EX-10.33 35 dex1033.htm SUPPLY AGREEMENT - PANASONIC CORPORATION Confidential Treatment Requested by Tesla Motors, Inc. SUPPLY AGREEMENT between TESLA MOTORS, INC. [Tesla Logo] PANASONIC INDUSTRIAL COMPANY, DIVISION OF PANASONIC CORPORATION OF NORTH...
Exhibit 10.33
Confidential Treatment Requested by Tesla Motors, Inc.
between
TESLA MOTORS, INC.
[Tesla Logo]
PANASONIC INDUSTRIAL COMPANY, DIVISION OF PANASONIC
CORPORATION OF NORTH AMERICA,
and
PANASONIC CORPORATION,
ACTING THROUGH ENERGY COMPANY.
[Panasonic Logo]
July 21, 2009
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Confidential Treatment Requested by Tesla Motors, Inc.
THIS SUPPLY AGREEMENT is entered into as of this 21st day of July, 2009 (the “Effective Date”) among:
Tesla Motors, Inc., a Delaware corporation, with its principal place of business at 0000 Xxxx Xx., Xxx Xxxxxx, Xxxxxxxxxx 00000, X.X.X. (“Tesla”); and
Panasonic Industrial Company, Division of Panasonic Corporation of North America, a Delaware corporation, with its office located at Three Xxxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 (“PIC”) and.
Panasonic Corporation, acting through Energy Company, a Japanese corporation, with its office located at 0-0 Xxxxxxxxxx-xxx, Xxxxxxxxx-xxxx, Xxxxx, Xxxxx (“PEC”) (PIC and PEC shall hereinafter be collectively referred to as “Panasonic”).
WHEREAS, Panasonic is willing to supply the Items to Tesla in accordance with this Agreement.
The Parties agree as follows:
| a) | “Agreement” means (i) this Supply Agreement, (ii) all Attachments, and (iii) all Orders, as each may be amended from time to time. |
| b) | “Attachment” means any document that is referenced in this Supply Agreement and attached hereto, All Attachments are deemed to be incorporated into this Agreement by this reference. |
| c) | “DDP Point” means delivered duty paid (Incoterms 2000) at Panasonic’s receiving location(s) in California. |
| d) | “Finished Products” means Li-Ion battery packs and Modules assembled by Tesla and which incorporate items provided by Panasonic. |
| e) | “FOB Point” means free on board (Incoterms 2000) at Panasonic’s shipping location(s) in Japan. |
| f) | “Item” and “Items” means one (in its singular form) or more than one (in its plural form) Li-Ion battery cells which are manufactured by PEG and which are supplied to Tesla by PIC as specified in (i) Attachment 1, or (ii) an Order. |
| g) | “Module” means smallest replaceable unit in a Tesla battery pack. In the case of the [***], the Module consists of [***] Items connected in a series/parallel arrangement. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 2 |
Confidential Treatment Requested by Tesla Motors, Inc.
| h) | “Order’ means an order for Items communicated pursuant to this Agreement by Tesla to Panasonic via a purchase order whether in hardcopy or electronic form. All Orders are deemed to be incorporated into this Agreement by this reference. |
| i) | “Parties” means Tesla and Panasonic. |
| j) | “Specification” means the specification and product requirements for each Item mutually agreed to by the parties. |
| k) | “Supplier” means Panasonic. |
| l) | “Tesla Application” means any product into which a Tesla battery pack is installed. A Tesla Roadster is an example of a Tesla Application. |
| a) |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 3 |
Confidential Treatment Requested by Tesla Motors, Inc.
| c) | Acceptance/Refection of Orders. Panasonic shall communicate to Tesla its acceptance or rejection of a forecast and related Order within seven (7) working days of Panasonic’s receipt of the Order. Panasonic shall not, however, reject an Order for Items placed by Tesla pursuant to Section 3(a) within the [***] period set forth in Section 3(a) so long as the Order conforms to the terms and conditions of this Agreement. Any notice of rejection shall state the specific grounds fore such rejection. If Panasonic fails to notify Tesla of its rejection of an Order within seven (7) working days of Panasonic’s receipt of the Order, the Order shall be deemed accepted by Panasonic, Notwithstanding anything herein to the contrary, Panasonic shall not be obligated to accept a forecast for months one, two (in case of (ii) or (iii) in Section 3(a) above), and three (in case of (i) in Section 3(a) above) or any Order based upon such forecast which contains forecasted quantities of the Items that are [***] greater or less than the quantities originally set forth in the forecast for such quantities in months [***] (in case of (ii) or (iii) in Section 3(a) above) or [***] (in case of (i) in Section 3(a) above). |
| f) | Notwithstanding anything herein to the contrary, Panasonic shall not be obligated to deliver any Items to Tesla unless Tesla has issued an Order to Panasonic at least [***] or [***] months (as set forth in Section 3(a)) prior to the expected delivery date for such Items. |
| g) | Minimum Purchase Commitment. Tesla expects to purchase the quantities of the Items set forth in Attachment 1, Tesla may buy goods from third parties that are identical or similar to the Items. |
| a) | Contract Prices. “Contract Prices” means the domestic and/or export price in U.S. Dollars for an Item as set forth in Attachment 1. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 4 |
Confidential Treatment Requested by Tesla Motors, Inc.
6. Shipping and Packaging Requirements.
| a) | Panasonic will ship all items in accordance with the Transportation, Packaging and Labeling Specification set forth in Attachment 2. If Tesla specifies an authorized shipping service level (such as ground, sea, air, second-day, next-day, etc.) in a specific Order and Panasonic has previously agreed that it can provide such shipping service level, Panasonic will ship such Items in accordance with the shipping service level included in an Order; provided, however, that Tesla shall be responsible for any increased costs resulting from the use of such shipping service level. |
| b) | The Items shall be packaged, marked and labeled in accordance with mutually agreed upon specifications, In all events, Panasonic must include a valid packing slip number or package ID on each package or shipment of Items. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 5 |
Confidential Treatment Requested by Tesla Motors, Inc.
| a) | Initial Inspection and Notification. Tesla will inspect the shipments of Items from Panasonic promptly upon delivery, but in any event within sixty (60) days of delivery to the FOB Point, or thirty (30) days of delivery to the DDP Point, using such testing procedures as Tesla determines are appropriate to determine if the items conform to the mutually agreed upon inspection specifications, and will include an OCV test and impedance test among others, Any claim by Tesla arising from such inspection that an Item fails to comply with the mutually agreed specifications must be made within sixty (60) days of delivery to the FOB Point, or 30 days of the delivery of the Item to the DDP Point. Notification of non-conformity will be made in writing and supporting documentation will be provided to Panasonic. An item will be deemed automatically accepted by Tesla if Panasonic does not receive a notification of non-conformity with sixty (60) days of delivery to the FOB Point, or 30 days of the delivery of the item to the DDP Point. |
| b) | Tesla shall promptly supply to Panasonic the detailed facts and additional supporting evidence with respect to the allegedly defective Items. |
| c) | If the cause of the defect is determined by the Parties to be solely attributable to Panasonic, Panasonic shall replace the Items found to be defective by Tesla: It has been agreed between the Parties that such Items’ replacement shall constitute Tesla’s sole and exclusive remedy with respect to the subject defective Items. |
| d) | Upon written instruction from Panasonic, Tesla shall ship, at its expense, any allegedly defective Items to Panasonic for inspection and testing. Upon Panasonic’s confirmation that the defect in the Items was caused solely by Panasonic, Panasonic shall reimburse Tesla for the reasonable transportation costs for shipping the Items to Panasonic for inspection and testing. If Panasonic instructs Tesla in writing to destroy the allegedly defective Items, Panasonic shall reimburse Tesla for the reasonable cost of such destruction. |
| b) | Invoices. Panasonic will submit invoices to Tesla no earlier than when the Items are received at the FOB Point or the DDP Point. |
| c) | Title, Risk of Loss and No Right of Offset. Tesla will take title to and assume risk of loss for all Items at the FOB Point or the DDP Point. Tesla shall not have the right to withhold payments to Panasonic or reduce the amount of payments owed to Panasonic under this Agreement for fees, claims, damages, expenses or other amounts owed, or alleged to be owed, to Tesla from Panasonic under this Agreement or any other agreement. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 6 |
Confidential Treatment Requested by Tesla Motors, Inc.
9. Intentionally Left Blank.
10. Responsibility for the Quality of the Items and the Finished Products.
| a) | Warranty. Panasonic represents and warrants to Tesla that for a period ending [***] from the date, of delivery of the Item to Tesla at the FOB Point or the DDP Point (“Warranty Period”), the Item will be free from defects in workmanship and material and will comply with the Specifications. Tesla hereby acknowledges and agrees that if an Item is not defective and/or complies with its applicable Specifications, it does not mean that a Tesla battery pack, Module and/or Finished Product cannot be defective for some other reason, including, without limitation, improper design or manufacturing by Tesla or a third party. |
| b) | Warranty Exclusions. Notwithstanding anything herein to the contrary, Panasonic shall have no obligation to Tesla for (i) any defects relating to the design and manufacture of the overall system, equipment and/or goods of which the Items are part; or (ii)any defects in the Items that have been caused by (a) Tesla’s shipment or storage of the Items, (b) articles not supplied by Panasonic, including, without limitation, the goods or systems into which the Items are installed, (c) accident or act of God, or misuse, neglect, abuse, mishandling, misapplication, modification, alteration by Tesla or any third party, or improper installation, service, operation testing, checkout or maintenance by Tesla or any third party, or (d) failure by Tesla or any third party to follow the instructions, cautions, warnings, and notes set forth in the Specification, and any other direction from Panasonic. |
| d) | Notification of Defect. In the event an Item is returned to Tesla by an end user customer and the reason of return is solely attributable to the breach of the warranties in Section 10(a) resulting in one or both of the failure modes described in Section 10(c) and such return of the Item is done within the Warranty Period, (a “Defect’ and an Item with a Defect a “Defective Item”), then Tesla will promptly notify Panasonic in writing regarding such Defect, and will include with the notification all available information relating to the Defect. Tesla will cooperate with Panasonic in Panasonic’s verification of such information. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 7 |
Confidential Treatment Requested by Tesla Motors, Inc.
| e) | Determination of Defect. For purposes of replacement of Items, the existence of a Defect will be established by Tesla in the first instance, subject to Panasonic’s verification and right to dispute the existence of a Defect and to allow for determination by a third party of any such Defect as specified in Section 10(g) below. In the event of notification pursuant to Section 10(d), then, subject to Panasonic’s verification and right to dispute the existence of a Defect, Panasonic shall, during the Warranty Period, replace the number of Items with a reported Defect with new Items. In the event that a Defective Item is in a Module of a Tesla battery pack that is In a Tesla Application, and as a result of a Defect, Tesla in its sole discretion replaces a Module, Panasonic will, during the Warranty Period, replace the total number of Items contained in such Module with new (and not refurbished) Items. Tesla will promptly notify Panasonic in writing regarding such Defect, and will include with the notification, all available information relating to the Defect. Tesla will cooperate with Panasonic in Panasonic’s verification of such information. The replacement of Items pursuant to this Section 10(e) shall constitutes Tesla’s sole and exclusive remedy for any breach of the warranties set forth in Section 10(a). Under no circumstances shall Panasonic be liable for any costs or expenses incurred by Tesla or any third party related to the installation, replacement and/or use of the replaced Item, including, without limitation, any labor costs or expenses or costs incurred for the adjustment, modification and/or replacement of other equipment. |
| f) | Warranty Liability; Disclaimer. Panasonic’s sole, exclusive and full liability under its limited warranties set forth in Section 10(a) will be to replace any Defective Item, or any Item that is installed in Module, as described in section 10(e) above. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, OR WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY WAIVED BY TESLA. THE EMPLOYEES AND AGENTS OF PANASONIC ARE NOT AUTHORIZED TO MAKE MODIFICATIONS TO SUCH WARRANTIES, OR ADDITIONAL WARRANTIES BINDING ON PANASONIC; ACCORDINGLY, ADDITIONAL STATEMENTS, WHETHER ORAL OR WRITTEN, DO NOT CONSTITUTE WARRANTIES AND SHOULD NOT BE RELIED UPON BY TESLA, FOR THE AVOIDANCE OF DOUBT, TESLA UNDERSTANDS THAT THE ITEMS MAY MALFUNCTION OR BECOME UNSTABLE WHEN SUBJECTED TO (i) WET CONDITIONS, (ii) AN IMPACT FORCE OR SHOCK GREATER THAN THAT SET FORTH IN THE SPECIFICATIONS, OR (iii) ANY OTHER CONDITIONS DIFFERENT FROM THOSE FOR WHICH THE ITEMS WERE ORIGINALLY DESIGNED, AND THAT TESLA SHOULD TAKE PROPER STEPS TO PROTECT THE MODULE AND ITEMS INSIDE THE MODULE FROM SUCH CONDITIONS. NO ACTION OR SUIT SHALL BE BROUGHT ON AN ALLEGED BREACH OF THE WARRANTIES SET FORTH IN THIS AGREEMENT MORE THAN [***] FOLLOWING THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD. |
| g) | Third Party Determination. In the event of a disagreement or dispute as to the existence of a Defect, the parties will designate by mutual agreement a third party that will make the technical determination of the existence of a Defect and whether such Defect resulted from a breach of Panasonic’s warranties as set forth in Section 10(a). |
| h) | Quality Plan Requirements and Approval. Panasonic will supply Items according to the mutually agreed upon part approval quality plan therefor, Only after the quality plan for the Items is submitted and approved by Tesla, shall the Items be allowed to be shipped |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 8 |
Confidential Treatment Requested by Tesla Motors, Inc.
| for use in manufacturing the. Finished Products, Panasonic shall at Tesla’s costs and expenses submit a mutually agreed quantity of samples of a standard production run of the Items to Tesla per a mutually agreed quality plan. Panasonic shall also provide Tesla with the following information regarding the Items: |
| a. | QC inspection process flowchart. |
| b. | [***]: |
| i. | [***] |
| ii. | [***] |
| iii. | [***] |
| iv. | [***] |
| i) | Tesla shall not repair, improve or modify the Items without the prior written approval of Panasonic. Tesla shall not include more than [***] Items in a Module without obtaining Panasonic’s prior written consent. Tesla shall comply with the mutually agreed upon assembly and manufacturing instructions for battery packs and/or Modules which include Items. |
11. Quality Control of the Finished Products.
| a) | Tesla shall establish and maintain proper quality control and inspection systems at each stage of manufacturing, assembly, storage, inspection and shipping of the Items. Tesla shall use its best efforts to prevent any and all cell propagation relating to the use of the Items by Tesla or any third party. Cell propagation includes, but shall not be limited to, the burning of an Item which spreads to one or more Items. |
| b) | Panasonic may enter from time to time with reasonable advance notice into Tesla’s Finished Products assembly facility for the purpose of inspecting and examining the quality control and inspection systems referred to in section 11(a). If appropriate, the Parties shall enter into a non-disclosure agreement in connection with such inspection and examination. Tesla reserves the right to shield particular confidential areas of the Finished Products assembly facility or processes. |
| c) | Panasonic may from time to time give Tesla advice or instruction as to optimize the performance of Items in the Finished Products and/or the quality control and inspection systems referred to in section 11(a) as Panasonic deems appropriate. Tesla may, upon receipt of such advice or instructions, comply with such advice or instructions if the advice is deemed reasonable by Tesla management and is within the scope of Tesla business plans and objectives. |
| d) | Any advice or instructions given by Panasonic under Section 11(c) is not intended to indemnify Tesla for any acts or omissions for which it is responsible, nor shall it create any warranty by Panasonic for the Finished Products Tesla manufactures. |
| a) |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 9 |
Confidential Treatment Requested by Tesla Motors, Inc.
| and their respective officers and directors (collectively, the “Panasonic Parties”), harmless from any and all damages, claims, liabilities, injuries (including personal injuries and death), losses, expenses (including attorneys’ fees and litigation expenses), and costs (collectively, “Claims”) arising out of or relating to Tesla battery packs, the Modules, Tesla Application and the Finished Products (including circuit and equipment matching issues) and their respective assembly, manufacture or placement, sale, use, operation, storage, transportation, or otherwise, whether the claim is brought by Tesla, its customers or by third parties. Notwithstanding anything herein to the contrary, Tesla shall be responsible for any and all Claims arising out of or relating to cell propagation involving the Items no matter how such cell propagation is caused. Tesla shall defend, indemnify and hold the Panasonic Parties harmless from such Claims arising out of or relating to cell propagation involving the Items no matter how such cell propagation is caused. To the maximum extent permitted by law, Panasonic agrees to limit Tesla’s liability pursuant to this Section 12(a) to a maximum of [***]. This limitation shall apply regardless of the cause of action or legal theory pled or asserted. Nothing herein to the contrary shall prevent any Panasonic Party from pursuing its remedies at law or in equity against Tesla with respect to any Claim. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 10 |
Confidential Treatment Requested by Tesla Motors, Inc.
13. Limitation of Liability; Insurance; Environmental Claims.
| a) | EXCEPT FOR EACH PARTIES OBLIGATIONS SET FORTH IN SECTION 12 AND TESLA’S OBLIGATIONS SET FORTH IN SECTION 13(d), NEITHER PARTY SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WORK DELAYS, LOST GOODWILL, PROFIT, REVENUE OR SAVINGS, LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, OR DOWNTIME COSTS, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EACH PARTIES OBLIGATIONS SET FORTH IN SECTION 12 AND TESLA’S OBLIGATIONS SET FORTH IN SECTION 13(d), NEITHER PARTY’S LIABILITY FOR MONETARY DAMAGES TO THE OTHER PARTY UNDER THIS AGREEMENT SHALL EXCEED THE TOTAL AMOUNTS PAID BY TESLA TO PANASONIC PURSUANT TO THIS AGREEMENT FOR THE [***] PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. |
| b) | Insurance. |
| i) | Tesla agrees to maintain in full force and effect at all times while it has any obligations remaining under this agreement, policies of insurance written as primary coverage and not contributing with or in excess of any coverage which Panasonic may carry. These policies will be issued by an insurance carrier acceptable to Panasonic with a Best’s rating of at least A, X which affords the following. |
| (a) | Commercial General Liability Insurance, including coverage for Bodily injury, Property Damage, Personal Injury, Contractual Liability, Products and Completed Operations in an amount not less than $1,000,000 per occurrence. Products and Completed operations coverage will be continued for two (2) years following the expiration of the Term. Tesla’s products liability policy is written on a claims made basis. If products liability coverage, or any other coverages, are written on a claims made basis, Tesla will evidence that any retroactive date applicable to coverage under the policy precedes the effective date of this Agreement, and that continuous coverage will be maintained or an extended discovery period will be exercised for a period of not less than 5 years beginning from the time that final delivery of the product or Item is made. |
| (b) | Workers’ Compensation Insurance in Statutory amounts and Employers Liability Insurance in an amount not less than $500,000 per occurrence. |
| (c) | Umbrella Excess Liability Insurance in an amount not less than $10,000,000 per occurrence, Combined Single Limit. |
| ii) | Tesla shall deliver to Panasonic within ten (10) days of the date of this Agreement and annually thereafter, Certificates of Insurance evidencing the above coverage’s with limits not less than those specified above. Such Certificates of Insurance, with the exception of Workers’ Compensation Insurance, will confirm that each policy has been endorsed to name Panasonic, its officers, directors and employees as additional named insured and contain a Waiver of Subrogation under the Workers’ Compensation, Commercial General Liability and Policies in favor of Panasonic. All |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 11 |
Confidential Treatment Requested by Tesla Motors, Inc.
| Certificates of insurance shall state that the carrier will endeavor to provide 30 day notice in the event of cancellation and 10 day notice in the event of cancellation due to non-payment. Failure by Panasonic to receive or request such Certificates of Insurance does not represent a waiver of the requirements for insurance coverage noted above. |
| iii) | The limits of insurance required shall not limit the Tesla’s liability under its Indemnification obligations set forth herein. |
| c) | Tesla agrees to manufacture, assemble, sell and/or dispose of the Finished Products in compliance with the laws and regulations related to health and safety of workers and general public, and environmental protection in the countries where the Finished Products are manufactured, handled, or sold. |
| d) | Tesla shall be solely responsible for all health, safety and environmental matters arising from the manufacture, assembly, sales, use, operation, storage, transportation, and/or disposal of the Finished Products, and shall, during the Term and thereafter, defend, indemnify, and hold Panasonic, its divisions, parent, subsidiaries and affiliates, and their respective officers and directors harmless from and against any and ail claims, demands, suits, actions, liabilities, judgments, losses or costs (including reasonable attorneys’ fees and costs of litigation), with respect to any pollution, threat and/or damage to the environment, or death, disease, incapacity or injury to any person or damage to any property resulting, directly or indirectly, from the manufacture, assembly, purchase, sales, use, operation, storage, transportation, or disposal of the battery packs, the Modules and/or the Finished Products; except to the extent that Tesla shall be exempted from such obligation if and so long as the cause of such damage is solely attributable to Panasonic’s breach of the warranty in Section 10(a). With respect to the foregoing indemnity, the Parties shall follow the procedures set forth in Section 12(c), |
14. Intentionally Left Blank
| a) | If either Party defaults in the performance of any material terms and conditions of this Agreement and fails to cure the default within thirty (30) days after receipt of a written notice given by the non-defaulting Party demanding remedy of such default, the non- defaulting Party may terminate this Agreement by giving written notice thereof. |
| b) | This Agreement may be terminated by either Party effective immediately upon written notice to the other Party upon or after the filing of a petition by or against the other Party for the reorganization, liquidation, dissolution, or similar relief under any present or future federal or state statute, law or regulation, or the entry of a decree or order by a court having competent jurisdiction in respect of any such petition, which decree or order is unstayed and in effect for a period of thirty (30) consecutive days, or the appointment, with or without the consent of the other Party, of any receiver, liquidator, custodian, assignee, trustee, sequestrator or other similar official of such Party or of any substantial part of its property, or the making by the other Party of an assignment for the benefit of creditors, or the admission by the other Party in writing of its inability to pay its debts generally as they become due, or the taking of action by the other Party in furtherance of any such action. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 12 |
Confidential Treatment Requested by Tesla Motors, Inc.
| c) | Except as expressly provided herein, the expiration or termination of this Agreement shall not affect or impair the rights, liabilities and obligations of either Party to the other Party as provided pursuant to this Agreement existing prior to such expiration or termination, nor shall such expiration or termination relieve either Party of any obligation or liability accrued under this Agreement prior to such expiration or termination. |
16. Import and Export Requirements.
| a) | Upon written request from Tesla, Panasonic will provide Tesla with any and all information that may be required to comply with export laws, including applicable “Export Control Classification Numbers,” and documentation substantiating U.S. and foreign regulatory approvals for the items. All required export information shall be sent to the attention of: Manager, Compliance, Tesla Motors, 0000 Xxxx Xxxxxx, Xxx Xxxxxx, XX 00000; or any agent so designated by Tesla in writing. |
| b) | In case Tesla would export the items and/or the Finished Products from any country, Tesla shall comply with applicable export control laws and regulations in such country and export them only after taking adequate proceedings required under such laws and regulations. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 13 |
Confidential Treatment Requested by Tesla Motors, Inc.
| e) | No Gratuity. Neither Party will offer or give any gratuity to induce any person or entity to enter into, execute or perform the Agreement or any other agreement between the Parties. |
| g) | Governing Law. The Agreement and any dispute arising out of or in connection with the Agreement or the Parties’ relationship shall be interpreted, enforced and governed by the laws of the State of New York, excluding its choice of law rules. The parties hereby agree that any and all causes of action arising under this Agreement shall be brought only in the United States Federal District Court for the Southern District of New York or, if the United States Federal District Court does not have jurisdiction, the Supreme Court of New York County, and the parties hereby submit to the jurisdiction of said Court, and agree not to object to the venue nor the convenience of the forum. The parties agree that the 1980 United Nations Convention on Contracts for the International Sales of Goods, as amended to date, shall not apply to this Agreement. |
| i) | Confidentiality, Press Releases and Publicity. Panasonic and Tesla agree to keep the terms and conditions of this Agreement confidential and not disclose them to any third party, unless such terms and conditions are generally known or available other than as a result of the breach of this Agreement. If either Party is legally required to disclose the terms and conditions of this Agreement by law or pursuant to the order of a court or a governmental agency, such Party shall, unless legally prohibited, promptly notify the other Party to that effect, and seek appropriate protection of the terms and conditions of this Agreement. Such required disclosure shall not be construed as a breach of this Agreement. Panasonic and Tesla will not issue any press release, advertising, publicity or public statement or in any way engage in any other form of public disclosure that refers to the relationship between the Parties or in any way relates to the terms and conditions of this Agreement without the prior written approval of the other Party. Any mutual |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 14 |
Confidential Treatment Requested by Tesla Motors, Inc.
| undertaking of Panasonic and Tesla for the purposes of publicity does not require prior written agreements. Each Party may disclose the terms and conditions of this Agreement to its parent, wholly-owned subsidiaries, accountants, attorneys, members of its Board of Directors, and as may be required by applicable law and securities regulations. |
| j) | Foreign Translation. This Agreement is written in the English language. The English text of this Agreement shall prevail over any translation thereof. |
| k) | Entire Agreement. |
This Agreement, including its Attachments, sets forth the entire understanding and agreement of the Parties as to the subject matter of this Agreement, and supersedes all prior agreements, understandings, proposals and representations, oral or written, between the Parties as to the subject matter, except for non-disclosure agreements. During the term of this Agreement, all agreements between Tesla and Panasonic for the purchase and sale of the Items shall include and be governed exclusively by the terms and conditions set forth in this Agreement, except as the parties may otherwise agree in a writing executed by their respective duly authorized representatives. In the event of any conflict between or among any documents that are part of this Agreement, the following order of precedence shall apply: (i) Supply Agreement; (ii) Attachment 1; (iii) other Attachments; (iv) Order. Any printed terms of any purchase order of Tesla, or acknowledgment of Panasonic, and any other terms, provisions or conditions in any purchase order of Tesla, or acknowledgment of Panasonic, which vary from, or are inconsistent with, contrary to or in addition to the terms, provisions and conditions of this Agreement, shall be null and void.
| n) | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original, and all of which, taken together, shall constitute one and the same Agreement. |
| To Tesla: | With a copy of all legal notices to: | |||
| General Counsel | ||||
| Tesla Motors, Inc. | ||||
| 0000 Xxxx Xx | ||||
| Xxx Xxxxxx, XX 00000 XXX |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 15 |
Confidential Treatment Requested by Tesla Motors, Inc.
| To PIC: | Panasonic Industrial Company, | |||
| Division of Panasonic Corporation of Xxxxx Xxxxxxx | ||||
| Xxxxx Xxxxxxxxx Xxx | ||||
| Xxxxxxxx, Xxx Xxxxxx 00000 | ||||
| Attention: President | ||||
| With a copy of all legal notices to: | ||||
| General Counsel | ||||
| Panasonic Corporation of North America | ||||
| Xxx Xxxxxxxxx Xxx, 0X-0 | ||||
| Xxxxxxxx, Xxx Xxxxxx 00000 | ||||
| To PEC: | Panasonic Corporation, acting through Energy Company | |||
| 0-0 Xxxxxxxxxx-xxx, Xxxxxxxxx Xxxx, Xxxxx, 000-0000 Xxxxx | ||||
| Attention: | Xxxxxxx Xxxx, | |||
| Industrial Battery Marketing & Sales. Office, Corporate Industrial Marketing and Sales Division | ||||
| Or to such other addresses as may hereafter be designated by like notice. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 16 |
Confidential Treatment Requested by Tesla Motors, Inc.
| Tesla Motors, Inc. |
| By: /s/ XX Xxxxxxxx |
| Printed name: XX Xxxxxxxx |
| Title: Chief Technical Officer |
| Date: July 21, 2009 |
| Panasonic Industrial Company, |
| Division of Panasonic Corporation of North America |
| By: /s/ Xxxxxx X. Xxxxxxxx |
| Printed name: Xxxxxx X. Xxxxxxxx |
| Title: President |
| Date: 7/21/09 |
| Panasonic Corporation, Energy Company |
| By: /s/ Xxxxx Xxxxxxx |
| Printed name: Xxxxx Xxxxxxx |
| Title: President |
| Date: July 21, 2009 |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 17 |
Confidential Treatment Requested by Tesla Motors, Inc.
Table of Attachments
| No | Name | |
| 1 | List of Items, Pricing Mechanism, and Lead Times | |
| 2 | Transportation, Packaging and Labeling Specification | |
| 3 | Invoicing Requirements | |
| 4 | Nominated Representatives | |
| 5 | Leveraging Tesla Brand Marketing |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 18 |
Confidential Treatment Requested by Tesla Motors, Inc.
Attachment 1
List of Items, Pricing Mechanism, and Lead Times
Item: Lithium Ion Cells, Part Number: [***]
Contract Prices: Either (I) US$[***] per Item delivered to the FOB Point; (ii) US$[***] per Item delivered to the DDP Point provided that the shipping container is completely full with Items; or (iii) US$[***] per Item delivered by air to the DDP Point. The foregoing Contract Prices are conditioned upon Tesla meeting the minimum purchase expectations below. If Tesla does not meet such expectation or other circumstances change, Panasonic may change the foregoing Contract Prices. The foregoing Contract Prices shall be valid from the Effective Date to [***]. The foregoing Contract Prices are not for customized Items but are for Items that conform to Panasonic’s standard specifications.
Refrigerator Containers: If Tesla requests Panasonic to ship Items via a refrigerated container, Tesla acknowledges and agrees that the refrigerated container must be completely full with Items.
Minimum Purchase Expectations: Tesla expects to purchase at least [***] Items during the period from Effective Date to [***]. Tesla expects to purchase at least [***] Items during the period from [***]. Tesla will use commercially reasonable efforts to purchase such amounts of Items.
Lead-time: [***] after receipt of order (as set forth in Section 3(a)).
Additional Items and associated prices, price adjustments, minimum purchase commitments and lead times may be added to this Attachment 1 from time to time upon the mutual agreement of Tesla and Panasonic.
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 19 |
Confidential Treatment Requested by Tesla Motors, Inc.
Attachment 2
Transportation, Packaging and Labeling Specification
Transportation, Packaging and Labeling Specification shall be mutually agreed upon by Tesla and Panasonic and shall be made a part of and attached to this Agreement as Attachment 2 upon such mutual agreement.
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 20 |
Confidential Treatment Requested by Tesla Motors, Inc.
Attachment 3
Invoicing Requirements
| 1 | All invoices shall be sent to the attention of Tesla’s assigned buyer who issued the Order. |
| 2 | All invoices shall include the following: |
| (a) | Date of Invoice, |
| (b) | Ship To Designee, |
| (c) | Ship To Address, |
| (d) | Xxxx To: Tesla Motors, Inc. |
| (e) | Xxxx To Address: 0000 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxx, 00000, U.S. A. |
| (f) | Tesla Buyer Name |
| (g) | Purchase Order Number, |
| (h) | Item Number(s), |
| (i) | item Description(s), which is/are consistent with all other commercial invoices and documents, |
| (j) | Ship To Quantity, |
| (k) | Ship To Date(s) or Collection Date(s), |
| (l) | Costs (Items only), |
| (m) | Shipping & Handling (only if applicable), |
| (n) | Tax & Duty (only if applicable), |
| (o) | Payment Term (“[***]”), and |
| (p) | INCOTERM (only if applicable). |
| 3 | All drop-ship related invoices (for example, those for overseas shipment for ASO) shall include the following additional information: |
| (a) | Harmonized Tariff Schedule (“HIS”) Codes, |
| (b) | Number of Cartons or Crates Shipped, |
| (c) | Weight of Cartons or Crates Shipped, |
| (d) | A Copy of Weigh Xxxx Information per carrier, |
| (e) | Any Special Information Specified in the Order, and |
| (f) | Value of Rejected Part(s), only if Applicable. |
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 21 |
Confidential Treatment Requested by Tesla Motors, Inc.
Attachment 4
Nominated Representatives
| 1 | The following listed names are the nominated representatives by Panasonic and Tesla, who shall be authorized to make decisions relating to the Items and who shall be responsible for organizing all meetings and actions provided for in this Agreement, |
| 2 | Any notice, consent or approval required or permitted under this Agreement shall be sent to in writing to the following representatives: |
| (a) | Notices to Tesla: |
Xxxxxx Xxxxxx
Tesla Motors, Inc.
0000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Fax: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
| (b) | Notices to Panasonic: |
Xxx Xxxx
Director Battery Sales Group
Panasonic Industrial Company, Division of
Panasonic Corporation of North America
5201 Tollview Drive, EIF-3
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxx@xx.xxxxxxxxx.xxx
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 22 |
Confidential Treatment Requested by Tesla Motors, Inc.
Attachment 5
Leveraging Tesla Brand Marketing
1. Definitions: In this Attachment 5, the following capitalized terms shall have the meanings specified below.
(a) “Tesla Marketing Materials” means all marketing materials that promote Tesla’s
(b) products and vehicles that include, but are not limited to: (A) Tesla’s trademarks, service marks, photographs, or images in promotional, advertising, instructional, or reference materials, or on its web sites, products, labels, or packaging; (B) marketing merchandise, props, posters, banners, toys, gifts, mugs, etc.; (C) links to or from Tesla’s web sites to various third party sites, including Suppliers; and (D) display or demonstration of Tesla vehicles, sub-systems, parts, models, or replicas in show rooms, conventions, or marketing events.
2. Reasonable guidelines shall be provided by Tesla in the event that Supplier wishes to use Tesla Marketing Materials.
3. The goodwill derived from using any part of a Tesla trademark exclusively inures to the benefit of and belongs to Tesla. Except for the limited right to use as expressly permitted under these Guidelines, no other rights of any kind are granted hereunder, by implication or otherwise.
4. Authorized Use of Tesla Trademarks.
(a) Advertising, Promotional, and Sales Materials. Only Tesla and its authorized licensees may use the Tesla Marketing Materials in advertising, promotional, and sales materials. Supplier may use the Tesla Marketing Materials only as specified in this Attachment
(b) Word xxxx. Supplier may use Tesla word xxxx in a referential phrase on promotional/advertising materials, provided they comply with the following requirements.
(i) The Tesla word xxxx is not part of the product name.
(ii) The Tesla word xxxx appears less prominent than the product name.
(iii) The reference to Tesla does not create a sense of endorsement, sponsorship, or false association with Tesla or Tesla products or services.
(iv) The use does not show Tesla or its products in a false or derogatory light.
(c) Publications, Seminars, and Conferences. Supplier may use a Tesla word xxxx in connection with book titles, magazines, periodicals, seminars, or conferences provided Supplier comply with the following requirements:
(i) The use is referential and less prominent than the rest of the title.
(ii) The use reflects favorably on both Tesla and Tesla products or technology.
(iii) Supplier’s name and logo appear more prominent than the Tesla word xxxx on all printed materials related to the publication, seminar or conference.
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 23 |
Confidential Treatment Requested by Tesla Motors, Inc.
(iv) The Tesla Marketing Materials or any other Tesla-owned graphic symbol, logo, icon or image does not appear on or in the publication or on any materials related to the publication, seminar, or conference without express written permission from Tesla.
(v) A disclaimer of sponsorship, affiliation, or endorsement by Tesla, similar to the following, is included on the publication and on all related printed materials; “(Title) is an independent (publication) and has not been authorized, sponsored, or otherwise approved by Tesla Motors, Inc.”
(vi) A trademark attribution notice is included in the credit section giving notice of Tesla’s ownership of its trademark(s).
(d) Web Sites. Web sites may use the appropriate Tesla word xxxx, provided such use complies with the guidelines set forth in Sections 7(a) to (c) above,
5. Unauthorized Use of Tesla Trademarks.
(a) Supplier shall not use or register, in whole or in part, Tesla trademark, including Tesla-owned graphic symbols, logos, icons, or an alteration thereof, as or as part of a company name, trade name, product name, or service name except as specifically noted in these guidelines.
(b) Supplier shall not use the Tesla Marketing Materials or any other Tesla-owned graphic symbol, logo, or icon on or in connection with web sites, products, packaging, manuals, promotional/advertising materials, or for any other purpose except pursuant to an express written trademark license from Tesla.
(c) Supplier shall not use an image of other variation of the Tesla Marketing Materials for any purpose. Third parties cannot use a variation, phonetic equivalent, foreign language equivalent, takeoff, or abbreviation of a Tesla trademark for any purpose.
(d) Supplier shall not use a Tesla trademark or any other Tesla-owned graphic symbol, logo, or icon in a disparaging manner.
(e) Supplier shall not use a Tesla trademark, including Tesla-owned graphic symbols/logos, or icons, in a manner that would imply Tesla’s affiliation with or endorsement, sponsorship, or support of a third party product or service.
(f) Supplier shall not manufacture, sell or give away merchandise items, such as T-shirts and mugs, bearing Tesla trademark, including symbols, logos, or icons, except pursuant to an express written trademark license from Tesla.
(g) Supplier shall not imitate the distinctive Tesla packaging, web site design, logos, or typefaces.
(h) Supplier shall not use or imitate a Tesla’s slogan or tagline,
(i) Supplier shall not use an identical or virtually identical Tesla trademark as a second level domain name.
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 24 |
Confidential Treatment Requested by Tesla Motors, Inc.
6. Proper Use of Tesla Trademarks.
(a) Trademarks are adjectives used to modify nouns; the noun is the generic name of a product or service, Trademarks may not be used in the plural or possessive form.
(b) Spell and capitalize Tesla’s trademarks exactly as intended by Tesla. No shortened or abbreviated Tesla product names or made-up names that contain Tesla trademarks shall be allowed.
| [***] | Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
| 25 |