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.
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Ascent Solar
Technologies, Inc.
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PROPRIETARY AND
CONFIDENTIAL
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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.
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Ascent Solar
Technologies, Inc.
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PROPRIETARY AND
CONFIDENTIAL
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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.
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Ascent Solar
Technologies, Inc.
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PROPRIETARY AND
CONFIDENTIAL
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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.
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Ascent Solar
Technologies, Inc.
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PROPRIETARY AND
CONFIDENTIAL
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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