Tesla 2012 Annual Report Download - page 179

Confidential Treatment Requested by Tesla Motors, Inc.
13
assets, provided such successor in interest is an automotive OEM. Either PIC or PEC may assign this Agreement without the prior
written consent of Tesla to an affiliate or to a successor in interest in connection with a sale of all of its issued and outstanding shares
of capital stock or all or substantially all of its assets. If either Party assigns or transfers this Agreement, any right or obligation
hereunder to any third party or parties with or without the prior written consent of the other Party as set forth above, such Party which
attempts such assignment shall make such assignee agree to succeed to and comply with all terms set forth herein. This Agreement
shall be binding upon the parties
’
successors and permitted assigns.
b) Waiver
. If either Party fails to insist on performance of any term or condition, or fails to exercise any right or privilege hereunder,
such failure shall not constitute a waiver of such term, condition, right or privilege.
c)
Survival of Obligations
. Termination or expiration of this Agreement will not relieve either Party of its obligations under Sections 8
(c), 9, 10(a), 11, 12, 13(c), 15(g), 15(i), 15(o) and this Section 15(c).
d)
Severability
. Any provision of this Agreement that is held unenforceable or invalid for any reason by a court of competent
jurisdiction shall be reformed to reflect the true intent of the Parties, and the remainder of the Agreement shall continue in effect.
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.
f) Enforceability
. The invalidity or unenforceability of any term or condition of this Agreement pursuant to any applicable law shall
not affect the validity or enforceability of the remaining provisions hereof, but this Agreement shall be construed as if not containing
the provision held invalid or unenforceable in the jurisdiction in which so held unless, in the reasonable opinion of either Party
hereto, such invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from the remainder of, this
Agreement, in which case this Agreement, in such jurisdiction, shall immediately terminate and be of no further force and effect.
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.
[***]
Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been
requested with respect to the omitted portions.