware limited liability company (“Buyer”), and, only as to Article III (Representations and Warranties of Seller), Article V (Covenants), Article VI (Tax matters), Article VII (Indemnification), and Article VIII (Miscellaneous), SG GREEN DEVELOPMENT PTE. LTD., an entity organized under the laws of Singapore (“SG Green”). Capitalized terms used in this Agreement have the meanings given to such terms herein, as such definitions are identified by the cross-references set forth in Exhibit A attached hereto.

 

RECITALS

 

WHEREAS, Seller owns all of the issued and outstanding membership interests (the “Membership Interests”), in Solar Plus Technology Texas LLC, a Texas limited liability company (the “Company”); and

 

WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the Membership Interests, subject to the terms and conditions set forth herein;

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Article I
Purchase and sale

 

Section 1.01  Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing (as defined in Article II), Seller shall sell to Buyer, and Buyer shall purchase from Seller, the Membership Interests, free and clear of any mortgage, pledge, lien, charge, security interest, claim, community property interest, option, equitable interest, restriction of any kind (including any restriction on use, voting, transfer, receipt of income, or exercise of any other ownership attribute), or other encumbrance (each, an “Encumbrance”), for the consideration specified in Section 1.02.

 

Section 1.02  Consideration. In exchange for the Membership Interests, Buyer shall issue 24.99 class B units of Buyer (the “Consideration Units”) to Seller. At Closing, Buyer shall deliver the Consideration Units to Seller, free and clear of any Encumbrance.

 

 

Article II
CLOSING

 

Section 2.01  Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place simultaneously with the execution of this Agreement on the date of this Agreement (the “Closing Date”) at the offices of Reed Smith LLP, 2850 N. Harwood Street, Dallas, TX 75201, or such other place or manner as the parties may mutually agree upon. The consummation of the transactions contemplated by this Agreement shall be deemed to occur at 12:01 a.m. C.S.T. on the Closing Date.

 

Section 2.02  Seller Closing Deliverables. At the Closing, Seller shall deliver to Buyer the following:

 

(a) An assignment of the Membership Interests to Buyer in the form of Exhibit B attached hereto (the “Assignment”), duly executed by Seller;

 

(b) A duly executed certificate of the secretary (or other officer) of Seller certifying (i) that attached thereto are true and complete copies of all resolutions of the board of directors and shareholders of Seller authorizing the execution, delivery, and performance of this Agreement and the other agreements, instruments, and documents required to be delivered in connection with this Agreement or at the Closing (collectively, the “Transaction Documents”) to which Seller is a party and the consummation of the transactions contemplated hereby and thereby, and that such resolutions are in full force and effect, (ii) the names, titles, and signatures of the officers or representatives of Seller authorized to sign this Agreement and the other Transaction Documents to which it is a party, and (iii) that attached thereto are true and complete copies of the governing documents of the Company, including any amendments or restatements thereof, and that such governing documents are in full force and effect;

 

(c)  Resignations, in form and substance satisfactory to Buyer, duly executed by any managers, officers, or other persons serving as a managerial official of the Company, effective as of the Closing Date;

 

(d)  An copy of the TOYO Solar LLC Amended and Restated Limited Liability Company Agreement, in the form of Exhibit C attached hereto (the “TOYO Solar LLC A&R LLCA”), duly executed by Seller;

 

(e) A certificate of fact for the Company from the Texas Secretary of State, a verification from the Texas Comptroller of Public Accounts that the Company is in good standing with all franchise tax requirements and its right to transact business in Texas is active, and a certificate of good standing (or its equivalent) for the Company certified by the Secretary of State or similar Governmental Authority of each state where the Company is required to be qualified, registered, or authorized to do business. For purposes of this Agreement, “Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any arbitrator, court, or tribunal of competent jurisdiction;

 

(f) An assignment of the Industrial Lease Agreement between Nexus Greens Property Owner, LLC (the “Landlord”) and the Company, duly executed by the Company and the Landlord; and

 

(g)  Copies of all Contracts of the Company, including, but not limited to equipment procurements and facility lease agreements, supplemented or modified to the satisfaction of the Buyer.

 

Section 2.03  Buyer Closing Deliverables. At the Closing, Buyer shall deliver the following to Seller:

 

(a)  The Consideration Units;

 

(b)  A copy of the Assignment, duly executed by Buyer; and

 

(c) A copy of the TOYO Solar LLC A&R LLCA, duly executed by both Buyer and TOYO Holdings, LLC, a Delaware limited liability company.

 

 

Article III

Representations and Warranties of Seller

 

Seller and SG Green, jointly and severally, represent and warrant to Buyer that the statements contained in this Article III are true and correct as of the date hereof. For purposes of this Article III, “Seller’s knowledge,” “knowledge of Seller,” and any similar phrases shall mean the actual or constructive knowledge of any member, manager, director, or officer of Seller or SG Green, after due inquiry.

 

Section 3.01  Organization and Authority of Seller. Seller is a corporation duly organized, validly existing, and in good standing under the Laws (as defined in Section 3.05) of Delaware. Seller has full corporate power and authority to enter into this Agreement and the other Transaction Documents to which Seller is a party, to carry out its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of this Agreement and any other Transaction Document to which Seller is a party, the performance by Seller of its obligations hereunder and thereunder, and the consummation by Seller of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Seller. This Agreement and each Transaction Document to which Seller is a party constitute legal, valid, and binding obligations of Seller enforceable against Seller in accordance with their respective terms.

 

Section 3.02  Organization, Authority, and Qualification of the Company. The Company is a limited liability company duly organized, validly existing, and in good standing under the Laws of the state of Texas and has full limited liability company power and authority to own, operate, or lease the properties and assets now owned, operated, or leased by it and to carry on its business as it has been and is currently conducted. Section 3.02 of the Disclosure Schedules sets forth each jurisdiction in which the Company is licensed or qualified to do business, and the Company is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the properties owned or leased by it or the operation of its business as currently conducted makes such licensing or qualification necessary. The term “Disclosure Schedules” means the disclosure schedules delivered by Seller concurrently with the execution, closing, and delivery of this Agreement.

 

Section 3.03  Capitalization.

 

(a)  Seller is the record owner of and has good and valid title to the Membership Interests, free and clear of all Encumbrances. The Membership Interests constitute 100% of the total issued and outstanding membership interests in the Company. The Membership Interests have been duly authorized and are validly issued, fully-paid, and non-assessable. Upon consummation of the transactions contemplated by this Agreement, Buyer shall own all of the Membership Interests, free and clear of all Encumbrances.

 

 

(b)  The Membership Interests were issued in compliance with applicable Laws. The Membership Interests were not issued in violation of the certificate of formation, company agreement, or other governing documents of the Company (collectively, the “Governing Documents”) or any other agreement, understanding, arrangement, or commitment to which Seller or the Company is a party and are not subject to or in violation of any preemptive or similar rights of any individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association, or other entity (each, a “Person”).

 

(c)  There are no outstanding or authorized options, warrants, convertible securities, or other rights, agreements, or commitments of any character relating to the membership interests in the Company or obligating Seller or the Company to issue or sell any membership interests (including the Membership Interests), or any other interest, in the Company. Other than the Governing Documents, there are no voting trusts, proxies, or other agreements or understandings in effect with respect to the voting or transfer of any of the Membership Interests.

 

Section 3.04 No Subsidiaries. The Company does not have, or have the right to acquire, an ownership interest in any other Person.

 

Section 3.05 No Conflicts or Consents. The execution, delivery, and performance by Seller of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) violate or conflict with any provision of the certificate of formation, bylaws, or other governing documents of Seller or the Company; (b) violate or conflict with any provision of any statute, law, ordinance, regulation, rule, code, treaty, or other requirement of any Governmental Authority (collectively, “Law”) or any order, writ, judgment, injunction, decree, determination, penalty, or award entered by or with any Governmental Authority (“Governmental Order”) applicable to Seller or the Company; (c) require the consent, notice, or filing with or other action by any Person or require any Permit (as defined in Section 3.15(b)), license, or Governmental Order; (d) violate or conflict with, result in the acceleration of, or create in any party the right to accelerate, terminate, or modify any contract, lease, deed, mortgage, license, instrument, note, indenture, joint venture, or any other agreement, commitment, or legally binding arrangement, whether written or oral (collectively, “Contracts”), to which Seller or the Company is a party or by which Seller or the Company is bound or to which any of their respective properties and assets are subject; or (e) result in the creation or imposition of any Encumbrance on any properties or assets of the Company.

 

Section 3.06  Financial Statements. Complete copies of the Company’s unaudited financial statements consisting of the balance sheet of the Company from February 2, 2024 (“Date of Formation”) through September 30, 2024, and the related statements of income and retained earnings, members’ equity, and cash flow for the years then ended (the “Financial Statements”) have been delivered to Buyer. The Financial Statements have been prepared in accordance with generally accepted accounting principles in effect in the United States from time to time (“GAAP”), applied on a consistent basis throughout the period involved. The Financial Statements are based on the books and records of the Company and fairly present the financial condition of the Company as of the respective dates they were prepared and the results of the operations of the Company for the periods indicated. The balance sheet of the Company as of September 30, 2024 is referred to herein as the “Balance Sheet” and the date thereof as the “Balance Sheet Date”. The Company maintains a standard system of accounting established and administered in accordance with GAAP.

 

 

Section 3.07  Undisclosed Liabilities. The Company has no liabilities, obligations, or commitments of any nature whatsoever, whether asserted, known, absolute, accrued, matured, or otherwise (collectively, “Liabilities”), except: (a) those which are adequately reflected or reserved against in the Balance Sheet as of the Balance Sheet Date; and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material in amount.

 

Section 3.08  Absence of Certain Changes, Events, and Conditions. Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been, with respect to the Company, any change, event, condition, or development that is, or could reasonably be expected to be, individually or in the aggregate, materially adverse to the business, results of operations, condition (financial or otherwise), or assets of the Company. In addition, since the Balance Sheet Date, the Company has not incurred any liability for Taxes other than in the ordinary course of business, made or rescinded any Tax election, changed any annual accounting period, adopted or changed any method of accounting or transfer pricing practice or policy or reversed any accruals (except as required by a change in law or GAAP), filed any amended Tax Returns, entered into any Tax sharing agreement, signed or entered into any closing agreement or settlement agreement, settled or compromised any claim or assessment of Tax liability, surrendered any right to claim a refund, offset or other reduction in liability, consented to any extension or waiver of the limitations period applicable to any claim or assessment, in each case with respect to Taxes, or acted or omitted to act where such action or omission to act could reasonably be expected to have the effect of increasing any present or future Tax liability or decreasing any present or future Tax benefit for the Company or the Buyer or its Affiliates.

 

Section 3.09  Material Contracts.

 

(a)  Section 3.09(a) of the Disclosure Schedules lists each Contract that is material to the Company (such Contracts, together with all Contracts concerning the occupancy, management, or operation of any Real Property (as defined in Section 3.10(a)), being “Material Contracts”), including the following:

 

(i)  each Contract of the Company involving aggregate consideration in excess of $10,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 60 days’ notice;

 

(ii)  all Contracts that provide for the indemnification by the Company of any Person or the assumption of any Tax (as defined in Section 3.19(a)), environmental, or other Liability of any Person;

 

(iii)  all Contracts relating to Intellectual Property (as defined in Section 3.11(a)), including all licenses, sublicenses, settlements, coexistence agreements, covenants not to sue, and permissions;

 

(iv)  except for Contracts relating to trade payables, all Contracts relating to indebtedness (including, without limitation, guarantees) of the Company; and

 

(v)  all Contracts that limit or purport to limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time.

 

 

(b)  Each Material Contract is valid and binding on the Company in accordance with its terms and is in full force and effect. None of the Company or, to Seller’s knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) or has provided or received any notice of any intention to terminate, any Material Contract. Neither the Company nor the Seller has any reason to believe that any counterparty to a Material Contracts will terminate or materially change such Material Contract after Closing. Complete and correct copies of each Material Contract (including all modifications, amendments, and supplements thereto and waivers thereunder) have been made available to Buyer.

 

Section 3.10  Real Property; Title to Assets.

 

(a)  Section 3.10(a) of the Disclosure Schedules lists all real property in which the Company has an ownership or leasehold (or subleasehold) interest (together with all buildings, structures, and improvements located thereon, the “Real Property”), including: (i) the street address of each parcel of Real Property; (ii) for Real Property that is leased or subleased by the Company, the landlord under the lease, the rental amount currently being paid, and the expiration of the term of such lease or sublease, and any termination or renewal rights of either party; and (iii) the current use of each parcel of Real Property. Seller has delivered or made available to Buyer true, correct, and complete copies of all Contracts, title insurance policies, and surveys relating to the Real Property.

 

(b)  The Company has good and valid (and, in the case of owned Real Property, good and indefeasible fee simple) title to, or a valid leasehold interest in, all Real Property and personal property and other assets reflected in the Financial Statements or acquired after the Balance Sheet Date (other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Balance Sheet Date). All Real Property and such personal property and other assets (including leasehold interests) are free and clear of Encumbrances except for those items set forth in Section 3.10(b) of the Disclosure Schedules.

 

(c)  The Company is not a sublessor or grantor under any sublease or other instrument granting to any other Person any right to possess, lease, occupy, or use any leased Real Property. The use of the Real Property in the conduct of the Company’s business does not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit, or agreement and no material improvements constituting a part of the Real Property encroach on real property owned or leased by a Person other than the Company.

 

Section 3.11  Intellectual Property.

 

(a)  “Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) issued patents and patent applications; (ii) trademarks, service marks, trade names, and other similar indicia of source or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration, and renewals of, any of the foregoing; (iii) copyrights, including all applications and registrations; (iv) trade secrets, know-how, inventions (whether or not patentable), technology, and other confidential and proprietary information and all rights therein; (v) internet domain names and social media accounts and pages; and (vi) other intellectual or industrial property and related proprietary rights, interests, and protections.

 

 

(b)  Section 3.11(b) of the Disclosure Schedules lists all issued patents, registered trademarks, domain names and copyrights, and pending applications for any of the foregoing and all material unregistered Intellectual Property that are owned by the Company (the “Company IP Registrations”). The Company owns or has the valid and enforceable right to use all Intellectual Property used or held for use in or necessary for the conduct of the Company’s business as currently conducted or as proposed to be conducted (the “Company Intellectual Property”), free and clear of all Encumbrances. All of the Company Intellectual Property is valid and enforceable, and all Company IP Registrations are subsisting and in full force and effect. The Company has taken all reasonable and necessary steps to maintain and enforce the Company Intellectual Property.

 

(c)  The conduct of the Company’s business as currently and formerly conducted and as proposed to be conducted has not infringed, misappropriated, or otherwise violated and will not infringe, misappropriate, or otherwise violate the Intellectual Property or other rights of any Person. No Person has infringed, misappropriated, or otherwise violated any Company Intellectual Property.

 

Section 3.12  Material Customers and Suppliers.

 

(a)  Section 3.12(a) of the Disclosure Schedules sets forth each customer who has paid aggregate consideration to the Company for goods or services rendered in an amount greater than or equal to $10,000.00 since the Date of Formation (collectively, the “Material Customers”). The Company has not received any notice, and has no reason to believe, that any of its Material Customers has ceased, or intends to cease after the Closing, to purchase or use its goods or services or to otherwise terminate or materially reduce its relationship with the Company.

 

(b)  Section 3.12(b) of the Disclosure Schedules sets forth each supplier to whom the Company has paid consideration for goods or services rendered in an amount greater than or equal to $10,000.00 since the Date of Formation (collectively, the “Material Suppliers”). The Company has not received any notice, and has no reason to believe, that any of its Material Suppliers has ceased, or intends to cease, to supply goods or services to the Company or to otherwise terminate or materially reduce its relationship with the Company.

 

Section 3.13  Insurance. Section 3.13 of the Disclosure Schedules sets forth a true and complete list of all current policies or binders of insurance maintained by Seller or its Affiliates (including the Company) and relating to the assets, business, operations, employees, officers, and sole member of the Company (collectively, the “Insurance Policies”). Such Insurance Policies: (a) are in full force and effect; (b) are valid and binding in accordance with their terms; (c) are provided by carriers who are financially solvent; and (d) have not been subject to any lapse in coverage. Neither the Seller nor any of its Affiliates (including the Company) has received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have been paid. None of Seller or any of its Affiliates (including the Company) is in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any Insurance Policy. The Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Company and are sufficient for compliance with all applicable Laws and Contracts to which the Company is a party or by which it is bound. For purposes of this Agreement: (x) “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person; and (y) the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

 

 

Section 3.14  Legal Proceedings; Governmental Orders.

 

(a)  There are no claims, actions, causes of action, demands, lawsuits, arbitrations, inquiries, audits, notices of violation, proceedings, litigation, citations, summons, subpoenas, or investigations of any nature, whether at law or in equity (collectively, “Actions”) pending or, to Seller’s knowledge, threatened against or by the Company, Seller, or any Affiliate of Seller: (i) relating to or affecting the Company or any of the Company’s properties or assets, including any Material Contracts; or (ii) that challenge or seek to prevent, enjoin, or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.

 

(b)  There are no outstanding, and the Company is in compliance with all, Governmental Orders against, relating to, or affecting the Company or any of its properties or assets, including the Material Contracts.

 

Section 3.15  Compliance with Laws; Permits.

 

(a)  The Company has complied, and is now complying, with all Laws applicable to it or its business, properties, or assets. Any violation of Laws by the Company, if any, has been rectified or corrected to the satisfaction of Buyer. Any obligee or creditor of the Company has waived any claim against the Company, in writing, for any alleged breach by the Company.

 

(b)  All permits, licenses, franchises, approvals, registrations, certificates, variances, and similar rights obtained, or required to be obtained, from Governmental Authorities (collectively, “Permits”) that are required for the Company to conduct its business, including, without limitation, owning or operating any of the Real Property, have been obtained and are valid and in full force and effect. Section 3.15(b) of the Disclosure Schedules list all current Permits issued to the Company and no event has occurred that would reasonably be expected to result in the revocation or lapse of any such Permit.

 

(c)  Seller and SG Green represent, promise, warrant, and guarantee that any applicable construction activity for the renovation of the plant and facilities located at 6115 Greens Road, Humble, Texas 77396 (the “Humble Facilities”) can start, begin, and carry on as of the Closing Date without the presence of the Permits. Seller and SG Green further acknowledge and represent that they shall be jointly and severally liable to Buyer and the Company for any and all losses, damages, charges, fees, fines, or penalties caused by or in connection with such construction, renovation, or related activity.

 

 

Section 3.16  Environmental Matters.

 

(a)  The Company has complied, and is now complying, with all Environmental Laws. Neither the Company nor Seller has received notice from any Person that the Company, its business or assets, or any real property currently or formerly owned, leased, or used by the Company is or may be in violation of any Environmental Law or any applicable Law regarding Hazardous Substances.

 

(b)  There has not been any spill, leak, discharge, injection, escape, leaching, dumping, disposal, or release of any kind of any Hazardous Substances in violation of any Environmental Law: (i) with respect to the business or assets of the Company; or (ii) at, from, in, adjacent to, or on any real property currently or formerly owned, leased, or used by the Company. There are no Hazardous Substances in, on, about, or migrating to any real property currently or formerly owned, leased, or used by the Company, and such real property is not affected in any way by any Hazardous Substances.

 

(c)  As used in this Agreement: (i) “Environmental Laws” means all Laws, now or hereafter in effect, in each case as amended or supplemented from time to time, relating to the regulation and protection of human health, safety, the environment, and natural resources, including any federal, state, or local transfer of ownership notification or approval statutes; and (ii) “Hazardous Substances” means: (A) “hazardous materials,” “hazardous wastes,” “hazardous substances,” “industrial wastes,” or “toxic pollutants,” as such terms are defined under any Environmental Laws; (B) any other hazardous or radioactive substance, contaminant, or waste; and (C) any other substance with respect to which any Environmental Law or Governmental Authority requires environmental investigation, regulation, monitoring, or remediation.

 

Section 3.17  Employee Benefit Matters.

 

(a)  Section 3.17(a) of the Disclosure Schedules contains a true and complete list of each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (as amended, and including the regulations thereunder, “ERISA”), whether or not written and whether or not subject to ERISA, and each supplemental retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, equity, change in control, retention, severance, salary continuation, and other similar agreement, plan, policy, program, practice, or arrangement which is or has been established, maintained, sponsored, or contributed to by the Company or under which the Company has or may have any Liability (each, a “Benefit Plan”).

 

(b)  For each Benefit Plan, Seller has made available to Buyer accurate, current, and complete copies of each of the following: (i) the plan document with all amendments, or if not reduced to writing, a written summary of all plan terms; (ii) any written contracts and arrangements related to such Benefit Plan, including trust agreements or other funding arrangements, and insurance policies, certificates, and contracts; (iii) in the case of a Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”), the most recent favorable determination or national office approval letter issued by the Internal Revenue Service and any legal opinions issued thereafter with respect to the Benefit Plan’s continued qualification; (iv) the most recent Form 5500 filed with respect to such Benefit Plan; and (v) any material notices, audits, inquiries, or other correspondence from, or filings with, any Governmental Authority relating to the Benefit Plan.

 

 

(c)  Each Benefit Plan and related trust has been established, administered, and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA and the Code). Nothing has occurred with respect to any Benefit Plan that has subjected or could subject the Company or, with respect to any period on or after the Closing Date, Buyer or any of its Affiliates, to a civil action, penalty, surcharge, or Tax under applicable Law or which would jeopardize the previously determined qualified status of any Benefit Plan. All benefits, contributions, and premiums relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principles. Benefits accrued under any unfunded Benefit Plan have been paid, accrued, or adequately reserved for to the extent required by GAAP.

 

(d)  The Company has not incurred and does not reasonably expect to incur: (i) any material Liability under Title I or Title IV of ERISA, any related provisions of the Code, or applicable Law relating to any Benefit Plan; or (ii) any Liability to the Pension Benefit Guaranty Corporation. No complete or partial termination of any Benefit Plan has occurred or is expected to occur.

 

(e)  The Company has not now or at any time since the Date of Formation contributed to, sponsored, or maintained: (i) any “multiemployer plan” as defined in Section 3(37) of ERISA; (ii) any “single-employer plan” as defined in Section 4001(a)(15) of ERISA; (iii) any “multiple employer plan” as defined in Section 413(c) of the Code; (iv) any “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA; (v) a leveraged employee stock ownership plan described in Section 4975 (e)(7) of the Code; or (vi) any other Benefit Plan subject to required minimum funding requirements.

 

(f)  Other than as required under Sections 601 to 608 of ERISA or other applicable Law, no Benefit Plan provides post-termination or retiree welfare benefits to any individual for any reason.

 

(g)  Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will, either alone or in combination with any other event: (i) entitle any current or former member, officer, employee, independent contractor, or consultant of the Company to any severance pay, increase in severance pay, or other payment; (ii) accelerate the time of payment, funding, or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) limit or restrict the right of the Company to amend or terminate any Benefit Plan; (iv) increase the amount payable under any Benefit Plan; (v) result in any “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (vi) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.

 

Section 3.18  Employment Matters.

 

(a)  Section 3.18(a) of the Disclosure Schedules lists: (i) all employees, independent contractors, and consultants of the Company; and (ii) for each individual described in clause (i), (A) the individual’s title or position, hire date, and compensation, (B) any Contracts entered into between the Company and such individual, and (C) the fringe benefits provided to each such individual. All compensation payable to all employees, independent contractors, or consultants of the Company for services performed on or prior to the Closing Date have been paid in full.

 

 

(b)  The Company is not, and has not been, a party to or bound by any collective bargaining agreement or other Contract with a union or similar labor organization (collectively, “Union”), and no Union has represented or purported to represent any employee of the Company. There has never been, nor has there been any threat of, any strike, work stoppage, slowdown, picketing, or other similar labor disruption or dispute affecting the Company or any of its employees.

 

(c)  The Company is and has been in compliance with: (i) all applicable employment Laws and agreements regarding hiring, employment, termination of employment, plant closings and mass layoffs, employment discrimination, harassment, retaliation, and reasonable accommodation, leaves of absence, terms and conditions of employment, wages and hours of work, employee classification, employee health and safety, engagement and classification of independent contractors, payroll taxes, and immigration with respect to all employees, independent contractors, and contingent workers; and (ii) all applicable Laws relating to the relations between it and any labor organization, trade union, work council, or other body representing employees of the Company.

 

Section 3.19  Taxes.

 

(a)  All returns, declarations, reports, information returns and statements, and other documents relating to Taxes (including any schedule or attachment thereto or amendment thereof) (collectively, “Tax Returns”) required to be filed by the Company have been timely filed. Such Tax Returns are true, correct, and complete in all respects. All Taxes due and owing by the Company (whether or not shown on any Tax Return) have been timely paid. No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of the Company. Seller has delivered to Buyer copies of all Tax Returns and examination reports of the Company and statements of deficiencies assessed against, or agreed to by, the Company. The term “Taxes” means all federal, state, local, foreign, and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties, or other taxes, fees, assessments, or charges of any kind whatsoever, and any liability under unclaimed property, escheat, or similar Laws, in each case, together with any interest, additions, or penalties with respect thereto and any interest in respect of such additions or penalties.

 

(b)  The Company has timely withheld and paid over to the appropriate taxing authority each Tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, member, or other party, and complied with all information reporting and backup withholding provisions of applicable Law.

 

(c) The Company has not been a member of an affiliated, combined, consolidated, or unitary Tax group for Tax purposes. The Company has no Liability for Taxes of any Person (other than the Company) under Treasury Regulations Section 1.1502-6 (or any corresponding provision of state, local, or foreign Law), as transferee or successor, by contract, or otherwise.

 

  

(d) There are no liens relating or attributable to Taxes encumbering (and no taxing authority has threatened to encumber) the assets of the Company, except for statutory liens for current Taxes not yet due and payable. There are no liens relating or attributable to Taxes encumbering (and no taxing authority has threatened to encumber) the Membership Interests.

 

(e) There are no: (i) pending or threatened claims with respect to Taxes relating or attributable to the Company; or (ii) deficiencies for any Tax, claim for additional Taxes, or other dispute or claim relating or attributable to any Tax liability of the Company claimed, issued or raised by any taxing authority that has not been properly reflected in the Financial Statements.

 

(f)   The Company has not waived any statute of limitations for the period of assessment or collection of Taxes, or agreed to or requested any extension of time for the period with respect to a Tax assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired.

 

(g) The Company (i) is not a party to, or bound by, or have any obligation under, any Tax sharing agreement, or (ii) have has any potential liability or obligation (for Taxes or otherwise) to any Person as a result of, or pursuant to, any such Tax sharing agreement.

 

(h) None of the Company or its subsidiaries is a party to any joint venture, partnership, other arrangement or contract which may reasonably be expected to be treated as a partnership for U.S. federal income Tax purposes.

 

(i) The Company has been treated as a disregarded entity for U.S. federal, state, and local income Tax purposes, and the Membership Interests have been held by the Seller at all times, since the formation of the Company.

 

(j) Seller is not a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2.

 

(k) No power of attorney related or attributable to Taxes that currently is in effect has been granted by the Company.

 

Section 3.20 Books and Records. The minute books of the Company, all of which are in the possession of the Company and have been made available to Buyer, are complete and correct and contain accurate and complete records of all meetings of both the sole member and manager and actions taken by written consent of the sole member or manager, as applicable. No meeting, or action taken by written consent, of the sole member or manager has been held for which minutes have not been prepared and are not contained in such minute books.

 

Section 3.21 Brokers. No broker, finder, or investment banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Seller.

 

Section 3.22 Full Disclosure. No representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

 

 

Article IV
Representations and warranties of buyer

 

Buyer represents and warrants to Seller that the statements contained in this Article IV are true and correct as of the date hereof.

 

Section 4.01 Organization and Authority of Buyer. Buyer is a limited liability company duly organized, validly existing, and in good standing under the Laws of the state of Delaware. Buyer has full limited liability company power and authority to enter into this Agreement and the other Transaction Documents to which Buyer is a party, to carry out its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and any other Transaction Document to which Buyer is a party, the performance by Buyer of its obligations hereunder and thereunder, and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all requisite limited liability company action on the part of Buyer. This Agreement and each Transaction Document to which Buyer is a party constitute legal, valid, and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms.

 

Section 4.02 No Conflicts; Consents. The execution, delivery, and performance by Buyer of this Agreement and the other Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) violate or conflict with any provision of the certificate of formation, company agreement, or other governing documents of Buyer; (b) violate or conflict with any provision of any Law or Governmental Order applicable to Buyer; or (c) require the consent, notice, declaration, or filing with or other action by any Person or require any Permit, license, or Governmental Order.

 

Section 4.03 Investment Purpose. Buyer is acquiring the Membership Interests solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof or any other security related thereto within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). Buyer acknowledges that the Membership Interests are not registered under the Securities Act or any state securities laws and that the Membership Interests may not be transferred or sold except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.

 

Section 4.04 Brokers. No broker, finder, or investment banker is entitled to any brokerage, finder’s, or other fee or commission in connection with the transactions contemplated by this Agreement or any other Transaction Document based upon arrangements made by or on behalf of Buyer.

 

 

Article V
Covenants

 

Section 5.01 Confidentiality. From and after the Closing, Seller and SG Green shall, and shall cause their respective Affiliates and their respective directors, managers, members, officers, employees, consultants, financial advisors, counsel, accountants, and other agents (collectively, “Representatives”) to hold, in confidence any and all information, in any form, concerning the Company, except to the extent that Seller or SG Green can show that such information: (a) is generally available to and known by the public through no fault of Seller, SG Green, or any of their respective Affiliates or Representatives; or (b) is lawfully acquired by Seller, SG Green, or any of their respective Affiliates or Representatives from and after the Closing from sources that are not prohibited from disclosing such information by a legal, contractual, or fiduciary obligation. If Seller, SG Green, or any of their respective Affiliates or Representatives are compelled to disclose any information by Governmental Order or Law, Seller or SG Green shall promptly notify Buyer in writing and shall disclose only that portion of such information that is legally required to be disclosed; provided that Seller or SG Green shall use reasonable best efforts to obtain as promptly as possible an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.

 

Section 5.02 Letters of Credit. From and after the Closing, Seller shall, and shall cause its Representatives to, provide Buyer and the Company with monthly bank statements with respect to the following (collectively, the “Letters of Credit”): (i) through February 16, 2026, for that certain Irrevocable Standby Letter of Credit No. 24OSL005427, dated February 16, 2024, issued by East West Bank, with Nexus Greens Owner, LP c/o Lovett Industrial as the beneficiary and Seller as the applicant, for a total amount of $2,000,000 U.S. dollars; and (i) through November 5, 2025, for that certain Irrevocable Standby Letter of Credit No. 24OSL005683, dated November 5, 2024, issued by East West Bank, with Nexus Greens Property Owner, LLC as the beneficiary and Seller as the applicant, for a total amount of $2,000,000 U.S. dollars. Within three business days after receipt of a deposit (each, a “Deposit”) from a Letter of Credit (such period, a “Deposit Period”), Seller shall cause the full amount of such Deposit to be transferred, in immediately available funds, to a bank account designated in writing by the Company. If Seller fails to transfer a Deposit to the bank account designated in writing by the Company within the Deposit Period, Buyer may initiate a “Forced Sale” (as defined in the TOYO Solar LLC A&R LLC) in accordance with Section 6.05 of the TOYO Solar LLC A&R LLCA.

 

Section 5.03 Further Assurances. Each of the parties hereto, including SG Green, shall, and shall cause its respective Affiliates to, from time to time at the request of another party, without any additional consideration, furnish such other party with such further information or assurances, execute and deliver such additional documents, instruments and conveyances, and take such other actions and do such other things, as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and each of the other Transaction Documents and give effect to the transactions contemplated hereby.

 

 

Article VI
Tax matters

 

Section 6.01 Tax Actions. Without the prior written consent of Buyer, Seller, and SG Green shall not, and shall not permit any of their respective Affiliates, to the extent it may affect or relate to the Company: (i) make, change, or rescind any Tax election; (ii) amend any Tax Return; (iii) take any position on any Tax Return; or (iv) take any action, omit to take any action, or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer or the Company.

 

Section 6.02 Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, value added, and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the other Transaction Documents shall be borne and paid by Seller when due. Seller shall, at its own expense, timely file any Tax Return or other document with respect to such Taxes or fees (and Buyer shall cooperate with respect thereto as necessary).

 

Section 6.03 Tax Sharing Agreements. Any and all existing Tax sharing agreements (whether written or not) binding upon the Company shall be terminated as of the Closing Date. After such date none of the Company, Seller, nor any of Seller’s Affiliates and their respective Representatives shall have any further rights or liabilities thereunder.

 

Section 6.04 Tax Indemnification. Seller and SG Green shall, jointly and severally, indemnify the Company, Buyer, and each Buyer Indemnitee (as defined in Section 7.01) and hold them harmless from and against (a) any loss, damage, liability, deficiency, Action, judgment, interest, award, penalty, fine, cost, or expense of whatever kind (collectively, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification under this Agreement, “Losses”) attributable to any breach of or inaccuracy in any representation or warranty made in Section 3.19; (b) any Loss attributable to any breach or violation of, or failure to fully perform, any covenant, agreement, undertaking, or obligation in Article VI; (c) all Taxes of the Company or relating to the business of the Company for all Pre-Closing Tax Periods (as defined below); (d) all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which the Company (or any predecessor of the Company) is or was a member on or prior to the Closing Date by reason of a liability under Treasury Regulation Section 1.1502-6 or any comparable provisions of foreign, state, or local Law; and (e) any and all Taxes of any Person imposed on the Company arising under the principles of transferee or successor liability or by contract, relating to an event or transaction occurring before the Closing Date. In each of the above cases, together with any out-of-pocket fees and expenses (including attorneys’ and accountants’ fees) incurred in connection therewith, Seller and SG Green shall, jointly and severally, reimburse Buyer for any Taxes of the Company that are the responsibility of Seller pursuant to this Section 6.04 within 10 business days after payment of such Taxes by Buyer or the Company. For purposes of this Agreement, a “Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.

 

Section 6.05 Cooperation and Exchange of Information. Seller, SG Green, and Buyer shall provide each other with such cooperation and information as any of them reasonably may request of the other in filing any Tax Return pursuant to this Article VI or in connection with any audit or other proceeding in respect of Taxes of the Company, including providing copies of relevant Tax Returns and accompanying documents. Each of Seller, SG Green, and Buyer shall retain all Tax Returns and other documents in its possession relating to Tax matters of the Company for any Pre-Closing Tax Period (collectively, “Tax Records”) until the expiration of the statute of limitations of the taxable periods to which such Tax Records relate.

 

Section 6.06 Intended Tax Treatment. The parties hereto intend, for U.S. federal (and applicable state and local) income Tax purposes that each of (i) Seller’s transfer of the Membership Interests to Buyer in exchange for the Consideration Units, and (ii) the contribution of $9,000,000.00 USD to the Buyer by TOYO Holdings, LLC, a Delaware limited liability company, be treated as a transaction describe in Section 721(a) of the Code. Notwithstanding any agreements to the contrary, each of the parties hereto shall (and shall cause its Affiliates to), unless otherwise required by a final “determination” (within the meaning of Section 1313(a) of the Code), prepare and file all Tax Returns in a manner consistent with this Section 6.06 and take no position in any Tax Return, audit, proceeding, or otherwise relating to Taxes that is inconsistent with this Section 6.06. In the event that any taxing authority disputes the Tax treatment set forth in this Section 6.06, the party receiving notice of such dispute shall promptly notify and consult with the other parties concerning the resolution of such dispute and shall use its reasonable best efforts to contest such dispute in a manner consistent with this Section 6.06.

 

Section 6.07 Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Section 3.19 and this Article VI shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation, or extension thereof) plus 90 days.

 

 

Article VII

Indemnification

 

Section 7.01 Indemnification by Seller and SG Green. Subject to the other terms and conditions of this Article VII, Seller and SG Green shall, jointly and severally, indemnify and defend each of Buyer and its Affiliates (including the Company) and their respective Representatives (collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to, or by reason of:

 

(a) any inaccuracy in or breach of any of the representations or warranties of Seller or SG Green contained in this Agreement or the other Transaction Documents; or

 

(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Seller or SG Green pursuant to this Agreement or the other Transaction Documents.

 

Section 7.02 Indemnification by Buyer. Subject to the other terms and conditions of this Article VII, Buyer shall indemnify and defend each of Seller and its Affiliates and their respective Representatives (collectively, the “Seller Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to, or by reason of:

 

(a) any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or the other Transaction Documents; or

 

(b) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Buyer pursuant to this Agreement.

 

Section 7.03 Certain Limitations.

 

(a) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.02 until the aggregate amount of all Losses in respect of indemnification under Section 7.02 exceeds $50,000, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 7.02 shall not exceed $250,000.

 

(b) For purposes of this Article VII, including for (including for purposes of determining the existence of any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss with respect thereto), any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality or other similar qualification contained in or otherwise applicable to such representation or warranty.

 

 

Section 7.04 Indemnification Procedures. The party making a claim under this Article VII is referred to as the “Indemnified Party”, and the party against which such claims are asserted under this Article VII is referred to as the “Indemnifying Party”.

 

(a) Third-Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third-Party Claim that (i) is asserted directly by or on behalf of a Person that is a counterparty to a Material Contract, a supplier of the Company, or a customer of the Company, or (ii) seeks an injunction or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to Section 7.04(b), the Indemnifying Party shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel selected by it (“Indemnified Party’s Counsel”) subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such Indemnified Party’s Counsel shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party, (x) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party; or (y) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of the Indemnified Party’s Counsel in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third-Party Claim, the Indemnified Party may, subject to Section 7.04(b), pay, compromise, defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. Seller, SG Green, and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of Section 5.01) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, directors, officers, members, managers, and employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.

 

(b) Settlement of Third-Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third-Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section 7.04(b). If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third-Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within 10 days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third-Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third-Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third-Party Claim, the Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such firm offer to settle such Third-Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 7.04(a), the Indemnified Party shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).

 

 

(c) Direct Claims. Any Action by an Indemnified Party on account of a Loss that does not result from a Third-Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Company’s premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30-day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.

 

Section 7.05 Payments. Once a Loss is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this Article VII, the Indemnifying Party shall satisfy its obligations within 15 Business Days of such final, non-appealable adjudication by wire transfer of immediately available funds, subject to Section 7.03. The parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such 15 Business Day period, any amount payable shall accrue interest from and including the date of agreement of the Indemnifying Party or final, non-appealable adjudication to and including the date such payment has been made, at a rate per annum equal to the then current prime interest rate (as reported in the Wall Street Journal or any successor publication) plus 5%. Such interest shall be calculated daily on the basis of a 365-day year and the actual number of days elapsed. “Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in the City of New York are authorized or required to close.

 

Section 7.06 Survival. Subject to the limitations and other provisions of this Agreement, all representations and warranties contained herein and all related rights to indemnification shall survive the Closing and shall remain in full force and effect until the date that is 20 years from the Closing Date; provided, however, that the representations and warranties in (a) Section 3.01, Section 3.02, Section 3.03, Section 3.04, Section 3.21, Section 4.01, and Section 4.04 shall survive indefinitely; and (b) Section 3.19 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation, or extension thereof) plus 90 days. Subject to Article VI, all covenants and agreements of the parties contained herein shall survive the Closing indefinitely unless another period is explicitly specified herein. Notwithstanding the foregoing, any claims that are timely asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.

 

Section 7.07 Cumulative Remedies. The rights and remedies provided for in this Article VII (and in Article VI) are cumulative and are in addition to and not in substitution for any other rights and remedies available at Law or in equity or otherwise

 

Section 7.08 Effect of Investigation. The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate.

 

 

Article VIII
Miscellaneous

 

Section 8.01 Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.

 

Section 8.02 Notices. All notices, claims, demands, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid, if sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.02):

 

If to Seller:	Solar Plus Technology Inc. 6115 Greens Road Humble, Texas 77396 Email:ericlee_azalea@solarplustech.com Attention: Lee Sui Hoi
If to SG Green:	SG GREEN DEVELOPMENT PTE. LTD 140 Paya Lebar Road, #06-01, AZ @ Paya Lebar, Singapore 409015 Email: ericlee_azalea@solarplustech.com Attention: Lee Sui Hoi
If to Buyer:	TOYO Solar LLC 909 Corporate Way Fremont, California 94539 Email: sally.zhou@toyo-solar.com Attention: Sally Zhou

 

with a copy (which shall not constitute notice) to:

Reed Smith LLP 1201 North Market Street Suite 1500 Wilmington, Delaware 19801 Email: bchapple@reedsmith.com Attention: Benjamin Chapple

 

 

Section 8.03 Interpretation; Headings. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

Section 8.04 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement.

 

Section 8.05 Entire Agreement. This Agreement and the other Transaction Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the other Transaction Documents, any exhibits, and the Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

 

Section 8.06 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.

 

Section 8.07 No Third-Party Beneficiaries. Except as provided in Section 6.04 and Article VII, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

Section 8.08 Public Announcements. Buyer or any of its Affiliates or Representatives may publicly disclose, issue any press release, or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of the Seller.

 

Section 8.09 Amendment and Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any right or remedy hereunder shall preclude any other or further exercise thereof or the exercise of any other right or remedy.

 

 

Section 8.10 Governing Law; Arbitration.

 

(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

 

(b) Buyer, Seller, and SG Green hereby irrevocably and unconditionally agree to submit exclusively to binding arbitration (to be conducted in the manner set forth in this Section 8.09) for any dispute, controversy, or claim between the parties (or their respective heirs, successors, assigns, representatives, agents, or Affiliates) arising out of, relating to, or in connection with this Agreement, regardless of whether such dispute is based upon fiduciary duty, tort, contract, statute, regulation, or otherwise. Buyer, Seller, and SG Green agree not to commence any such dispute, action, suit, or proceeding except pursuant to this Section 8.09.

 

(c) The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) in effect at the time of the arbitration, except as such rules may be modified by mutual agreement of the parties. The seat of the arbitration shall be in the County of New Castle, Delaware. Buyer, Seller, and SG Green hereby irrevocably and unconditionally waive any objection to the laying of venue of any such arbitration in the County of New Castle, Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim that any such arbitration has been brought in an improper venue or an inconvenient forum.

 

(d) The arbitration shall be conducted by a panel of three arbitrators, one of which shall be selected by each of the parties to such arbitration, and the third arbitrator shall be agreed upon by the two appointed arbitrators. Each of the arbitrators shall be a partner in a law firm experienced in the area of private equity funds. If the two arbitrators have not agreed upon the third arbitrator within 30 days after the filing of the request for arbitration, then any party may request the AAA to appoint the third arbitrator.

 

(e) The arbitrators shall determine issues of arbitrability in the first instance but may not limit, expand, or otherwise modify the terms of this Agreement, and Buyer, Seller, and SG Green hereby irrevocably and unconditionally waive any right to a judicial determination of arbitrability. The arbitrators are not empowered to act or make any award other than based solely on the rights and obligations of the parties prior to any termination of this Agreement.

 

 

(f)   The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the parties. The award may include an award of costs (including attorneys’ fees and disbursements). In the absence of an award of costs, each party to the arbitration shall bear its own costs and expenses of arbitration; provided that the costs and expenses of the arbitrators shall be paid ratably by the parties to the arbitration. Judgment upon the award may be entered by any court having jurisdiction over the award or over the relevant party or its assets.

 

(g) Service of any process, notice, summons, or document pursuant to Section 8.02 shall be effective service for any such arbitration brought against such party.

 

(h) The parties, their representatives, other participants, and the arbitrators shall hold the existence, content and result of any arbitration in the strictest of confidence and shall not disclose the same except as required by law and in connection with the confirmation and enforcement of any arbitral award rendered pursuant to this Section 8.09.

 

Section 8.11 Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties

 

shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

 

Section 8.12 Preparation of Disclosure Schedules. Seller and SG Green: (a) acknowledge and represent that they have reviewed the Disclosure Schedules and represent that they are true and accurate as of the Closing Date; (b) acknowledge and represent that they are jointly and severally liable for any inaccuracy or omission contained in the Disclosure Schedules; (c) assume full responsibility for the drafting and preparation of the Disclosure Schedules, regardless of Buyer’s participation in such preparation; (d) acknowledge and agree that Buyer shall have no liability arising from the drafting or preparation of the Disclosure Schedules; and (e) expressly waive any right, cause of action, or defense based on Buyer’s participation in the preparation of the Disclosure Schedules against any claim that may arise from any inaccuracy or omission in the Disclosure Schedules.

 

Section 8.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

	SELLER
	SOLAR PLUS TECHNOLOGY INC.
	By:	/s/ Lee Sui Hoi
	Name:	Lee Sui Hoi
	Title:	President
	SG GREEN DEVELOPMENT PTE. LTD., for purposes of Article III, Article V, Article VI, Article VII, and Article VIII only
	By:	/s/ Lee Sui Hoi
	Name:	Lee Sui Hoi
	Title:	President
	BUYER
	TOYO SOLAR LLC
	By:	/s/ Junsei Ryu
	Name:	Junsei Ryu
	Title:	President and Secretary

 

[Signature Page to Membership Interest Purchase Agreement]

 

Exhibit 10.2

 

Certain confidential information contained in this document, marked by [XXX], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

 

 

 

 

 

MASTER SUPPLY AGREEMENT

 

 

CONTRACT NO [XXX]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONTRACT NO: [XXX]

 

 

 

[18.11.2024]

 

[BUYER CO] and TOPTOYO INVESTMENT PTE.LTD.

 

 

Table of Contents

 

SR. No.		Content
Article 1.		Definitions		1
Article 2.		Scope of Contract and Conditions Precedent		5
Article 3.		Contract Price and Payment Terms		6
Article 4.		Changes		8
Article 5.		Term of the Contract		9
Article 6.		Inspection and Testing		9
Article 7.		Packaging, Transportation and Delivery		14
Article 8.		Delay Damages		15
Article 9.		Acceptance of the Cells		17
Article 10.		Warranties		18
Article 11.		Title and Risk of Loss		18
Article 12.		Insurance		19
Article 13.		Limitation of Liability		19
Article 14.		Confidential Information		19
Article 15.		Intellectual Property		20
Article 16.		Compliances		21
Article 17.		Force Majeure		23
Article 18.		Termination		25
Article 19.		Consequences of Termination		27
Article 20.		Indemnity		28
Article 21.		Governing Law and Dispute Settlement		29
Article 22.		Miscellaneous		30

 

 

MASTER SUPPLY AGREEMENT

 

This master supply agreement (“Contract”) is made and entered into on November [18], 2024 (“Effective Date”).

 

[BUYER CO], a company incorporated [XXX] (hereinafter referred to as ‘[BUYER CO]’ which expression shall, unless repugnant to the context or contrary to the meaning thereof, be deemed to mean and include its successors in business) of the One Part; and

 

TOPTOYO INVESTMENT PTE.LTD.， a company registered under Singapore Law and having its Registered Office at 3 TEMASEK AVENUE #27-02 CENTENNIAL TOWER SINGAPORE (039190) herein after referred to as ‘Supplier’, (which expression shall unless repugnant to the context includes its successors and permitted assigns) of the Other part.

 

[BUYER CO] and Supplier are hereinafter collectively referred to as “Parties” and individually as “Party”.

 

A.	[BUYER CO] is the renowned photovoltaic module manufacturer and exporter [XXX]

 

B.	Supplier has represented that it is a trading company based in SINGAPORE and further represented that its related company TOYO SOLAR COMPANY LIMITED is mainly engaged in manufacturing Mono perc/N-TYPE CELLs,

 

C.

Supplier has represented that it has necessary and adequate resources, experience, expertise, supervisory abilities and requisite its complied with all applicable laws and statutory compliances to supply Cells. Relying on the representations made by Supplier, [BUYER CO] has agreed to purchase the Cells on terms and conditions more specifically stated hereunder.

 

NOW THEREFORE, IN CONSIDERATION OF THE SAID PREMISES AND MUTUAL COVENANTS HEREINAFTER SET FORTH, THE PARTIES HERETO AGREE AS FOLLOWS:

 

1.	DEFINITIONS

 

1.1.

“Affiliate” means with respect to a Party is, directly or indirectly, controlled by such Party, directly or indirectly Controls such Party, is, directly or indirectly, controlled by a company or corporation that also, directly or indirectly, Controls such Party.

 

1.2.

“Contract” means this master supply agreement including all schedules, Annexures, and appendices and Purchase Orders issued and confirmed thereunder.

 

1.3.

“Applicable Law” Applicable Law means any laws, treaties, ordinances, judgments, decrees, injunctions, writs and orders of any court, or governmental agency or authority, and rules, regulations, orders, national, regional or local law, by-law, directive, code, circular, statute, interpretations and permits of any federal, state, county, municipal, regional, environmental or other governmental body, instrumentality, agency, authority, court , decisions or other body having jurisdiction over the applicable matter. Both Party shall comply with the respective Applicable Laws.

 

 

1.4.

“Cell(s)” means N-Type Cells [XXX]

 

1.5.

“Cell Delivery Schedule” means the Cells delivery schedule specified in Annexure B and/ or relevant Purchase Order, which shall not be modified except in the manner as specifically prescribed under this Contract, or as may be mutually amended by the Parties.

 

1.6.

“Contract Price” means the total price being paid for Total Cell Quantity” collectively under all Purchase Order issued in accordance with this Contract, as detailed in Annexure A.

 

1.7.

“Claim” means any claim, interest, liability, proceeding, cause of action, suit, demand, judgements, investigation (including by way of contribution or indemnity) at law or in equity, in each case brought against either Party (including by any third party).

 

1.8.

“Control” (together with its grammatical variations when used with respect to any Person) means: (a) the Ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such Person; or (b) the power, directly or indirectly, to direct or influence the management and policies of such Person by operation of law, contract, or otherwise.

 

1.9.

“Defect” means any defect, deficiency, inadequacy or damage in the Cells, due to improper handling or transportation, faulty design, materials, manufacturing, assembling, workmanship, as would result in (a) operational failure of Cells, and/or (b) any failure of a Cells to meet the Technical Specifications specified in this Contract; and/or (c) failure of the Cells to meet the guaranteed and other performance parameters under this Contract.

 

1.10.

“Delivery” or “Delivering” or “Delivered” means (i) that a Cells is made available/ by Supplier at the Designated Delivery Point for pickup by [BUYER CO] (or its Representative) or has been loaded by Supplier on to the vehicles arranged for transportation as per agreed Delivery Terms or Cell Delivery Schedule (ii) in the case of a Replacement Cells, that such Cells are made available by Supplier at [BUYER CO]’s Site, in each case in accordance with the requirements of this Contract.

 

1.11.

“Designated Delivery Point” means in accordance with [XXX]

 

1.12.

“Dispatch Clearance Certificate” means a certificate issued by [BUYER CO] or its Representative setting forth a list of the Cells which have passed the Inspection and Testing Requirements, and which are ready for dispatch and Delivery by Supplier

 

1.13.

“Governmental Authority” means applicable national, state, provincial, and local governments and all agencies, authorities, ministries, departments, boards, instrumentalities, municipalities, courts, tribunals, corporations, other authorities lawfully exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, or other subdivisions of any of the foregoing having or claiming a regulatory interest in [XXX], United States of America and Vietnam.

 

1.14.

“Guaranteed Delivery Date” means the dates specified in the Purchase Order in accordance with the Cell Delivery Schedule specified in Annexure B or any such other date which is mutually agreed between the Parties, by which date the agreed quantity of Cells is required to be delivered by Supplier at the Designated Delivery Point.

 

 

1.15.

“Guaranteed Replacement Delivery Period” means, where the Cells required to be replaced pursuant to a request in accordance with this Contract, the date of shipment of replacement Cells to the Designated Delivery Point by Supplier which date shall not be later than 12 (Twelve) days from the date of the request acceptance or entitlement to such replacement.

 

1.16.

“Inspection Agency” means any of CEA, PI Berlin or any other reputed inspection agency, to be appointed by [BUYER CO] for the purpose of undertaking the Factory Inspections or any other inspection as provided under this Contract.

 

1.17.

“Invoice” means an invoice submitted by Supplier to [BUYER CO] for payments to be made under a Purchase Order.

 

1.18.

“LC Documents” has the meaning ascribed to it in Annexure A.

 

1.19.

“Lenders” means lenders, banks, financial institutions, other institutions, multilaterals, export credit agencies, governmental entities, noteholders, bondholders or other Persons providing or guaranteeing (including by way of providing political risk or commercial risk insurance) financing, refinancing or credit support to [BUYER CO] for the purposes of the Project, and any agent or trustee therefor.

 

1.20.

“Losses” means all losses, liabilities, demands, interests, proceedings, cost and expenses (including, reasonable legal costs, lawyers’ and arbitrator’s fees), damages, penalties, fines, claims, actions and suits and charges including any of the above suffered by the non-defaulting Party as a direct result of any act or omission of the defaulting Party, in the course of the performance of this Contract.

 

1.21.

“Lot” means each of lot of Cells (as defined in the relevant Purchase Order) comprised in the Purchase Order Quantity and supplied pursuant to the respective Purchase Order and agreed by Supplier.

 

1.22.

“MW” means the nominal output power (in megawatts) of any Cell at Standard Test Conditions.

 

1.23.

“[BUYER CO]’s Site” means the location(s) of [BUYER CO]’s manufacturing facility or a warehouse of [BUYER CO], which shall be specifically mentioned under the Purchase Order.

 

1.24.

“Permits” means all approvals, consents, permits, clearances, variances, waivers, conditions, decisions, authorizations, orders, certificates, confirmations, exemptions, applications, notifications, filings, declarations, registrations, concessions, acknowledgments, Contracts, licenses (including any import or export licenses), employee visas, environmental permits, decisions, rights-of-way, and similar items required to be made with or to, or obtained from, any Governmental Authority in connection with the obligations of the Parties hereunder or performance under this Contract.

 

1.25.

“Person” means any individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, Governmental Authority or any other entity.

 

1.26.

“Prudent Utility Practices” means those practices, methods, techniques, equipment, specifications and standards and codes of safety and performance (as may change from time to time) employed, by experienced and reputable international manufacturers, Suppliers, contractors or operators in the manufacturing industry engaged in the same type of undertaking under the same or similar circumstances and conditions, which in the exercise of reasonable judgement in light of the facts known at the time the judgement was made, are considered good, reliable, safe, advisable and prudent practice commensurate with standards of safety, performance, dependability, efficiency and economy and maintainable with reasonable ease, performed or manufactured with the degree of skill, diligence and prudence that would ordinarily be expected from such experienced and reputable international manufacturers, Suppliers, contractors or operators and also in a manner consistent with international best practices, Applicable Laws, Permits, health and safety of workers and community, environmental protection, economy and efficiency for facilities of the type and size similar to the Project in accordance with this Contract and that generally conforms to the manufacturer’s operation and maintenance guidelines and also any guidelines provided in this regard by any Governmental Authority.

 

 

1.27.

“Purchase Order(s)” mean a purchase order issued by [BUYER CO] and accepted by Supplier during the Term under this Contract as per the format of [BUYER CO] specifying, among other relevant details, Purchase Order Quantity, Lot, Purchase Order Price, Guaranteed Delivery Date and other terms of Delivery, Designated Delivery Point, and wattage of the Cells.

 

1.28.

“Purchase Order Quantity” means quantity of MW of Cells to be supplied by Supplier under the respective Purchase Order.

 

1.29.

“Representatives” means, with respect to any Person, such Person’s directors, officers, agents, representatives, employees, auditors, advisors, counsel, contractors and subcontractors (other than Supplier and its subcontractors with respect to [BUYER CO]), and Affiliates, and for each of the foregoing their respective directors, officers, agents, representatives, employees, auditors, advisors, and counsel.

 

1.30.

“Supplier’s Site” means [XXX], where Cells are manufactured by Supplier for supply under this Contract.

 

1.31.

“Sub-contractors” or “Sub-suppliers” or “Vendors” means any Person appointed by Supplier as a sub-supplier and/or vendor and/or contractor, for any of the activities forming part of this Contract.

 

1.32.

“Taxes” means any and all applicable taxes (including withholding taxes, goods and services tax), fiscal contributions, levies, imposts, duties (including customs duties), tariffs, cess, deductions, withholdings, fees, liabilities and similar charges (and all interest, penalties and other liabilities imposed with respect thereto) imposed by or on behalf of any Governmental Authority having jurisdiction.

 

1.33.

“Technical Specifications” means the agreed i) drawings (ii) technical specifications (iii) Quality Assurance plan (“QAP”) (iv) agreed Quality Parameters (v) agreed process (included in QAP) and (vi)quantities as specified and technical specifications ascribed and specified in Annexure A, E and F together.

 

1.34.

“USD” means the lawful currency of United States of America.

 

 

2.	SCOPE OF CONTRACT AND CONDITIONS PRECEDENT

 

2.1.

Parties have agreed upon the Technical Specifications and quantities as specified in the Annexures A, E and F. Supplier shall ensure that its [XXX] undertakes to manufacture the Cells strictly in accordance with Technical Specifications and Supplier agrees to supply the high efficiency Cell in accordance with the Technical Specifications with agreed breakages and with (six) 6 months of shelf life from the date of manufacture. (1)The Purchaser will do preliminary inspection of the Products on the arrival of it at manufacturing facility within ten (10) days of the receipt. If Supplier does not receive any objections on quantities or/and including opening breakage rate within ten (10) days, it will be deemed that quantity and opening breakage rate are in accordance with this Agreement and the PO. If in the preliminary inspection if it is found that the quantity supplied is not in accordance with the Purchase Order and this Agreement and thus the Products are short supplied due to acts and omission attributable to Supplier then such balanced products shall be made ready for dispatch and supplied by the Supplier within Seven (7) days from the intimation by Purchaser. All cost and expenses including but not limited cost of transportation, freight, duties, insurance and any other cost and expense that needs to be incurred to ensure the Delivery at Purchasers manufacturing facility of such short supplied Products shall be borne by Supplier. (2)Further, Parties hereto agrees that if the opening breakage of Products is less than 0.15% of total quantity supplied accordance to the Purchase Order and this Agreement, then Purchaser shall not be entitled to claim any damages and if the opening breakage quantity exceeds 0.15% of total quantity supplied accordance to the Purchase Order and this Agreement then Supplier shall ready for dispatch within seven (7) days from the date of intimation by Purchaser All cost and expenses including but not limited cost of transportation, freight, duties, insurance and any other cost and expense that needs to be incurred to ensure the Delivery at Purchasers manufacturing facility of such short supplied Products shall be borne by Supplier. (3)Further if in the preliminary examination it is found that fragmentation rate of the Products is less than 0.4% of that total quantity supplied accordance to the Purchase Order due to the manufacturing process, Supplier does not need to compensate to the Purchaser and if the number of broken cells exceeds (including equal to) 0.4% of the quantity supplied accordance to the Purchase Order, Supplier shall ready for dispatch within seven (7) days from the date of intimation by Purchaser All cost and expenses including but not limited cost of transportation, freight, duties, insurance and any other cost and expense that needs to be incurred to ensure the Delivery at Purchaser’s manufacturing facility of such defective Products shall be borne by Supplier. Not withstanding the foregoing, for avoidance of any doubt, Purchaser shall not claim any liabilities against Supplier after EL test on PV Module Lamination. The outcome of reliability of test shall be subject to agreed QAP.

 

2.2.

The Parties agree that the Contract is a framework agreement, pursuant to which Supplier has agreed to supply 519 MW to [BUYER CO] during the Term (“Total Cell Quantity”) against which [BUYER CO] shall issue Purchase Order(s) to Supplier, from time to time during the Term, for supply of Cells in accordance with the requirements of this Contract and the relevant terms of the Purchase Order on or prior to the Guaranteed Delivery Date.

 

 

2.3.

The Parties agree and acknowledge that the Total Cell Quantity has been determined on the basis of the tentative requirements of [BUYER CO] during each month of the Term and     accordingly the Cell Delivery Schedule stated in Annexure B has been agreed. Supplier shall confirm to [BUYER CO] the receipt of each Purchase Order issued hereunder (each, a “PO Confirmation”) within three (3) days following Supplier’s receipt thereof in written form via facsimile, e-mail or courier. Each PO Confirmation must specify the Purchase Order number against which the confirmation is being provided and shall record the acceptance of the Purchase Order or, solely if permitted under this Article 2.3, advise [BUYER CO] of Supplier’s rejection of such Purchase Order, the date of acceptance or rejection and the basis for rejection, if applicable. If Supplier fails to issue a Confirmation within the timeline mentioned in this Article 2.3, Supplier will be deemed to have accepted the Purchase Order. [BUYER CO] has the right to withdraw any Purchase Order prior to Supplier’s acceptance or deemed acceptance.

 

Provided however, in case due to commercially persuasive reason the demand for a certain month is less than the quantity mentioned in the Cell Delivery Schedule, then [BUYER CO] shall have the option to reduce the quantity of Cells, which change shall not exceed 1/3 of the total quantity of Cells under the Purchase Order, to be delivered by Supplier for the relevant month by giving prior notice at least 90 (ninety) days before the Guaranteed Delivery Date, and upon receipt of such notice by Supplier, the Cell Delivery Schedule for the relevant month shall be altered accordingly.

 

Provided further, in case due to any reasons whatsoever, the demand for a certain month is more than the quantity mentioned in the Cell Delivery Schedule, then [BUYER CO] shall have the option to increase the quantity of Cells, which change shall not exceed 1/3 of the total quantity of Cells under the Purchase Order, to be delivered by Supplier for the relevant month by giving prior notice at least (Sixty) 60 days before the Guaranteed Delivery Date, and upon receipt of such notice by Supplier, the Cell Delivery Schedule for the relevant month shall be altered accordingly, subject at all times to the Total Cell Quantity.

 

2.4.

Supplier is required to adhere to the Delivery Terms and Cell Delivery Schedule specified in Annexure B.

 

2.5.

The Parties agree that time of delivery and its payment are the essence of this Contract and on acceptance of this Contract and acceptance and confirmation of issuance of purchase order, Supplier shall deliver the Cells to such destination as specified in the purchase order or at the destination as may be mutually agreed between Parties.

 

2.6.

Supplier agrees that failure to deliver the Cells as per the Contract and Purchase Order, including but not limited to a failure to supply the Cells within the defined timelines or failure to supply Cells as per quality requirements of [BUYER CO], shall be deemed to be a breach of the Contract. [BUYER CO] agrees that failure to issue Purchase Order as per the Contract and, including but not limited to within the defined timelines or failure to cause the issuance of L/C , shall be deemed to be a breach of the Contract.

 

3.

CONTRACT PRICE AND PAYMENT TERMS

 

Contract Price

 

3.1.

In consideration of the supply of the Cells, [BUYER CO] shall pay Supplier the price (“Contract Price”) in accordance with the terms set forth in Annexure A annexed to this Contract.     Price stated in the respective purchase order (“Purchase Order Price”) shall aggregately not exceed the Contract Price.

 

 

3.2.

The Contract Price shall be a fixed and firm price and shall not be subject to any escalation or revision for any reason whatsoever, unless otherwise agreed under a Purchase Order. It is hereby clarified that no additional amount shall be paid for any Cell Delivered by Supplier to [BUYER CO] to replace a Rejected Cell and further Cell Price already paid for any Rejected Cells that is not replaced by Supplier with a Replacement Cell shall, beat the option of [BUYER CO], be either adjusted against future payments under this Contract or refunded by Supplier to [BUYER CO] within (seven) 7 days of rejection of the replacement pursuant to this Contract.

 

3.3.

The aggregate of the Contract Price for all Cells Delivered to [BUYER CO] shall represent complete compensation for the delivery of Purchase Order Quantity at the Designated Delivery Point and all of Supplier’s other obligations hereunder, including (a) all applicable Taxes, (b) all packaging, transportation (in the case of Replacement Cells), insurances (including any third party insurance) and similar costs related to the Delivery of such Cells (including with respect to Delivery of Replacement Cells to the Designated Delivery Point), (c) all licensing fees, royalties and other similar charges , (d) all quality control, inspection and testing related obligations of Supplier hereunder (including Reliability Tests), (e) all documentation, data and information Supplier is obligated to provide to [BUYER CO] hereunder, (f) Supplier’s warranty obligations hereunder, and (g) all transportation charges at the origin and destination including but not limited to freight cost, insurance, RTO challan, toll fee, etc.

 

3.4.

If, after the Effective Date, in case of any change in the Taxes, cess, levies or duties, the rates of any taxes inside or outside India or a new Tax is introduced, or an existing Tax is amended or modified (for which [BUYER CO] does not get any relief under its contract with its customer) and in each case which affects the Delivery of Cells and/or the Replacement Cells, Contract, and the performance of this Contract, [BUYER CO] and Supplier shall negotiate in good faith to reach new agreement to solve the issues. In case Parties fails to resolve the issue, either party may terminate this Contract without any further liability with each other except for liabilities already accrued by either Party under the Contract.. If any such change in Taxes, duties and other statutory levies, mentioned above has been imposed during the time period caused by reasons attributable to [BUYER CO] for later or delayed delivery by Supplier, the same shall be borne by [BUYER CO]. However, if for reasons attributable to Supplier the delivery is delayed Waare shall not be liable for any such Taxes.

 

3.5.

The Parties agree the obligations and responsibility with respect to transportation, insurance and delivery of the relevant component will be that of Supplier and Supplier shall be responsible for all associated costs, risk, delays or damages up to the Designated Delivery Point with reference to the agreed Incoterms.

 

 

Payments

 

3.6.

Deposit. [XXX] Bank Guarantee [XXX] is still applicable. The Supplier shall refund any remained unadjusted advance deposit to [BUYER CO] once the Contract is terminated. In case this Contract is terminated for reasons attributable to [BUYER CO], Supplier shall refund unadjusted advance deposit， if any, after deducting the damages caused by , and payable to Supplier under this Contract.

 

3.7.

100% LC at sight of full PO price before production.

 

3.8.

Dispatches of 1st lot of Cells shall be made within 7 working days of receipt of letter of credit.

 

4.

CHANGES

 

4.1.

[BUYER CO] Requested Changes

 

4.1.1.

[BUYER CO] may at any time direct changes within the general scope of this Contract and/or the Purchase Order, including additions, deletions, revisions or other changes such as: (i) changes to the Technical Specifications, (ii) additions to or reduction from the quantities of Cells ordered, (iii) changes to [BUYER CO]’s desired date(s) of Delivery or Guaranteed Delivery Date(s), (iv) changes to the terms or methods of Delivery or packing, and (v) changes to the Training Requirements (each, a “Change”). If [BUYER CO] desires to direct one or more Change, it shall submit a change request to Supplier in writing (“Change Order Notice”). Within (ten) 10 days after its receipt of any Change Order Notice, Supplier shall submit a detailed proposal to [BUYER CO] stating (i) the increase or decrease, if any, in the Cells Price (prevailing from time to time) of any Cells which would result from such Change (ii) the effect, if any, upon the Cell Delivery Schedule by reason of such proposed Change. Should Supplier fail to respond to [BUYER CO]’s request, within the foregoing (ten) 10 days period, Supplier and [BUYER CO] shall execute a written change order (“Change Order”) which shall reflect the proposed adjustments, if any, in the Purchase Order Price and the Guaranteed Delivery Date. [BUYER CO] shall have (seven) 7 days from receipt of Supplier’s detailed proposal to accept or reject in writing Supplier’s proposal in relation to the requested change. If [BUYER CO] agrees with Supplier’s proposal, [BUYER CO] shall issue a Change Order. In the event [BUYER CO] disagrees with Supplier’s proposal, [BUYER CO] shall notify Supplier that [BUYER CO] has decided to withdraw the Change Order Notice. Should [BUYER CO] fail to respond to Supplier in writing within the foregoing (seven) 7 days period, [BUYER CO] shall be deemed to have withdrawn the Change Order Notice.

 

4.1.2.

(Seven) 7 days before the start of production of each Lot(s) as set out in the Purchase Order , [BUYER CO], with the intimation to Supplier, may direct to defer the Delivery or Guaranteed Delivery Date(s) for any time period by providing a 5 (FIVE) days advance notice to Supplier and Supplier acknowledges and agrees to the same without any liability (financial or otherwise) on [BUYER CO]. For more clarity, [BUYER CO] agrees to not defer the     Delivery or Guaranteed Delivery Date(s) of Lot(s) later than 7(Seven) days before the start of production of each Lot(s).

 

 

 

4.1.3.

[BUYER CO], at its sole discretion, may direct the suspension of works by written notice to Supplier and Supplier acknowledges and agrees that [BUYER CO] shall not be liable for any financial compensation if such suspension is for a period of no more than 15 days and provided that such written notice shall be submitted to Supplier by [BUYER CO] 30 days earlier than the time of shipment from manufacture site in Indonesia. Notwithstanding the terms contained herein, no change made necessary because of any default of Supplier in the performance of its obligations under the Contract or misinterpretation of the Technical Specification, Cell Requirements, shall be deemed to be a change, and such change shall not result in any adjustment of the Purchase Order Price or the Guaranteed Delivery Date(s).

 

4.2.

Supplier Requested Changes

 

If Supplier proposes any changes, then it shall submit a proposal to [BUYER CO] with details of the change suggested and its impact on the on the Contract Price, the Guaranteed Delivery Date. Any proposal/change order notice submitted by Supplier under this Article 4.2 will be dealt with in accordance with the procedure set out in Article 4.1.

 

5.

TERM OF THE CONTRACT

 

This Contract shall come into effect from Effective Date and shall remain in force until the completion of the obligations of all the Parties under this Contract. The validity of this Contract may be extended by the Parties on such terms as may be mutually agreed upon by and between the Parties in writing.

 

6.

INSPECTION AND TESTING

 

6.1.

Supplier Testing and Factory Inspections

 

6.1.1.

Supplier shall, within (seven) 7 days from the issuance of this Contract, provide a copy of its manufacturing production schedule for the Cells that are to be supplied under this Contract, to [BUYER CO] (“Production Plan”). Within (fifteen) 15 days from the date of receipt of the Production Plan, [BUYER CO] shall have the right, but not an obligation, to review and provide comments, if any, on the Production Plan submitted by Supplier. Upon receiving any comments on the Production Plan from [BUYER CO], Supplier shall in good faith, and on a reasonable endeavor basis, attempt to incorporate such comments and revise the Production Plan accordingly based on its actual conditions and by not later than (fifteen) 15 days after the date on which such comments are received. To the extent that that Supplier is unable to incorporate any of the comments received from [BUYER CO], it shall issue a written notice to [BUYER CO] providing its reasons for the same. As a part of the Production Plan, Supplier shall specify the period (i.e., the start date and end date) during which it will manufacture the Cells for the purposes of this Contract and the relevant Purchase Order (the “Production Period”). In case Supplier requires any change in the Production Period; then, Supplier shall consult [BUYER CO] prior to such change.

 

6.1.2.

[BUYER CO], its Representative and/or the Inspection Agency shall have the right to undertake manufacturing line inspections at Supplier’s or its [XXX]’s manufacturing Site in [XXX]at any time during the Production Period and other pre-dispatch inspections and testing of the Cells manufactured for Delivery to [BUYER CO] (“Factory Inspections”). Supplier shall provide [BUYER CO] with a prior written notice at least (Seven)] 7 days prior to the date of dispatch of any Lot of Cells. The cost for engagement of such Inspection Agency and transportation of Cells shall be borne by Supplier in case [BUYER CO], its Representative and/or the Inspection Agency identifies any Defects with the Cells during the Factory Inspections. Notwithstanding any Factory Inspections undertaken prior to dispatch, [BUYER CO] shall have the right to inspect the Cells once again upon delivery of the Cells at the Designated Delivery Point. For the purpose of facilitating the Factory Inspections, Supplier shall permit [BUYER CO] and/or [BUYER CO]’s Representatives and the Inspection Agency, to access and perform quarterly audits of Supplier’s (a) the manufacturing area, (b) the raw materials and finished goods area; (c) testing and quality assurance laboratory during the production period for the Cells being manufactured by Supplier for [BUYER CO] (the “Production Period”); and (d) the storage area or warehouse or any other area where the Cells are stored prior to their shipment or transportation to the Designated Delivery Point. Supplier shall provide all requisite information to [BUYER CO]/[BUYER CO]’s Representative on process and final inspection and testing records along with calibration records, “recipe” settings etc. Supplier hereby undertakes to store all relevant inspection records raw materials, work in progress inventory.

 

 

6.1.3.

Supplier shall, and shall ensure that its [XXX] shall, at its own cost, perform testing of the Cells being manufactured for [BUYER CO] during the Production Period in a manner consistent with the quality assurance program (the “Quality Assurance Plan” or “QAP”) as set out in Annexure F. Supplier shall provide to [BUYER CO], the Representative and the Inspection Agency, prior to the commencement of the Production Period, all information, documents and reports as may be reasonably requested by [BUYER CO]. If after inspecting, examining or attending the testing of the Cells or any part thereof, [BUYER CO] may determine based on reasonable evidences and grounds that such Cells or part thereof do not comply with the requirements under this Contract, then upon written notice from [BUYER CO], Supplier shall promptly correct all such Defective Cells at its own risk and expense, such that the Defective Cells comply with the requirements set out in this Contract.

 

6.1.4.

Supplier shall, make suitable arrangements for [BUYER CO], the Representative and the Inspection Agency to conduct Factory Inspections during the Production Period, including making available appropriate and accurately calibrated measuring instruments and any other equipment that [BUYER CO], the Representative and the Inspection Agency may require to conduct such Factory Inspections. [BUYER CO], the Representative and the Inspection Agency shall complete any Factory Inspections (other than the pre-dispatch inspections) at least (five) 5 days prior to the expiry of the Production Period of the relevant Lot. [BUYER CO], the Representative and the Inspection Agency shall complete the pre-dispatch inspection no later than (four) 4 days before Supplier’s scheduled dispatch date of the relevant Lot. If any inspection undertaken by [BUYER CO] reveals any Defect in the Cells, or that the Cells do not conform to the Technical Specifications, the Cell Requirements, or the QAP in any way based on reasonable evidences and grounds, Supplier shall promptly correct or rectify any such Defects in accordance with the QAP. If Supplier fails to initiate correction of the Defective Cells within (seven) 7 days after [BUYER CO]’s written notification thereof or fails to diligently pursue correction of the Defective Cells, without prejudice to any other remedies available to [BUYER CO], [BUYER CO] may reject such Cells or part thereof. Following any such rejection, Supplier shall, at its own cost and risk, replace the Rejected Cells. The Replacement Cells shall be inspected in the manner mentioned in Article 6.1.2 and all costs and expenses incurred by [BUYER CO] in attending or in consequence of such retesting or inspection shall be to the account of Supplier. In case of any dispute arising out of this 6.1.4, it shall be subject to the verification of the third party which is acceptable to both parties. All costs and expenses shall be borne by the responsible party which is supported by the third party.

 

Notwithstanding anything contained herein, it is expressly agreed by Supplier that no inspection conducted, tests or trials witnessed, approvals granted, clearance provided or Delivery accepted by [BUYER CO], [BUYER CO]’s Representatives and / or the Inspection Agency shall relieve, excuse or absolve Supplier of its obligations hereunder, including towards Cells Requirements, warranties and the indemnities.

 

6.1.5.

Supplier acknowledges and agrees that the time taken by [BUYER CO] to conduct the Factory Inspections or pre-dispatch inspections, including to repeat any such inspection and to have any Defects rectified in accordance with this Article 6.1 shall in no way entitle Supplier to any extension of time, or to any additional costs or increase in the Contract Price provided that such conduct shall not disturb the normal production of the Supplier or its [XXX] manufacturer.

 

 

6.2.

Dispatch Clearance Certificate

 

6.2.1.

Upon the occurrence of the completion of any Factory Inspection of Cells by [BUYER CO], the Representative and/or the Inspection Agency and receipt of reports of such inspection within 24 hours from completion of such inspection, [BUYER CO] shall issue and deliver the Dispatch Clearance Certificate. Supplier acknowledges that Cells shall not be dispatched unless [BUYER CO] has issued a Dispatch Clearance Certificate. In case [BUYER CO] fails to issue such Dispatch Clearance Certificate within time aforesaid, it shall be deemed to be issued. Supplier shall not be responsible for late delivery LD if caused by [BUYER CO] fails to issue Dispatch Clearence Certificate on time in accordance with this Contract.

 

6.3.

[BUYER CO]’s Right to Inspect

 

Inspection or failure to make an inspection, examination or test of the Cells or issuance of the Dispatch Clearance Certificate shall in no way relieve Supplier from its obligations to conform to all the requirements of this Contract and shall in no way impair [BUYER CO]’s right to inspect the Cells quality issue in accordance with this Contract and reject Cells in found to be in breach of Technical Specifications.

 

6.4.

Third Party Reliability Testing

 

6.4.1.

From each Lot manufactured, [BUYER CO] shall, at its option be entitled to, either directly or through its Representatives randomly select up to (fifteen) 15 Cells (a “Test Sample”) for reliability testing by a third-party laboratory mutually agreed by both Parties (such laboratory, the “Third Party Test Laboratory” and each such test, a “Reliability Test”). [BUYER CO] shall notify Supplier of the name and location of the Third-Party Testing Laboratory, no later than (one) 1 week prior to the commencement of any Reliability Test. The pass and fail criteria for the Reliability Tests will be based on the applicable I-V Curve standards, power point tracking, Dynamic I-V M Ideality Factor and Light Intensity Studies measurement, with the power output being measured on the same equipment (as utilized by Supplier to measure the power output) at the Third-Party Test Laboratory. If the Reliability Tests fail as per the standards specified hereinabove, [BUYER CO] shall notify Supplier in accordance with procedure set out in Article 6.4.5.

 

6.4.2.

For the purpose of validating the power output of the Cells at the Third-Party Test Laboratory, the average power output of the entire Test Sample will be measured. If the average power output of the entire Test Sample is more than the nameplate capacity of such Cells, the Cells of the Lot from which the Test Sample has been drawn will be deemed to have passed the Cells power test. If the average power output of the entire Test Sample is less than the nameplate capacity of such Cells, the Cells of the Lot from which the Test Sample has been drawn will be deemed to have failed the Cells power test and [BUYER CO] shall notify Supplier in accordance with the procedure set out in Article 6.4.5. Supplier shall be responsible for the packaging of the Test Sample to and from the Third Party’s Test Laboratory. All costs related to reliability Inspection and Third party testing and Inspection charges would be at [BUYER CO]’s cost.

 

 

6.4.3.

[BUYER CO] may request a Reliability Test for a Test Sample at any time after the manufacturing of the Lot from which such Test Sample will be drawn is completed but, before the Cells in such Lot are dispatched for shipment to the Designated Delivery Point. However, such Reliability Test shall be completed within (one hundred and twenty) 120 days after the Lot from which such Test Sample is drawn is delivered.

 

6.4.4.

[BUYER CO] shall be responsible for payment of the amounts invoiced by the Third-Party Test Laboratory for undertaking the Reliability Test or characterization test (PAN file/ IAM test) in respect of the Test Samples. In case of failure of the Test Samples in the tests or if the Cells do not meet the characterization requirements based on the PAN file or other specifications shared by Supplier, Supplier shall re-perform the tests (“Re-Test”) in a mutually agreed third-party test laboratory, at Supplier’s own risk and cost. In case Cells fail to meet the characterization requirements in the Re-Test, the Cells shall be deemed as Rejected Cells. Supplier shall be responsible for transportation to and from the Third Party Test Laboratory, packaging of the Test Sample and other amounts related to testing.

 

6.4.5.

If the Reliability Tests or characterization test or Factory Inspections fail to meet the requirements set out in Article 6, [BUYER CO] shall in writing, notify Supplier about the same no later than (seven) 7 days after its receipt of the results of the inspection reports, attaching the relevant inspection/ test results and other relevant supporting documents provided by the Third Party Test Laboratory/ Inspection agencies. [BUYER CO], reserves the right either to opt for any of the options specified in Article 6.5.1 to 6.5.4 or follow the procedure specified in Article 6.4.6.

 

6.4.6.

Supplier shall, within (ten) 10 days after receiving a notice from [BUYER CO] of the nature described in Article 6.4.5:

 

6.4.6.1.

submit to [BUYER CO] a root-cause analysis setting forth in reasonable detail the root-cause of the failures identified by the applicable Reliability Test or Factory Inspections;

 

6.4.6.2.

identify each Cells in the Lot from which the applicable Test Sample was drawn or on Cells on which flash test was conducted;

 

6.4.6.3.

develop and submit to [BUYER CO] a detailed plan for correcting and preventing such failure in future Cells; and

 

 

6.5.

After the information provided by Supplier to [BUYER CO] under Article 6.4.6 is reviewed by [BUYER CO], the Parties shall discuss and subject to mutual agreement, take any of the actions listed in Article 6.5.1 to 6.5.4 below. In the event, the Parties fail to mutually agree on the course of action within (ten) 10 days of receipt of the information set out in Article 6.4.6 above, [BUYER CO] shall have the right to elect to take any of the following actions (which election shall be notified to Supplier in writing within (thirty) 30 days after receiving such information):

 

6.5.1.

reject only such defective Cells in the Lot from which the applicable Test Sample was drawn (which will upon such rejection be deemed to be Rejected Cells) and require Replacement Cells for the same without any additional cost to [BUYER CO]; or

 

6.5.2.

reject all Cells in the Lot from which the applicable Test Sample/ inspection sample was drawn (which will upon such rejection be deemed to be Rejected Cells) and require Replacement Cells for the same without any additional cost to [BUYER CO]; or

 

6.5.3.

reject all Cells in the Lot from which the applicable Test Sample was drawn (which will upon such rejection be deemed Rejected Cells) and cancel delivery of all Cells have not yet been dispatched from Supplier’s Site. For the avoidance of doubt, the Cells, which are in transit on the date of such rejection of the Cells, shall be Delivered to [BUYER CO] and [BUYER CO] shall be entitled to exercise the rights available under this Contract, if the Reliability Tests conducted in respect of such Cells fail to meet the standards set out in Article 6; or

 

6.5.4.

terminate this Contract in accordance with Article 18.

 

6.6.

If [BUYER CO] elects the option described in Article 6.5.1 to 6.5.3 then, Supplier shall (i) deliver the required Replacement Cells at [BUYER CO]’s Site, within the Guaranteed Replacement Delivery Period; and (ii) pick up the Rejected Cells or consent to the disposal of the Rejected cells.

 

6.7.

If [BUYER CO] elects the option described in Article 6.5.4 then Supplier shall refund an amount equal to the aggregate Cells Price for the rejected Lot for which the payment has been made by [BUYER CO] post-dispatch of Cells in the Lot from which the applicable Test Sample was drawn within (fifteen) 15 days after the issuance of an invoice therefore by [BUYER CO].

 

6.8.

Certain samples of Replacement Cells to be delivered to [BUYER CO] pursuant to the options Article 6.5.1 to 6.5.3 above, shall be sent by Supplier directly to the both mutually agreed Third Party Testing Laboratory for reliability testing in accordance with Article 6.4 and thereafter such entire lot of tested Replacement Cells shall be delivered directly to [BUYER CO]’s Site. The costs and expenses associated with such Reliability Test therefore (including for packaging and transportation of such Cells to the Third Party Testing Laboratory and from the Third Party Testing Laboratory to the Site) shall be borne by Supplier. To the extent that any such cost and expenses are paid directly by [BUYER CO], Supplier shall reimburse [BUYER CO] for such costs and expenses within (thirty) 30 days after Supplier’s receipt of an invoice therefor from [BUYER CO] failing which [BUYER CO] shall have the right to set-off such amounts from payments due to Supplier under this Contract. In the event a Reliability Test of Replacement Cells reveals that the root-cause of the failures identified by the Reliability Test conducted for the Cells that such Replacement Cells are intended to replace have not been remedied, then, without limiting any of [BUYER CO]’s other remedies provided for herein, [BUYER CO] shall be entitled to terminate this Contract in accordance with Article 18.

 

 

6.9.

In case, Supplier fails to comply with Reliability Tests and/or Factory Inspections, and measures are required to be taken as per this Article 6 then, Supplier shall be solely responsible for such measures adopted and shall be liable to bear all costs and charges, Factory Inspections, Third Party Reliability Testing, [BUYER CO]’s representative’s travel, boarding/lodging and any other charges of whatsoever nature towards the same.

 

7.

PACKAGING, TRANSPORTATION AND DELIVERY

 

7.1.

The Cells shall be delivered in accordance with the Delivery Terms and Cell Delivery Schedule as specified in Annexure B and date as specified by [BUYER CO] in the purchase order after receipt of Dispatch Clearance Certificate including so directed by [BUYER CO] without Dispatch Clearance Certificate or by such other date as may be communicated by [BUYER CO] in writing and agreed by Supplier.

 

7.2.

Supplier shall strictly complete all activities to adhere to the Cell Delivery Schedule specified in Annexure B.

 

7.3.

Supplier shall Deliver the Cells to [BUYER CO] on FOB (INCOTERMS 2020) basis at the Delivery Point in one or more Lots in terms of the Purchase Order. Supplier shall Deliver (i) each Cells (other than the Replacement Cells), at the Designated Delivery Point by the Guaranteed Delivery Date on a FOB basis; and (ii) each replacement Cells at [BUYER CO]’s Site on a FOB basis within the Guaranteed Replacement Delivery Period as its absolute obligation.

 

7.4.

[BUYER CO] (and its Representative and/or the Third Party Inspection Agency) at its sole discretion shall be entitled to: (i) an advance notice of (two) 2 days prior to the anticipated dates on which each Lot of Cells will be available for Delivery at the Designated Delivery Point; (ii) observe/witness the packaging of the Cells, verify Cells deliveries and the loading of the Cells into the vehicles for transportation of the Cells, at the manufacturing facility, warehouse or storage area of Supplier.

 

7.5.

All Cells shall be packaged sea and roadworthy travels, marked with wording including but not limited to, “KEEP AWAY FROM MOISTURE”,“HANDLE WITH CARE”,“THIS SIDE UP” must be printed on and otherwise prepared (at Supplier’s sole cost and expense) in accordance with Prudent Utility Practices to reduce the risk of damage to the same during transportation, handling and storage and in accordance with all applicable packaging and transportation laws and regulations. At minimum, all packaging shall be sea and surface transport worthy and shall identify the contents by manufacturing package number, quantity and serial number and all labeling shall be in English and bar coded. Supplier shall, along with each Lot of Cells dispatched, provide to [BUYER CO] documentation such as packaging lists for identifying the shipping containers. Packing the Cells in a manner suitable for safe transportation of the Cells and Replacement Cells, at its own cost. Supplier shall be liable for all Losses arising as the result of inadequate or improper packing.

 

 

7.6.

Supplier shall perform all other obligations required for the Delivery of the Cells at no additional cost to [BUYER CO] and solely at the cost and risk of Supplier.

 

7.7.

[BUYER CO] shall take possession of Cells at Designated Delivery Point.

 

7.8.

Supplier shall adhere to the delivery requirements as set out in Annexure B

 

7.9.

Supplier shall ensure that: (i) the Cells (other than the replacement Cells) are made available for pick-up by [BUYER CO] at the Designated Delivery Point and to no other place in except [BUYER CO]’s Site ii) the replacement Cells are delivered only to [BUYER CO]’s Site.

 

8.

DELAY DAMAGES

 

8.1.

If for any reason other than Force Majeure and reasons attributable to [BUYER CO], a Lot of Cells is Delivered after the Guaranteed Delivery Date thereof (a “Late Delivery”), then for each week (or part thereof) of delay after the Guaranteed Delivery Date, Supplier shall pay to [BUYER CO] liquidated damages (“Delay Damages”) at the rate of one half percent (0.5%) of the value of the delayed delivery (computed basis Purchase Order price), per week (or part thereof) of delay; provided, however, that Delay Damages payable hereunder shall not exceed twenty percent (20%) of the Purchase Order price (“Liquidated Damages Cap”) of delayed delivery . The Parties agree that the Delay Damages described in this Article 8.1 are fair and reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the aggrieved party, the limitation on liability herein and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that such liquidated damages are a genuine and reasonable pre-estimate of and reasonable compensation for the Losses and damages that will be suffered by [BUYER CO] in the event of any delay in the supply of the Cells and Supplier irrevocably undertakes that it will not, whether by legal proceedings or otherwise, contend that the amount of the liquidated damages are not reasonable.

 

8.2.

Each Delivery of a Cells that is required to replace a Rejected Cells (“Replacement Cells”) shall be considered a Late Delivery, if Supplier is unable to Deliver such Cells within the Guaranteed Replacement Delivery Period and shall be subject to payment of delay liquidated damages (“Replacement Delay Damages”) by Supplier, which shall accrue from the day after the Guaranteed Replacement Delivery Period ends until the actual Delivery of the Replacement Cells at [BUYER CO]’s Site. Replacement Delay Damages shall be payable at the rate of one half percent (0.5%) of the aggregate value of the Replacement Cells, whose Delivery is delayed beyond the Guaranteed Replacement Delivery Period, per week (or part thereof) of delay; provided, however, that the delay liquidated damages payable hereunder shall not exceed Twenty percent (20%) of the of the aggregate Price of the Replacement Cells (“Replacement Delay Damages Cap”) whose Delivery is delayed beyond the Guaranteed Replacement Delivery Period. The Parties agree that the Replacement Delay Damages are fair and reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the aggrieved Party, the limitation on liability herein and non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that Replacement Delay Damages are a genuine pre-estimate of loss and are not a penalty.

 

 

8.3.

Each Delivery of Replacement Cells, shall be considered a Late Delivery, if Supplier is unable to Deliver such Cells on or prior to the Guaranteed Replacement Delivery Period for the Replacement Cells or the Guaranteed Delivery Date for the Shortfall Cells, as the case may be, and subject to Delay Damages, which (i) shall accrue from the Guaranteed Replacement Delivery Period for Replacement Cells, or the Guaranteed Delivery Date for Shortfall Cells,, as the case may be, until the actual Delivery of such Replacement Cells, or Shortfall Cells,; and (ii) shall be payable at the rate of one half percent (0.5%) of the aggregate Price of the Replacement Cells, or Shortfall Cells,, as the case may be, per week (or part thereof) of delay (prorated for delays of less than one week); provided, however, that Delay Damages payable hereunder shall not exceed ten percent (10%) of the aggregate Price of the Replacement Cells or Shortfall Cells, as the case may be. The Parties agree that the liquidated damages described in this Article 8.3 are fair and reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the aggrieved party, the limitation on liability herein and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that such liquidated damages are a genuine and reasonable pre-estimate of and reasonable compensation for the Losses and damages that will be suffered by [BUYER CO] in the event of any delay in the supply of the Replacement Cells, and/or Shortfall Cells, and Supplier irrevocably undertakes that it will not, whether by legal proceedings or otherwise, contend that the amount of the liquidated damages are not reasonable.

 

8.4.

Cost pertaining to replacement would be in the scope of supplier such as transportation and freight,and applicable India custom duties.

 

8.5.

Alternatively, in case a Lot of Cells will get delayed at the Designated Delivery Point, for more than 7 working days any reason whatsoever other than Force Majeure and reasons attributable to [BUYER CO], and Supplier fails to deliver the Cells by the Guaranteed Delivery Date, for more than 7 working days then without prejudice to any other right or relief available to [BUYER CO] under the Contract, [BUYER CO] shall be entitled to procure the required Cells from a third party. In the event the price of such Cells procured from a third-party is higher than the respective Purchase Order Price, Supplier shall pay to [BUYER CO] the difference between: (i) the price paid by [BUYER CO] to procure the Cells from a third party and the Contract Price; and (ii) refund respective Purchase Order Price, within 30 (thirty) days from Supplier’s receipt of invoice for payment from [BUYER CO]. [BUYER CO] shall also be entitled to terminate the Contract unilaterally with immediate effect at its sole discretion.

 

8.6.

In the event delay in delivery is caused due to acts and omission of the Purchaser, then the Delivery Date shall be postponed accordingly, and the Supplier shall not be held liable for such delay and shall not be liable to pay Delivery Delay Liquidated Damages. In case of non-payment or delay in payment of any invoice or any amount due, including non-issuance of L/C or delayed issuance of L/C under this agreement by [BUYER CO], Seller shall amongst its legal remedies have the right to recover late payment charges or late issuance of L/C against the due amount, at the rate of 9 % per annum or maximum rate permitted by applicable laws, whichever is higher from the due date till the actual date of payment or Issuance of L/C.

 

 

8.7.

[BUYER CO] has the right to periodically raise the debit notes which shall be confirmed by supplier for any delivery failures or for rejected cells, and these will be adjusted from the invoice for the following month.

 

9.

ACCEPTANCE OF THE CELLS

 

9.1.

Upon unwrapping each lot of the Cells at [BUYER CO]’s Site, [BUYER CO] or its Representative shall undertake a visual inspection of each Lot of Cells to assess if there is any apparent shortage, damage, Defect or other discrepancy between the Cells delivered and the Dispatch Clearance Certificate (issued as per the QAP stated in Annexure F) or product description and data sheets (including any discrepancy with the quantity of each product type required to be included in such delivery) (“Discrepancy”).

 

9.2.

If [BUYER CO] or its Representative determines from any inspection that there is any Discrepancy, it shall submit a written notification of the same to Supplier (accompanied, except in the case of a shortage, by photographs or other suitable evidence clearly showing such Discrepancy) (a “Discrepancy Notice”) no later than (fifteen) 15 days after date of such inspection. The Cells listed in any Discrepancy Notice shall be tested by mutually agreed Third Party Laboratory and upon the results of such testing which indicates the Cells being discrepant the same shall be deemed “Rejected Cells”. [BUYER CO] shall issue notice to Supplier rejecting such Cells (“Rejection Notice”).

 

9.3.

Upon receiving a Rejection Notice, Supplier shall immediately arrange for the shipment of the number of Rejected Cells required (i) in the case of a shortfall, to make up for such shortfall (“Shortfall Cells”); and (ii) in all other cases, to replace the Rejected Cells. Within (fifteen)15 days after receiving such Discrepancy Notice, Supplier shall notify [BUYER CO] in writing of the Guaranteed Delivery Date of such make up or replacement Cells which shall be no later than the Guaranteed Replacement Delivery Period (as calculated from the date of the Discrepancy Notice). If the next Lot of Cells to be Delivered by Supplier is within the Guaranteed Replacement Delivery Period, Supplier shall ensure that such replacement Cells are Delivered as part of such next scheduled shipment.

 

9.4.

[BUYER CO] or its Representative shall make all Rejected Cells available for pick up by Supplier at the [BUYER CO]’s Site if so, requested by Supplier. Supplier shall pick up and transport each Rejected Cells at its sole cost and expense within (thirty) 30 days of [BUYER CO] making such Rejected Cells available for pick up. Supplier shall be responsible for payment of all Taxes, costs and expenses in connection with the pick-up, take away, transportation, export or disposal of the Rejected Cells. If Supplier does not wish to pick up such Rejected Cells within such (thirty) 30 days period, then [BUYER CO] may, at its election, return such Cells to Supplier and invoice Supplier for any costs, expenses and Taxes associated therewith (which shall be paid by Supplier with (fifteen) 15 days of the date of the invoice) or dispose of such Rejected Cells and remit any net proceeds to Supplier. During the period of time that [BUYER CO] (or its Representative) is in possession of a Rejected Cells that is being replaced by Supplier, [BUYER CO] shall protect such Rejected Cells (or cause such Rejected Cells to be protected) from damage, theft or other loss,subject to Supplier’s responsibility for the costs, therefore.

 

 

9.5.

Upon completion of any inspection, if the Cells Delivered conforms to the Technical Specifications and it shall in no way relieve Supplier from its obligations under this Contract, including with respect to the rectification or replacement of any Defective Cells and shall further, in no way, impair [BUYER CO]’s right to reject or revoke acceptance of Cells that do not conform to the Technical Specifications, or to avail itself of any other remedies to which [BUYER CO] may be entitled.

 

9.6.

If at the time using the Cells in the manufacturing of the modules for its customers, [BUYER CO] or the Representative founds and determines Defect or other discrepancy between the Cells delivered and the Dispatch Clearance Certificate (issued as per the QAP) in accordance with the agreed Technical Specification, then [BUYER CO] shall promptly give the notice (“Discrepancy Notice”) for the Rejected Cells to Supplier and also communicate to Supplier providing detailed description of defect, wherever applicable by providing photographs where defect is clearly visible. In case of a shortfall, to make up for such shortfall; and (ii) in all other cases, to replace the Rejected Cells. Within (three) 3 days after receiving such Discrepancy Notice, Supplier shall notify [BUYER CO] in writing of the Delivery Date of such make up or replacement Cells which shall be no later than the Guaranteed Replacement Delivery Date (as calculated from the date of the Discrepancy Notice) to [BUYER CO] on DDP delivery terms to the [BUYER CO]’s Site as may be designated by [BUYER CO] and all cost of such supply including price, taxes, import duties, transportation and Freight, insurance shall be borne by Supplier. Such new/replaced Cells shall be of the same Technical Specification and QAP as specified in this Contract and shall be delivered to [BUYER CO] within (fifteen) 15 days.

 

10.

WARRANTIES

 

10.1.

Supplier warrants that the Cells supplied to [BUYER CO] are in accordance with the Technical Specification and does not contain any Defect, and Supplier has complied in all material respects with all applicable local, foreign, domestic and other laws, rules, regulations and requirements.

 

10.2.

Supplier warrants that it has good and merchantable title to the Cells it when it passes to and vests in [BUYER CO] under this Contract and that the Cells shall be (i) free from defects in design (to the extent that Supplier has furnished the design), materials, workmanship and performance; (ii) be of merchantable quality and fit for the particular purpose for which the Cells are sold; (iii) comply with all agreed Technical Specifications (iv) be free and clear of all liens and encumbrances; (v) comply with all Applicable Laws;

 

11.

TITLE AND RISK OF LOSS

 

11.1.

The title for each Cells, Shortfall Solar Cell and/or a Replacement Solar Cell shall pass from Supplier to [BUYER CO] on the date of: (i) payment of the Purchase Order Price as per this Contract or (ii) date on which the Solar Cell Delivered at Designated Delivery Point, whichever is earlier. In case of a Rejected Cells, the title to such Cells shall pass back to Supplier when Supplier picks up such Rejected Cells pursuant to Article 9 or when Rejected Cells are disposed of by [BUYER CO].

 

11.2.

The title of Shortfall Cells and/or a Replacement Cell shall pass from Supplier to [BUYER CO] in accordance with delivery on a DDP then such Replacement Cells are Delivered at the place as may be designated by [BUYER CO].

 

 

11.3.

The risk of loss shall pass from Supplier to [BUYER CO] as follows:

  

11.3.1.

for each Solar Cell, upon Delivered at Designated Delivery Point.

 

11.3.2.

for each Shortfall Solar Cell and/or a Replacement Solar Cell, upon issue by [BUYER CO] of the Delivery Acceptance Certificate for such Cells.

 

11.4.

Under no circumstances shall the passage of title and risk of loss be construed to impair (i) any rights that [BUYER CO] may have for recovery of damages or to reject any lot of Cells in accordance with the terms of this Contract and (ii) any obligations of Supplier to handle and manage the risk of Delivery to the Cells.

 

12.

INSURANCE

 

12.1.

Parties shall maintain insurance as per applicable terms on FOB basis.

 

12.2.

Both Parties shall procure and maintain insurance required to be taken as per Applicable Laws, rules and regulations.

 

13.	LIMITATION OF LIABILITY

 

13.1.

Notwithstanding anything to the contrary contained elsewhere in this Contract, Supplier’s aggregate liability under this Contract shall not exceed the 100% (one hundred ten percent) of the Contract Price of this Contract. Save and except as otherwise expressly provided in this Contract, under no circumstances shall Supplier or [BUYER CO] be liable under this Contract for loss of profits, loss of production, loss of opportunity or for any special, indirect, incidental or consequential damages, loss or expenses suffered or incurred hereunder. The limitation of liability shall only apply to the extent permissible under Applicable Law.

 

13.2.

Notwithstanding anything contained in Article 13.1, the aforementioned limitation of liability does not apply to liabilities resulting from fraud, gross negligence, willful default, breach of Applicable Laws, and other remedies, any damage or injury to any person, any damage to physical property (prior to the passing of risk of Loss in accordance with Article 15, infringement of intellectual property rights, costs of remedying any Defects or Supplier’s indemnity obligations pursuant to Article 20.

 

14.	CONFIDENTIAL INFORMATION

  

14.1.

Party disclosing Confidential Information shall be referred to as “Disclosing Party” and Party Receiving the Confidential Information shall be referred to as “Receiving Party”.

 

 

14.2.

Confidential Information means (i) any and all information (whether or not in written form) relating to this Contract (including, without limitation, (a) technical information (drawings, measuring results, experiences, samples, etc.) (b) reports, documentation, budgets, business plans, analyses, forecasts, predictions and projections, (c) sales information, customer requirements, and historical product price information, (d) manufacturing, engineering and distribution methods, processes and capabilities, (e) information related to Cells, prototypes and models, (f) know-how, data, formulae, processes, designs, sketches, photographs, graphs, drawings, samples, preliminary design and marketing product concepts, inventions and ideas, whether or not patentable or copyrightable, patent applications and past, current and planned research and development activities, (g) the existence and content of this Contract and (h) any and all documentation, reports, data, memorandum, notes and records related to any of the foregoing), in whatever form, and appearing on any medium, now known, including without limitation tangible, visible, recorded or hereinafter invented, and which is disclosed to the Receiving Party (as defined in this Contract) by or on behalf of the Disclosing Party (as defined in this Contract) at any time after the Effective Date, whether in oral, written, graphic, electronic or other form, either directly or indirectly or observed by the Receiving Party on the basis of records/visits/interactions with the Disclosing Party and/or the Affiliates of the Disclosing Party; and (ii) all other information (whether or not in written form) that the Disclosing Party designates in writing or otherwise as “Confidential Information” or any information that anyone receiving such information including the Receiving Party, may reasonably consider as proprietary, confidential or the equivalent. Any information or analysis derived from the Confidential Information of a Disclosing Party will also be treated as its Confidential Information. Any reference to Confidential Information being disclosed by or to a Party includes disclosure by or to its employees and officers, its affiliates, including their employees and officers, it’s or its affiliates’ advisers and consultants who are engaged in connection with the cooperation; and any other permitted recipients of that party as agreed to in writing.

 

14.3.

Notwithstanding the provisions of Article 14.2 above, the Receiving party shall not be required to maintain confidential or be restricted in its use of any Confidential Information which was or become available in public domain or in possession, at the date of disclosure to the Receiving Party, without breach through no fault of the receiving Party or its representatives or disclosure of which is required by law or by order of a court of competent jurisdiction or is lawfully acquired by the receiving party from a third party not under an obligation of confidentiality to the disclosing party or was developed by the receiving party without reference to, and totally independently from, the Confidential Information or disclosed after obtaining prior permission in writing from the Disclosing Party to disclose such Confidential Information to any third party.

 

14.4.

Parties shall always keep and hold Confidential Information confidential. Parties shall not: (i) use any Confidential Information other than for the purposes of using the Cells or part thereof; nor (ii) disclose any Confidential Information to any third party, except as expressly permitted herein. All the detailed information of the Contract and appendixes of the Contract are confidential and must not be given to the third party.

 

15.	INTELLECTUAL PROPERTY

 

15.1.

“Intellectual Property” means, in respect of the Cells, recognized protectable intellectual property of a Party such as patents, utility models, copyrights, corporate names, trade names, trademarks (whether registered or not), trade dress, service marks, applications for any of the foregoing, software (either embedded in the Cells or standalone), firmware, trade secrets, mask works, industrial design rights, rights of priority, know how, design flows, layouts, methodologies and any and all other intangible protectable proprietary information that is legally recognized including all applications, renewals, extensions and revivals of, and all rights to apply for, and any other rights of a proprietary nature, whether registrable or not and wherever existing, including all applications, rights and confidential trade secrets related to research, development, design, dismantling or disposing of the Cells.

  

15.2.

Supplier hereby grants to [BUYER CO] and its successors and permitted assigns a continuing, non-exclusive, transferable and irrevocable right and license, for so long as any of them has any rights of ownership in or to the Cells, and on a royalty-free basis, to import, use, store, sell and dispose of Cells purchased by [BUYER CO] under this Contract. Supplier shall defend and indemnify [BUYER CO] against any damages, costs and expenses arising out of any suit, Claim, or proceeding brought by a third party relating to or arising out of any infringement of patent rights, trademarks, copyrights or other intellectual property rights with respect to the Cells.

 

 

16.	COMPLIANCES

 

16.1.

Code of Conduct

 

16.1.1.

In carrying out its obligations under this Contract, Supplier shall strictly comply with provisions of [BUYER CO]’s Code of Conduct annexed hereto as Annexure G. (more particularly, the provision with respect to ‘Business Integrity’ and ‘Unfair Trade Practices’ contained therein). Supplier shall ensure that all vendors, representatives, Subcontractors and their personnel who are involved in any manner with the performance of any obligations under this Contract understand and comply with the provisions of the Code of Conduct.

  

16.1.2.

Supplier agrees and acknowledges that [BUYER CO] shall have the right to terminate this Contract without any liability whatsoever to [BUYER CO], if [BUYER CO] has reasonable grounds to believe, as supported by reasonable evidence that Supplier, any of its Representatives or Subcontractors is in breach of the Code of Conduct and not being cured within 15 days from notice thereof.

  

16.1.3.

Supplier agrees to immediately inform [BUYER CO] of any breach or potential breach of the Code of Conduct in relation Supplier’s obligations under this Contract as soon as it comes to its notice and to indemnify, defend and hold harmless [BUYER CO] Indemnitees from and against any and all Losses resulting from any failure of Supplier or any of its Representatives or Subcontractor to comply with this Article 16.1.

 

16.2.

Forced Labor

 

Supplier shall not manufacture or subcontract the manufacture of any Cells being supplied under this Contract to [BUYER CO] for which forced labor is used. Supplier shall ensure that each of its and its affiliates’ sub-contractors and suppliers are not directly or indirectly using (through suppliers or sub-contractors) forced labor in the manufacture of any Cells exported to the India and/or United States and being supplied to [BUYER CO] under this Contract. Supplier shall ensure that the supplies under this Contract are sourced from sub-Contractors that do not engage in or benefit from forced labour practices, inter alia, from certain provinces that are restricted/prohibited under laws of India and United States of America for forced labour or any other country. Supplier shall always maintain documentation sufficient to identify and confirm its as well as its suppliers and sub-contractors, vendors, suppliers’ compliance with requirements of this Contract, including without limitation traceability for silica-based materials of the Cells. Within (fourteen) 14 days after the dispatch, Supplier shall provide traceability documentation as specified in Annexure D. Supplier shall notify [BUYER CO] as soon as it becomes aware of any breach, or potential breach, of its obligations under this provision.

 

 

For purposes of this provision, “forced labor” shall mean all work or service which is exacted from any Person under the threat of a penalty and for which the person has not offered himself or herself voluntarily. [BUYER CO] or its representative shall be entitled to perform a supply chain audit of Suppliers’ manufacturing facilities and Supplier shall provide the cooperation.

16.3.

Adherence to Anti Bribery Laws

 

Each party, its affiliates, it’s or its affiliates’ directors, officers, employees, agents and any other persons acting for or on behalf of such party or its affiliates in relation to the Contract shall comply with all Anti-Corruption Laws. Neither party shall cause the other party and its Affiliates to be in violation of any Anti-Corruption Laws and practices. Either party herein has not nor will pay, offer, promise to pay or authorize the payment of any money, gift or anything of value, including without limitation, any facilitation payments (collectively, “Value”) to any Government Official or to any person under circumstances where it is known to be probable that such Value will be offered, promised or authorized, directly or indirectly, to any Government Official, for the purpose of influencing any act or decision of such Government Official to obtain or retain business or to secure any improper advantage, or direct business or any improper advantage to any person. No Party herein has or will pay, offer, promise to pay or authorize the payment of Value to any person (i) to induce the person to perform improperly a relevant function or activity, (ii) to reward a person for the improper performance of such a function or activity or (iii) where the Party knows or believes that the acceptance of the Value would itself constitute the improper performance of a relevant function or activity. In the event the either party has reason to believe that a breach of any of the representations and warranties in this Contract has occurred or may occur, such party shall immediately notify the other party and provide all relevant information as may be requested by the other party thereafter. Supplier shall also adhere to the Anti-Bribery & Anti-Corruption Policy of [BUYER CO] annexed to this Contract as Annexure - I

16.4.

Uyghur Forced Labor Prevention Act (“UFLPA”)

 

Supplier acknowledges that it is aware that [BUYER CO] is one of the exporters of the solar Products to the United States of America. Supplier states that it is aware of the Uyghur Forced Labor Prevention Act (as passed by the US Senate Committee on Foreign Relations in June 2021) (the “UFLPA”), to prohibit importation of certain goods made in, or containing materials sourced from, the certain regions. Supplier specifically agrees that it has considered the UFLPA and incorporated the provisions (including limitations and restrictions) therein into Supplier’s offering and pricing under this Contract. In addition to the UFLPA, Supplier is aware that the US government has already banned importation of certain products certain regions associated with forced or slave labor and agree that Supplier shall (a) comply with any such ban, current or future, and (b) shall not be entitled to relief hereunder arising out of or related to the US government ban on import of products from certain regions. Supplier represents and warrants that the solar cell supplied to [BUYER CO] under this Contract are and will always be in compliance with the provisions of the UFLPA and all applicable laws in force in United States of America and impacting the manufacturing or import of products or components of products by Supplier or suppliers and subcontractors, vendors at any level in the supply chain of the Products or otherwise, are in compliance therewith. Within (seven) 7 days prior to the period specified in by the Government Authority in its communication Supplier undertakes to provide documentation that confirms traceability for all Cells purchased under this Contract including Supplier’s and facility location for any components thereof.

 

16.5.

Environmental, Social and Governance (“ESG”) Policy Statement and Environmental Management Systems Policy (“EMS”) and Health and Safety Policy

 

16.5.1.

Supplier shall meet all the legal compliances related to environment, health and safety regulations under Applicable Laws and IFC Standards (https://www.ifc.org/content/dam/ifc/doc/2010/2012-ifc-performance-standards-en.pdf) and ESG, EMS, health and safety policies of [BUYER CO], annexed to this Contract as Annexure J, K and L respectively. Supplier shall provide their employees with a safe and healthy workplace in compliance with all Applicable Laws and IFC Standards EHS and ESG and health and safety policies of [BUYER CO]. Supplier shall ensure that appropriate health and safety information is provided to its employees, sub-suppliers and contractors and that relevant training and personal protective equipment (PPE) is provided. Supplier shall also comply with any additional safety requirements agreed in the contract documents. At a minimum, Supplier shall provide employees and contractors with drinking water, clean toilets, adequate ventilation, emergency exits, proper lighting and access to first aid supplies or other provisions for emergency care. Supplier shall not, under any condition, employ children who are below the minimum legal age for employment as per the Applicable Laws and the IFC Standards. Supplier agrees not to use any forced or involuntary labour, whether prison, bonded, indentured or otherwise.

 

16.5.2.

Supplier shall allow [BUYER CO]’s Representative to inspect and check Supplier’s compliance with the Applicable Laws and IFC Standards at the manufacturing facility, warehouse, storage or such other relevant areas of Supplier, provided that [BUYER CO] provides Supplier with at least (five) 5 days prior Notice of [BUYER CO]’s intent to inspect and [BUYER CO] shall ensure that such inspections does not materially impede or interrupt Supplier’s operations or performance of its obligations under the Contract.

 

16.5.3.

Supplier shall ensure that all vendors, representatives, Subcontractors and their personnel who are involved in or associated with the performance of any obligations under this Contract understand and operate in accordance with the Applicable Laws and IFC Standards EHS and ESG policies of [BUYER CO].

 

17.	FORCE MAJEURE

 

17.1.

Definition of Force Majeure

 

“Force Majeure Event” shall mean any events and/or circumstances which are beyond the reasonable control of the Parties, including but not limited to (i) acts of God, fire, flood, drought, famine, earthquake, hurricane, typhoon, tsunami, or other natural calamity or natural disaster; (ii) epidemic or pandemic; (iii) terrorism or terrorist attack, insurrection,, civil war, civil commotion or riots, war, biological or chemical warfare, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or; (iv) nuclear explosion, radioactive or chemical contamination, sonic boom, ionizing radiation; (v) any acts/ orders / directions of any statutory authority; or prohibition or restriction by a statutory authority.

17.2.

Force Majeure Exclusions

  

Notwithstanding the foregoing, a Force Majeure Event shall not include:

 

17.2.1.

the occurrence of any manpower, material or Cells shortage; inability to procure funding by Supplier or/and [BUYER CO].

 

 

17.2.2.

any increase in cost of Cells or material or labor, prices, rates, wages, commissions, fees, duties, taxes or other levies.

  

17.2.3.

inability of a Party to pay any amounts due pursuant to this Contract or any other economic hardship in the performance of any obligation.

  

17.2.4.

conditions caused by the negligence or wrongful acts of the affected Party; or

  

17.2.5.

any delay, default or failure (direct or indirect) in obtaining materials, Cells or performing services by any Sub-Consultant, any workers or agents thereof, performing the scope of work or any part thereof unless such are also caused by Force Majeure.

  

17.3.

Notice of Force Majeure

 

The Party affected by the event of Force Majeure (the “Affected Party”) shall give notice of any event of Force Majeure to the other Party as soon as reasonably practicable, but not later than (seven) 7 days after the date on which it knew or should reasonably have known of the commencement of the event of Force Majeure. Such notice shall include full particulars of the event of Force Majeure, its effects on the Affected Party and the remedial measures proposed. The Affected Party shall give the other Party regular (and not less than monthly) reports on the progress of those remedial measures and such other information as the other Party may reasonably request about the event of Force Majeure. The Affected Party shall also give notice to the other Party of (a) the cessation of the relevant event of Force Majeure; and (b) the cessation of the effects of such event of Force Majeure on the performance of its rights or obligations under this Contract, as soon as practicable after becoming aware of each such cessation. In the event the Affected Party fails to provide the written notice as required under this Article 17.3 within the time periods specified therein, such Party shall forfeit its right to claim such specific occurrence or event constitutes an event of Force Majeure under this Contract. 

17.4.

Obligation to Mitigate

  

To the extent not prevented by an event of Force Majeure, the Affected Party shall continue to perform its obligations pursuant to this Contract. The Affected Party shall use its reasonable efforts to mitigate the effect of any event of Force Majeure as soon as practicable. 

17.5.

Available Relief for a Force Majeure Event

 

Subject to this Article 17, the Affected Party shall not be held to be in breach of this Contract if the performance of its obligations is hindered, prevented, or delayed due to a Force Majeure other than payment obligations.

17.6.

Burden of Proof

 

In the event that the Parties are unable in good faith to agree that an event of Force Majeure has occurred, or performance hereunder is excused as a result thereof, the Parties shall submit the Dispute for resolution pursuant to Article 21 and the Party claiming relief from Force Majeure shall have the burden of proof as to whether such Force Majeure has occurred and whether performance hereunder is excused as a result thereof.

 

17.7.

Changes Caused by a Force Majeure

 

If an event of Force Majeure occurs that adversely affects Supplier’s Delivery obligations hereunder and provided that Supplier complies with the terms and conditions of this Article 17, Supplier may request a Change Order reflecting an extension of the Guaranteed Delivery Date of Cells.

 

 

17.8.

Termination for Prolonged Force Majeure

 

In the event Force Majeure Event is delayed beyond the period of more than consecutive (eight) 8 weeks in this Contract, on account of one or more events of Force Majeure during the currency of this Contract, the Parties will attempt to arrive at a mutually satisfactory solution, failing which either Party may terminate the Contract by giving a notice to the other Party, but without prejudice to either Party’s right to terminate the Contract under other provisions of the Contract. Upon termination of this Contract in terms of this shall be liable to pay the price for the Cells that have been Delivered or are in transit to [BUYER CO] and /or which are inspected and issued Dispatch Clearance Certificate by [BUYER CO] and/or whose inspection call has been issued by Supplier and the Cells found to be in conformance to the requirements of this Contract as of the date of written notice under Article 17.3 above.

 

18.	TERMINATION

 

18.1.

This Contract and any Purchase Order (under which the delivery is yet to be completed) may be terminated for cause by either Party by issuing a notice of termination if:

 

18.1.1.

Not used.

 

18.1.2.

If Supplier or [BUYER CO] abandons or repudiates or breaches this Contract, and has not cured the breach within (fifteen) 15 days after the written notice of the alleged breach has been given to such party;

 

18.1.3.

If Supplier assigns or transfers the Contract or any of its right or interest herein, in breach of the terms of the Contract;

 

18.1.4.

If Supplier delays in the Delivery of the Cells such that the Delay Damages payable by the Supplier for such continuing delay exceed the Liquidated Damages Cap or the Replacement Delay Damages Cap as set out in Article 8.2 and 8.3 respectively;

 

18.1.5.

Not used

 

18.1.6.

If Supplier is in breach of any sub-Article of Article 16;

 

18.1.7.

pursuant to any other express provisions in this Contract under which [BUYER CO] or Supplier has the express right of terminate this Contract.

 

18.2.

Supplier can also terminate this Contract in the following events by giving (thirty) 30 days’ notice to [BUYER CO] if [BUYER CO] fails to make payments or issue acceptable L/C or breach other obligations for more than 30 days (including the related Cure Period) from the due date of the Payment.

 

18.3.

Either party may terminate this Contract by (fifteen) 15 days written notice to the other Party in the following events;

 

18.3.1.

force Majeure prevails for a period more than consecutive 8 (eight) weeks, but the Parties fail to find an equitable solution on further performance of the Contract;

 

18.3.2.

material Breach of Applicable Laws and not being cured within a reasonable time;

 

18.3.3.

in the event the other Party becomes insolvent or bankrupt or becomes subject of voluntary or involuntary petition under bankruptcy, insolvency, corporate reorganization or any other similar proceedings, or a receiver is appointed with respect to any of the assets of such Party.

 

 

18.4.

Unless otherwise specified in the notice of termination issued by a Party, this Contract shall stand terminated on the expiry of the notice period set out in the notice of termination or where a cure period has been provided and the default has not been remedied to the satisfaction of the non-defaulting party, on expiry of such cure period. Upon such termination of the Purchase Order, the Cells with respect to which acceptance by [BUYER CO] has not been given, shall also stand terminated.

 

18.5.

On the issuance of the notice of termination by Supplier pursuant unless such notice specifies otherwise:

 

18.5.1.

where such notice of termination is issued prior to commencement of production of Cells under a particular Purchase Order, then such Purchase Order and the Contract shall stand terminated, and Supplier shall release the Documentary LC corresponding to the Cells under the Purchase Order for which the production has not commenced;

 

18.5.2.

where such notice of termination is issued after issuance of Documentary LC under a particular Purchase Order and commencement of production of Cells under that Purchase Order, then [BUYER CO] shall accept the Cells under such Purchase Order provided either (i) an inspection call has been made by Supplier and the Cells under such Purchase Order are found to be in conformance with this Contract, by [BUYER CO]; or (ii) Dispatch Clearance Certificate has been issued by [BUYER CO] for such Cells; or (iii) the Cells are in transit for Delivery to the Designated Delivery Point, as the case may be.

 

18.6.

On the issuance of the notice of termination under this Contract by [BUYER CO], unless such notice specifies otherwise, Supplier shall:

 

18.6.1.

subject to Article (18.6.2) below, not dispatch any Cells which have not already been dispatched as on the date of the notice of termination;

 

18.6.2.

complete Delivery of Cells which have been loaded on to carriage for Delivery to the Designated Delivery Point or if Supplier requires under the notice, complete the Delivery of such Cells for which Dispatch Clearance Certificate has been issued by Supplier as on the date of the notice of termination. With respect to such Cells so Delivered, [BUYER CO] shall be entitled to:

 

18.6.2.1.

reject any such Cells if they do not meet the Cells Requirements and Supplier shall refund an amount equal to aggregate Prices of all such Cells within (fifteen) 15 days after the issuance of an invoice by [BUYER CO]; or

 

18.6.2.2.

accept such Cells, where the Cells meet the Cells Requirements.

 

18.6.3.

Not used

 

18.6.4.

pickup, take away and transport from [BUYER CO]’s Site all Rejected Cells within (seven) 7 days from the notice of termination, at its cost and expense or consent to the disposal of the same;

 

18.6.5.

immediately discontinue the production and manufacture of the additional Cells for [BUYER CO];

 

18.6.6.

place no further order and enter into no additional orders or subcontracts, and terminate all existing orders or subcontracts;

 

18.6.7.

provide [BUYER CO] with information on an inventory of all Cells in production, storage or transit.

 

 

19.	CONSEQUENCES OF TERMINATION

 

19.1.

[BUYER CO] may procure the required Cells from a third party and in the event the price of such Cells is higher than the Price payable for such Cells under this Contract, Supplier shall pay to [BUYER CO] the difference between: (i) the price paid by [BUYER CO] to procure the Cells for [BUYER CO]’s Site from a third party; and (ii) the respective Purchase Order, within (fifteen) 15 days after invoice or payment for such Cells from [BUYER CO].

 

19.2.

Supplier shall continue to remain liable for all costs and expenses incurred in relation to the Rejected Cells or Defective Cells, the replacement of the Rejected Cells and replacement of the Defective Cells in accordance with the terms of this Contract;

 

19.3.

[BUYER CO] shall pay Supplier all amounts due and payable in respect of the Cells Delivered and the Cells which are in transit for Delivery to the Designated Delivery Point, as the case may be, as on the date of the notice of termination in accordance with the terms of this Contract;

 

19.4.

the Documentary LC relating to the terminated quantity of Cells shall stand cancelled immediately; and

 

19.5.

Not used.

 

19.6.

Effect of termination

 

Termination of this Contract shall not relieve either Party of any obligation incurred prior thereto or for any obligation, which by its terms is to take effect upon termination or survive termination. Moreover, the residuary obligation with respect to Cells delivered up to termination of this Contract shall continue.

 

 

20.

INDEMNITY

 

20.1.

To the fullest extent permitted by Applicable Law, Supplier shall defend, indemnify and hold harmless [BUYER CO] and its Representatives (the “[BUYER CO] Indemnified Parties”), from and against any and all Losses and Claims suffered or incurred by [BUYER CO] Indemnified Parties attributable to: (i) violation of Applicable Law, any applicable anti-money laundering, anti-graft, anti-bribery or anti-corruption law or regulation) by or negligence or misconduct of Supplier (ii) Supplier’s failure to pay Taxes (excluding Sales tax payable in United States) for which [BUYER CO] is responsible hereunder; (iii) any damage or personal injury to any Person (including [BUYER CO] Indemnified Parties) or to the physical property (other than the [BUYER CO]’s Site to the extent such damages thereto are covered by [BUYER CO]’s insurance) of any Person (including [BUYER CO] Indemnified Parties) to the extent such damage to property or personal injury is caused by the negligence, gross negligence or willful misconduct of Supplier.

 

20.2.

To the fullest extent permitted by Applicable Law, [BUYER CO] shall defend, indemnify and hold harmless Supplier and its Representatives (“Supplier Indemnified Parties”), from and against any and all Losses and Claims suffered or incurred by Supplier Indemnified Parties attributable to violation of Applicable Law any applicable anti-money laundering, anti-graft, anti-bribery or anti-corruption law or regulation) by or negligence or misconduct of [BUYER CO] any damage or personal injury to any Person or to the physical property caused by the negligence, gross negligence or willful misconduct of [BUYER CO].

 

20.3.

Supplier shall defend, indemnify and hold harmless [BUYER CO] Indemnified Parties, from and against any and all Losses and Claims suffered or incurred by [BUYER CO] Indemnified Parties in connection with any claim brought against [BUYER CO] Indemnified Parties asserting that the Cells infringe or misappropriate any Intellectual Property right of any third party. If any such claim materially impairs the value of, or right to use, the Cells, then Supplier shall procure, at its own expense, the right to secure such rights as are reasonably required to maintain the value of Cells, including, without limitation, at its own election (i) modifying infringing Cells to make them non-infringing; (ii) procuring right of continued use; or (iii) substituting such Cells with non-infringing Cells, satisfying all Technical Specifications applicable to such Cells.

 

20.4

.Each Party shall promptly notify the other in writing of any Claims from any third party which may be covered by the indemnities set forth in this Article 20. Without limiting the generality of the foregoing, Supplier shall promptly notify [BUYER CO] in writing of any Claims which Supplier may receive alleging infringement of patents or other proprietary rights which may affect Supplier’s obligations [BUYER CO] hereunder.

 

 

21.	GOVERNING LAW AND DISPUTE SETTLEMENT

 

21.1.

This Contract is to be construed in accordance with and governed by the laws of State of [XXX]. Subject to Article 21.2 below, the courts in of Harris County, Texas shall have exclusive jurisdiction over any matter in respect of this Contract.

 

21.2.

Any dispute, controversy, or claim arising out of or relating to this Contract, including this Article 21, and whether based on contract, tort, statute or other legal or equitable theory (a “Dispute”) that cannot be resolved through mutual discussions among the Parties shall be resolved in accordance with the procedures specified in this Article 21, which shall constitute the sole and exclusive procedures for the resolution of Disputes.

 

21.3.

For (thirty) 30 days, after a Party provides notice of the existence of a Dispute to the other Party which notice expressly references that it is being provided pursuant to this Article 21, each Party shall use best efforts to attempt to settle such Dispute and reach a resolution satisfactory to both Parties (as evidenced by an instrument in writing) promptly through negotiations conducted in good faith, between Persons holding a senior management position and having authority to reach such a settlement. All negotiations pursuant to this Article 21 shall be confidential and shall be treated as compromise and settlement negotiations and shall not be admissible for any purposes in any subsequent arbitration or other dispute resolution proceeding. If any Party refuses to participate in good faith in negotiations as provided, the other Party may initiate arbitration at any time after such refusal.

 

21.4.

If any disputes or differences between the Parties are not resolved under Article 21.2 and 21.3 above, the same shall be referred to and finally decided by arbitration rules of American Arbitration Association (as amended).

 

21.5.

The arbitral tribunal shall consist of (three) 3 arbitrators – one arbitrator nominated by each Party and the third arbitrator being nominated by these two arbitrators so appointed by the Parties (“Tribunal”).

 

21.6.

The Parties shall proceed with the arbitration expeditiously. The Tribunal shall endeavor to conclude all proceedings thereunder, including any hearing, in order that an award may be rendered within (six) 6 months after the first case management conference with the Tribunal. The Tribunal’s award shall include a written explanation of the basis of their decision with respect to all disputes that were arbitrated.

 

21.7.

Unless the Parties agree otherwise, the seat of the arbitration Tribunal for all disputes shall be [XXX]s, and the arbitration shall be conducted solely in the English language.

 

 

21.8.

Once appointed, the Tribunal shall have sole jurisdiction to decide all aspects of any Dispute brought to them, including, without limitation, whether a particular Dispute is or is not arbitrable, any order relating to provisional relief, attorney disqualification, and the timeliness of the making of any claim. The Tribunal shall resolve the Dispute in accordance with the Governing Law and the terms and conditions of this Contract.

 

21.9.

Not used

 

21.10.

Where multiple arbitral proceedings have been commenced under this Contract, then the Parties hereby agree that all such proceedings shall be consolidated into a single arbitral proceeding before a single arbitration panel where the Tribunal finds: (i) that there is a common question of law or fact arises in both or all of the arbitrations; (ii) that the rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions, (ii) that the arbitration Contracts are compatible; and (iv) that the consolidation of such arbitration cases will not unduly delay the resolution of any of them.

 

21.11.

Notwithstanding the Contracts to arbitrate, and without prejudice to the right of either Party to seek such relief from an emergency arbitrator appointed in accordance with the Act, either Party may apply to any court of competent jurisdiction to obtain provisional relief if such action is necessary to avoid irreparable harm or to preserve the status quo prior to the appointment of the Tribunal.

 

21.12.

Each Party shall equally bear of the arbitration along with its respective cost.

 

21.13.

This Article 21 shall survive termination.

 

22.	MISCELLANEOUS

 

22.1.

Exclusivity – This Contract is nonexclusive Contract, and this Contract shall not preclude or limit [BUYER CO]’s right to purchase products like the Cells from another supplier for [BUYER CO]’s Site.

 

22.2.

Notices - Any notices from either Party to the other will be given in writing at the addresses set forth in the preamble of this Contract or other such addresses as may hereafter be designated in writing. A notice may be provided via electronic communication or registered post or courier (will be deemed received when delivered. In the event notice is provided via electronic, notice shall be deemed provided when the electronic mail is successfully delivered.

 

22.3.

Waiver - No waiver by non-breaching party of a breach of or a default by the other party under any of the provisions of this Contract or under any other Contract, nor the failure by non-breaching party, on one or more occasions, to enforce any of the provisions of Contract to exercise any right or privilege hereunder will thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights, or privileges hereunder.

 

22.4.

Sub-Contracting or Assignment– Except as allowed under this Contract, Supplier shall not sub-Contract or assign any and or all part of the works contemplated either under this Contract or under a particular Purchase Order to any third party, firm or company without prior express written permission of [BUYER CO].

 

22.5.

Non exclusivity – This Contract is non-exclusive basis and [BUYER CO] is free to Contract with other entities or persons to supply items or perform services same or like or related to or within the scope of the supplies/Services set forth under this Contract.

 

22.6.

Relationship – Nothing contained in this Contract shall constitute or be deemed to constitute a partnership between the Parties, and no Party shall hold itself out as an agent for the other Party and/or have the authority or the right to bind or commit the other Party.

 

22.7.

Not used

 

 

22.8.

Severability - Each obligation under this Contract shall be treated as a separate obligation and shall be severally enforceable as such. In the event of any obligation or obligations being or becoming unenforceable in whole or in part, such part or parts that are unenforceable shall be deleted from this Contract based on the mutual confirmation and any such deletion shall not affect the enforceability of all remaining parts of this Contract.

 

22.9.

Entire Contract - This Contract along with purchase order issued in accordance with this Contract constitutes the entire Contract and understanding of the Parties hereto, and no representations or promises have been made that are not fully set forth herein. In the event there is discrepancies in purchase order and the Contract then this Contract shall prevail.

 

22.10.

Amendment - The provisions of this Contract may be modified, amended or waived only by written amendment Contract executed by both Parties.

 

22.11.

Counterparts - This Contract may be executed in one or two counterparts including by facsimile or by electronically, each of which shall be deemed an original. This Contract may be transmitted through use of a facsimile, e-mail, or other electronic medium or may be kept in any electronic format and it shall have the same force and effect as an original.

 

For [BUYER CO]		For, TOPTOYO INVESTMENT PTE.LTD
[signature]		[signature]
[XXX]
Director – Operations		Authorised Signatory

 

 

31

 

Exhibit 10.3

 

Certain confidential information contained in this document, marked by [XXX], has been omitted because such information is both not material and is the type that the Company customarily and actually treats that as private or confidential.

 

 

 

 

 

 

 

 

 

 

MASTER SUPPLY AGREEMENT

 

CONTRACT NO: [XXX]

 

 

 

 

 

 

CONTRACT NO: [XXX]

 

 

 

 

 

 

[18.11.2024]

 

[BUYER CO] and Toyo America LLC

 

 

Table of Contents
SR. No.		Content
Article 1.		Definitions		1
Article 2.		Scope of Contract and Conditions Precedent		4
Article 3.		Contract Price and Payment Terms		5
Article 4.		Changes		7
Article 5.		Term of the Contract		8
Article 6.		Inspection and Testing		8
Article 7.		Packaging, Transportation and Delivery		12
Article 8.		Delay Damages		13
Article 9.		Acceptance of the Cells		14
Article 10.		Warranties		16
Article 11.		Title and Risk of Loss		16
Article 12.		Insurance		16
Article 13.		Limitation of Liability		17
Article 14.		Confidential Information		17
Article 15.		Intellectual Property		18
Article 16.		Compliances		19
Article 17.		Force Majeure		21
Article 18.		Termination		23
Article 19.		Consequences of Termination		25
Article 20.		Indemnity		25
Article 21.		Governing Law and Dispute Settlement		26
Article 22.		Miscellaneous		27

 

 

MASTER SUPPLY AGREEMENT

 

This master supply agreement (“Contract”) is made and entered into on Nov [18], 2024 (“Effective Date”).

 

BUYER CO., a company with Add [XXX] and (hereinafter referred to as ‘BUYER’ which expression shall, unless repugnant to the context or contrary to the meaning thereof, be deemed to mean and include its successors in business) of the One Part; and

 

Toyo America LLC a company registered under America Law and having its Registered Office at 251 Little Falls Drive, Wilmington, Delaware 19808, America herein after referred to as ’Supplier’, (which expression shall unless repugnant to the context includes its successors and permitted assigns) of the Other part.

 

BUYER and Supplier are hereinafter collectively referred to as “Parties” and individually as “Party”.

 

A.

BUYER is the renowned photovoltaic module manufacturer having its manufacturing facility at Brookshire, Texas.

 

B.

Supplier has represented that it is a trading company based in US and further represented that its related company TOYO SOLAR COMPANY LIMITED is mainly engaged in manufacturing Mono perc/N-TYPE CELLs, [XXX].

 

C.

Supplier has represented that it has necessary and adequate resources, experience, expertise, supervisory abilities and requisite its complied with all applicable laws and statutory compliances to supply Cells. Relying on the representations made by Supplier, BUYER has agreed to purchase the Cells on terms and conditions more specifically stated hereunder.

 

NOW THEREFORE, IN CONSIDERATION OF THE SAID PREMISES AND MUTUAL COVENANTS HEREINAFTER SET FORTH, THE PARTIES HERETO AGREE AS FOLLOWS:

 

1.

DEFINITIONS

 

1.1.

“Affiliate” means with respect to a Party is, directly or indirectly, controlled by such Party, directly or indirectly Controls such Party, is, directly or indirectly, controlled by a company or corporation that also, directly or indirectly, Controls such Party.

 

1.2.

“Contract” means this master supply agreement including all schedules, Annexures, and appendices and Purchase Orders issued and confirmed thereunder.

 

1.3.

“Applicable Law” Applicable Law means any laws, treaties, ordinances, judgments, decrees, injunctions, writs and orders of any court, or governmental agency or authority, and rules, regulations, orders, national, regional or local law, by-law, directive, code, circular, statute, interpretations and permits of any federal, state, county, municipal, regional, environmental or other governmental body, instrumentality, agency, authority, court , decisions or other body having jurisdiction over the applicable matter. Both Party shall comply with the respective Applicable Laws.

 

 

1.4.

“Cell(s)” means N-Type Cells.

 

1.5.

“Cell Delivery Schedule” means the Cells delivery schedule specified in Annexure B and/ or relevant Purchase Order, which shall not be modified except in the manner as specifically prescribed under this Contract, or as may be mutually amended by the Parties.

 

1.6.

“Contract Price” means the total price being paid for Total Cell Quantity” collectively under all Purchase Order issued in accordance with this Contract, as detailed in Annexure A.

 

1.7.

“Claim” means any claim, interest, liability, proceeding, cause of action, suit, demand, judgements, investigation (including by way of contribution or indemnity) at law or in equity, in each case brought against either Party (including by any third party).

 

1.8.

“Control” (together with its grammatical variations when used with respect to any Person) means: (a) the Ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such Person; or (b) the power, directly or indirectly, to direct or influence the management and policies of such Person by operation of law, contract, or otherwise.

 

1.9.

“Defect” means any defect, deficiency, inadequacy or damage in the Cells, due to improper handling or transportation, faulty design, materials, manufacturing, assembling, workmanship, as would result in (a) operational failure of Cells, and/or (b) any failure of a Cells to meet the Technical Specifications specified in this Contract; and/or (c) failure of the Cells to meet the guaranteed and other performance parameters under this Contract.

 

1.10.

“Delivery” or “Delivering” or “Delivered” means (i) that a Cells is made available/ by Supplier at the Designated Delivery Point for pickup by BUYER (or its Representative) or has been loaded by Supplier on to the vehicles arranged for transportation as per agreed Delivery Terms or Cell Delivery Schedule (ii) in the case of a Replacement Cells, that such Cells are made available by Supplier at BUYER’s Site, in each case in accordance with the requirements of this Contract.

 

1.11.

“Designated Delivery Point” means the factory of BUYER situated at [XXX], or any other place as mentioned in the relevant Purchase Order as mutually agreed by Supplier.

 

1.12.

“Dispatch Clearance Certificate” means a certificate issued by BUYER or its Representative setting forth a list of the Cells which have passed the Inspection and Testing Requirements, and which are ready for dispatch and Delivery by Supplier

 

1.13.

“Governmental Authority” means applicable national, state, provincial, and local governments and all agencies, authorities, ministries, departments, boards, instrumentalities, municipalities, courts, tribunals, corporations, other authorities lawfully exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power, or other subdivisions of any of the foregoing having or claiming a regulatory interest in [XXX] United States of America and Vietnam.

 

1.14.

“Guaranteed Delivery Date” means the dates specified in the Purchase Order in accordance with the Cell Delivery Schedule specified in Annexure B or any such other date which is mutually agreed between the Parties, by which date the agreed quantity of Cells is required to be delivered by Supplier at the Designated Delivery Point.

 

 

1.15.

“Guaranteed Replacement Delivery Period” means, where the Cells required to be replaced pursuant to a request in accordance with this Contract, the date of shipment of replacement Cells to the Designated Delivery Point by Supplier which date shall not be later than 12 (Twelve) days   from the date of the request acceptance or entitlement to such replacement.

 

1.16.

“Inspection Agency” means any of CEA, PI Berlin or any other reputed inspection agency, to be appointed by BUYER for the purpose of undertaking the Factory Inspections or any other inspection as provided under this Contract.

 

1.17.

“Invoice” means an invoice submitted by Supplier to BUYER for payments to be made under a Purchase Order.

 

1.18.

Not used.

 

1.19.

“Lenders” means lenders, banks, financial institutions, other institutions, multilaterals, export credit agencies, governmental entities, noteholders, bondholders or other Persons providing or guaranteeing (including by way of providing political risk or commercial risk insurance) financing, refinancing or credit support to BUYER for the purposes of the Project, and any agent or trustee therefor.

 

1.20.

“Losses” means all losses, liabilities, demands, interests, proceedings, cost and expenses (including, reasonable legal costs, lawyers’ and arbitrator’s fees), damages, penalties, fines, claims, actions and suits and charges including any of the above suffered by the non-defaulting Party as a direct result of any act or omission of the defaulting Party, in the course of the performance of this Contract.

 

1.21.

“Lot” means each of lot of Cells (as defined in the relevant Purchase Order) comprised in the Purchase Order Quantity and supplied pursuant to the respective Purchase Order and agreed by Supplier.

 

1.22.

“MW” means the nominal output power (in megawatts) of any Cell at Standard Test Conditions.

 

1.23.

“BUYER’s Site” means the location(s) of BUYER’s manufacturing facility or a warehouse of BUYER, which shall be specifically mentioned under the Purchase Order.

 

1.24.

“Permits” means all approvals, consents, permits, clearances, variances, waivers, conditions, decisions, authorizations, orders, certificates, confirmations, exemptions, applications, notifications, filings, declarations, registrations, concessions, acknowledgments, Contracts, licenses (including any import or export licenses), employee visas, environmental permits, decisions, rights-of-way, and similar items required to be made with or to, or obtained from, any Governmental Authority in connection with the obligations of the Parties hereunder or   performance under this Contract.

 

1.25.

“Person” means any individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, Governmental Authority or any other entity.

 

1.26.

“Prudent Utility Practices” means those practices, methods, techniques, equipment, specifications and standards and codes of safety and performance (as may change from time to time) employed, by experienced and reputable international manufacturers, Suppliers, contractors or operators in the manufacturing industry engaged in the same type of undertaking under the same or similar circumstances and conditions, which in the exercise of reasonable judgement in light of the facts known at the time the judgement was made, are considered good, reliable, safe, advisable and prudent practice commensurate with standards of safety, performance, dependability, efficiency and economy and maintainable with reasonable ease, performed or manufactured with the degree of skill, diligence and prudence that would ordinarily be expected from such experienced and reputable international manufacturers, Suppliers, contractors or operators and also in a manner consistent with international best practices, Applicable Laws, Permits, health and safety of workers and community, environmental protection, economy and efficiency for facilities of the type and size similar to the Project in accordance with this Contract and that generally conforms to the manufacturer’s operation and maintenance guidelines and also any guidelines provided in this regard by any Governmental Authority.

 

 

1.27.

“Purchase Order(s)” mean a purchase order issued by BUYER and accepted by Supplier during the Term under this Contract as per the format of BUYER specifying, among other   relevant details, Purchase Order Quantity, Lot, Purchase Order Price, Guaranteed Delivery Date and other terms of Delivery, Designated Delivery Point, and wattage of the Cells.

 

1.28.

“Purchase Order Quantity” means quantity of MW of Cells to be supplied by Supplier under the respective Purchase Order.

 

1.29.

“Representatives” means, with respect to any Person, such Person’s directors, officers, agents, representatives, employees, auditors, advisors, counsel, contractors and subcontractors (other than Supplier and its subcontractors with respect to BUYER), and Affiliates, and for each of the foregoing their respective directors, officers, agents, representatives, employees, auditors, advisors, and counsel.

 

1.30.

“Supplier’s Site” means [XXX],

 

where Cells are manufactured by Supplier for supply under this Contract.

 

1.31.

“Sub-contractors” or “Sub-suppliers” or “Vendors” means any Person appointed by Supplier as a sub-supplier and/or vendor and/or contractor, for any of the activities forming part of this Contract.

 

1.32.

“Taxes” means any and all applicable taxes (including withholding taxes, goods and services tax), fiscal contributions, levies, imposts, duties (including customs duties), tariffs, cess, deductions, withholdings, fees, liabilities and similar charges (and all interest, penalties and other liabilities imposed with respect thereto) imposed by or on behalf of any Governmental Authority having jurisdiction.

 

1.33.

“Technical Specifications” means the agreed i) drawings (ii) technical specifications (iii) Quality Assurance plan (“QAP”) (iv) agreed Quality Parameters (v) agreed process (included in QAP) and (vi) quantities as specified and technical specifications ascribed and specified in Annexure A, E and F together.

 

1.34.

“USD” means the lawful currency of United States of America.

 

2.

SCOPE OF CONTRACT AND CONDITIONS PRECEDENT

 

2.1.

Parties have agreed upon the Technical Specifications and quantities as specified in the Annexures A, E and F. Supplier shall ensure that [XXX] ZZZ undertakes to manufacture the Cells strictly in accordance with Technical Specifications and Supplier agrees to supply the high efficiency Cell in accordance with the Technical Specifications with agreed breakages and with (six) 6 months of shelf life from the date of manufacture. (1) The Purchaser will do preliminary inspection of the Products on the arrival of it at manufacturing facility within ten (10) days of the receipt. If Supplier does not receive any objections on quantities or/and including opening breakage rate within ten (10) days, it will be deemed that quantity and opening breakage rate are in accordance with this Agreement and the PO. If in the preliminary inspection if it is found that the quantity supplied is not in accordance with the Purchase Order and this Agreement and thus the Products are short supplied due to acts and omission attributable to Supplier then such balanced products shall be made ready for dispatch and supplied by the Supplier within Seven (7) days from the intimation by Purchaser. All cost and expenses including but not limited cost of transportation, freight, duties, insurance and any other cost and expense that needs to be incurred to ensure the Delivery at Purchasers manufacturing facility of such short supplied Products shall be borne by Supplier. (2) Further, Parties hereto agrees that if the opening breakage of Products is less than 0.15% of total quantity supplied accordance to the Purchase Order and this Agreement, then Purchaser shall not be entitled to claim any damages and if the opening breakage quantity exceeds 0.15% of total quantity supplied accordance to the Purchase Order and this Agreement then Supplier shall ready for dispatch within seven (7) days from the date of intimation by Purchaser All cost and expenses including but not limited cost of transportation, freight, duties, insurance and any other cost and expense that needs to be incurred to ensure the Delivery at Purchasers manufacturing facility of such short supplied Products shall be borne by Supplier. (3) Further if in the preliminary examination it is found that fragmentation rate of the Products is less than 0.4% of that total quantity supplied accordance to the Purchase Order due to the manufacturing process, Supplier does not need to compensate to the Purchaser and if the number of broken cells exceeds (including equal to) 0.4% of the quantity supplied accordance to the Purchase Order, Supplier shall ready for dispatch within seven (7) days from the date of intimation by Purchaser All cost and expenses including but not limited cost of transportation, freight, duties, insurance and any other cost and expense that needs to be incurred to ensure the Delivery at Purchaser’s manufacturing facility of such defective Products shall be borne by Supplier. Not withstanding the foregoing, for avoidance of any doubt, Purchaser shall not claim any liabilities against Supplier after EL test on PV Module Lamination. The outcome of reliability of test shall be subject to agreed QAP.

 

 

2.2.

The Parties agree that the Contract is a framework agreement, pursuant to which Supplier has agreed to supply [XXX] to BUYER during the Term (“Total Cell Quantity”) against which BUYER shall issue Purchase Order(s) to Supplier, from time to time during the Term, for supply of Cells in accordance with the requirements of this Contract and the relevant terms of the Purchase Order on or prior to the Guaranteed Delivery Date.

 

2.3.

The Parties agree and acknowledge that the Total Cell Quantity has been determined on the basis of the tentative requirements of BUYER during each month of the Term and accordingly the Cell Delivery Schedule stated in Annexure B has been agreed. Supplier shall confirm to BUYER the receipt of each Purchase Order issued hereunder (each, a “PO Confirmation”) within three (3) days following Supplier’s receipt thereof in written form via facsimile, e-mail or courier. Each PO Confirmation must specify the Purchase Order number against which the confirmation is being provided and shall record the acceptance of the Purchase Order or, solely if permitted under this Article 2.3, advise BUYER of Supplier’s rejection of such Purchase Order, the date of acceptance or rejection and the basis for rejection, if applicable. If Supplier fails to issue a Confirmation within the timeline mentioned in this Article 2.3, Supplier will be deemed to have accepted the Purchase Order. BUYER has the right to withdraw any Purchase Order prior to Supplier’s acceptance or deemed acceptance.

 

Provided however, in case due to commercially persuasive reason the demand for a certain month is less than the quantity mentioned in the Cell Delivery Schedule, then BUYER shall have the option to reduce the quantity of Cells, which change shall not exceed 1/3 of the total quantity of Cells under the Purchase Order, to be delivered by Supplier for the relevant month by giving prior notice at least 90 (ninety) days before the Guaranteed Delivery Date, and upon receipt of such notice by Supplier, the Cell Delivery Schedule for the relevant month shall be altered accordingly.

 

Provided further, in case due to any reasons whatsoever, the demand for a certain month is more than the quantity mentioned in the Cell Delivery Schedule, then BUYER shall have the option to increase the quantity of Cells, which change shall not exceed 1/3 of the total quantity of Cells under the Purchase Order, to be delivered by Supplier for the relevant month by giving prior notice at least (Sixty) 60 days before the Guaranteed Delivery Date, and upon receipt of such notice by Supplier, the Cell Delivery Schedule for the relevant month shall be altered accordingly, subject at all times to the Total Cell Quantity.

 

2.4.

Supplier is required to adhere to the Delivery Terms and Cell Delivery Schedule specified in Annexure B.

 

2.5.

The Parties agree that time of delivery and its payment are the essence of this Contract and on acceptance of this Contract and acceptance and confirmation of issuance of purchase order, Supplier shall deliver the Cells to such destination as specified in the purchase order or at the destination as may be mutually agreed between Parties.

 

2.6.

Supplier agrees that failure to deliver the Cells as per the Contract and Purchase Order , including but not limited to a failure to supply the Cells within the defined timelines or failure to supply Cells as per quality requirements of BUYER, shall be deemed to be a breach of the Contract. BUYER agrees that failure to issue Purchase Order as per the Contract and, including but not limited to within the defined timelines or failure to cause the issuance of L/C , shall be deemed to be a breach of the Contract.

 

3.

CONTRACT PRICE AND PAYMENT TERMS

 

Contract Price

 

3.1.

In consideration of the supply of the Cells, BUYER shall pay Supplier the price (“Contract Price”) in accordance with the terms set forth in Annexure A annexed to this Contract. Price stated in the respective purchase order (“Purchase Order Price”) shall aggregately not exceed the Contract Price.

 

 

3.2.

The Contract Price shall be a fixed and firm price and shall not be subject to any escalation or revision for any reason whatsoever, unless otherwise agreed under a Purchase Order. It is hereby clarified that no additional amount shall be paid for any Cell Delivered by Supplier to BUYER to replace a Rejected Cell and further Cell Price already paid for any Rejected Cells that is not replaced by Supplier with a Replacement Cell shall, beat the option of BUYER, be either adjusted against future payments under this Contract or refunded by Supplier to BUYER within (seven) 7 days of rejection of the replacement pursuant to this Contract.

 

3.3.

The aggregate of the Contract Price for all Cells Delivered to BUYER shall represent complete compensation for the delivery of Purchase Order Quantity at the Designated Delivery Point and all of Supplier’s other obligations hereunder, including (a) all applicable Taxes, (b) all packaging, transportation (in the case of Replacement Cells), insurances (including any third party insurance) and similar costs related to the Delivery of such Cells (including with respect to Delivery of Replacement Cells to the Designated Delivery Point), (c) all licensing fees, royalties and other similar charges, (d) all quality control, inspection and testing related obligations of Supplier hereunder (including Reliability Tests), (e) all documentation, data and information Supplier is obligated to provide to BUYER hereunder, (f) Supplier’s warranty obligations hereunder, and (g) all transportation charges at the origin and destination including   but not limited to freight cost, insurance, RTO challan, toll fee, etc.

 

3.4.

If, after the Effective Date, in case of any change in the Taxes, cess, levies or duties, the rates of any taxes inside or outside India or a new Tax is introduced, or an existing Tax is amended or modified (for which BUYER does not get any relief under its contract with its customer) and in each case which affects the Delivery of Cells and/or the Replacement Cells, Contract, and the performance of this Contract, BUYER and Supplier shall negotiate in good faith to reach new agreement to solve the issues. In case Parties fails to resolve the issue, either party   may terminate this Contract without any further liability with each other except for liabilities already accrued by either Party under the Contract. If any such change in Taxes, duties and other statutory levies, mentioned above has been imposed during the time period caused by reasons attributable to BUYER for later or delayed delivery by Supplier, the same shall be borne by BUYER. However, if for reasons attributable to Supplier the delivery is delayed Waare shall not be liable for any such Taxes.

 

3.5.

The Parties agree the obligations and responsibility with respect to transportation, insurance and delivery of the relevant component will be that of Supplier and Supplier shall be responsible for all associated costs, risk, delays or damages up to the Designated Delivery Point with reference to the agreed Incoterms.

 

Payments

 

3.6.

Deposit. [XXX] [XXXX]

 

Bank Guarantee [XXX] is still applicable. The Supplier shall refund any remained unadjusted advance deposit to BUYER once the Contract is terminated In case this Contract is terminated for reasons attributable to BUYER, Supplier shall refund unadjusted advance deposit， if any, after deducting the damages caused by , and payable to Supplier under this Contract.

 

3.7.

The full price of PO shall be paid through letter of credit at sight. Or, by 100% T/T against bill of lading copy. Dispatches of first lot of Cells shall be made within 7 working Days after   the receipt of L/C .

 

 

4.

CHANGES

 

4.1.

BUYER Requested Changes

 

4.1.1.

BUYER may at any time direct changes within the general scope of this Contract and/or the Purchase Order, including additions, deletions, revisions or other changes such as: (i) changes to the Technical Specifications, (ii) additions to or reduction from the quantities of Cells ordered, (iii) changes to BUYER’s desired date(s) of Delivery or Guaranteed Delivery Date(s), (iv) changes to the terms or methods of Delivery or packing, and (v)   changes to the Training Requirements (each, a “Change”). If BUYER desires to direct one or more Change, it shall submit a change request to Supplier in writing (“Change Order Notice”). Within (ten) 10 days after its receipt of any Change Order Notice, Supplier shall submit a detailed proposal to BUYER stating (i) the increase or decrease, if any, in the Cells Price (prevailing from time to time) of any Cells which would result from such Change (ii) the effect, if any, upon the Cell Delivery Schedule by reason of such proposed Change. Should Supplier fail to respond to BUYER’s request, within the foregoing (ten) 10 days period, Supplier and BUYER shall execute a written change order (“Change Order”) which shall reflect the proposed adjustments, if any, in the Purchase Order Price and the Guaranteed Delivery Date. BUYER shall have (seven) 7 days from receipt of Supplier’s detailed proposal to accept or reject in writing Supplier’s proposal in relation to the requested change. If BUYER agrees with Supplier’s proposal, BUYER shall issue a Change Order. In the event BUYER disagrees with Supplier’s proposal, BUYER shall notify Supplier that BUYER has decided to withdraw the Change Order Notice. Should BUYER fail to respond to Supplier in writing within the foregoing (seven) 7 days period, BUYER shall be deemed to have withdrawn the Change Order Notice.

 

4.1.2.

(Seven) 7 days before the start of production of each Lot(s) as set out in the Purchase Order, BUYER, with the intimation to Supplier, may direct to defer the Delivery or   Guaranteed Delivery Date(s) for any time period by providing a 5 (FIVE) days advance notice to Supplier and Supplier acknowledges and agrees to the same without any liability (financial or otherwise) on BUYER. For more clarity, BUYER agrees to not defer the Delivery or Guaranteed Delivery Date(s) of Lot(s) later than 7(Seven) days before the start of production of each Lot(s).

 

4.1.3.

BUYER, at its sole discretion, may direct the suspension of works by written notice to Supplier and Supplier acknowledges and agrees that BUYER shall not be liable for any financial compensation if such suspension is for a period of no more than 15 days and provided that such written notice shall be submitted to Supplier by BUYER 30 days earlier than the time of shipment from manufacture site in Indonesia. Notwithstanding the terms contained herein, no change made necessary because of any default of Supplier in the performance of its obligations under the Contract or misinterpretation of the Technical Specification, Cell Requirements, shall be deemed to be a change, and such change shall not result in any adjustment of the Purchase Order Price or the Guaranteed Delivery Date(s).

 

4.2.

Supplier Requested Changes

 

If Supplier proposes any changes, then it shall submit a proposal to BUYER with details of the change suggested and its impact on the on the Contract Price, the Guaranteed Delivery Date. Any proposal/change order notice submitted by Supplier under this Article 4.2 will be dealt with in accordance with the procedure set out in Article 4.1.

 

 

5.

TERM OF THE CONTRACT

 

This Contract shall come into effect from Effective Date and shall remain in force until the completion of the obligations of all the Parties under this Contract. The validity of this Contract may be extended by the Parties on such terms as may be mutually agreed upon by and between the Parties in writing.

 

6.

INSPECTION AND TESTING

 

6.1.

Supplier Testing and Factory Inspections

 

6.1.1.

Supplier shall, within (seven) 7 days from the issuance of this Contract, provide a copy of its manufacturing production schedule for the Cells that are to be supplied under this Contract, to BUYER (“Production Plan”). Within (fifteen) 15 days from the date of receipt of the Production Plan, BUYER shall have the right, but not an obligation, to review and provide comments, if any, on the Production Plan submitted by Supplier. Upon receiving any comments on the Production Plan from BUYER, Supplier shall in good faith, and on a reasonable endeavor basis, attempt to incorporate such comments and revise the Production Plan accordingly based on its actual conditions and by not later than (fifteen) 15 days after the date on which such comments are received. To the extent that that Supplier is unable to incorporate any of the comments received from BUYER, it shall issue a written notice to BUYER providing its reasons for the same. As a part of the Production Plan, Supplier shall specify the period (i.e., the start date and end date) during which it will manufacture the Cells for the purposes of this Contract and the relevant Purchase Order (the “Production Period”). In case Supplier requires any change in the Production Period; then, Supplier shall consult BUYER prior to such change.

 

6.1.2.

BUYER, its Representative and/or the Inspection Agency shall have the right to undertake manufacturing line inspections at [XXX] Cells manufactured for Delivery to BUYER (“Factory Inspections”). Supplier shall provide BUYER with a prior written notice at least (Seven)] 7 days prior to the date of dispatch of any Lot of Cells. The cost for engagement of such Inspection Agency and transportation of Cells shall be borne by Supplier in case BUYER, its Representative and/or the Inspection Agency identifies any Defects with the Cells during the Factory Inspections. Notwithstanding any Factory Inspections undertaken prior to dispatch, BUYER shall have the right to inspect the Cells once again upon delivery of the Cells at the Designated Delivery Point. For the purpose of facilitating the Factory Inspections, Supplier shall permit BUYER and/or BUYER’s Representatives and the Inspection Agency, to access and perform quarterly audits of Supplier’s (a) the manufacturing area, (b) the raw materials and finished goods area; (c) testing and quality assurance laboratory during the production period for the Cells being manufactured by Supplier for BUYER (the “Production Period”); and (d) the storage area or warehouse or any other area where the Cells are stored prior to their shipment or transportation to the Designated Delivery Point. Supplier shall provide all requisite information to BUYER/BUYER’s Representative on process and final inspection and testing records along with calibration records, “recipe” settings etc. Supplier hereby undertakes to store all relevant inspection records raw materials, work in progress inventory.

 

6.1.3.

Supplier shall, and shall ensure that its [XXX] shall, at its own cost, perform testing of the Cells being manufactured for BUYER during the Production Period in a manner consistent with the quality assurance program (the “Quality Assurance Plan” or “QAP”) as set out in Annexure F. Supplier shall provide to BUYER, the Representative and the Inspection Agency, prior to the commencement of the Production Period, all information, documents and reports as may be reasonably requested by BUYER. If after inspecting, examining or attending the testing of the Cells or any part thereof, BUYER may determine based on reasonable evidences and grounds that such Cells or part thereof do not comply with the requirements under this Contract, then upon written notice from BUYER, Supplier shall promptly correct all such Defective Cells at its own risk and expense, such that the Defective Cells comply with the requirements set out in this Contract.

 

 

6.1.4.

Supplier shall, make suitable arrangements for BUYER, the Representative and the Inspection Agency to conduct Factory Inspections during the Production Period, including making available appropriate and accurately calibrated measuring instruments and any other equipment that BUYER, the Representative and the Inspection Agency may require to conduct such Factory Inspections. BUYER, the Representative and the Inspection Agency shall complete any Factory Inspections (other than the pre-dispatch inspections) at least (five) 5 days prior to the expiry of the Production Period of the relevant Lot. BUYER, the Representative and the Inspection Agency shall complete the   pre-dispatch inspection no later than (four) 4 days before Supplier’s scheduled dispatch date of the relevant Lot. If any inspection undertaken by BUYER reveals any Defect in the Cells, or that the Cells do not conform to the Technical Specifications, the Cell Requirements, or the QAP in any way based on reasonable evidences and grounds, Supplier shall promptly correct or rectify any such Defects in accordance with the QAP.

 

If Supplier fails to initiate correction of the Defective Cells within (seven) 7 days after BUYER’s written notification thereof or fails to diligently pursue correction of the Defective Cells, without prejudice to any other remedies available to BUYER, BUYER may reject such Cells or part thereof. Following any such rejection, Supplier shall, at its own cost and risk, replace the Rejected Cells. The Replacement Cells shall be inspected in the manner mentioned in Article 6.1.2 and all costs and expenses incurred by BUYER in attending or in consequence of such retesting or inspection shall be to the account of Supplier. In case of any dispute arising out of this 6.1.4, it shall be subject to the verification of the third party which is acceptable to both parties. All costs and expenses shall be borne by the responsible party which is supported by the third party.

 

Notwithstanding anything contained herein, it is expressly agreed by Supplier that no inspection conducted, tests or trials witnessed, approvals granted, clearance provided or Delivery accepted by BUYER, BUYER’s Representatives and / or the Inspection Agency shall relieve, excuse or absolve Supplier of its obligations hereunder, including towards Cells Requirements, warranties and the indemnities.

 

6.1.5.

Supplier acknowledges and agrees that the time taken by BUYER to conduct the Factory Inspections or pre-dispatch inspections, including to repeat any such inspection and to have any Defects rectified in accordance with this Article 6.1 shall in no way entitle Supplier to any extension of time, or to any additional costs or increase in the Contract Price provided that such conduct shall not disturb the normal production of the Supplier or its [XXX] manufacturer.

 

6.2.

Dispatch Clearance Certificate

 

6.2.1.

Upon the occurrence of the completion of any Factory Inspection of Cells by BUYER, the Representative and/or the Inspection Agency and receipt of reports of such inspection within 24 hours from completion of such inspection, BUYER shall issue and deliver the Dispatch Clearance Certificate. Supplier acknowledges that Cells shall not be dispatched unless BUYER has issued a Dispatch Clearance Certificate. In case BUYER fails to issue such Dispatch Clearance Certificate within time aforesaid, it shall be deemed to be issued. Supplier shall not be responsible for late delivery LD if caused by BUYER fails to issue Dispatch Clearence Certificate on time in accordance with this Contract.

 

6.3.

BUYER’s Right to Inspect

 

Inspection or failure to make an inspection, examination or test of the Cells or issuance of the Dispatch Clearance Certificate shall in no way relieve Supplier from its obligations to conform to all the requirements of this Contract and shall in no way impair BUYER’s right to inspect the Cells quality issue in accordance with this Contract and reject Cells in found to be in breach of Technical Specifications.

 

6.4.

Third Party Reliability Testing

 

6.4.1.

From each Lot manufactured, BUYER shall, at its option be entitled to, either directly or through its Representatives randomly select up to (fifteen) 15 Cells (a “Test Sample”)   for reliability testing by a third-party laboratory mutually agreed by both Parties (such laboratory, the “Third Party Test Laboratory” and each such test, a “Reliability Test”). BUYER shall notify Supplier of the name and location of the Third-Party Testing Laboratory, no later than (one) 1 week prior to the commencement of any Reliability Test. The pass and fail criteria for the Reliability Tests will be based on the applicable I-V Curve standards, power point tracking, Dynamic I-V M Ideality Factor and Light Intensity Studies measurement, with the power output being measured on the same equipment (as utilized by Supplier to measure the power output) at the Third-Party Test Laboratory. If the Reliability Tests fail as per the standards specified hereinabove, BUYER shall notify Supplier in accordance with procedure set out in Article 6.4.5.

 

 

6.4.2.

For the purpose of validating the power output of the Cells at the Third-Party Test Laboratory, the average power output of the entire Test Sample will be measured. If the average power output of the entire Test Sample is more than the nameplate capacity of such Cells, the Cells of the Lot from which the Test Sample has been drawn will be deemed to have passed the Cells power test. If the average power output of the entire Test Sample is less than the nameplate capacity of such Cells, the Cells of the Lot from which the Test Sample has been drawn will be deemed to have failed the Cells power test and BUYER shall notify Supplier in accordance with the procedure set out in Article 6.4.5. Supplier shall be responsible for the packaging of the Test Sample to and from the Third Party’s Test Laboratory. All costs related to reliability Inspection and Third party testing and Inspection charges would be at BUYER’s cost.

 

6.4.3.

BUYER may request a Reliability Test for a Test Sample at any time after the manufacturing of the Lot from which such Test Sample will be drawn is completed but, before the Cells in such Lot are dispatched for shipment to the Designated Delivery Point. However, such Reliability Test shall be completed within (one hundred and twenty) 120 days after the Lot from which such Test Sample is drawn is delivered.

 

6.4.4.

BUYER shall be responsible for payment of the amounts invoiced by the Third-Party Test Laboratory for undertaking the Reliability Test or characterization test (PAN file/ IAM test) in respect of the Test Samples. In case of failure of the Test Samples in the tests or if the Cells do not meet the characterization requirements based on the PAN file or other specifications shared by Supplier, Supplier shall re-perform the tests (“Re-Test”) in a mutually agreed third-party test laboratory, at Supplier’s own risk and cost. In case Cells fail to meet the characterization requirements in the Re-Test, the Cells shall be deemed as Rejected Cells. Supplier shall be responsible for transportation to and from the Third Party Test Laboratory, packaging of the Test Sample and other amounts related to testing.

 

6.4.5.

If the Reliability Tests or characterization test or Factory Inspections fail to meet the requirements set out in Article 6, BUYER shall in writing, notify Supplier about the same no later than (seven) 7 days after its receipt of the results of the inspection reports, attaching the relevant inspection/ test results and other relevant supporting documents provided by the Third Party Test Laboratory/ Inspection agencies. BUYER, reserves the right either to opt for any of the options specified in Article 6.5.1 to 6.5.4 or follow the procedure specified in Article 6.4.6.

 

6.4.6.

Supplier shall, within (ten) 10 days after receiving a notice from BUYER of the nature described in Article 6.4.5:

 

6.4.6.1.

submit to BUYER a root-cause analysis setting forth in reasonable detail the root-cause of the failures identified by the applicable Reliability Test or Factory Inspections;

 

6.4.6.2.

identify each Cells in the Lot from which the applicable Test Sample was drawn or on Cells on which flash test was conducted;

 

6.4.6.3.

develop and submit to BUYER a detailed plan for correcting and preventing such failure in future Cells; and

 

 

6.5.

After the information provided by Supplier to BUYER under Article 6.4.6 is reviewed by BUYER, the Parties shall discuss and subject to mutual agreement, take any of the actions   listed in Article 6.5.1 to 6.5.4 below. In the event, the Parties fail to mutually agree on the course of action within (ten) 10 days of receipt of the information set out in Article 6.4.6 above, BUYER shall have the right to elect to take any of the following actions (which election shall be notified to Supplier in writing within (thirty) 30 days after receiving such information):

 

6.5.1.

reject only such defective Cells in the Lot from which the applicable Test Sample was drawn (which will upon such rejection be deemed to be Rejected Cells) and require Replacement Cells for the same without any additional cost to BUYER; or

 

6.5.2.

reject all Cells in the Lot from which the applicable Test Sample/ inspection sample was drawn (which will upon such rejection be deemed to be Rejected Cells) and require Replacement Cells for the same without any additional cost to BUYER; or

 

6.5.3.

reject all Cells in the Lot from which the applicable Test Sample was drawn (which will upon such rejection be deemed Rejected Cells) and cancel delivery of all Cells have not yet been dispatched from Supplier’s Site. For the avoidance of doubt, the Cells, which are in transit on the date of such rejection of the Cells, shall be Delivered to BUYER and BUYER shall be entitled to exercise the rights available under this Contract, if the Reliability Tests conducted in respect of such Cells fail to meet the standards set out in Article 6; or

 

6.5.4.

terminate this Contract in accordance with Article 18.

 

6.6.

If BUYER elects the option described in Article 6.5.1 to 6.5.3 then, Supplier shall (i) deliver the required Replacement Cells at BUYER’s Site, within the Guaranteed Replacement Delivery Period; and (ii) pick up the Rejected Cells or consent to the disposal of the Rejected cells.

 

6.7.

If BUYER elects the option described in Article 6.5.4 then Supplier shall refund an amount equal to the aggregate Cells Price for the rejected Lot for which the payment has been made by BUYER post-dispatch of Cells in the Lot from which the applicable Test Sample was drawn within (fifteen) 15 days after the issuance of an invoice therefore by BUYER.

 

6.8.

Certain samples of Replacement Cells to be delivered to BUYER pursuant to the options Article 6.5.1 to 6.5.3 above, shall be sent by Supplier directly to the both mutually agreed   Third Party Testing Laboratory for reliability testing in accordance with Article 6.4 and thereafter such entire lot of tested Replacement Cells shall be delivered directly to BUYER’s Site. The costs and expenses associated with such Reliability Test therefore (including for packaging and transportation of such Cells to the Third Party Testing Laboratory and from the Third Party Testing Laboratory to the Site) shall be borne by Supplier. To the extent that any such cost and expenses are paid directly by BUYER, Supplier shall reimburse BUYER for such costs and expenses within (thirty) 30 days after Supplier’s receipt of an invoice therefor from BUYER failing which BUYER shall have the right to set-off such amounts from payments due to Supplier under this Contract. In the event a Reliability Test of Replacement Cells reveals that the root-cause of the failures identified by the Reliability Test conducted for the Cells that such Replacement Cells are intended to replace have not been remedied, then, without limiting any of BUYER’s other remedies provided for herein, BUYER shall be entitled to terminate this Contract in accordance with Article 18.

 

 

6.9.

In case, Supplier fails to comply with Reliability Tests and/or Factory Inspections, and measures are required to be taken as per this Article 6 then, Supplier shall be solely responsible for such measures adopted and shall be liable to bear all costs and charges, Factory Inspections, Third Party Reliability Testing, BUYER’s representative’s travel, boarding/lodging and any other charges of whatsoever nature towards the same.

 

7.	PACKAGING, TRANSPORTATION AND DELIVERY

 

7.1.

The Cells shall be delivered in accordance with the Delivery Terms and Cell Delivery Schedule as specified in Annexure B and date as specified by BUYER in the purchase order   after receipt of Dispatch Clearance Certificate including so directed by BUYER without Dispatch Clearance Certificate or by such other date as may be communicated by BUYER in writing and agreed by Supplier.

 

7.2.

Supplier shall strictly complete all activities to adhere to the Cell Delivery Schedule specified in Annexure B.

 

7.3.

Supplier shall Deliver the Cells to BUYER on Delivery Duty Paid (DDP) (INCOTERMS 2020) basis at the Delivery Point in one or more Lots in terms of the Purchase Order. Supplier shall Deliver (i) each Cells (other than the Replacement Cells), at the Designated Delivery Point by the Guaranteed Delivery Date on a DDP basis; and (ii) each replacement Cells at BUYER’s Site on a DDP basis within the Guaranteed Replacement Delivery Period as its absolute obligation.

 

7.4.

BUYER (and its Representative and/or the Third Party Inspection Agency) at its sole discretion shall be entitled to: (i) an advance notice of (two) 2 days prior to the anticipated dates on which each Lot of Cells will be available for Delivery at the Designated Delivery Point; (ii) observe/witness the packaging of the Cells, verify Cells deliveries and the loading of the Cells into the vehicles for transportation of the Cells, at the manufacturing facility, warehouse or storage area of Supplier.

 

7.5.

All Cells shall be packaged sea and roadworthy travels, marked with wording including but not limited to, “KEEP AWAY FROM MOISTURE”, “HANDLE WITH CARE”, “THIS SIDE UP” must be printed on and otherwise prepared (at Supplier’s sole cost and expense) in accordance with Prudent Utility Practices to reduce the risk of damage to the same during transportation, handling and storage and in accordance with all applicable packaging and transportation laws and regulations. At minimum, all packaging shall be sea and surface transport worthy and shall identify the contents by manufacturing package number, quantity and serial number and all labeling shall be in English and bar coded. Supplier shall, along with each Lot of Cells dispatched, provide to BUYER documentation such as packaging lists for identifying the shipping containers. Packing the Cells in a manner suitable for safe transportation of the Cells and Replacement Cells, at its own cost. Supplier shall be liable for all Losses arising as the result of inadequate or improper packing.

 

7.6.

Supplier shall perform all other obligations required for the Delivery of the Cells at no additional cost to BUYER and solely at the cost and risk of Supplier.

 

7.7.

BUYER shall take possession of Cells at Designated Delivery Point.

 

7.8.

Supplier shall adhere to the delivery requirements as set out in Annexure B

 

7.9.

Supplier shall ensure that: (i) the Cells (other than the replacement Cells) are made available for pick-up by BUYER at the Designated Delivery Point and to no other place in except BUYER’s Site ii) the replacement Cells are delivered only to BUYER’s Site.

 

 

8.	DELAY DAMAGES

 

8.1.

If for any reason other than Force Majeure and reasons attributable to BUYER, a Lot of Cells is Delivered after the Guaranteed Delivery Date thereof (a “Late Delivery”), then for each week (or part thereof) of delay after the Guaranteed Delivery Date, Supplier shall pay to BUYER liquidated damages (“Delay Damages”) at the rate of one half percent (0.5%) of the value of the delayed delivery (computed basis Purchase Order price), per week (or part thereof) of delay; provided, however, that Delay Damages payable hereunder shall not exceed twenty percent (20%) of the Purchase Order price (“Liquidated Damages Cap”) of delayed delivery. The Parties agree that the Delay Damages described in this Article 8.1 are fair and reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the aggrieved party, the limitation on liability herein and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that such liquidated damages are a genuine and reasonable pre-estimate of and reasonable compensation for the Losses and damages that will be suffered by BUYER in the event of any delay in the supply of the Cells and Supplier irrevocably undertakes that it will not, whether by legal proceedings or otherwise, contend that the amount of the liquidated damages are not reasonable.

 

8.2.

Each Delivery of a Cells that is required to replace a Rejected Cells (“Replacement Cells”) shall be considered a Late Delivery, if Supplier is unable to Deliver such Cells within the Guaranteed Replacement Delivery Period and shall be subject to payment of delay liquidated damages (“Replacement Delay Damages”) by Supplier, which shall accrue from the day after the Guaranteed Replacement Delivery Period ends until the actual Delivery of the Replacement Cells at BUYER’s Site. Replacement Delay Damages shall be payable at the rate of one half percent (0.5%) of the aggregate value of the Replacement Cells, whose Delivery is delayed beyond the Guaranteed Replacement Delivery Period, per week (or part thereof) of delay; provided, however, that the delay liquidated damages payable hereunder shall not exceed Twenty percent (20%) of the of the aggregate Price of the Replacement Cells (“Replacement Delay Damages Cap”) whose Delivery is delayed beyond the Guaranteed Replacement Delivery Period. The Parties agree that the Replacement Delay Damages are fair and reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the aggrieved Party, the limitation on liability herein and non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that Replacement Delay Damages are a genuine pre-estimate of loss and are not a penalty.

 

8.3.

Each Delivery of Replacement Cells, shall be considered a Late Delivery, if Supplier is unable to Deliver such Cells on or prior to the Guaranteed Replacement Delivery Period for the Replacement Cells or the Guaranteed Delivery Date for the Shortfall Cells, as the case may be, and subject to Delay Damages, which (i) shall accrue from the Guaranteed Replacement Delivery Period for Replacement Cells, or the Guaranteed Delivery Date for Shortfall Cells,, as the case may be, until the actual Delivery of such Replacement Cells, or Shortfall Cells,; and (ii) shall be payable at the rate of one half percent (0.5%) of the aggregate Price of the Replacement Cells, or Shortfall Cells,, as the case may be, per week (or part thereof) of delay (prorated for delays of less than one week); provided, however, that Delay Damages payable hereunder shall not exceed ten percent (10%) of the aggregate Price of the Replacement Cells or Shortfall Cells, as the case may be. The Parties agree that the liquidated damages described in this Article 8.3 are fair and reasonable in light of the anticipated harm that would ensue from a delay in Delivery of the Cells, the difficulties in proving the loss and ascertaining the amount of loss to the aggrieved party, the limitation on liability herein and the inconvenience   or non-feasibility of otherwise obtaining an adequate remedy. The Parties further acknowledge and agree that such liquidated damages are a genuine and reasonable pre-estimate of and reasonable compensation for the Losses and damages that will be suffered by BUYER in the event of any delay in the supply of the Replacement Cells, and/or Shortfall Cells, and Supplier irrevocably undertakes that it will not, whether by legal proceedings or otherwise, contend that the amount of the liquidated damages are not reasonable.

 

 

8.4.

Cost pertaining to replacement would be in the scope of supplier such as transportation ,freight and applicable America custom duty .

 

8.5.

Alternatively, in case a Lot of Cells will get delayed at the Designated Delivery Point, for more than 7 working days for any reason whatsoever other than Force Majeure and reasons attributable to BUYER, and Supplier fails to deliver the Cells by the Guaranteed Delivery Date for more than 7 working days , then without prejudice to any other right or relief available to BUYER under the Contract, BUYER shall be entitled to procure the required Cells from a third party. In the event the price of such Cells procured from a third-party is higher than the respective Purchase Order Price, Supplier shall pay to BUYER the difference between: (i) the price paid by BUYER to procure the Cells from a third party and the Contract Price; and (ii) refund respective Purchase Order Price, within 30 (thirty) days from Supplier’s receipt of invoice for payment from BUYER. BUYER shall also be entitled to terminate the Contract   unilaterally with immediate effect at its sole discretion.

 

8.6.

In the event delay in delivery is caused due to acts and omission of the Purchaser, then the Delivery Date shall be postponed accordingly, and the Supplier shall not be held liable for such delay and shall not be liable to pay Delivery Delay Liquidated Damagest.In case of non- payment or delay in payment of any invoice or any amount due, including non-issuance of L/C or delayed issuance of L/C under this agreement by BUYER , Seller shall amongst its legal remedies have the right to recover late payment charges or late issuance of L/C against the due amount, at the rate of 9 % per annum or maximum rate permitted by applicable laws, whichever is higher from the due date till the actual date of payment or Issuance of L/C.

 

8.7.

BUYER has the right to periodically raise the debit notes which shall be confirmed by supplier for any delivery failures or for rejected cells, and these will be adjusted from the invoice for   the following month.

 

9.	ACCEPTANCE OF THE CELLS

 

9.1.

Upon unwrapping each lot of the Cells at BUYER’s Site, BUYER or its Representative shall undertake a visual inspection of each Lot of Cells to assess if there is any apparent shortage,   damage, Defect or other discrepancy between the Cells delivered and the Dispatch Clearance Certificate (issued as per the QAP stated in Annexure F) or product description and data sheets (including any discrepancy with the quantity of each product type required to be included in such delivery) (“Discrepancy”).

 

 

9.2.

If BUYER or its Representative determines from any inspection that there is any Discrepancy, it shall submit a written notification of the same to Supplier (accompanied, except in the case   of a shortage, by photographs or other suitable evidence clearly showing such Discrepancy) (a “Discrepancy Notice”) no later than (fifteen) 15 days after date of such inspection. The Cells listed in any Discrepancy Notice shall be tested by mutually agreed Third Party Laboratory and upon the results of such testing which indicates the Cells being discrepant the same shall be deemed “Rejected Cells”. BUYER shall issue notice to Supplier rejecting such Cells (“Rejection Notice”).

 

9.3.

Upon receiving a Rejection Notice, Supplier shall immediately arrange for the shipment of the number of Rejected Cells required (i) in the case of a shortfall, to make up for such shortfall   (“Shortfall Cells”); and (ii) in all other cases, to replace the Rejected Cells. Within (fifteen)15   days after receiving such Discrepancy Notice, Supplier shall notify BUYER in writing of the Guaranteed Delivery Date of such make up or replacement Cells which shall be no later than the Guaranteed Replacement Delivery Period (as calculated from the date of the Discrepancy Notice). If the next Lot of Cells to be Delivered by Supplier is within the Guaranteed Replacement Delivery Period, Supplier shall ensure that such replacement Cells are Delivered as part of such next scheduled shipment.

 

9.4.

BUYER or its Representative shall make all Rejected Cells available for pick up by Supplier at the BUYER’s Site if so, requested by Supplier. Supplier shall pick up and transport each Rejected Cells at its sole cost and expense within (thirty) 30 days of BUYER making such Rejected Cells available for pick up. Supplier shall be responsible for payment of all Taxes, costs and expenses in connection with the pick up, take away, transportation, export or disposal of the Rejected Cells. If Supplier does not wish to pick up such Rejected Cells within such (thirty) 30 days period, then BUYER may, at its election, return such Cells to Supplier and invoice Supplier for any costs, expenses and Taxes associated therewith (which shall be paid by Supplier with (fifteen) 15 days of the date of the invoice) or dispose of such Rejected Cells and remit any net proceeds to Supplier. During the period of time that BUYER (or its Representative) is in possession of a Rejected Cells that is being replaced by Supplier, BUYER shall protect such Rejected Cells (or cause such Rejected Cells to be protected) from damage, theft or other loss, subject to Supplier’s responsibility for the costs, therefore.

 

9.5.

Upon completion of any inspection, if the Cells Delivered conforms to the Technical Specifications and it shall in no way relieve Supplier from its obligations under this Contract, including with respect to the rectification or replacement of any Defective Cells and shall further, in no way, impair BUYER’s right to reject or revoke acceptance of Cells that do not conform to the Technical Specifications, or to avail itself of any other remedies to which BUYER may be entitled.

 

9.6.

If at the time using the Cells in the manufacturing of the modules for its customers, BUYER or the Representative founds and determines Defect or other discrepancy between the Cells delivered and the Dispatch Clearance Certificate (issued as per the QAP) in accordance with the agreed Technical Specification, then BUYER shall promptly give the notice (“Discrepancy Notice”) for the Rejected Cells to Supplier and also communicate to Supplier providing detailed description of defect, wherever applicable by providing photographs where defect is clearly visible. In case of a shortfall, to make up for such shortfall; and (ii) in all other cases, to replace the Rejected Cells. Within (three) 3 days after receiving such Discrepancy Notice, Supplier shall notify BUYER in writing of the Delivery Date of such make up or replacement Cells which shall be no later than the Guaranteed Replacement Delivery Date (as calculated from the date of the Discrepancy Notice) to BUYER on DDP delivery terms to the BUYER’s Site as may be designated by BUYER and all cost of such supply including price, taxes, import duties, transportation and Freight, insurance shall be borne by Supplier. Such new/replaced   Cells shall be of the same Technical Specification and QAP as specified in this Contract and shall be delivered to BUYER within (fifteen) 15 days.

 

 

10.	WARRANTIES

 

10.1.

Supplier warrants that the Cells supplied to BUYER are in accordance with the Technical Specification and does not contain any Defect, and Supplier has complied in all material respects with all applicable local, foreign, domestic and other laws, rules, regulations and requirements.

 

10.2.

Supplier warrants that it has good and merchantable title to the Cells it when it passes to and vests in BUYER under this Contract and that the Cells shall be (i) free from defects in design   (to the extent that Supplier has furnished the design), materials, workmanship and performance; (ii) be of merchantable quality and fit for the particular purpose for which the Cells are sold; (iii) comply with all agreed Technical Specifications (iv) be free and clear of all liens and encumbrances; (v) comply with all Applicable Laws;

 

11.	TITLE AND RISK OF LOSS

 

11.1.

The title for each Cells, Shortfall Solar Cell and/or a Replacement Solar Cell shall pass from Supplier to BUYER on the date of: (i) payment of the Purchase Order Price as per this Contract or (ii) date on which the Solar Cell Delivered at Designated Delivery Point, whichever is earlier. In case of a Rejected Cells, the title to such Cells shall pass back to Supplier when Supplier picks up such Rejected Cells pursuant to Article 9 or when Rejected Cells are disposed of by BUYER.

 

11.2.

The title of Shortfall Cells and/or a Replacement Cell shall pass from Supplier to BUYER in accordance with delivery on a DDP then such Replacement Cells are Delivered at the place as may be designated by BUYER.

 

11.3.

The risk of loss shall pass from Supplier to BUYER as follows:

 

11.3.1.

for each Solar Cell, upon Delivered at Designated Delivery Point.

 

11.3.2.

for each Shortfall Solar Cell and/or a Replacement Solar Cell, upon issue by BUYER of the Delivery Acceptance Certificate for such Cells.

 

11.4.

Under no circumstances shall the passage of title and risk of loss be construed to impair (i) any rights that BUYER may have for recovery of damages or to reject any lot of Cells in accordance with the terms of this Contract and (ii) any obligations of Supplier to handle and manage the risk of Delivery to the Cells.

 

12.

INSURANCE

 

12.1.

Supplier shall procure and maintain adequate insurance cover for the Cells up to the Designated Delivery Point. Supplier shall submit to BUYER, valid insurance copy for the insurance taken for the Cells up to Designated Delivery Point after Cells on board of the Vessel.

 

 

12.2.

Both Parties shall procure and maintain insurance required to be taken as per Applicable Laws, rules and regulations.

 

12.3.

Supplier shall provide BUYER evidence of such insurance policies on demand for the Cells. The proceeds of insurance shall be used to reinstate the Cells to the extent of damage caused or in the event the Cells has been replaced by Supplier then Supplier shall have the right to set-off the proceeds of insurance to the extent of cost incurred for such Replacement of the Cells.

 

12.4.

Not used

 

12.5.

If Supplier fails to effect and keep in force the insurance for which it is responsible under this Contract, BUYER may effect and keep in force any such insurance, and pay such premiums as may be necessary for that purpose, and from time to time, after issuance of a reimbursement request therefore accompanied by relevant supporting documentation, deduct the amount paid by BUYER from any amount due or which may become due to Supplier under the Contract.

 

12.6.

Any insurance policies that Supplier obtains for the purposes of complying with its obligations under this Contract must: be supported by certificates of insurance at inception and certificates   of currency at each renewal / instalment as per the policy of any such insurance. The certificates of currency / insurance under this Article 12 must be provided by Supplier to BUYER and be presented in English.

 

13.	LIMITATION OF LIABILITY

 

13.1.

Notwithstanding anything to the contrary contained elsewhere in this Contract, Supplier’s aggregate liability under this Contract shall not exceed the 100% (one hundred ten percent) of the Contract Price of this Contract. Save and except as otherwise expressly provided in this Contract, under no circumstances shall Supplier or BUYER be liable under this Contract for loss of profits, loss of production, loss of opportunity or for any special, indirect, incidental or consequential damages, loss or expenses suffered or incurred hereunder. The limitation of liability shall only apply to the extent permissible under Applicable Law.

 

13.2.

Notwithstanding anything contained in Article 13.1, the aforementioned limitation of liability does not apply to liabilities resulting from fraud, gross negligence, willful default, breach of Applicable Laws, and other remedies, any damage or injury to any person, any damage to physical property (prior to the passing of risk of Loss in accordance with Article 15, infringement of intellectual property rights, costs of remedying any Defects or Supplier’s indemnity obligations pursuant to Article 20.

 

14.	CONFIDENTIAL INFORMATION

 

14.1.

Party disclosing Confidential Information shall be referred to as “Disclosing Party” and Party Receiving the Confidential Information shall be referred to as “Receiving Party”.

 

14.2.

Confidential Information means (i) any and all information (whether or not in written form) relating to this Contract (including, without limitation, (a) technical information (drawings, measuring results, experiences, samples, etc.) (b) reports, documentation, budgets, business plans, analyses, forecasts, predictions and projections, (c) sales information, customer requirements, and historical product price information, (d) manufacturing, engineering and distribution methods, processes and capabilities, (e) information related to Cells, prototypes and models, (f) know-how, data, formulae, processes, designs, sketches, photographs, graphs, drawings, samples, preliminary design and marketing product concepts, inventions and ideas,   whether or not patentable or copyrightable, patent applications and past, current and planned research and development activities, (g) the existence and content of this Contract and (h) any and all documentation, reports, data, memorandum, notes and records related to any of the foregoing), in whatever form, and appearing on any medium, now known, including without limitation tangible, visible, recorded or hereinafter invented, and which is disclosed to the Receiving Party (as defined in this Contract) by or on behalf of the Disclosing Party (as defined in this Contract) at any time after the Effective Date, whether in oral, written, graphic, electronic or other form, either directly or indirectly or observed by the Receiving Party on the basis of records/visits/interactions with the Disclosing Party and/or the Affiliates of the Disclosing Party; and (ii) all other information (whether or not in written form) that the Disclosing Party designates in writing or otherwise as “Confidential Information” or any information that anyone receiving such information including the Receiving Party, may reasonably consider as proprietary, confidential or the equivalent. Any information or analysis derived from the Confidential Information of a Disclosing Party will also be treated as its Confidential Information. Any reference to Confidential Information being disclosed by or to a Party includes disclosure by or to its employees and officers, its affiliates, including their employees and officers, it’s or its affiliates’ advisers and consultants who are engaged in connection with the cooperation; and any other permitted recipients of that party as agreed to in writing.

 

 

14.3.

Notwithstanding the provisions of Article 14.2 above, the Receiving party shall not be required to maintain confidential or be restricted in its use of any Confidential Information   which was or become available in public domain or in possession, at the date of disclosure to the Receiving Party, without breach through no fault of the receiving Party or its representatives or disclosure of which is required by law or by order of a court of competent jurisdiction or is lawfully acquired by the receiving party from a third party not under an obligation of confidentiality to the disclosing party or was developed by the receiving party without reference to, and totally independently from, the Confidential Information or disclosed after obtaining prior permission in writing from the Disclosing Party to disclose such Confidential Information to any third party.

 

14.4.

Parties shall always keep and hold Confidential Information confidential. Parties shall not: (i) use any Confidential Information other than for the purposes of using the Cells or part thereof;   nor (ii) disclose any Confidential Information to any third party, except as expressly permitted herein. All the detailed information of the Contract and appendixes of the Contract are confidential and must not be given to the third party.

 

15.	INTELLECTUAL PROPERTY

 

15.1.

“Intellectual Property” means, in respect of the Cells, recognized protectable intellectual property of a Party such as patents, utility models, copyrights, corporate names, trade names, trademarks (whether registered or not), trade dress, service marks, applications for any of the foregoing, software (either embedded in the Cells or standalone), firmware, trade secrets, mask works, industrial design rights, rights of priority, know how, design flows, layouts, methodologies and any and all other intangible protectable proprietary information that is   legally recognized including all applications, renewals, extensions and revivals of, and all rights to apply for, and any other rights of a proprietary nature, whether registrable or not and wherever existing, including all applications, rights and confidential trade secrets related to research, development, design, dismantling or disposing of the Cells.

 

15.2.

Supplier hereby grants to BUYER and its successors and permitted assigns a continuing, non- exclusive, transferable and irrevocable right and license, for so long as any of them has any rights of ownership in or to the Cells, and on a royalty-free basis, to import, use, store, sell and dispose of Cells purchased by BUYER under this Contract. Supplier shall defend and indemnify BUYER against any damages, costs and expenses arising out of any suit, Claim, or proceeding brought by a third party relating to or arising out of any infringement of patent rights, trademarks, copyrights or other intellectual property rights with respect to the Cells.

 

 

16.	COMPLIANCES

 

16.1.

Code of Conduct

 

16.1.1.

In carrying out its obligations under this Contract, Supplier shall strictly comply with provisions of BUYER’s Code of Conduct annexed hereto as Annexure G. (more particularly, the provision with respect to ‘Business Integrity’ and ‘Unfair Trade Practices’ contained therein). Supplier shall ensure that all vendors, representatives, Subcontractors and their personnel who are involved in any manner with the performance of any obligations under this Contract understand and comply with the provisions of the Code of Conduct.

 

16.1.2.

Supplier agrees and acknowledges that BUYER shall have the right to terminate this Contract without any liability whatsoever to BUYER, if BUYER has reasonable grounds to believe, as supported by reasonable evidence that Supplier, any of its Representatives or Subcontractors is in breach of the Code of Conduct and not being cured within 15 days from notice thereof.

 

16.1.3.

Supplier agrees to immediately inform BUYER of any breach or potential breach of the Code of Conduct in relation Supplier’s obligations under this Contract as soon as it comes to its notice and to indemnify, defend and hold harmless BUYER Indemnitees from and against any and all Losses resulting from any failure of Supplier or any of its Representatives or Subcontractor to comply with this Article 16.1.

 

16.2.

Forced Labor

 

Supplier shall not manufacture or subcontract the manufacture of any Cells being supplied under this Contract to BUYER for which forced labor is used. Supplier shall ensure that each of its and its affiliates’ sub-contractors and suppliers are not directly or indirectly using (through suppliers or sub-contractors) forced labor in the manufacture of any Cells exported to the India and/or United States and being supplied to BUYER under this Contract. Supplier shall ensure that the supplies under this Contract are sourced from sub-Contractors that do not engage in or benefit from forced labour practices, inter alia, from certain provinces that are restricted/prohibited under laws of India and United States of America for forced labour or any other country. Supplier shall always maintain documentation sufficient to identify and confirm its as well as its suppliers and sub-contractors, vendors, suppliers’ compliance with requirements of this Contract, including without limitation traceability for silica-based materials of the Cells. Within (fourteen) 14 days after the dispatch, Supplier shall provide traceability documentation as specified in Annexure D. Supplier shall notify BUYER as soon as it becomes aware of any breach, or potential breach, of its obligations under this provision. For purposes of this provision, “forced labor” shall mean all work or service which is exacted from any Person under the threat of a penalty and for which the person has not offered himself or herself voluntarily. BUYER or its representative shall be entitled to perform a supply chain audit of Suppliers’ manufacturing facilities and Supplier shall provide the cooperation.

 

 

16.3.

Adherence to Anti Bribery Laws

 

Each party, its affiliates, it’s or its affiliates’ directors, officers, employees, agents and any other persons acting for or on behalf of such party or its affiliates in relation to the Contract shall comply with all Anti-Corruption Laws. Neither party shall cause the other party and its Affiliates to be in violation of any Anti-Corruption Laws and practices. Either party herein has not nor will pay, offer, promise to pay or authorize the payment of any money, gift or anything of value, including without limitation, any facilitation payments (collectively, “Value”) to any Government Official or to any person under circumstances where it is known to be probable that such Value will be offered, promised or authorized, directly or indirectly, to any Government Official, for the purpose of influencing any act or decision of such Government Official to obtain or retain business or to secure any improper advantage, or direct business or any improper advantage to any person. No Party herein has or will pay, offer, promise to pay or authorize the payment of Value to any person (i) to induce the person to perform improperly a relevant function or activity, (ii) to reward a person for the improper performance of such a function or activity or (iii) where the Party knows or believes that the acceptance of the Value would itself constitute the improper performance of a relevant function or activity. In the event the either party has reason to believe that a breach of any of the representations and warranties in this Contract has occurred or may occur, such party shall immediately notify the other party and provide all relevant information as may be requested by the other party thereafter. Supplier shall also adhere to the Anti-Bribery & Anti-Corruption Policy of BUYER annexed to this Contract as Annexure - I

 

16.4.

Uyghur Forced Labor Prevention Act (“UFLPA”)

 

Supplier acknowledges that it is aware that BUYER is one of the exporters of the solar Products to the United States of America. Supplier states that it is aware of the Uyghur Forced Labor Prevention Act (as passed by the US Senate Committee on Foreign Relations in June 2021) (the “UFLPA”), to prohibit importation of certain goods made in, or containing materials sourced from, the certain regions. Supplier specifically agrees that it has considered the UFLPA and incorporated the provisions (including limitations and restrictions) therein into Supplier’s offering and pricing under this Contract. In addition to the UFLPA, Supplier is aware that the US government has already banned importation of certain products certain regions associated with forced or slave labor and agree that Supplier shall (a) comply with any such ban, current or future, and (b) shall not be entitled to relief hereunder arising out of or related to the US government ban on import of products from certain regions. Supplier represents and warrants that the solar cell supplied to BUYER under this Contract are and will always be in compliance with the provisions of the UFLPA and all applicable laws in force in United States of America and impacting the manufacturing or import of products or components of products by Supplier or suppliers and subcontractors, vendors at any level in the supply chain of the Products or otherwise, are in compliance therewith. Within (seven) 7 days prior to the period specified in by the Government Authority in its communication Supplier undertakes to provide   documentation that confirms traceability for all Cells purchased under this Contract including Supplier’s and facility location for any components thereof.

 

 

16.5.

Environmental, Social and Governance (“ESG”) Policy Statement and Environmental Management Systems Policy (“EMS”) and Health and Safety Policy

 

16.5.1.

Supplier shall meet all the legal compliances related to environment, health and safety regulations under Applicable Laws and IFC Standards (https://www.ifc.org/content/dam/ifc/doc/2010/2012-ifc-performance-standards-en.pdf) and ESG, EMS, health and safety policies of BUYER, annexed to this Contract as Annexure J, K and L respectively. Supplier shall provide their employees with a safe and healthy workplace in compliance with all Applicable Laws and IFC Standards EHS and ESG and health and safety policies of BUYER. Supplier shall ensure that appropriate health and safety information is provided to its employees, sub-suppliers and contractors and that relevant training and personal protective equipment (PPE) is provided. Supplier shall also comply with any additional safety requirements agreed in the contract documents. At a minimum, Supplier shall provide employees and contractors with drinking water, clean toilets, adequate ventilation, emergency exits, proper lighting and access to first aid supplies or other provisions for emergency care. Supplier shall not, under any condition, employ children who are below the minimum legal age for employment as per the Applicable Laws and the IFC Standards. Supplier agrees not to use any forced or involuntary labour, whether prison, bonded, indentured or otherwise.

 

16.5.2.

Supplier shall allow BUYER’s Representative to inspect and check Supplier’s compliance with the Applicable Laws and IFC Standards at the manufacturing facility, warehouse, storage or such other relevant areas of Supplier, provided that BUYER provides Supplier with at least (five) 5 days prior Notice of BUYER’s intent to inspect and BUYER shall ensure that such inspections does not materially impede or interrupt Supplier’s operations or performance of its obligations under the Contract.

 

16.5.3.

Supplier shall ensure that all vendors, representatives, Subcontractors and their personnel who are involved in or associated with the performance of any obligations under this Contract understand and operate in accordance with the Applicable Laws and IFC Standards EHS and ESG policies of BUYER.

 

17.	FORCE MAJEURE

 

17.1.

Definition of Force Majeure

 

“Force Majeure Event” shall mean any events and/or circumstances which are beyond the reasonable control of the Parties, including but not limited to (i) acts of God, fire, flood, drought, famine, earthquake, hurricane, typhoon, tsunami, or other natural calamity or natural disaster; (ii) epidemic or pandemic; (iii) terrorism or terrorist attack, insurrection,, civil war, civil commotion or riots, war, biological or chemical warfare, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or; (iv) nuclear explosion, radioactive or chemical contamination, sonic boom, ionizing radiation; (v) any acts/ orders / directions of any statutory authority; or prohibition or restriction by a statutory authority. 

 

 

17.2.

Force Majeure Exclusions

 

Notwithstanding the foregoing, a Force Majeure Event shall not include:

 

17.2.1.

the occurrence of any manpower, material or Cells shortage; inability to procure funding by Supplier or/and BUYER.

 

17.2.2.

any increase in cost of Cells or material or labor, prices, rates, wages, commissions, fees, duties, taxes or other levies.

 

17.2.3.

inability of a Party to pay any amounts due pursuant to this Contract or any other economic hardship in the performance of any obligation.

 

17.2.4.

conditions caused by the negligence or wrongful acts of the affected Party; or 17.2.5. any delay, default or failure (direct or indirect) in obtaining materials, Cells or performing services by any Sub-Consultant, any workers or agents thereof, performing the scope of work or any part thereof unless such are also caused by Force Majeure.

 

17.3.

Notice of Force Majeure

 

The Party affected by the event of Force Majeure (the “Affected Party”) shall give notice of any event of Force Majeure to the other Party as soon as reasonably practicable, but not later than (seven) 7 days after the date on which it knew or should reasonably have known of the commencement of the event of Force Majeure. Such notice shall include full particulars of the event of Force Majeure, its effects on the Affected Party and the remedial measures proposed. The Affected Party shall give the other Party regular (and not less than monthly) reports on the progress of those remedial measures and such other information as the other Party may reasonably request about the event of Force Majeure. The Affected Party shall also give notice to the other Party of (a) the cessation of the relevant event of Force Majeure; and (b) the cessation of the effects of such event of Force Majeure on the performance of its rights or obligations under this Contract, as soon as practicable after becoming aware of each such cessation. In the event the Affected Party fails to provide the written notice as required under this Article 17.3 within the time periods specified therein, such Party shall forfeit its right to claim such specific occurrence or event constitutes an event of Force Majeure under this Contract.

 

17.4.

Obligation to Mitigate

 

To the extent not prevented by an event of Force Majeure, the Affected Party shall continue to perform its obligations pursuant to this Contract. The Affected Party shall use its reasonable efforts to mitigate the effect of any event of Force Majeure as soon as practicable.

 

17.5.

Available Relief for a Force Majeure Event

 

Subject to this Article 17, the Affected Party shall not be held to be in breach of this Contract if the performance of its obligations is hindered, prevented, or delayed due to a Force Majeure other than payment obligations.

 

 

17.6.

Burden of Proof

 

In the event that the Parties are unable in good faith to agree that an event of Force Majeure has occurred, or performance hereunder is excused as a result thereof, the Parties shall submit the Dispute for resolution pursuant to Article 21 and the Party claiming relief from Force Majeure shall have the burden of proof as to whether such Force Majeure has occurred and whether performance hereunder is excused as a result thereof.

 

17.7.

Changes Caused by a Force Majeure

 

If an event of Force Majeure occurs that adversely affects Supplier’s Delivery obligations hereunder and provided that Supplier complies with the terms and conditions of this Article 17, Supplier may request a Change Order reflecting an extension of the Guaranteed Delivery Date of Cells.

 

17.8.

Termination for Prolonged Force Majeure

 

In the event Force Majeure Event is delayed beyond the period of more than consecutive (eight) 8 weeks in this Contract, on account of one or more events of Force Majeure during the currency of this Contract, the Parties will attempt to arrive at a mutually satisfactory solution, failing which either Party may terminate the Contract by giving a notice to the other Party, but without prejudice to either Party’s right to terminate the Contract under other provisions of the Contract. Upon termination of this Contract in terms of this Article 17.8, BUYER shall be liable to pay the price for the Cells that have been Delivered or are in transit to BUYER and /or which are inspected and issued Dispatch Clearance Certificate by BUYER and/or whose inspection call has been issued by Supplier and the Cells found to be in conformance to the requirements of this Contract as of the date of written notice under Article 17.3 above.

 

18.	TERMINATION

 

18.1.

This Contract and any Purchase Order (under which the delivery is yet to be completed) may be terminated for cause by either Party by issuing a notice of termination if:

 

18.1.1.

Not used.

 

18.1.2.

If Supplier or BUYER abandons or repudiates or breaches this Contract, and has not cured the breach within (fifteen) 15 days after the written notice of the alleged breach has been given to such party;

 

18.1.3.

If Supplier assigns or transfers the Contract or any of its right or interest herein, in breach of the terms of the Contract;

 

18.1.4.

If Supplier delays in the Delivery of the Cells such that the Delay Damages payable by the Supplier for such continuing delay exceed the Liquidated Damages Cap or the Replacement Delay Damages Cap as set out in Article 8.2 and 8.3 respectively;

 

18.1.5.

Not used

 

18.1.6.

If Supplier is in breach of any sub-Article of Article 16;

 

18.1.7.

pursuant to any other express provisions in this Contract under which BUYER or Supplier has the express right of terminate this Contract.

 

18.2.

Supplier can also terminate this Contract in the following events by giving (thirty) 30 days’ notice to BUYER if BUYER fails to make payments or breach other obligations for more than 30 days (including the related Cure Period) from the due date of the Payment.

 

 

18.3

.Either party may terminate this Contract by (fifteen) 15 days written notice to the other Party in the following events;

 

18.3.1.

force Majeure prevails for a period more than consecutive 8 (eight) weeks, but the Parties fail to find an equitable solution on further performance of the Contract;

 

18.3.2.

material Breach of Applicable Laws and not being cured within a reasonable time;

 

18.3.3.

in the event the other Party becomes insolvent or bankrupt or becomes subject of voluntary or involuntary petition under bankruptcy, insolvency, corporate reorganization or any other similar proceedings, or a receiver is appointed with respect to any of the assets of such Party.

 

18.4.

Unless otherwise specified in the notice of termination issued by a Party, this Contract shall stand terminated on the expiry of the notice period set out in the notice of termination or where a cure period has been provided and the default has not been remedied to the satisfaction of the non-defaulting party, on expiry of such cure period. Upon such termination of the Purchase Order, the Cells with respect to which acceptance by BUYER has not been given, shall also stand terminated.

 

18.5.

On the issuance of the notice of termination by Supplier pursuant unless such notice specifies otherwise:

 

18.5.1.

where such notice of termination is issued prior to commencement of production of Cells under a particular Purchase Order, then such Purchase Order and the Contract shall stand terminated,

 

18.5.2.

Not used

 

18.6.

On the issuance of the notice of termination under this Contract by BUYER, unless such notice specifies otherwise, Supplier shall:

 

18.6.1.

subject to Article (18.6.2) below, not dispatch any Cells which have not already been dispatched as on the date of the notice of termination;

 

18.6.2.

complete Delivery of Cells which have been loaded on to carriage for Delivery to the Designated Delivery Point or if Supplier requires under the notice, complete the Delivery of such Cells for which Dispatch Clearance Certificate has been issued by Supplier as on the date of the notice of termination. With respect to such Cells so Delivered, BUYER shall be entitled to:

 

18.6.2.1.

reject any such Cells if they do not meet the Cells Requirements and Supplier shall refund an amount equal to aggregate Prices of all such Cells within (fifteen) 15 days after the issuance of an invoice by BUYER; or

 

18.6.2.2.

accept such Cells, where the Cells meet the Cells Requirements.

 

18.6.3.

Not used

 

18.6.4.

pickup, take away and transport from BUYER’s Site all Rejected Cells within (seven) 7 days from the notice of termination, at its cost and expense or consent to the disposal of the same;

 

18.6.5.

immediately discontinue the production and manufacture of the additional Cells for BUYER;

 

18.6.6.

place no further order and enter into no additional orders or subcontracts, and terminate all existing orders or subcontracts;

 

18.6.7.

provide BUYER with information on an inventory of all Cells in production, storage or transit.

 

 

19.	CONSEQUENCES OF TERMINATION

 

19.1.

BUYER may procure the required Cells from a third party and in the event the price of such Cells is higher than the Price payable for such Cells under this Contract, Supplier shall pay to   BUYER the difference between: (i) the price paid by BUYER to procure the Cells for BUYER’s Site from a third party; and (ii) the respective Purchase Order, within (fifteen) 15 days after invoice or payment for such Cells from BUYER.

 

19.2.

Supplier shall continue to remain liable for all costs and expenses incurred in relation to the Rejected Cells or Defective Cells, the replacement of the Rejected Cells and replacement of the Defective Cells in accordance with the terms of this Contract;

 

19.3.

BUYER shall pay Supplier all amounts due and payable in respect of the Cells Delivered and the Cells which are in transit for Delivery to the Designated Delivery Point, as the case may be, as on the date of the notice of termination in accordance with the terms of this Contract; 19.4. Not used;

 

19.5.

Not used

 

19.6.

Effect of termination

 

Termination of this Contract shall not relieve either Party of any obligation incurred prior thereto or for any obligation, which by its terms is to take effect upon termination or survive termination. Moreover, the residuary obligation with respect to Cells delivered up to termination of this Contract shall continue.

 

20.

INDEMNITY

 

20.1.

To the fullest extent permitted by Applicable Law, Supplier shall defend, indemnify and hold harmless BUYER and its Representatives (the “BUYER Indemnified Parties”), from and against any and all Losses and Claims suffered or incurred by BUYER Indemnified Parties attributable to: (i) violation of Applicable Law, any applicable anti-money laundering, anti- graft, anti-bribery or anti-corruption law or regulation) by or negligence or misconduct of Supplier (ii) Supplier’s failure to pay Taxes (excluding Sales tax payable in United States) for which BUYER is responsible hereunder; (iii) any damage or personal injury to any Person (including BUYER Indemnified Parties) or to the physical property (other than the BUYER’s Site to the extent such damages thereto are covered by BUYER’s insurance) of any Person (including BUYER Indemnified Parties) to the extent such damage to property or personal injury is caused by the negligence, gross negligence or willful misconduct of Supplier.

 

20.2.

To the fullest extent permitted by Applicable Law, BUYER shall defend, indemnify and hold harmless Supplier and its Representatives (“Supplier Indemnified Parties”), from and against any and all Losses and Claims suffered or incurred by Supplier Indemnified Parties attributable to violation of Applicable Law any applicable anti-money laundering, anti-graft, anti-bribery or anti-corruption law or regulation) by or negligence or misconduct of BUYER any damage or personal injury to any Person or to the physical property caused by the negligence, gross negligence or willful misconduct of BUYER.

 

20.3.

Supplier shall defend, indemnify and hold harmless BUYER Indemnified Parties, from and against any and all Losses and Claims suffered or incurred by BUYER Indemnified Parties in connection with any claim brought against BUYER Indemnified Parties asserting that the Cells infringe or misappropriate any Intellectual Property right of any third party. If any such claim materially impairs the value of, or right to use, the Cells, then Supplier shall procure, at its own expense, the right to secure such rights as are reasonably required to maintain the value of Cells, including, without limitation, at its own election (i) modifying infringing Cells to make them non-infringing; (ii) procuring right of continued use; or (iii) substituting such Cells with non-infringing Cells, satisfying all Technical Specifications applicable to such Cells.

 

20.4.

Each Party shall promptly notify the other in writing of any Claims from any third party which may be covered by the indemnities set forth in this Article 20. Without limiting the generality of the foregoing, Supplier shall promptly notify BUYER in writing of any Claims which Supplier may receive alleging infringement of patents or other proprietary rights which may affect Supplier’s obligations BUYER hereunder.

 

 

21.	GOVERNING LAW AND DISPUTE SETTLEMENT

 

21.1.

This Contract is to be construed in accordance with and governed by the laws of State of [XXX] shall have exclusive jurisdiction over any matter in respect of this Contract.

 

21.2.

Any dispute, controversy, or claim arising out of or relating to this Contract, including this Article 21, and whether based on contract, tort, statute or other legal or equitable theory (a “Dispute”) that cannot be resolved through mutual discussions among the Parties shall be resolved in accordance with the procedures specified in this Article 21, which shall constitute the sole and exclusive procedures for the resolution of Disputes.

 

21.3.

For (thirty) 30 days, after a Party provides notice of the existence of a Dispute to the other Party which notice expressly references that it is being provided pursuant to this Article 21, each Party shall use best efforts to attempt to settle such Dispute and reach a resolution satisfactory to both Parties (as evidenced by an instrument in writing) promptly through negotiations conducted in good faith, between Persons holding a senior management position and having authority to reach such a settlement. All negotiations pursuant to this Article 21 shall be confidential and shall be treated as compromise and settlement negotiations and shall not be admissible for any purposes in any subsequent arbitration or other dispute resolution proceeding. If any Party refuses to participate in good faith in negotiations as provided, the other Party may initiate arbitration at any time after such refusal.

 

21.4.

If any disputes or differences between the Parties are not resolved under Article 21.2 and 21.3 above, the same shall be referred to and finally decided by arbitration rules of American Arbitration Association (as amended).

 

21.5.

The arbitral tribunal shall consist of (three) 3 arbitrators – one arbitrator nominated by each Party and the third arbitrator being nominated by these two arbitrators so appointed by the Parties (“Tribunal”).

 

21.6.

The Parties shall proceed with the arbitration expeditiously. The Tribunal shall endeavor to conclude all proceedings thereunder, including any hearing, in order that an award may be rendered within (six) 6 months after the first case management conference with the Tribunal. The Tribunal’s award shall include a written explanation of the basis of their decision with respect to all disputes that were arbitrated.

 

21.7.

Unless the Parties agree otherwise, the seat of the arbitration Tribunal for all disputes shall be [XXX], and the arbitration shall be conducted solely in the English language.

 

21.8.

Once appointed, the Tribunal shall have sole jurisdiction to decide all aspects of any Dispute brought to them, including, without limitation, whether a particular Dispute is or is not arbitrable, any order relating to provisional relief, attorney disqualification, and the timeliness of the making of any claim. The Tribunal shall resolve the Dispute in accordance with the Governing Law and the terms and conditions of this Contract.

 

 

21.9.

Not used

 

21.10.

Where multiple arbitral proceedings have been commenced under this Contract, then the Parties hereby agree that all such proceedings shall be consolidated into a single arbitral proceeding before a single arbitration panel where the Tribunal finds: (i) that there is a common question of law or fact arises in both or all of the arbitrations; (ii) that the rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions, (ii) that the arbitration Contracts are compatible; and (iv) that the consolidation of such arbitration cases will not unduly delay the resolution of any of them.

 

21.11.

Notwithstanding the Contracts to arbitrate, and without prejudice to the right of either Party to seek such relief from an emergency arbitrator appointed in accordance with the Act, either Party may apply to any court of competent jurisdiction to obtain provisional relief if such action is necessary to avoid irreparable harm or to preserve the status quo prior to the appointment of the Tribunal.

 

21.12.

Each Party shall equally bear of the arbitration along with its respective cost.

 

21.13.

This Article 21 shall survive termination.

 

22.	MISCELLANEOUS

 

22.1.

Exclusivity – This Contract is nonexclusive Contract, and this Contract shall not preclude or limit BUYER’s right to purchase products like the Cells from another supplier for BUYER’s Site.

 

22.2.

Notices – Any notices from either Party to the other will be given in writing at the addresses set forth in the preamble of this Contract or other such addresses as may hereafter be designated in writing. A notice may be provided via electronic communication or registered post or courier (will be deemed received when delivered. In the event notice is provided via electronic, notice shall be deemed provided when the electronic mail is successfully delivered.

 

22.3.

Waiver – No waiver by non-breaching party of a breach of or a default by the other party under any of the provisions of this Contract or under any other Contract, nor the failure by non- breaching party, on one or more occasions, to enforce any of the provisions of Contract to exercise any right or privilege hereunder will thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights, or privileges hereunder.

 

22.4.

Sub-Contracting or Assignment – Except as allowed under this Contract, Supplier shall not sub-Contract or assign any and or all part of the works contemplated either under this Contract or under a particular Purchase Order to any third party, firm or company without prior express written permission of BUYER.

 

22.5.

Non exclusivity – This Contract is non-exclusive basis and BUYER is free to Contract with other entities or persons to supply items or perform services same or like or related to or within the scope of the supplies/Services set forth under this Contract.

 

22.6.

Relationship – Nothing contained in this Contract shall constitute or be deemed to constitute a partnership between the Parties, and no Party shall hold itself out as an agent for the other Party and/or have the authority or the right to bind or commit the other Party.

 

 

22.7.

Not used

 

22.8.

Severability – Each obligation under this Contract shall be treated as a separate obligation and shall be severally enforceable as such. In the event of any obligation or obligations being or becoming unenforceable in whole or in part, such part or parts that are unenforceable shall be deleted from this Contract based on the mutual confirmation and any such deletion shall not affect the enforceability of all remaining parts of this Contract.

 

22.9.

Entire Contract – This Contract along with purchase order issued in accordance with this Contract constitutes the entire Contract and understanding of the Parties hereto, and no   representations or promises have been made that are not fully set forth herein. In the event there is discrepancies in purchase order and the Contract then this Contract shall prevail.

 

22.10.

Amendment – The provisions of this Contract may be modified, amended or waived only by written amendment Contract executed by both Parties.

 

22.11.

Counterparts – This Contract may be executed in one or two counterparts including by facsimile or by electronically, each of which shall be deemed an original. This Contract may be transmitted through use of a facsimile, e-mail, or other electronic medium or may be kept in any electronic format and it shall have the same force and effect as an original.

 

For BUYER CO.		For, Toyo America LLC
[signature]		[signature]

 

 

28

 

Exhibit 99.1

 

TOYO Co., Ltd to Acquire Solar Module Manufacturing Facility in Texas

 

●

Move to accelerate TOYO’s plans for “made-in-America” modules with 2.5 gigawatts initial capacity

 

HOUSTON and TOKYO, Nov. 25, 2024 /PRNewswire/ -- TOYO Co., Ltd (Nasdaq: TOYO) (“TOYO” or the “Company”), a solar solution company, today announced it has agreed to acquire 100% of membership interests in Solar Plus Technology Texas LLC(“Solar Plus”) located in Houston metropolitan area, Texas, via its subsidiary TOYO Solar LLC.

 

Key Highlights

 

●

Facility details: The newly leased facility spans 567,140 square feet which we plan to accommodate 2.5 GW of solar module manufacturing capacity and further expand it to 6.5 GW by 2029. The factory construction of Phase 1 of the facility has been completed, and a portion of the required equipment will arrive by early 2025.

 

●

Production timeline: The facility’s first 1 GW production is expected to commence by mid-2025. Production capacity is expected to be increased to 2.5 GW by the end of 2025, in anticipation of a strong order pipeline from U.S. customers.

 

●

Strategic Impact: This acquisition aligns with TOYO’s mission to expand its footprint in the U.S. to be closer to the majority of its clients, meet the demand for American-made solar panels, and contribute to the growing demand for secure, sustainable energy solutions as demands on the grid continue to rise.

 

“This acquisition marks a significant step in TOYO’s strategy to establish a manufacturing footprint in the U.S., complementing our current manufacturing presence in Vietnam and Ethiopia,” said Mr. Junsei Ryu, Chairman and CEO of TOYO. “Our strategy is to supply end customers with solar solutions that are technologically advanced, highly reliable, and cost competitive. We are committed to building a robust global solar supply chain structure that efficiently and competitively serves the U.S. market and other regions, adapting to a dynamic policy environment.”

 

As a result of this acquisition, TOYO Solar LLC acquires 100% of membership interests in Solar Plus. TOYO Holdings LLC, a 100% owned subsidiary of TOYO, holds 75.01% of membership interests in TOYO Solar LLC and will make a capital contribution in the total amount of $19.96 million to TOYO Solar LLC, which is expected to be contributed to the Phase 1 construction of the manufacturing site of Solar Plus.

 

“By acquiring Solar Plus, we will accelerate our development and leverage our team’s proven manufacturing excellence, as well as the extensively established customer relationships and the brand of our sister company, Vietnam Sunergy, a Tier 1 Bloomberg NEF solar manufacturer,” noted Mr. Ryu. “We are confident that our expansion in the U.S. will effectively deliver a comprehensive solar technology solution, addressing bottlenecks for developers, meeting local content requirements for U.S. solar projects, and enhancing TOYO’s competitive advantage.”

 

About TOYO Co., Ltd.

 

TOYO is a solar solutions company that is committed to becoming a full-service solar solutions provider in the global market, integrating the upstream production of wafers and silicon, midstream production of solar cells, downstream production of photovoltaic modules, and potentially other stages of the solar power supply chain. TOYO is well-positioned to produce high-quality solar cells at a competitive scale and cost.

 

 

Forward-Looking Statements

 

This press release includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target” or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include but are not limited to, statements regarding the expected growth of TOYO, the expected order delivery of TOYO, TOYO’s construction plan of manufactures, future subsidies available under the Inflation Reduction Act, and strategies for building up an integrated value chain in the U.S. These statements are based on various assumptions, whether or not identified in this press release, and on the current expectations of TOYO’s management and are not predictions of actual performance.

 

These statements involve risks, uncertainties, and other factors that may cause actual results, activity levels, performance, or achievements to materially differ from those expressed or implied by these forward-looking statements. Although TOYO believes that it has a reasonable basis for each forward-looking statement contained in this press release, TOYO caution you that these statements are based on a combination of facts and factors currently known and projections of the future, which are inherently uncertain. In addition, there are risks and uncertainties described in the documents filed by TOYO from time to time with the SEC. These filings may identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements.

 

TOYO cannot assure you that the forward-looking statements in this press release will prove to be accurate. These forward-looking statements are subject to several risks and uncertainties, including, among others, the outcome of any potential litigation, government or regulatory proceedings, the sales performance of TOYO, and other risks and uncertainties, including but not limited to those included under the heading “Risk Factors” of the filings of TOYO with the SEC. There may be additional risks that TOYO does not presently know or that TOYO currently believes are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In light of the significant uncertainties in these forward-looking statements, nothing in this press release should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. The forward-looking statements in this press release represent the views of TOYO as of the date of this press release. Subsequent events and developments may cause those views to change. However, while TOYO may update these forward-looking statements in the future, there is no current intention to do so except to the extent required by applicable law. You should, therefore, not rely on these forward-looking statements as representing the views of TOYO as of any date subsequent to the date of this press release. Except as required by law, TOYO does not undertake any duty to update these forward-looking statements.

 

Contact Information:

 

For TOYO Co., Ltd.
IR@toyo-solar.com 

 

Crocker Coulson
Email: crocker.coulson@aummedia.org
Tel: (646) 652-7185

 

SOURCE TOYO Co., Ltd

 

 

 

Exhibit 99.2

 

TOYO Co., Ltd Secures $150 million Contract to Supply Solar Cells to a Leading Solar Module Manufacturer

 

TOKYO, Nov. 26, 2024 /PRNewswire/ -- TOYO Co., Ltd (Nasdaq: TOYO) (“TOYO” or the “Company”), a solar solution company, is pleased to announce the execution of a significant contract valued at $150 million to supply high efficiency solar cells to a prominent solar module manufacturer. This landmark agreement underscores the Company’s commitment to advancing sustainable energy and supporting the global transition towards renewable resources.

 

Under the terms of the agreement, TOYO will deliver its cutting-edge solar cells to support the customer’s expanding solar module production both in India and in the U.S. The contract will enable TOYO to leverage its state-of-the-art manufacturing capabilities and innovative technologies both in Vietnam and Ethiopia to deliver premium solar cells that enhance the efficiency and performance of solar modules.

 

“We are excited to partner with a highly respected player in the solar industry,” said Mr. Junsei Ryu, CEO and Chairman of TOYO. “This contract marks a major milestone for positioning TOYO as a key supplier in the solar energy market. Our advanced solar cells are designed to deliver superior efficiency and performance, helping our customer meet their sustainability goals and drive the adoption of solar energy worldwide.”

 

This opportunity not only allows TOYO to expand its production capabilities but also reinforces its mission to provide high-quality solar products that meet the evolving needs of our customers. The agreement is expected to yield significant benefits, including increased capacity for production and a strengthened market position.

 

About TOYO Co., Ltd.

 

TOYO is a solar solutions company that is committed to becoming a full-service solar solutions provider in the global market, integrating the upstream production of wafers and silicon, midstream production of solar cells, downstream production of photovoltaic modules, and potentially other stages of the solar power supply chain. TOYO is well-positioned to produce high-quality solar cells at a competitive scale and cost.

 

 

Forward-Looking Statements

 

This press release includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target” or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include but are not limited to, statements regarding the expected growth of TOYO, the expected order delivery of TOYO, TOYO’s construction plan of manufactures, and strategies for building up an integrated value chain in the U.S. These forward-looking statements are based on various assumptions, whether or not identified in this press release, and on the current expectations of TOYO’s management and are not predictions of actual performance.

 

The forward-looking statements in this press release involve risks, uncertainties, and other factors that may cause actual results, levels of activity, performance, or achievements to materially differ from those expressed or implied by these forward-looking statements. Although TOYO believes that it has a reasonable basis for each forward-looking statement contained in this press release, TOYO cautions you that these forward-looking statements are based on a combination of facts and factors currently known and projections of the future, which are inherently uncertain. In addition, there are risks and uncertainties described in the documents filed by TOYO from time to time with the Securities and Exchange Commission (the “SEC”). These filings may identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements in this press release.

 

TOYO cannot assure you that the forward-looking statements in this press release will prove to be accurate. These forward-looking statements are subject to several risks and uncertainties, including, among others, the outcome of any potential litigation, government or regulatory proceedings, the sales performance of TOYO, and other risks and uncertainties, including but not limited to those included under the heading “Risk Factors” in the filings of TOYO with the SEC. There may be additional risks that TOYO does not presently know or that TOYO currently believes are immaterial that could also cause actual results to differ from those contained in these forward-looking statements. In light of the significant uncertainties in these forward-looking statements, nothing in this press release should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. The forward-looking statements in this press release represent the views of TOYO as of the date of this press release. Subsequent events and developments may cause those views to change. However, while TOYO may update these forward-looking statements in the future, there is no current intention to do so except to the extent required by applicable law. You should, therefore, not rely on these forward-looking statements to represent the views of TOYO as of any date subsequent to the date of this press release. Except as required by law, TOYO does not undertake any duty to update these forward-looking statements.

 

Contact Information:

 

For TOYO Co., Ltd.
IR@toyo-solar.com 

 

Crocker Coulson
Email: crocker.coulson@aummedia.org
Tel: (646) 652-7185

 

SOURCE TOYO Co., Ltd

 

 

 

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