Long-Term Supply and Joint Development Agreement dated September 15, 2021

EX-10.2 2 asti-ex102_335.htm EX-10.2 asti-ex102_335.htm

 

 

Exhibit 10.2

CERTAIN IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THIS DOCUMENT BECAUSE IT IS BOTH NOT MATERIAL AND WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED, AND HAS BEEN MARKED WITH “[***]” TO INDICATE WHERE OMISSIONS HAVE BEEN MADE

 

LONG-TERM SUPPLY AND JOINT DEVELOPMENT AGREEMENT

 

THIS LONG-TERM SUPPLY AND JOINT DEVELOPMENT AGREEMENT (this "Agreement") dated as of September 15, 2021 (the "Effective Date") is made by and between:

 

 

 

The parties (1) and (2) are hereinafter referred to jointly as the "Parties" and individually as a "Party".

 

WHEREAS,

 

 

 

 

 

 

 

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Year 2021 & 2022: [***] which price shall cover delivery EXW (Incoterms 2020) at the premises of Ascent in Thornton, Colorado.

 

Beyond 2022 until such time when the final target price of EUR [***] per watt is met, the parties agree to an open book calculation for the JV and the price shall be pegged at [***]% above the production cost per watt including direct material, direct overheads and labor costs but excluding corporate allocated overhead costs until the target price is reached. The calculation of the price shall be subject to a joint decision of the JV and TubeSolar.

 

 

NOW, THEREFORE in view of the foregoing premises and in consideration of the mutual promises and covenants contained in this Agreement, Ascent and TubeSolar agree as follows.

 

Article 1

Definitions

The following words and phrases will have the meanings set forth below where used herein with initial capital letters:

 

 

 

 

1.5Copyrights. "Copyrights" means all expressions fixed in a tangible medium, copyrightable material and copyrights (including all other literary and author rights), including software, computer programs, electronic designs and specifications.

 

 

 

1.8Photovoltaic Fabrication Facilities. "Photovoltaic Fabrication Facilities" means facilities and equipment for the design, manufacture and testing of CIGS FOILS utilizing Ascent IP.

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1.10Project IP. "Project IP" means IP that is first conceived, created, authored, developed by or on behalf of either party or both parties in connection with the Project.

 

1.11JV Fab. "JV Fab" means any Fab that is built, operated, sold or licensed by the JV pursuant to this Agreement.

 

1.12Intellectual Property. "Intellectual Property" or "IP" means any and all intellectual property and proprietary rights throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including know-how, processes (including manufacturing and test), computer programs, computer models, technical data, designs, prototypes, components, packaging, inventions, discoveries, techniques, improvements, modifications, technical information, test results and all Patents, Copyrights, trade secrets, trademarks, service marks, designs, trade dress, moral rights, mask works and other proprietary rights related thereto whether or not registered.

 

Article 2

Joint Development Activities

 

2.1Joint Development. Each party agrees to use commercially reasonable efforts to interact on a regular basis and exchange such information as each in good faith determines in its sole discretion appropriate to develop and commercialize Fabs and manufacture and sell CIGS FOILS (the "Development Plan"). The Development Plan is anticipated to include the terms set forth on Appendix A hereto, and the parties will work together to complete a full Development Plan within a reasonable time following the Effective Date. Specifically, the construction and operation of the initial JV Fab will be conducted by Ascent and/or the JV. Until such time as the initial JV Fab is operational, TubeSolar agrees to support the construction and operation of the initial JV Fab. The parties acknowledge that the Development Plan contains the parties' current expectations as to the activities, timeline and funding requirements relating thereto and that the Development Plan may require additional time and/or funding to complete and/or involve activities beyond the scope currently contemplated in such Development Plan.

 

2.2Contents of Statements of Work. Each Statement of Work will specify (i) the development goals and objectives of the Statement of Work and the activities and tasks to be undertaken by each party hereto in connection with such activities, (ii) any obligations on the part of TubeSolar to make payments to Ascent so as to provide funding for such activities as milestone payments pursuant to Section 4.4 of this Agreement ("TubeSolar Funding") and the schedule for the payment of such funds, (iii) the purposes for which, and manner in which, any TubeSolar Funding is to be utilized by Ascent, (iv) the milestones and deliverables to be achieved or delivered by each party, (v) the respective Project Coordinators for such Statement of Work, and (vi) such other matters as deemed appropriate by the parties. In the event of a conflict between the terms of any Statement of Work and the terms set forth in the body of this Agreement, the terms set forth in the body of this Agreement shall prevail unless the Statement of Work expressly states that the inconsistent term is meant to prevail over the terms of this Agreement, in which case the terms set forth in the Statement of Work shall prevail over the terms of the body of this Agreement solely for purposes of such Statement of Work.

 

2.3Performance under Statements of Work. The parties will use commercially reasonable efforts to perform the tasks and activities identified in, and fulfill the responsibilities specified in the

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Development Plan and/or each Statement of Work.

 

2.4Coordinators. The Project Coordinators for this Agreement will be designated by each of the parties from time to time. Each Project Coordinator will be responsible for overall supervision of activities on behalf of such party pertinent to this Agreement and tasks outlined in the Development Plan and/or Statements of Work. With respect to each Statement of Work, the Project Coordinators will be responsible for (a) arranging meetings, visits and consultations between the parties concerning the technical matters related to such Statement of Work; (b) scheduling and making arrangements for joint meetings and chairing periodic technical status reviews; (c) proposing, assessing and processing changes to such Statement of Work, which must be in writing and signed by authorized representatives of both parties; and (d) coordinating any information exchanges between the parties relating to such Statement of Work. Either party may change its Project Coordinators at any time without prior notice. The Project Coordinators are not authorized to modify or change any term or condition of this Agreement.

 

 

 

2.7Purchase Obligations. When commercially feasible, in addition to the transactions contemplated by this Agreement, TubeSolar is obligated to purchase the CIGS FOILS produced at the JV Fab at the [***], direct overheads and labor costs but excluding corporate allocated overhead costs until the target price is reached, where the calculation of the price is subject to a joint decision of the JV and TubeSolar. With regard to the purchase obligations under this Clause 2.7, this Agreement is based on the assumption that only Ascent and the JV are capable [***] under STC. In the event that a competitor possessing such capability should become known to one of the Parties, the Parties agree to negotiate in good faith to adapt this Agreement accordingly.

 

Article 3 Intellectual Property

 

3.1Independently-developed IP. Each party will retain ownership of any and all IP (including Background IP) and all Confidential Information (defined in Section 6.1) that the party owned on or before the Effective Date. Additionally, any IP developed on or after the Effective Date by either party independently (i.e., outside of development under this Agreement) and without the use of any of the

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Background IP or Confidential Information of the other Party, will be owned solely by the developing party.

 

3.2Ownership of Project IP.   All Project IP developed solely by a party will be solely owned by that party. All Project IP that is developed jointly by employees or contractors of both Parties ("Joint Project IP") will be jointly owned by the parties.

 

3.3Treatment of Joint Project IP. Both parties agree to promptly disclose to one another via the Project Coordinators any Joint Project IP. The parties shall meet through the Project Coordinators to discuss in good faith and agree upon the content and form of any application for a joint Patent right and hereby agree that only the application in the form as agreed between the parties may be filed in respect of the joint Patent rights. The parties shall share the costs equally in respect of the preparation of the application, filing, prosecution, grant, and maintenance of any joint Copyright or Patent rights jointly filed and shall jointly instruct an appropriately qualified attorney to draft, file, and prosecute the application. Each party will have equal control over the prosecution of the filing such that the attorney will only be able to act on unanimous instructions. In the event that one party is not interested, or not willing, to equally share the related cost and expense, with respect to any joint Patent rights in a given country, then the other party shall have the right, at its own cost and expense, and under its sole control, to file and prosecute such joint Copyright or Patent rights in such country in both parties' names, even though each party will have an undivided joint ownership interest in any Copyright or issuing Patent. Alternatively, the parties may mutually agree to hold such Joint IP as a trade secret. Each Party with the consent of the other Party will have the right to grant licenses under a joint Patent within the Joint Project IP to third parties. Unless agreed otherwise in writing, neither party will have any obligation to account to the other for profits or to obtain the consent of the other party in order to use, license, or otherwise exploit Joint Project IP, and each party will retain for itself the entire returns earned through its use of Joint Project IP. Each party will promptly provide the other party with written notice if the party wishes to transfer any joint Patent within the Joint Project IP. The party receiving the written notice will have the right of first refusal for a period ninety (90) days from the party's receipt of written notice. During the ninety (90) day period, the parties will negotiate in good faith to acquire the other party's ownership rights in such joint Patent within the Joint Project IP which the notifying party wishes to transfer.

 

3.4Assistance in Prosecution. Each party shall provide, and cause its employees and subcontractors to provide, to the other party reasonable assistance and cooperation (including prompt execution of documents) with such other party's preparation, filing, prosecution, and maintenance of any Copyright or Patent pursuant to Section 3.3.

 

Article 4

Delivery of CIGS FOILS

4.1Delivery Obligation. Ascent is obligated to deliver CIGS FOILS to TubeSolar according to the orders TubeSolar makes under this Agreement. Ascent's obligation to deliver CIGS FOILS shall be limited by amount to [***] in the year 2022, to [***] in the year 2023, to [***] in the year 2024, and to [***] in each following year. Until such time as the initial JV Fab is operational, deliveries under this Agreement shall be made EXW (Incoterms 2020) at the premises of Ascent in Colorado, USA. From the time when the initial JV Fab is first operational on, deliveries under this Agreement shall be made EXW (Incoterms 2020) at the JV Fab. The risk of loss and damage to the goods shall pass to TubeSolar upon dispatch.

 

4.2Pricing and Payment. Deliveries of CIGS FOILS under this Agreement shall be priced in the years 2021 and 2022 at a price [***] and from the year 2023 on according to an open book calculation

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at [***]% above the production cost including direct material, direct overheads and labor costs but excluding corporate allocated overhead costs. The calculation of the price pursuant to this Clause 4.2 shall be subject to a joint decision of the JV and TubeSolar. The Parties agree to use commercially reasonable efforts to reach a target price of [***] as soon as possible. From such time that the target price of [***] is reached, the deliveries shall be priced at [***]. A down payment of 20% of the price for a given order is due with the acceptance of that order by Ascent. The remainder of the price owed by TubeSolar is due within thirty (30) days from delivery and receipt of a proper invoice containing the required information pursuant to § 14 section 4 of the Sales Tax Act (UStG) as well as the order number used by TubeSolar. Should the processing by TubeSolar be delayed within the ordinary course of business due to missing or incorrect information on the invoice, the payment period shall be prolonged by the duration of the delay.

 

4.3Quality Requirements and Liability. The CIGS FOILS have to comply with the requirements set forth in Appendices C and D. Specifically, CIGS FOILS to be delivered in the years 2021 and 2022 must possess a degree of efficiency [***] under STC and CIGS FOILS to be delivered from the year 2023 on must possess a degree of efficiency [***] under STC. In the case that [***], delivers to TubeSolar photovoltaic foils that possess a degree of efficiency [***] under STC before the end of June 2022, CIGS FOILS to be delivered under this Agreement in the years 2021 and 2022 have to possess a degree of efficiency [***]. Should a delivery of CIGS FOILS under this Agreement not comply with the requirements set forth in Appendices C and D, Ascent shall be obligated to redelivery free of cost for TubeSolar. If the CIGS FOILS' deficiency rests upon gross negligence on behalf of Ascent, TubeSolar shall be entitled to damages in addition. Liability for intentional conduct or pursuant to the Product Liability Act (ProdHaftG) shall remain unaffected by this Agreement. In the case of any dispute regarding the degree of efficiency of any product relevant to this Agreement, the degree of efficiency shall be assessed by an expert opinion of the ZSW Institute in Stuttgart. The costs of the expert opinion shall be borne by the Party whose claimed degree of efficiency is farther from the expert opinion, or alternatively by the Party that did not propose a claimed degree of efficiency.

 

 

 

 

 

 

4.5Records. For so long as TubeSolar has obligations under this Article 4 to make payments to Ascent with respect to milestone payments, TubeSolar will keep        accurate business records according to IFRS. TubeSolar will maintain such records for a period of at least thirty-six (36) months after the end of the period covered.

 

4.6Currency. TubeSolar will make all payments to Ascent under this Agreement in United States dollars by wire transfer to the bank account designated by Ascent in writing from time to time. This does not apply to payments for deliveries to TubeSolar from the JV Fab, which shall be made in Euro.

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Article 5

Term and Termination

 

5.1Term. The term of this Agreement (the "Term") shall commence upon the Effective Date and shall continue in force, unless terminated by either party in accordance with the terms hereof.

 

5.2Default. A party will be deemed in default under this Agreement if, subject to Section 10.5, such party fails to perform any obligation required to be performed by it under this Agreement or breaches any representation, warranty or other obligation hereunder and fails to cure any such failure within sixty (60) days after notice from the other party. If a party is in default as specified in this Section 5.2, the other party may terminate this Agreement and may pursue any remedy under this Agreement or otherwise available to such party.

 

 

5.5Accrued Obligations. Termination for any reason under this Agreement will not release any party hereto from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination, nor preclude either party from pursuing any rights and remedies it may have hereunder and at law and in equity which accrued or are based upon any event occurring prior to such termination.

 

5.6Return/Destruction of Confidential Information. Upon the termination of this Agreement, each party shall, upon request of the originating party, promptly destroy or return to the originating party, at the originating party's sole discretion (provided the originating party pays delivery expenses if it elects for the return rather than destruction of such materials), all Confidential Information received from the originating party. If the originating party elects to have such materials destroyed, the other party shall certify in writing to the originating party its compliance with such request.

 

Article 6

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Confidentiality

6.1Exchange of Confidential Information.  During the Term of this Agreement, a party to this Agreement (the "Provider") may provide Confidential Information to the other party (the "Recipient"). "Confidential Information" shall mean any and all information provided by the Provider to the Recipient regarding the business, operations and assets of the Provider that is either (i) communicated in writing or other tangible form and marked confidential, or (ii) communicated in any other manner, provided it is either obviously confidential under the circumstances surrounding its disclosure or its confidential nature is confirmed within thirty (30) days after the disclosure by the Provider in a letter summarizing the information considered confidential, and shall include without limitation such confidential reports and communications, client and supplier data, materials or information relating to the business or activities of the Provider, price information, and documents, data, or information relating to methods, materials, ideas, plans, processes, designs and other research, and modifications, improvements and enhancements which are derived from or relate to a Recipient's access to or knowledge of any of the above materials or information.

6.2Exceptions. Notwithstanding the foregoing, the definition of Confidential Information shall not include information which is: (i) now or hereafter, through no unauthorized act on the Recipient's part, publicly available; (ii) known to the Recipient without an obligation of confidentiality at the time the Recipient receives the same from the Provider; (iii) hereafter furnished to the Recipient by a third party as a matter of right and without restriction on disclosure; (iv) furnished to others by the Provider without restriction on disclosure; (v) independently developed by the Recipient without the use of the Provider's Confidential Information; or (vi) required to be disclosed by the Recipient pursuant to any order of a competent court or an administrative or governmental agency, provided that the Recipient shall give the Provider prompt written notice of such order and an opportunity to contest such disclosure or seek an appropriate protective order.

 

6.3Use and Ownership of Confidential Information. Confidential Information may be used by the Recipient solely for the purposes of the Project. The Recipient shall not publish, reproduce, disclose or release the Confidential Information of the Provider, in whole or in part, to any third party (including any contractor, agent, government agency, or customer) without the prior written consent of the Provider in its sole discretion. The Recipient may receive and use Confidential Information pursuant to this Agreement solely for the purposes of this Agreement and shall not use such Confidential Information to the detriment of the Provider or for the benefit of third parties. Section 5 of the Act on the Protection of Trade Secrets (GeschGehG) shall remain unaffected by this Agreement.

 

6.4Degree of Care. The Recipient shall employ at least the same degree of care in protecting the Confidential Information of the Provider as it employs in protecting its own Confidential Information, but not less than a reasonable degree of care. Without limitation to the foregoing, the Recipient shall not copy any Confidential Information, except as may be reasonably required to perform its duties under this Agreement and shall store the Confidential Information in a secure place. The Recipient shall ensure that Confidential Information is disclosed only to (i) those of its employees or third parties who require access to such information for the sole purpose of carrying out a party's responsibilities pursuant to this Agreement, (ii) and to its financial investors (including prospective investors), provided such persons have been advised of the confidentiality provisions of this Agreement and who have entered into a confidentiality agreement with the Recipient affording the same or a higher level of protection as this Agreement.

 

6.5Stipulated Damages. Upon each and every breach of Sections 6.2 and 6.3, the Recipient agrees to pay stipulated damages to the Provider in the amount to be specified by the Provider at its reasonably

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exercised discretion, which in the case of dispute shall be reviewed by judicial decision, without prejudice to the recovery of further damages. Payment of such stipulated damages shall not relieve the Recipient from any of its obligations under this Agreement.

 

6.6Press Releases; Use of Company Name or Logo. Except for information already released in public without breach of this Agreement, neither party will make any public announcement of any kind regarding of this Agreement or the activities undertaken in connection with this Agreement (or any Statement of Work) without the other party's prior written consent, except to the extent required by applicable law. Ascent shall not use the TubeSolar IP in any printed materials without prior written approval of TubeSolar. TubeSolar shall not use the Ascent IP in any printed materials without prior written approval of Ascent.

 

6.7Trademark License. In the event a party ("Owner") grants the other party permission to use its trademarks or service marks (collectively, the "Marks") in accordance with Section 6.5, such party grants to the other party a limited, non-exclusive and non-transferable license (without the right to sublicense) to use, reproduce and display such Marks solely as may be permitted by the Owner pursuant to Section 6.5, or as may explicitly be agreed upon by the parties in writing. Each party's use of the Owner's Marks will be in compliance with the Owner's then-current trademark usage guidelines, if any, provided to such party in writing, which may be revoked or modified at any time at the sole discretion of the Owner. Any use by the other party of the Owner's Marks in a manner not specified in the Agreement requires the Owner's prior written approval in each instance. Each Owner will retain all right, title and interest (including all IP) in and to its Marks, and the other party will do nothing inconsistent with such ownership nor use the Owner's Marks in any way other than as provided for under the Agreement.  The other party's rights in and to the Owner's Marks are limited solely to those rights granted expressly herein. The other party's use of the Owner's Marks will inure to the benefit and be on behalf of the Owner, and such use by the other party will not create in the other party any right, title or interest in the Owner's Marks.

 

Article 7

Warranties and Disclaimers

 

 

 

 

 

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7.3Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND AFFILIATES MAKE ANY REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

7.4Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN ARTICLE 8, LIABILITY FOR DEFICIENCY PURSUANT TO ARTICLE 4, OR BREACH OF ARTICLE 6, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO ANY OTHER PARTY OR ANY THIRD PARTY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE OR INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER THEY SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY.

 

 

Article 8

Indemnification

8.1Indemnification by Ascent. Ascent shall indemnify, defend, and hold TubeSolar and its respective directors, officers, employees, agents, consultants and counsel, and the successors and assigns of the foregoing (the "TubeSolar Indemnitees")  harmless from and against any and all liabilities, damages, losses, costs, or expenses (including reasonable attorneys' and professional fees and other expenses of litigation and arbitration) resulting from a claim, suit or proceeding brought by a third party against a TubeSolar Indemnitee, arising from or occurring as a result of:

 

 

 

Notwithstanding Sections 8.1.1 and 8.1.2 Ascent shall have no liability to TubeSolar pursuant to this Section 8.1 for any liabilities, damages, losses, costs, or expenses of TubeSolar resulting from claims that any TubeSolar Project IP or Joint Project IP infringes, violates or misappropriates the Intellectual Property of any third party.

 

8.2Indemnification by TubeSolar. TubeSolar shall indemnify, defend, and hold Ascent and its respective directors, officers, employees, agents, consultants and counsel, and the successors and assigns of the foregoing (the "Ascent Indemnitees") harmless from and against any and all liabilities, damages, losses, costs, or expenses (including reasonable attorneys' and professional fees and other expenses of litigation and arbitration) resulting from a claim, suit or proceeding brought by a third party against an Ascent Indemnitee, arising from or occurring as a result of:

 

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Notwithstanding Sections 8.2.1 and 8.2.2, TubeSolar shall have no liability to Ascent pursuant to this Section 8.2 for any liabilities, damages, losses, costs or expenses of Ascent resulting from claims that any Ascent IP or Joint Project IP infringes, violates or misappropriates the Intellectual Property rights of any third party.

 

 

Article 9

Notices

 

All notices or other communications required by this Agreement shall be in writing and shall be sent by courier, registered, certified or first-class mail, or electronic mail, and shall be regarded as properly given in the case of a courier upon actual delivery to the proper place of address; in the case of a letter, seven (7) days after the registered, certified or first-class mailing date if the letter is properly addressed and postage prepaid; and in the case of electronic mail, on the day following the date of transmission if properly addressed and if an automatically generated delivery confirmation has been received; and shall be regarded as properly addressed if sent to the parties or their representatives at the addresses given below (or such other address such party may by

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notice to the other party in accordance with this Article):

 

 

TubeSolar AG

Berliner Allee 65

86153 Augsburg

Germany

[***]

 

with a copy to:

(which copy shall not constitute notice)

 

Krammer Jahn Rechtsanwälte PartG mbB

Telemannstraße 1

95444 Bayreuth

Germany

[***]

 

If to Ascent:

 

Ascent Solar Technologies, Inc.

12300 Grant Street

Thornton, CO 80241

United States of America

[***]

 

with a copy to:

(which copy shall not constitute notice)

 

Carroll Legal LLC

233 McKinley Park Lane

Louisville, CO 80027

United States of America

[***]

 

Article 10

Miscellaneous

10.1Entire Agreement. This Agreement, together with the Appendices, the Development Plan, and the Statements of Work executed by the parties from time to time, comprise the entire agreement between TubeSolar and Ascent and supersedes all other agreements, oral or written, heretofore made with respect to the transactions contemplated by this Agreement.

 

10.2Assignment. Neither party may assign or transfer this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that no such consent will be required in connection with a merger, consolidation, reorganization, restructuring, or sale of all or substantially all of the assets of a party. Subject to the foregoing, the provisions hereof shall inure to the benefit of and be binding upon, the successors and assigns of the parties hereto.

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10.3Interpretation. The headings and titles to the Articles and Sections of this Agreement are inserted for convenience only and will not be deemed a part of this Agreement or affect the construction or interpretation of any provision of this Agreement. Common nouns and pronouns shall be deemed to refer to the masculine, feminine, neuter, singular and plural, as the identity of the person may in the context require. The use of the words "include," "including" or variations thereof in this Agreement shall be by way of example rather than by limitation. The parties have participated, or had the opportunity to participate in, the negotiation and drafting of this Agreement or requested, or had the opportunity to request, amendments to this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

 

10.4Modification; Waiver. This Agreement may be amended only in writing signed by both parties. No waiver of any right or remedy in respect of any occurrence or event on one occasion will be deemed a waiver of such right or remedy in respect of such occurrence or event on any subsequent occasion. Failure on the part of any party to complain of any act or failure to act of any other party or to declare any other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such party of its rights hereunder.

 

10.5Delay. If Ascent or TubeSolar is unable to perform or is delayed in performing any of its respective obligations under this Agreement, then the party who is unable to perform or is delayed in performing will give the other party notice of such inability to perform or delay in performing as soon as reasonably possible under the circumstances including information regarding the cause or reasons for such inability to perform or delay in performing. If either Ascent or TubeSolar is prevented from performing or is delayed in performing any of its respective obligations under this Agreement due to any circumstance beyond its reasonable control (including but not limited to strikes, war, an act of God or a public enemy, interference by any civil or military authority, or inability to secure governmental approval, materials or services or similar cause), but not due to its negligence, and gives notice to the other party, then the time for performance of any such obligation will be extended for a period equal to the number of days during which performance thereof was prevented or delayed and during such period such party will not be deemed in default under this Agreement.

 

 

10.8Place of Jurisdiction. In the event of any controversy or claim between the parties as to any provision of this Agreement, as well as any disputes resulting from or in connection with this Agreement, including disputes over the validity, legal force, or termination of this Agreement, the place of jurisdiction shall be Augsburg, Germany.

10.9Counterparts. This Agreement may be executed in multiple counterparts with equal force and effect, and each such counterpart will be deemed an original of this Agreement.

 

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10.11 No Third-Party Beneficiaries. Nothing in this Agreement is intended nor shall it be construed to give any person, other than the parties hereto and their respective successors and permitted assigns, any right, remedy, or claim under or in respect of this Agreement or any provisions hereof.

 

10.12 Independent Status of Parties. Each party shall act as an independent contractor and shall not bind nor attempt to bind the other party to any contract, or any performance of obligations outside of this Agreement. Nothing contained or done under this Agreement shall be interpreted as constituting either party the agent of the other in any sense of the term whatsoever unless expressly so stated.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by

their duly authorized officers as of the Effective Date.

 

 

TUBESOLAR AGASCENT SOLAR TECHNOLOGIES, INC.

 

 

 

/s/ Jurgen Gallina/s/ Victor Lee

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Name:Jurgen GallinaName:Victor Lee

Designation:CTODesignation:CEO

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[SIGNATURE PAGE TO JOINT DEVELOPMENT AGREEMENT]

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Appendix A

Anticipated Development Plan Terms

 

The parties anticipate that the Development Plan will incorporate the following:

 

 

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Appendix B

 

Non-Recurring Engineering Fee

 

 

Milestone Payments due within 7 days after certification by Ascent that such Milestones have been met.

 

 

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Appendix C

 

Quality and Technical Requirements

 

[***]

 

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Appendix D

 

Quality and Technical Requirements

 

[***]

 

 

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