Exhibit 10.33
CONTRACT
OF
PURCHASE
BETWEEN
SCHUCO INTERNATIONAL KG
AND
JIANGSU LINYANG SOLARFUN CO. LTD
(CHINESE CHARACTERS)
CONTRACT OF PURCHASE
This agreement (hereinafter referred as "CONTRACT") is made by and between:
SCHUCO INTERNATIONAL KG, a corporation organised and existing under the laws of
Germany and having its principal place of business at ▇▇▇▇▇▇▇▇▇▇▇▇▇(▇▇▇▇)▇ ▇-▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
- hereinafter referred to as the "BUYER"-
and
JIANGSU LINYANG SOLARFUN CO. LTD. ((CHINESE CHARACTERS)), a company established
and existing under the laws of the Peoples Republic of China, and having its
principal place of business at 26th Floor, ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇
- hereinafter referred to as the "SELLER"
This Contract of Purchase is made by and between the BUYER and the SELLER,
whereby the BUYER intends to buy from the SELLER and the SELLER agrees to sell
to the BUYER the below mentioned goods according to the terms and conditions
stipulated below:
PREAMBLE
The SELLER owns extensive know-how with regard to the development and production
of photovoltaic ingots, photovoltaic wafers, photovoltaic cells and photovoltaic
modules.
The BUYER is a recognised leading company for the marketing and distribution of
windows, doors, facades and solar systems.
The parties intent to enter into a long-term relationship with regard to the
distribution of OEM photovoltaic modules.
NOW THEREFORE, in consideration of the mutual covenants and promises herein
contained, the parties hereto hereby covenant and agree as follows:
ARTICLE 1. CONTRACT PRODUCTS
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1.1 The SELLER agrees to sell to the BUYER and the BUYER agrees to buy from the
SELLER the photovoltaic modules all of which are detailed in Appendix 1 to
this CONTRACT (hereinafter referred to as the "CONTRACT PRODUCTS").
Modifications and enhancements of the CONTRACT PRODUCTS have to be offered
under the terms and conditions of this CONTRACT to the BUYER. The CONTRACT
PRODUCTS shall be distributed by the BUYER under the brand name "Schuco
International KG" by the BUYER.
1.2 The SELLER guarantees the specifications of the CONTRACT PRODUCTS and its
supplement as documented in Appendix 2.
1.3 The total delivery volume of the CONTRACT PRODUCTS and the delivery
schedule is stipulated in Appendix 3.
1.4 Every CONTRACT PRODUCT has to be certified separately in accordance with
the provisions set forth in the "DIN EN 61215-2 (IEC 61215-2)", "DIN EN
61230 (IEC 61230), "UL" and "Schutzklasse II". The certificates have to be
exposed by "TUV Rheinland/▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇", the "VDE Pruf- und
Zertifizierungsinstitut" and the "Underwriters Laboratories UL". Whenever
the BUYER requires the certificates to be exposed by other certifying
authorities than the above mentioned, the certificates have to be accepted
by the SELLER separately in written form, and vice versa. A high quality
copy (600 dpi colour scan) of every certificate has to be transferred from
the SELLER to the BUYER for free usage in documents, catalogues and other
printed or electronic documents. At the end of the validity period of the
certificate the SELLER has to provide automatically a new certificate to
the BUYER issued by the above-mentioned authority.
1.5 The BUYER applies for the OEM certification process and the SELLER will
support the BUYER in any case and question for this certification process.
However, in case the OEM certification process can not be fulfilled or can
not be passed at the certification institution due to technical and
material problems caused by the SELLER of the OEM modules latest 5 months
after the date of signing of this CONTRACT, both parties shall find out the
problem solving solution based on a long-term corporation relationship. If
a mutual agreement can not be found while this problem solving, the BUYER
has the right to ship back the total amount of CONTRACT PRODUCTS on the
SELLER's costs and the SELLER shall be liable to reimburse the BUYER all
his expenses including the purchasing price of the respective contractual
year.
ARTICLE 2. DELIVERY AND TRANSFER OF TITLE
2.1 The SELLER shall deliver the CONTRACT PRODUCTS to the BUYER and transfer
the title of the CONTRACT PRODUCTS.
2.2 The SELLER undertakes to deliver the CONTRACT PRODUCTS on a Cost, Insurance
and Freight paid named port of destination in Europe (CIF) basis (INCOTERMS
2000). The port of destination shall be specified by the BUYER.
2.3 If requested by the BUYER, other port of destinations within Europe (e.g.
Spain, France) and within the USA shall be used for shipments, the BUYER
will inform upfront the SELLER about the respective port of destination.
2.4 Deliveries of the CONTRACT PRODUCTS shall be affected in accordance with
the delivery schedule specified in Appendix 3. Additional quantities of
CONTRACT PRODUCTS shall be delivered in accordance with agreement in
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written form to be made by both parties. All interpretation of the delivery
terms shall be in accordance with the INCOTERMS 2000.
ARTICLE 3. PRICE AND TERMS OF PAYMENT
3.1 The individual deliveries of the Contract Products shall be made at the
price listed in Appendix 4. The price listed in Appendix 4 does not include
VAT and is based on CIF (see Article 2.2).
3.2 The SELLER and the BUYER agree upon a yearly fixed pricing model -- see
Appendix 4.
ARTICLE 4. PAYMENT
4.1 The payment shall be made as a Quarterly Irrevocable Letter of Credit at
Sight (LC). Partial shipment shall be allowed, place of expiry
Bielefeld,/Germany and documents presentation period of 15 days after issue of
the ▇▇▇▇ of lading.
4.2 The price is agreed in Euro according to the price stated in Appendix 4.
ARTICLE 5. SHIPPING DOCUMENTS
The SELLER shall submit to the BUYER with each delivery:
a) Full set of freight documents and ▇▇▇▇ of lading, blank endorsed marked
freight prepaid, consignee:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ / ▇▇▇▇▇▇▇
notified party:
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Schueco International KG
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel.: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
Fax.: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇
Mail.: ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
b) Signed original commercial invoice in threefold
c) Signed packing list in threefold
d) Certificate of Country of Origin issued by the SELLER (1 original, 3
copies)
e) Inspection report issued and signed by the BUYER
ARTICLE 6. EXAMINATION AND NOTICE OF LACK OF CONFORMITY
6.1 The BUYER shall inspect and examine the CONTRACT PRODUCTS as required by
German law and in so doing check every delivery in every respect for any obvious
lack of conformity with the terms and conditions set forth in this contract.
6.2 The BUYER shall notify the SELLER immediately in writing, but not later than
14 calendar days after the receipt of the CONTRACT PRODUCTS, in case of any
obvious lack of conformity or damage of the CONTACT PRODUCTS.
6.3 Following due notice of any obvious lack of conformity or damage, the BUYER
can rely on the remedies provided by law. In the event of notice not having been
properly given according to Art. 6.1 and Art. 6.2, the BUYER may only rely on
the remedies if the SELLER has fraudulently concealed the lack of conformity
with the contract.
ARTICLE 7. WARRANTY AND GUARANTEE
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The German legal statute with regard to warranty is to be applied. The warranty
period is five years. Furthermore the Seller agrees to provide to the Buyer an
additional guarantee as specified in Appendix 5.
ARTICLE 8. FORCE MAJEURE
8.1 If either of the parties to the contract is prevented from executing the
contract by cases of Force Majeure such as war, serious fire, flood, typhoon and
earthquake, etc., the time for execution of the contract shall be extended by a
period equal to the effect of those causes. An event of a Force Majeure means
the event that the parties could not foresee at the time of conclusion of the
contract and its occurrence and consequences can not be avoided and can not be
overcome.
8.2 The prevented party shall notify the other party by cable, fax or telex
within the shortest possible time of the occurrence of the Force Majeure event
and within fourteen (14) days thereafter send by express mail or registered
airmail to the other party, a certificate for evidence issued by the relevant
authorities for confirmation. Should the effect of a Force Majeure continue for
more than ninety (90) consecutive days, both parties shall reach an agreement
concerning the further execution of the contract through friendly negotiation
and reach an agreement within a reasonable time.
ARTICLE 9. DURATION -- TERMINATION
9.1 This contract shall become effective at the 1st October 2007 9.2 The
contract shall be terminated without notice at the 31st December 2010.
ARTICLE 10. EARLY TERMINATION
10.1 Either party shall have the right to terminate this CONTRACT immediately by
giving written notice to the other if any one of the following events shall
occur:
(a) insolvency, bankruptcy, liquidating or dissolution of a party;
(b) institution of any proceeding against a party under the provisions of
any insolvency or bankruptcy law or any laws for the relief of
debtors;
(c) appointment of a trustee, receiver, administrator or liquidator over
any of a party's assets or property;
(d) issuance of an order for the attachment of a party's assets or
property;
(e) general assignment by a party for the benefit of its creditors; and
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(f) any material adverse change in financial conditions of a party which
may, in reasonable opinion of the other party, jeopardize further
performance of this CONTRACT
10.2 In the event of early termination caused by the aforementioned Article
10.1, all accounts payable by the BUYER to the SELLER for the CONTRACT PRODUCTS
delivered under this CONTRACT shall, upon the SELLER's declaration, become
immediately due any payable in cash in full.
ARTICLE 11. NOTICES
All notices provided for under this contract of sale shall be communicated as
follows;
11.1 From the BUYER to the SELLER
For airmail : ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
200080
For telephone: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
For telefax : ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
11.2 From the SELLER to the BUYER
For airmail : ▇▇▇▇▇▇▇▇▇▇▇▇▇(▇▇▇▇)▇ ▇-▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
For telephone: ▇▇▇-▇▇▇-▇▇▇-▇▇▇
For telefax : ▇▇▇-▇▇▇-▇▇▇-▇▇ 0131
ARTICLE 12. GOVERNING LAW
This CONTRACT OF PURCHASE shall be governed by and all questions arising
therefrom shall be construed in accordance with the United Nations Convention on
Contracts for the International Sale of Goods (CISG) and the Laws of Switzerland
Where standard terms of business are used the INCOTERMS 2000 of the
International Chamber of Commerce (ICC) apply. For Letter of Credit (LC) the
International Chamber of Commerce (ICC) Uniform Customs and Practice for
Documentary Credits at the current issue applies.
ARTICLE 13. ARBITRATION
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13.1 Should any difference of the dispute at any time arise out of this
contract, the parties shall make every effort to settle the problem amicably by
mutual agreement.
13.2 Any disputes arising out of or in connection with this agreement shall be
finally settled in accordance with the Rules of the China International Economic
and Trade Arbitration Commission (CIETAC) by three arbitrators appointed in
accordance with these rules. The place of arbitration is Beijing. Proceedings
shall be in English language. The arbitration award shall be final and binding
on both parties hereto.
13.3 The cost of the arbitration shall be borne by the losing party.
ARTICLE 14. MISCELLANEOUS
14.1 Amendments to this contract and its appendices shall require written form.
14.2 If provisions of this contract should be or become partly or wholly void,
the remaining conditions will continue to apply. The parties are bound to
replace the void provision or the void part of the provisions by a legally valid
arrangement, which comes as close as possible to the commercial meaning and
purpose of the void provision or the void part of the provision.
14.3 This CONTRACT and all notices, demands, requests, statements or other
communications to be made or given by either party thereto shall be in the
English language.
14.4 Neither party shall assign, transfer or otherwise dispose of this CONTRACT
or any of his rights, interest or obligations hereunder without the prior
written consent of the other party.
14.5 Requirements on commercial invoices are given in Appendix 6. The SELLER has
to set up commercial invoices covering all details specified in Appendix 6.
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The contract of sale has been issued in duplicate by two identical copies,
whereof each contractual partner is provided with one copy.
IN WITNESS WHEREROF, the parties hereto have signed this contract at to be added
SIGNED FOR AND ON BEHALF OF
THE BUYER THE SELLER
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇
-------------------------- --------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
PRESIDENT AND CEO CHAIRMAN AND CEO
SCHUCO INTERNATIONAL KG SOLARFUN POWER HOLDINGS CO. LTD.
Enclosures:
Appendix 1: List of the CONTRACT PRODUCTS
Appendix 2: Specification of the CONTRACT PRODUCTS
Appendix 3: Volume and shipment schedule of the CONTRACT PRODUCTS
Appendix 4: Pricing of the CONTRACT PRODUCTS
Appendix 5: Product WARRANTEE
Appendix 6: Requirements on Commercial Invoices
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