Day4 Energy Standard Terms & Conditions 1. ElectricalElectrical data for the DAY4 60MC series and Day4 48MC series modules will be according to tests conducted by Day4 Energy Inc. (“Day4”) on each module and evidenced by the Product shipment data sheet provided by Day4 at the time of delivery of the Product to the Buyer. 2. Order Cancellation PolicyThis contract can be declared terminated at the sole option of Day4 by notice in writing to the Buyer prior to delivery of the Products ordered hereunder if the Buyer is late in making any payments or in issuing any letter of credit due and owing under the terms of this contract, and such payments or letter of credit remain unpaid or unissued 10 business days following the agreed date. In the event of such termination by Day4, the Buyer shall forfeit in favour of Day4 all deposits and down payments already made at the time of the cancellation of this contract. Day4 shall be further entitled to claim for damages suffered as a result of the Buyer being in breach of this contract. 3. Shipment Value & Power ClassesShipment value shall be determined as a function of the price per Watt peak (Wp) established and the actual cumulative power output of the Day4 modules included in the shipment as measured by Day4. Nominal power class value of the modules is provided for sorting purposes only. Product deliveries shall consist of Day4 48MC PV modules of the following power classes: 160Wp, 165Wp,170Wp, 175Wp, 180Wp, 185Wp and 190Wp. Day4 further estimates that the overall mix of the power classes delivered throughout each calendar year will conform to the following distribution (“Distribution”):
Product deliveries shall consist of Day4 60MC-I PV modules of the following power classes: a mix of 205Wp, 210Wp, 215Wp, 220Wp, 225Wp, 230Wp, 235Wp, 240Wp,245Wp and 250Wp. Day4 further estimates that the overall mix of the power classes delivered throughout each calendar year will conform to the following distribution (“Distribution”):
While exact distribution of power classes for each shipment may vary from time to time depending on the quality and power characteristics of the incoming PV cell material Day4 shall use commercially reasonable efforts to maintain the Distribution on the basis of the total amount of product delivered throughout a calendar year. Day4 shall inform the Buyer of any significant deviations from the Distribution for each delivery prior to shipment.
4. PV Cell Shortages & Other DelaysIf despite all reasonable efforts and, through no fault of Day4, Day4 experiences a shortage of availability of PV cells as a result of a situation with its suppliers such that it is not capable of delivering the ordered quantities of Product, Day4 has the right to postpone or reduce the quantity of Product it delivers to the Buyer and to amend the delivery schedule accordingly. Day4 shall give consideration to the reasonable needs of the Buyer when amending the delivery schedule. If unexpected technical problems occur during Production of the Product, or there is a delay in the Product certification process or a delay in the delivery to Day4 of materials that it needs to produce the Product such that Day4 is not capable of delivering the quantities of Product as stated on page one of this contract, Day4 shall have the right to postpone or reduce the quantities of Product to be shipped to the Buyer and to amend the delivery schedule accordingly. Day4 shall use commercially reasonable efforts to avoid such delays and shall give consideration to the reasonable needs of the Buyer when amending the delivery schedule. In the event that Day4 is unable to deliver the full quantity of Product ordered in accordance with the agreed delivery schedule the quantity of Product that Day4 will deliver to the Buyer will be based on the proportional ratio of the Buyer’s scheduled shipments to Day4’s regularly scheduled total Production per month. Day4 aims to meet the agreed quantities and delivery schedule of Product ordered by the Buyer under this contract and will deliver any unavailable quantities as soon as reasonably possible once the shortages, technical problems or delays have been resolved. 5. PackagingDay4 will use its standard packaging for all shipments under this contract (the “Standard Packaging”). Day4 reserves the right, in its sole discretion to change the specifications of its Standard Packaging at any time. Where Day4 considers such changes to be material it shall inform the Buyer of any changes in advance. If the Buyer requires any special packaging that is different from the Standard Packaging, the Buyer must submit the details of such packaging to Day4 at least 60 days prior to the first estimated shipment date. Day4 Energy Inc. will use commercially reasonable efforts to try to accommodate the needs of the Buyer; however, Day4 Energy Inc. reserves the right to either decline the request or establish special pricing for the packaging of the Product in accordance with the Buyer’s specifications.
6. Licenses, Duties, Taxes, Customs Formalities, and InsuranceDay4 is responsible for obtaining at its own risk and expense any export license or other official authorization and for carrying out, where applicable, all customs formalities for the export of the Product. The Buyer is responsible for obtaining at its own risk and expense any import license or other official authorization and for carrying out, where applicable, all customs formalities, including the payment of any and all import duties and taxes of whatever kind for the import of the Product and for the transit through any country. Day4 will render, at the Buyer’s request, risk and expense, every assistance in obtaining any documents or equivalent electronic messages (other than transport documents) issued or transmitted in the country of dispatch and/or of origin which the Buyer may require for the import of the Product and for the transit through any country. The Buyer is responsible for obtaining at its own risk and expense all relevant cargo insurance. 7. Delivery Terms and RiskDay4 will give the Buyer sufficient notice as to when each shipment is ready for delivery. As delivery is Ex Works Day4’s factory, Day4 will deliver Product by placing it at the disposal of the Buyer on the loading dock at the Day4 factory on the date set out in Day4’s formal confirmation that the Product is ready for shipment. The Buyer must take delivery of each shipment of the Product when it has been delivered by Day4 in accordance with the foregoing. Day4 shall bear all risk of loss or damage to the Product until such time as the Product has been delivered to the Buyer in accordance with this section. The Buyer shall bear all risk of loss or damage to the Product from the time it has been delivered by Day4 in accordance with this section. If the Buyer specifically requests such in writing, Day4 may assist the Buyer in loading a shipment onto the Buyer’s carrier provided that, in such situation, Day4 will have no liability whatsoever for any loss or damage that may occur as a result of such loading, including any loss or damage resulting from negligence on the part of Day4 or any of its employees or agents. If the Buyer specifically requests such in writing Day4 may further assist the Buyer in arranging for the pickup, transportation, storage and delivery of the Product by a shipping agent of Day4’s choice. The Buyer shall further reimburse Day4 for the full value of any expenses incurred by Day4 while arranging such delivery logistics including but not limited to any fees charged by the shipping agent. The Buyer hereby officially and irrevocably pre-authorizes all and any of such expenses and undertakes to pay the full value of such expenses to Day4 in full as a part of the final invoice under this contract. The Buyer further explicitly acknowledges that Day4 will have no liability whatsoever for any loss or damage that may occur as a result of such pickup, transportation, storage and delivery, including any loss or damage resulting from negligence on the part of Day4 or any of its employees or agents.
8. Inspection of ShipmentDay4 warrants that each shipment of the Product will conform to the Product specifications and the amount of Product to be shipped pursuant to the terms of the contract executed by the parties. The Buyer shall inspect each shipment within 48 hours of receipt of the shipment by the Buyer. With the exception of a claim under Day4’s standard warranty as discussed below, any claim made by the Buyer pursuant to this section must be made to Day4 promptly following such inspection. Failure to make a claim within such time period shall constitute a waiver by the Buyer of any such claim. For any claim made by the Buyer pursuant to this section, Day4 at its sole discretion, shall repair, replace or give the Buyer a credit for any shipment or portion thereof that does not conform to the Product specifications or the amount of Product contracted to be shipped. Day4’s liability for any claim made pursuant to this section shall be limited to the price of the Product in respect of which the claim is made. Claims for any loss of or damage to the Product while in transit shall be made by the Buyer to and against the carrier. 9. Standard WarrantyAll Products sold to the Buyer hereunder shall be subject to Day4’s standard warranty in effect at the time of delivery. The Buyer may extend Day4’s standard warranty to its customers in connection with the sale of the Product, provided however that the Product has not in any way been altered by the Buyer or anyone working for, under or in conjunction with the Buyer and provided further that the Product is used and installed in strict conformity with Day4’s specifications which will be provided in Day4’s Installation Manual. The Buyer shall not in any way alter the Product (nor the parts or components thereof) in any way nor place its name on the Product, nor change any labelling on the Product, nor extend any warranty or make any representations regarding the Product other than those contained in Day4’s current standard warranty. Any warranty given by the Buyer to its customers that does not comply with the foregoing shall be void and the Buyer shall indemnify and hold Day4 harmless for any and all losses, costs or expenses, including legal expenses on a solicitor and own client basis, incurred by Day4 as a result of any action, suit, proceeding, demand, assessment, judgment or the like arising out of or in any way related to a breach by the Buyer of this section or a breach by the Buyer of any of the terms of Day4’s standard warranty.
10. Limitation of LiabilityTHE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR DURABILITY. UNDER NO CIRCUMSTANCES WILL DAY4 BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, CONTINGENT, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, LOSS OF PRODUCTION, OR LOSS OF REVENUE FOR ANY REASON WHATSOEVER WITH RESPECT TO CLAIMS MADE BY THE BUYER OR BY ANY PURCHASER OR USER OF THE PRODUCT. 11. Standard Warranty ClaimsAny claim with respect to Day4’s standard warranty, shall be made in accordance with the provisions set out in the standard warranty valid for the particular Product in question. 12. Force MajeureNeither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation under this contract where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party, except for the lack of funds on the part of the Buyer. Such causes shall include, without limitation, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, acts of terrorism, sabotage or piracy, strikes or other labour unrests, breakdown of equipment, inability to obtain Production material, labour, equipment or transportation, and embargoes and other governmental actions or regulations that would prohibit either party from performing any of its obligations hereunder. 13. Governing Law and JurisdictionThis contract shall be governed by and construed in accordance with the laws of British Columbia and Canada, where applicable. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract. All disputes under this contract shall be referred to the courts of British Columbia for settlement. 14. SeverabilityAny invalid or unenforceable part or provision of this contract shall not affect the validity or enforceability of any other part or provision of this contract and shall be considered severable from this contract.
15. DisputesAll disputes arising out of or in any way related to this contract, or in respect of any legal relationship associated with it or derived from it, shall be finally resolved by arbitration administered by the Alternative Dispute Resolution Institute of Canada Inc. pursuant to its Simplified Arbitration Rules by one arbitrator appointed in accordance with such Rules. The place of arbitration shall be Vancouver, British Columbia, Canada. The language of the arbitration shall be English. The parties agree that the award of the arbitrator shall be the sole and exclusive remedy between them regarding any claims, counterclaims, issues or accountings presented; that it shall be made and promptly be payable in U.S. dollars free of any tax, deduction or offset; and that any costs, fees or taxes incident to enforcing the award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement. The award shall include interest from the date of any damages incurred for breach or other violation of this contract and from the date of the award until paid in full, at a rate to be fixed by the arbitrator. 16. SignatureThis contract may be signed in counterparts including by facsimile, each of which shall together, for all purposes, constitute one and the same instrument, binding on the parties. 17. InterpretationThe terms and conditions of this contract constitute the entire agreement between the Buyer and Day4 notwithstanding any invoice, purchase order, acknowledgement or acceptance of the Buyer. By signing this contract the Buyer confirms its agreement with and acceptance of all these terms and conditions and it agrees that these terms and conditions shall not be modified except in writing signed by both the Buyer and Day4. There are no understandings, representations or warranties of any kind not expressly set forth herein. No course of dealing between the Buyer and Day4 shall be relevant to supplement or explain any term used in this contract. If the terms of this contract and those of any purchase order, acknowledgement or acceptance of the Buyer written in connection with this contract conflict, the terms and conditions of this contract shall govern. 18. Confidential InformationThe Buyer covenants with Day4 that it will treat this contract as confidential information. The Buyer shall not use nor disclose to any third party any information contained in this contract, including without limitation pricing, quantity, or the delivery schedule without the prior written permission of Day4.
Last updated November 25, 2009
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QUICK CONTACTS HEAD OFFICE CUSTOMER SERVICE SALES HUMAN RESOURCES INVESTORS MEDIA NEWS RELEASES August 10, 2010Day4 Energy Reports Second-Quarter 2010 Results 
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