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PHOTOVOLTAIC MODULE SUPPLY AGREEMENT

Requirements Supplier Agreement

PHOTOVOLTAIC MODULE SUPPLY AGREEMENT | Document Parties: ASCENT SOLAR TECHNOLOGIES, INC. | ASCENT SOLAR TECHNOLOGIES, INC | EXCHANGE COMMISSION | TurtleEnergy LLC You are currently viewing:
This Requirements Supplier Agreement involves

ASCENT SOLAR TECHNOLOGIES, INC. | ASCENT SOLAR TECHNOLOGIES, INC | EXCHANGE COMMISSION | TurtleEnergy LLC

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Title: PHOTOVOLTAIC MODULE SUPPLY AGREEMENT
Governing Law: Colorado     Date: 9/23/2009
Industry: Semiconductors     Sector: Technology

PHOTOVOLTAIC MODULE SUPPLY AGREEMENT, Parties: ascent solar technologies  inc. , ascent solar technologies  inc , exchange commission , turtleenergy llc
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Exhibit 10.1

CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.

PHOTOVOLTAIC MODULE SUPPLY AGREEMENT

This Photovoltaic Module Supply Agreement (together with all schedules hereto, the “ Agreement ”) is made and entered into as of September 21 st , 2009 (the “ Effective Date ”) by and between:

ASCENT SOLAR TECHNOLOGIES, INC. (“ Ascent ”), a company incorporated under the laws of the state of Delaware, and

TurtleEnergy LLC, (“ Buyer ”), a company duly incorporated under the laws of the State of New Jersey.

RECITALS

A. Ascent is engaged in the business of manufacturing and selling photovoltaic modules (“ PV Modules ”).

B. Buyer is in the business of designing, manufacturing and selling a broad range of “sustainable energy” products including those incorporating PV Modules.

C. Ascent desires to sell to Buyer, and Buyer desires to purchase from Ascent, PV Modules on the terms and conditions set forth herein.

AGREEMENT

NOW THEREFORE, the parties agree as follows:

1. Product Sales and Purchases

1.1 The description and specifications for the PV Modules to be sold and purchased under this Agreement are set forth on the PV Module Specification Sheet(s) attached as Schedule A . Ascent or TurtleEnergy may from time to time modify the description or specifications of the PV Modules, upon ninety (90) days prior written notice to Buyer and vice versa to manufacturer.

1.2 The tentatively projected quantities and prices for the PV Modules to be sold and purchased under this Agreement for the following five (5) calendar years are set forth on Schedule B .

1.3 Buyer shall issue orders (“ Orders ”) on a rolling ninety (90) day basis for PV Modules to be supplied. The Order will be deemed accepted by Ascent unless written notice otherwise is provided to Buyer within fifteen (15) days of receipt of the Order.

1.4 Ascent shall not assume any obligation under this Agreement to provide quantities in excess of the quantity specified on an accepted Order.

1.5 In the event of any conflict between the terms of an Order and this Agreement, the terms of this Agreement shall prevail.

 

Ascent Solar Technologies, Inc.

 

PROPRIETARY AND CONFIDENTIAL


CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.

 

2. Price; Purchase Orders; Taxes

The prices for PV Modules sold under a purchase order(s) “ Purchase Order(s) ” issued by Buyer shall be on a per-Watt basis and are set forth on Schedule B. In the event of any conflict between the terms of a Purchase Order and this Agreement, the terms of this Agreement shall prevail. Buyer shall be solely responsible for any taxes applicable to the purchase of PV Modules under this Agreement (excluding Ascent’s income taxes, which shall be borne solely by Ascent).

3. Shipments

Unless the parties mutually agree to other shipping terms on the applicable Purchase Order, the parties agree that Ascent shall ship the PV Modules to Buyer from Ascent’s designated manufacturing facilities.

4. Packaging and Shipping

All PV Modules shall be packaged, marked, and otherwise prepared in accordance with good commercial practices to reduce the risk of damage and in accordance with all applicable state and local packaging and transportation laws and regulations. An itemized packing list shall accompany each shipment. Ascent shall bear all costs associated with packaging and storing the PV Modules prior to shipping. Buyer shall bear all costs of shipping the PV Modules.

5. Risk of Loss; Title

Risk of loss and title to the PV Modules shall pass to Buyer upon delivery to carrier of Buyer’s choice at Ascent’s manufacturing facilities. The sale of PV Modules is final upon title transfer, and there are no post-sale obligations retained by Ascent other than pursuant to Ascent’s warranty obligations set forth on Schedule C. Without limiting the generality of the foregoing, Buyer specifically acknowledges that (a) there are no rights of return or refunds regarding the PV Modules, (b) Buyer is solely responsible for providing adequate insurance for the PV Modules after risk of loss transfers, and (c) Ascent has no obligation for installation or other post-sale obligations relating to the sale of the PV Modules, in each case except as explicitly provided in Ascent’s warranty obligations set forth on Schedule C.

6. Invoicing

After each shipment pursuant to this Agreement, Ascent shall send a separate invoice, including item numbers. Subject to the foregoing, Buyer shall pay Ascent all invoiced amounts within thirty (30) calendar days of the shipment date of the PV Modules from Ascent to Buyer (“ Payment Due Date ”). Buyer agrees to pay interest on any overdue invoice amounts at a rate of one-and-one-half percent (1.5%) per month or the maximum interest rate permitted by law, whichever is lower.

 

Ascent Solar Technologies, Inc.

 

PROPRIETARY AND CONFIDENTIAL


CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.

 

7. Warranties

All PV Modules covered by this Agreement will be warranted per the conditions of the relevant Ascent warranty statements set forth on Schedule C.

8. Intellectual Property Protections

Buyer acknowledges that any and all intellectual property rights in and in relation to Ascent’s PV Modules, including any customizations thereto, belong exclusively to Ascent and agrees not to challenge or harm in any way such intellectual property rights.

9. Confidential or Proprietary Information and Property

Both parties shall keep confidential and otherwise protect from disclosure all information and property obtained from the other party in connection with this Agreement unless otherwise expressly authorized herein or by the non-disclosing party in writing or unless otherwise required by applicable law, rule or regulation. Each party shall use such information and property, and the features thereof, only in its performance under this Agreement. Upon a party’s request, the other party shall return all such information and property to the requesting party or make such other disposition thereof as is directed by the requesting party. In all lower tier subcontracts and purchase orders issued by a party and involving subcontractor receipt of such information or property, such party shall provide the other party hereto the same rights and protections as contained in this Section 9.

10. Export Compliance

It is Ascent’s policy to comply fully with all economic sanctions and trade restrictions promulgated by the United States Government and the EU authorities. Buyer 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 within the EU community (including, but not limited to, the Regulation (EC) No. 1334/2000 relating to “the control of exports of dual use items and technology” as well as any subsequent or related regulation).

11. Infringement

Ascent shall defend, at its own expense, any suit or claim that may be instituted against Buyer for alleged infringement of patents, trade secrets, copyrights, or other intellectual property rights relating to the PV Modules, and Ascent shall indemnify Buyer for all costs and damages arising out of such alleged infringement, provided that: (i) Buyer gives Ascent reasonably prompt notice in writing of any such claim or action and permits Ascent, through its counsel of choice, to answer the charge of infringement and control the defense of such action; and (ii) Buyer provides Ascent information, assistance, and authority (at Ascent’s expense for reasonable out of pocket expenses incurred by Buyer in connection therewith) to enable Ascent to defend such claim or action. Ascent will have no liability under this Section 11 to the extent that infringement is attributable to (x) Buyer’s design and/or requirements placed upon Ascent or (y) Buyer’s modification or combination of one or more PV Modules with designs not supplied by Ascent.

 

Ascent Solar Technologies, Inc.

 

PROPRIETARY AND CONFIDENTIAL


CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.

 

12. Change Orders

Neither party may, without the prior written approval of the other party within ninety (90) days prior to the shipping date, by a change order(s) (“ Change Order(s) ”), suspend performance of a Purchase Order in whole or in part, make changes in the quantities, shipping dates, method of shipment or packing or time or place of delivery of the PV Modules. Unless otherwise consented to in writing by the other party, any Change Orders shall not affect the obligations of the party requesting the Change Order to purchase the PV Modules.

13. Term; Termination

13.1 Term . Unless terminated earlier pursuant to this Section 13, the term of this Agreement shall commence as of the Effective Date and shall continue through December 31, 2014 (the “ Term ”).

13.2 Termination without Cause . Either party may terminate this Agreement without cause with ninety (90) days’ written notice to the other party.

13.3 Termination for Cause by Buyer . Buyer may terminate this Agreement for cause upon Ascent’s material breach of this Agreement, which breach remains uncured after ninety (90) days’ written notice to Ascent.

13.4 Termination for Cause by Ascent . Ascent may terminate this Agreement for cause:

(i) If Buyer materially breaches this Agreement, which breach remains uncured after ninety (90) days’ written notice to Buyer.

(ii) If there is a direct or indirect change in control of Buyer, the dissolution or merger (provided that the latter involves a change in control) of Buyer, or a substantial portion of the assets of Buyer is transferred to another person or entity, provided that such circumstances, in Ascent’s reasonable discretion, prejudice Buyer’s capacity to perform its obligations under this Agreement.

(iii) If Buyer enters into or proposes to enter into any composition or arrangement with its creditors or any procedure is commenced with a view to the winding up or Buyer is placed into or an order is made for receivership, or if financial difficulties prevent Buyer from normally complying with obligations arising under this Agreement, unless its obligations are sufficiently guaranteed.

 

Ascent Solar Technologies, Inc.

 

PROPRIETARY AND CONFIDENTIAL


CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND

EXCHANGE COMMISSION. “***” ASTERISKS DENOTE SUCH OMISSIONS.

 

13.5 Survival . Sections 7 through 24 (except Section 12) shall survive any termination of this Agreement.

14. Waiver

14.1 The failure of any party to insist upon the performance of any provision of this Agreement or to exercise any right or privilege granted to such party under this Agreement shall not be construed as waiving such provision or any other provision of this Agreement, and the same shall continue in full force and effect.

14.2 If any provision of this Agreement is found to be illegal or otherwise unenforceable by any court or other judicial or administrative body, the other provisions of this Agreement shall not be affected thereby, and shall remain in full force and effect.

15. Applicable Law

The validity, performance, a


 
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