Inversiones y Proyectos Agricolas e Industriales El Eucalipto, S.L. (“Make Your Solar”) sells to Customer the Solar Cells
 

described in the Solar Cells Purchase Agreement to which this Attachment B relates (the “Agreement”) on the following

terms and conditions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the

Agreement. Make Your Solar and Customer are referred to herein as “Party” or “Parties”. These terms and conditions are

made part of the Agreement and, unless specifically stated to the contrary, in the event these terms and conditions conflict

or are in any way inconsistent with any other terms or conditions of the Agreement, the below terms and conditions shall

govern.

1. Contract Price. Customer shall pay Make Your Solar the full Contract Price as stated in the Agreement. All payments

shall be due and payable thirty (30) days from the invoice date, unless otherwise stated in the body of the Agreement. For

any amounts not paid when due Customer shall pay interest thereon at the rate of 1.5% per month until paid in full.

Customer shall pay all sales, VAT and other taxes, however designated or levied, based on the Contract Price, Customer’s

use of the Solar Cells or otherwise arising in connection with the Agreement. Make Your Solar shall be solely responsible

for taxes based on its income. Reselling of Solar Cells to third parties is prohibited.

2. Shipping/ Risk of Loss/Transfer of Title. Risk of loss for Solar Cells shall pass to Customer upon delivery in

accordance with the shipping terms (Incoterms 2010) specified in this Agreement. Subject to payment of the full

Contract Price by Customer, title to the Solar Cells shall unconditionally transfer concurrently with risk of loss under the

foregoing shipping terms. Customer will accept partial deliveries from Make Your Solar of any Solar Cells described in the

Agreement. Customer further agrees that each of the terms of sale listed in the Agreement shall apply individually to

any such partial deliveries of Solar Cells. Make Your Solar reserves the right to replace all or part of the ordered Solar

Cells with Solar Cells of equivalent or higher quality.

3. Delivery.

Make Your Solar will use its best endeavors to deliver the Solar Cells on the delivery date specified in the Agreement, provided

that such delivery date is indicative only and may be subject to change at Make Your Solar’s discretion. Customer must

accept the actual delivery date and Make Your Solar shall not be liable for any late delivery penalties, nor for any losses,

costs, damages or expenses suffered by Customer or any other party as a result of any delay in delivery. Customer shall not

be absolved of its payment obligation by reason of any delay in Solar Cells delivery. Any deficiency in quantity of Solar Cells

at the time of delivery shall be notified to Make Your Solar immediately upon receipt of shipment. Make Your Solar shall be

entitled to use the insurer, carrier, packaging, containers and mode of transport of its choice up to the delivery point specified

in the shipping terms (Incoterms 2010). Make Your Solar shall not be liable for any delay in delivery attributable to Customer.

Signature of the delivery order by Customer shall be deemed to be acceptance of the quantities as set out by such delivery

order. Additional costs of 10€ per day, exclusive of VAT, of storage per Solar Cells shall accrue if the Customer fails to collect

the Solar Cells on the delivery date, up to the effective delivery date. If the Customer is required under the Agreement to

provide a letter of credit, an advance payment or any other payment security to Make Your Solar, Make Your Solar shall be

entitled to suspend and/or delay the delivery of the Solar Cells until and to the extent such letter of credit, advance payment

or payment security is delivered to Make Your Solar, in a form acceptable to Make Your Solar at its sole discretion.

4. All Sales Final. Sale of Solar Cells is final upon title transfer and there are no post-sale obligations retained by Make

Your Solar. Without limiting the generality of the foregoing, Customer specifically acknowledges the following with respect

to the sale of Solar Cells:

a. There are no Customer rights of return or refunds regarding the Solar Cells;

b. Customer is responsible for providing adequate insurance for the Solar Cells after risk of loss transfers

pursuant to the agreed shipping terms; Make Your Solar has no obligation for installation or other obligations

relating to the sale of the Solar Cells; and

c. The Solar Cells are provided "AS IS" without warranty. Buyer waives all express and/or implied warranties,

including the implied warranties of merchantability, power output, fitness for a particular purpose. Make Your

Solar assumes no liability for any defective products.

5. Termination by Customer. Customer may terminate the Agreement for cause by written notice to Make Your Solar

if Make Your Solar Materially Breaches any provision of the Agreement and such breach is not cured within thirty (30)

days of Make Your Solar’s receipt of such written notice, except in the case of Customer’s failure to make timely payments

of the Contract Price, under which situation the provisions of Section 6 below shall be guiding. “Material Breach” shall

mean a default in one party’s contractual obligations that substantially undermines the economic value of the

Agreement to the other Party.

6. Termination by Make Your Solar. Make Your Solar may terminate the Agreement for cause by written notice to

Customer if Customer (i) fails to pay any amount payable to Make Your Solar after it becomes due under this Agreement,

(ii) is adjudged bankrupt or makes a general assignment for the benefit of its creditors, or (iii) otherwise Materially

Breaches any provision under the Agreement and fails to remedy such breach within thirty (30) days of the receipt of a

written notice sent by Make Your Solar.

7. Survival. Following termination of the Agreement, the surviving rights and obligations from the Agreement shall

include Sections 1, and 7 through 28 in their entirety.

8. Limitation o f liability. Notwithstanding any other provision in the Agreement to the contrary, whether express or

implied, Make Your Solar shall not be liable to Customer, whether by way of indemnity or by reason of any breach of

this Agreement or warranty or of statutory duty or by reason of tort or the committing of any actionable wrong

(including without limitation negligence) or otherwise, for loss of actual or anticipated profit, loss of revenue, loss of use,

loss of production, loss of opportunity or goodwill, cost of capital, cost of replacement power, financing costs, fuel

costs, or for any special, indirect, incidental or consequential loss, damage or expense or any other purely financial or

economic loss whatsoever suffered by the Customer, its customers or third parties. Notwithstanding any other provision

of the Agreement, whether express or implied, Make Your Solar’s aggregate liability with respect to any and all losses,

damages or claims arising out of the Agreement, its performance or breach, whether such liability is based in contract,

warranty, tort (including negligence of any kind), strict liability or otherwise, shall not exceed an amount equal to half

of the payments actually received by Make Your Solar from Customer under the Agreement. 

9. Governing Law. This Agreement shall be governed by the laws of Spain without reference to conflicts of laws

principles. The UN Convention on the International Sale of Goods (Vienna 1980) shall not apply.

10. Dispute Resolution.

All disputes arising out or in connection with this Agreement shall be exclusively brought before the Commercial

courts of Madrid, Spain, irrespective of the place of the order, delivery, payment and payment method.

11. No Waiver. Any waiver of any breach of any term or condition of the Agreement shall not operate as a waiver of any

other breach of such term or condition or of any other term or condition of the Agreement. Failure by a Party to exercise

any right under the Agreement shall not be construed as a waiver of any breach of any term or condition hereof.

12. Severability. If any provision of the Agreement shall be held to be invalid or unenforceable, such provision shall be

ineffective to the extent of such invalidity or unenforceability without invalidating the remaining provisions of the Agreement.

13. Headings. The headings used in the Agreement are included for convenience only and are not to be used in the

interpretation of any provision of this Agreement.

14. Notices. All notices, demands or consents required or permitted under the Agreement shall be in writing. Notice

shall be considered effective on the earlier of actual receipt or: (i) the day following transmission if sent by facsimile

followed by written confirmation by registered overnight carrier (e.g., Federal Express.) or certified mail; or (ii) one (1)

day after posting when sent by registered private overnight carrier or (iii) five (5) days after posting when sent by

certified mail. Notice shall be sent to the attention of the current business contact and the “legal department”. Parties

may change their address for notice purposes by giving notice of such change, provided that such notice is effective only

on receipt.

15. Successors and Assigns. The terms and conditions of the Agreement shall inure to the benefit of and be binding

upon the respective successors and assigns of the Parties, subject to the terms of Section 27 herein.

16. Advice of Counsel. Each Party acknowledges that, in executing this Agreement, such Party has had the opportunity

to seek the advice of independent legal counsel, and has read and understood all of the terms and provisions of the

Agreement. The Agreement shall not be construed against any Party by reason of the drafting of preparation hereof.

17. Force Majeure. Except for Customer’s obligations to pay Make Your Solar hereunder, neither Party shall be liable to

the other Party for any failure or delay in performance caused by reasons beyond its reasonable control, including,

without limitation, acts of God, labor disputes, acts of public authorities, war, riot, embargoes, terrorists, acts of civil or

military authorities, fire, flood hurricanes, typhoons, tornados, winds in excess of ninety (90) mph, volcanoes, earthquakes

or accidents. Without limiting the generality of the foregoing, Make Your Solar will not be liable or deemed to be in breach

of the Agreement by reason of any delay or failure to perform caused by any act or omission of Customer.

18. Confidential Information. As used herein, "Confidential Information" of a disclosing Party means the

Agreement and all confidential and/or proprietary information provided by the disclosing Party to the receiving Party

and includes, without limitation:

a. financial information of the disclosing Party;

b. business plans of the disclosing Party;

c. information about the business of the disclosing Party

d. information about the product roadmap of the disclosing Party; and

e. all tangible materials embodying any of the foregoing Confidential Information, including any documentation,

records, listing, notes, data, sketches, drawings, computer disks, files or records, memoranda, designs, models,

accounts, reference materials, samples, equipment, trade-secrets, prices, strategic partners, marketing, strategic

or other plans, Customer names or lists, project opportunities and the like;

provided, however that “Confidential Information” of a disclosing Party shall not include information or data of the

disclosing Party which:

i) is already rightfully in the possession of the receiving Party at the time of its disclosure by the disclosing

Party,

ii) is now or becomes a part of the public domain by virtue of publication, free of copyright or other protection,

other than by or through the fault of the receiving Party,

iii) is rightfully received by the receiving Party from a third Party who has a right to disclose such information,

without restriction on disclosure and without breach of this or any other agreement, or

iv) is independently developed by the receiving Party, without any reverse engineering or similar action.

Each Party agrees that, (a) it shall make use of the Confidential Information of the other Party solely for the purpose

of facilitating sale of Solar Cells provided under the Agreement, (b) neither it nor any of its subsidiaries nor affiliated

companies nor their agents, representatives or assigns will disclose to any other person or entity, or use for its or their

benefit, any Confidential Information of the other Party, and (c) it shall prevent any Confidential Information of the

other Party from being revealed to any person or entity other than its employees who are required to know such

information in order to carry out the purpose described in the foregoing clause (a), and shall notify such employees of

the obligation not to use or disclose the Confidential Information of the other Party.

19. Intellectual Property Protections. Customer agrees, on behalf of itself and its Affiliates (collectively, the

“Customer Parties”), that the Customer Parties shall not reverse engineer, disassemble or analyze the Solar Cells or

any prototype, process, product, or other item that embodies Confidential Information of SunPower Corporation and is

provided to Customer. Additionally, Customer agrees it shall not, and shall cause Customer Parties not to directly or

indirectly, manufacture anywhere in the world, any photovoltaic solar cell. The foregoing shall in no way restrict Customer

Parties’ ability to manufacture Solar Cells that (a) are not the Solar Cells manufactured by SunPower Corporation

hereunder and (b) do not utilize SunPower Corporation proprietary trade secrets or technology embodied in the Solar 

Cells or any confidential or proprietary information of SunPower Corporation, Make Your Solar, or its Affiliates obtained

by Customer in connection with the transactions contemplated by this Agreement. As used in this Agreement, “Affiliate”

means, with respect to a party, any individual, partnership, corporation, limited liability company, or other entity that

directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with

such party. Customer acknowledges, also on behalf of itself and its Affiliates, that any and all intellectual property rights

in and in relation to the Solar Cells belong exclusively to SunPower Corporation and undertakes not to challenge or

harm in any way such intellectual property. Customer agrees that, in addition to any other obligations it has under

this Agreement, including this Section 19, none of the Customer Parties will cause or allow any inspection, analysis, or

characterization of any properties (whether mechanical, structural, chemical, electrical, or otherwise) of the Solar Cells,

whether by itself or by a third party. Customer agrees that it will only transfer (whether by sale, loan, gift, or other

conveyance) the Solar Cells from its possession after they have been encased in an encapsulant material in such a

state as to prevent direct inspection of the Solar Cells.

Nothing in this section is intended to prevent the Customer from using the Solar Cell as a laminated product, including

characterizing performance of the laminated product.

20. Restricted Uses. Customer agrees that it shall not and Customer shall cause Customer Parties not to sell,

transfer, or otherwise provide to a third party (i) a solar module or panel constructed from the Solar Cells, which has

a power output of 150 Watts DC, or higher, or (ii) a solar product containing a light (whether LED, incandescent,

fluorescent, or other) which uses the Solar Cells or a portion thereof to provide power to the light or a storage device

which powers the light, where such light product is designed or marketed to be mounted on a short (less than one meter

in overall height) post in the earth to provide illumination in a garden, commonly known as a garden light. Customer

agrees on behalf of the Customer Parties that (a) the Customer Parties shall not provide the Solar Cells or any product

made from the Solar Cells for use which provides power, directly or indirectly, to the general utility electrical grid of

any region; and (2) when selling any product containing the Solar Cells, the Customer and Customer parties shall include

a contractual limitation prohibiting the buyer of such product from using them to provide power, directly or indirectly, to a

general utility electrical grid.

21. Export Compliance. Customer shall not commit any act or cause or permit any person to commit any act with

respect to any Solar Cells purchased hereunder which would violate any applicable export control laws, rules or regulations

(including but not limited to those of the United States), and Customer will take any and all actions within its ability to

assure compliance with all such laws, rules or regulations. Customer shall not, directly or indirectly, export, re-export or

transship any Solar Cells purchased hereunder or any technical data relating to such Solar Cells in violation of any applicable

export control laws promulgated and administrated by the government of any country having jurisdiction over the parties

or the transactions contemplated herein. It is Make Your Solar policy to comply fully with all economic sanctions and

trade restrictions promulgated by the United States government. Customer agrees to comply, in performing this agreement,

with all applicable laws, including, without limitation, all statutory and regulatory requirements under the Export

Administration Regulations (15 C.F.R. § 730 et seq.) administered by the U.S. Department of Commerce; the laws,

regulations, and executive orders implemented by the Office of Foreign Assets Control of the U.S. Department of the

Treasury; and equivalent laws in any jurisdiction in which the Customer operates.

22. FCPA Compliance. Each party acknowledges that it has reviewed a copy of the U.S. Foreign Corrupt Practices Act

(the “FCPA”) and confirms its understanding that the FCPA prohibits the payment or giving of anything of value either

directly or indirectly, to an official of a foreign government, foreign political party or official thereof, or any candidate

for foreign political office, for the purpose of influencing an act or decision in his official capacity, or inducing him to

use his influence with the foreign government, to assist in obtaining or retaining business for or with, or directing

business to, any person. Each party agrees that each party shall comply with the FCPA and will take no action that would

cause any party to be in violation of the FCPA. Each party agrees to notify immediately the other party of any request

the party receives to take any action that might constitute, or be construed as, a violation of the FCPA. Both parties agree

that either party is authorized to take all appropriate actions that such party reasonably deems is necessary to avoid a

violation of the FCPA.

23. Publicity. Customer agrees that any and all marketing, press releases, references and / or any public

information regarding the Agreement and / or the use of the Solar Cells purchased through the Agreement is subject to

the review and written approval by Make Your Solar and SunPower Corporation prior to release.

24. No Additional Obligations. Make Your Solar has no obligation for installation, maintenance or other post-sale

obligations relating to the sale of the Solar Cells.

25. Entire Ag r e em e n t . The Agreement, which shall include associated Attachments, constitutes the sole and entire

agreement between the parties, and supersedes all prior oral or written agreements, commitments, representations or

understandings with respect thereto. No other document or amendment of this Agreement shall be part of this Agreement,

unless in writing and signed by the Parties’ authorized representatives.

26. Assignment. Customer shall not assign or otherwise transfer (either in whole or in part) any of its rights or

obligations under the Agreement without having first obtained the express written permission of Make Your Solar, any

purported assignment without such consent shall be deemed null and void.

27. Exclusive Remedies. Notwithstanding any other provision of the Agreement, the full extent of Make Your Solar’s

liabilities, warranties, representations and guarantees in connection with the Agreement are set forth herein, and no

other liabilities, warranties, representations or guarantees shall, or shall be deemed to, apply. The

Customer’s remedies, as identified in the Agreement, shall be the sole and exclusive remedies available to the Customer

in respect of matters to which they are said to relate in the Agreement, irrespective of any rights and remedies which

might otherwise be available at common law, in tort, by statute or otherwise.