RESELLER AGREEMENT

“Reseller Price” means the price payable by Reseller for any Product purchased from Tianwei hereunder and shall be the applicable price set forth in any purchase order submitted by Reseller and approved by Tianwei pursuant to Section 5.6 of this Agreement.

“Products” includes those products described in Exhibit A.

“Territory” means that geographical area described in Exhibit B.

Promotion. Reseller agrees, at its own expense and as a separate commercial entity, to:

Use its best efforts to promote the distribution and sale of Products in the Territory, and to consult regularly with Tianwei concerning promotion or sales of the Products;

Participate in and support inter-Territory sales efforts, as well as coordinate sales opportunities by customers within the Territory for business outside the Territory with the appropriate Tianwei sales representative;

Participate actively in any Tianwei sales program or promotion;

Participate actively in any Tianwei Product training courses;

Establish pricing with its customers; and

Develop and maintain adequate procedures to assure the prompt handling of all sales of Products generated under this Agreement.

Records and Reports. Reseller shall maintain a complete record of all Products sold by Reseller, and, by the 15th day following each calendar quarter, shall provide to Tianwei a complete “point of sale” report detailing Reseller’s sale of Products in the Territory, and volume of each Product sold, the identity of the customer to whom such Product was sold, and other relevant information concerning sales of Products, including status reports.

General Conduct. Reseller agrees: (i) to conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of Tianwei; (ii) to avoid deception, misleading or unethical practices that are or might be detrimental to Tianwei or the public, including but not limited to disparagement of Tianwei or its Products; (iii) not to publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material; (iv) to make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of Products that are inconsistent with the literature distributed by Tianwei; and, (v) not to engage in any acts prohibited by applicable local, state, federal or national law.

Export Controls. Reseller agrees to comply in all respects, and to assist Tianwei in assuring compliance, with all applicable laws, regulations and restrictions of the United States concerning the export of products, technical data and direct products thereof, including without limitation all regulations regarding export, asset control and destination control of the Commerce, Treasury, State and Defense Departments of the United States government and the Export Administration Act of 1979, as amended from time to time.

Foreign Corrupt Practices Act. Insofar as Reseller is subject to the Foreign Corrupt Practices Act,  Reseller shall not do any act or thing which shall be a violation of said law and further agrees to cooperate with Tianwei in assuring that Tianwei and Reseller are in full compliance with such law and regulations issued thereunder, including any and all reporting requirements.

Activities Outside of Territory. Without the prior written consent of Tianwei in each instance, Reseller shall not, directly or indirectly, seek customers for, promote or advertise the Products outside the Territory.

Training. Tianwei will provide to Reseller’s personnel without charge to Reseller, such training as Tianwei deems appropriate in the marketing and promotion of the Products. Such training shall be held at such times and locations as may be mutually agreed upon by the parties. Reseller shall pay all expenses of its personnel receiving such training, including without limitation all travel, lodging and meal expenses.

Sales, Marketing and Brand Strategy. At its own expense, Tianwei shall work with Reseller to develop and implement a tailored, Product sales, marketing and brand strategy for the Territory. Such strategy shall be reviewed as required, but no less frequently than on an annual basis.

Promotional Materials. Tianwei will, at its expense, periodically provide Reseller with reasonably sufficient quantities of such advertising and promotional materials and technical data related to the Products as Tianwei may from time to time prepare for general distribution. Tianwei shall involve Reseller in the development of such promotional materials as are tailored specifically for the Territory.

Referrals; Sales by Tianwei. Tianwei shall refer to Reseller customer inquiries that may be received by Tianwei for sales in the Territory, and which cannot reasonably be contracted and fulfilled directly by Tianwei within thirty (30) days of the signing of this agreement. Reseller shall then make appropriate follow-up contact.  Tianwei shall transfer all customer relationships in the Territory to Reseller using best efforts and within a reasonable time period, but not more than 1 month. Tianwei customers from outside the Territory that wish to conduct business within the Territory must coordinate directly with the Reseller or via a centralized account manager at Tianwei responsible for that customer doing inter-Territory business.

Product Changes. Tianwei in its discretion may discontinue, alter, update and/or enhance any Products, and Tianwei shall use reasonable efforts to give Reseller reasonable advance notice thereof. Tianwei shall also actively share with Reseller long-term planning for new product development, enhancements and releases. In the event of any discontinuance of a Product by Tianwei, Reseller shall have the option to submit to Tianwei, within thirty (30) days after the date of Tianwei’s notice of discontinuance, a final purchase order for such Product for delivery within ninety (90) days after the date of Tianwei’s notice of discontinuance. Subject to the terms, conditions and procedures of Section 5.12 of this Agreement, Reseller will be allowed to exchange discontinued Products in its inventory for other products then currently being produced and marketed by Tianwei, provided that Reseller’s written proposal for such an exchange is received by Tianwei within ninety (90) days of the date of Tianwei’s notice of discontinuance. Tianwei agrees to make available to Reseller for promotion and sale in the Territory any generally distributed alterations, updates or enhancements of the Products and any new products as may be developed or acquired by Tianwei for general distribution to customers. Any such new products shall be made available to Reseller on terms generally comparable to those applicable to the Products identified herein, and such new products shall be deemed to be included in the term “Products” as defined herein.

Reseller Listing. Tianwei agrees to list Reseller as a Tianwei reseller in such Tianwei publications, press releases and other marketing and promotional materials as Tianwei may deem appropriate. Tianwei and Reseller shall use best efforts to reasonably integrate the Reseller website and Tianwei website.

Use of Tradename.  Tianwei hereby grants an exclusive license to Reseller  to use the tradename or trademark “Tianwei Solar USA, Inc.,”  in connection with the performance of Reseller’s obligations hereunder, including the establishment of one or more direct or indirect subsidiaries of Hoku Corporation for the purpose of conducting the businesses described herein; provided however, that such exclusive right shall terminate and cease to exist upon termination of this Agreement pursuant to Section 9 hereof.

Inventory. Reseller shall maintain one or more warehouse(s) in the United States (“Warehouse”) at Reseller’s cost. All Products shall become the property of Reseller based on the INCOTERMS used for each shipment.  Reseller shall be responsible for managing Warehouse suppliers, functions and inventory levels.

Purchase Orders. All purchase orders for Products placed by Reseller with Tianwei shall be subject to acceptance in writing by Tianwei and to the provisions of this Agreement. Tianwei will endeavor, so far as it may be practicable, to fill such purchase orders; however, Tianwei shall have no obligation to accept any purchase order.  Any refusal by Tianwei to accept a particular purchase order received from Reseller promptly shall be communicated to Reseller by Tianwei via email, fax or letter, and Tianwei also shall communicate its reasons for such non-acceptance and any conditions under which acceptance may be forthcoming from Tianwei.

Form of Purchase Orders. Purchase orders shall be delivered to Tianwei by Reseller by mail telefax or e-mail. If a purchase order is placed by telephone, it must be confirmed to Tianwei by Reseller in writing as a formal purchase order within one (1) business day.  All purchase orders shall be deemed to be governed exclusively by the terms and conditions of this Agreement.

Cancellation for Late Delivery. If Products identified in any Reseller purchase order that has been accepted by Tianwei are not shipped to Reseller within ten (10) business days of the agreed-upon shipment date, Reseller may, at its discretion and without penalty, cancel such purchase order upon written notice to Tianwei.

Cancellation/Rescheduling for Convenience. Purchase orders for Products may be cancelled for convenience by Reseller at any time but no less than ten (10) business day before the Products are scheduled to be shipped by Tianwei without any cost or penalty. For purposes of this Section 5.5, “shipment” shall mean transfer to a freight forwarder at Tianwei’s factory.

Product Prices. Reseller shall pay the Reseller Price for all Product as purchased by it hereunder. Reseller shall be responsible for establishing pricing for all Products sold to customers within the Territory.  Reseller shall be entitled to all marginal profit recognized from the subsequent sale of such Product.  Tianwei shall use its best efforts, but shall not be required, to provide to Reseller at least thirty (30) days advance written notice of any change in the Reseller Price of a Product. Reseller may, at any time, request revised Reseller Prices to reflect changes in market conditions. However, any Reseller Price change by Tianwei shall not apply to purchase orders accepted by Tianwei from Reseller prior to Tianwei's announcement of such change. From time to time, Reseller and Tianwei may agree on a separate, negotiated price for the Product which may differ from the Reseller Price, and which shall be applicable only on specific orders, or for certain designated customers.

Currency. Reseller shall pay Tianwei for all Products ordered and shipped hereunder in United States currency via wire transfer.

Payment. Each invoice shall be due from Reseller within [***] days ([***]) business days after receipt of Tianwei’s invoice, unless alternate terms are negotiated and approved by Tianwei for specific Purchase Orders. Thereafter, full payment to Tianwei for the purchase of Products hereunder shall be due from Reseller within [***] ([***]) business days after receipt of Tianwei's initial invoice for the Products, unless alternate terms apply as provided for above. A late fee calculated at the rate of one percent (1.0%) per month (or the highest interest rate permitted by law, whichever is lower) of the unpaid balance will be payable by Reseller to Tianwei on all balances remaining unpaid for more than [***] ([***]) days after receipt of a late notice. The required payment by Reseller of any such late fee shall be in addition to all other rights and remedies available to Tianwei in law or equity or under this Agreement, including without limitation the right to terminate this Agreement for Reseller’s default and the right to refuse to accept any further purchase orders from Reseller.

Shipping. All sales of Products by Tianwei to Reseller shall be [***] major U.S. port (Incoterms 2010), unless alternate terms are negotiated and approved by Tianwei for specific Purchase Orders.

Taxes, Customs and Duties. Reseller shall be responsible for the payment of all other applicable taxes, customs, duties and other fees incurred in the shipment of Products from Tianwei to Reseller hereunder.

Tianwei’s Warranty. Tianwei’s standard warranty in Exhibit C, shall apply, as shall all future versions, as amended from time to time.

Product Markings. Reseller shall not remove, alter or add to any proprietary marks or notices of any nature affixed to the Products by Tianwei, or permit the same to be done by others. In connection with the sale, promotion or advertising of the Products, Reseller shall use only the name and number designated by Tianwei for each such Product.

Use of Name and Trademarks. In addition to Section 4.7, Reseller shall represent itself as the exclusive agent of Tianwei within the Territory. However, at no time, shall Reseller have the authority to bind Tianwei by any word, act, deed or omission. Reseller may indicate to the public, in any form, that Reseller is the exclusive agent for Tianwei within the Territory and has the ability to authorize and manage a channel of resellers. Upon the termination of this Agreement, Reseller immediately shall discontinue the use in any context of Tianwei's name and of any other name or names or combination of words or designs or trademarks or trade names that would indicate or tend to indicate that Reseller was or is a reseller of the Products.

No Licenses. No licenses are granted or implied by this Agreement under any patents, copyrights, mask work rights or other intellectual property rights owned or controlled by Tianwei or under which Tianwei has any rights, except the right (as expressly provided herein) to promote, advertise, market, distribute and sell the Products furnished hereunder by Tianwei.

Term. The initial term of this Agreement shall be one (1) year from the Effective Date, unless either party earlier terminates this Agreement as provided herein. This Agreement shall then continue from year to year unless terminated by either party.

Termination for Convenience. Either party may terminate this Agreement for convenience at any time, including during the initial term, upon the giving of not less than three (3) months’ advance written notice to the other party.

Termination for Breach. This Agreement may be terminated by either party at any time for cause upon giving not less than thirty (30) days written notice, by certified mail, registered mail, telex or telefax, to the other party of a material breach by such other party of any of the terms or conditions of this Agreement, which written notice shall describe in reasonable detail the nature of the alleged breach. Such termination shall be effective on the date set forth in the notice of termination, unless such breach is cured by the breaching party within the aforementioned notice period of not less than thirty (30) days.  In the event of a termination for breach as provided herein, and to the full extent permitted by law, any dispute arising between the parties concerning such breach shall be a matter subject to resolution under Section 19.0 (“Arbitration”) of this Agreement.

Termination for Other Causes. This Agreement may be terminated at any time by either party immediately upon written notice to the other party (by certified mail, registered mail, telex or telefax) in the event that: (a) the other party becomes insolvent; (b) there are any proceedings instituted by or against the other party in bankruptcy or under insolvency laws or for re-organization, receivership or dissolution, or if the other party makes an assignment for the benefit of creditors; or, (c) there is a material change in ownership or control of the other party.

Notice of Termination. Notice of termination of this Agreement as provided herein shall be in writing, and shall be deemed to be given on the date of mailing (by certified or registered mail), telefaxing or telexing such written notice.

Completion of Transactions. Upon termination of this Agreement, any purchase orders received from Reseller and accepted by Tianwei prior to such termination shall be performed by the parties as accepted by Tianwei, subject to all the terms and conditions hereof, provided that Reseller demonstrates to Tianwei's satisfaction that Reseller has the ability to make timely payment for all Products encompassed by such purchase orders and, if applicable, that Reseller’s customers have a genuine need for the Products encompassed by such purchase orders. Otherwise, the disposition of any purchase orders received from Reseller and accepted by Tianwei prior to the termination of this Agreement shall be subject to negotiation by Tianwei and Reseller. Upon such termination, Reseller immediately shall discontinue all promotion and advertising with respect to the Products.

Continuing Obligations. The termination of this Agreement shall not release Reseller from the obligation to pay any sum that then may be owing by Reseller to Tianwei, or from the obligation to perform any other duty or to discharge any other liability incurred by Reseller prior thereto. The termination of this Agreement shall not release Tianwei from the warranty obligations in Sections 6.1, 6.2, 6.3, 6.4 and 6.5.  However, subject to the provisions of the immediately preceding sentence, neither party shall, by reason of the termination of this Agreement, be liable to the other party for compensation or damage on account of (a) the loss of present or prospective profits on sales or anticipated sales, (b) expenditures, investments or commitments made in connection therewith, or (c) the establishment, development or maintenance of Reseller’s or Tianwei's business or goodwill.

Compensation Claim. The parties expressly confirm that the terms and conditions of this Agreement have been freely negotiated between them.  Reseller expressly acknowledges that any possible compensation claim that might accrue to it pursuant to the laws of Reseller’s home country upon the termination of this Agreement has already been satisfied in advance and in full by the benefits conferred upon Reseller as a result of the discounted Reseller Price made available to Reseller by Tianwei under this Agreement.

Return of Materials. Reseller agrees to return all Tianwei confidential and proprietary information, including without limitation all marketing materials, pamphlets, catalogs, booklets and other technical or advertising data or literature provided by Tianwei, within thirty (30) days of the termination of this Agreement.

9.10  

Effect on Arbitration. Nothing in this Section 9.0 shall be interpreted or construed to limit or restrict in any way the scope or application of Section 19.0 (“Arbitration”) of this Agreement.