Exhibit 10.21


 


Amended and Restated


 


Equipment and Services Purchase Agreement


 


by and between


 


Fluence Energy, LLC


 


as Buyer


 


and


 


Siemens Industry, Inc.


 


as Supplier


 


dated
[●], 2021


 






     


     


    

 


Table of Contents


 


Page


 


	1.	DEFINITIONS; INTERPRETATION	1
	 	1.1.	 	Definitions	1
	 	1.2.	 	Interpretation	7
	2.	TERM AND TERMINATION OF AGREEMENT	8
	 	2.1.	 	Term	8
	 	2.2.	 	Early Termination	8
	3.	SCOPE OF AGREEMENT	8
	 	3.1.	 	Scope Generally	8
	 	3.2.	 	Further Buyer Contracting Parties	9
	 	3.3.	 	Cooperation	9
	 	3.4.	 	Interfaces	9
	4.	ORDERS	9
	 	4.1.	 	Pricing Requests	9
	 	4.2.	 	Purchase Orders	10
	 	4.3.	 	Most Favored Nation Pricing	10
	 	4.4.	 	Payment Terms	10
	 	4.5.	 	Disputed Payments	11
	 	4.6.	 	Late Payments	11
	 	4.7.	 	Taxes; Export and Import Duties	11
	5.	DELIVERY	11
	 	5.1.	 	Delivery Terms; Inspection	11
	 	5.2.	 	Guaranteed Delivery Date	11
	 	5.3.	 	Delay Liquidated Damages	12
	6.	TITLE, RISK OF LOSS AND CARE, CUSTODY AND CONTROL	12
	 	6.1.	 	Transfer of Title and Risk of Loss	12
	 	6.2.	 	Warranty of Title	12
	7.	INSPECTION AND QUALITY CONTROL.	12
	 	7.1.	 	Inspection Rights	12
	 	7.2.	 	Quality Control	13
	8.	WARRANTIES	13
	 	8.1.	 	Equipment Warranty	13
	 	8.2.	 	Services Warranty	13
	 	8.3.	 	Notification Requirements	13
	 	8.4.	 	Corrective Action	13
	 	8.5.	 	Warranty Exclusions	14
	 	8.6.	 	NO IMPLIED WARRANTIES	14
	 	8.7.	 	Reserved Rights	14
	9.	BUYER FURNISHED PROPERTY	15
	10.	PACKAGING	15
	11.	FORCE MAJEURE	15
	 	11.1.	 	Effect of Force Majeure	15
	 	11.2.	 	Procedures	15
	 	11.3.	 	Termination for Extended Force Majeure	16
	12.	CHANGE ORDERS	16
	 	12.1.	 	Change Order	16
	 	12.2.	 	Change Order Process	16
	 	12.3.	 	Change Order Restrictions	17
	 	12.4.	 	No Change	17



 






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	13.	INTELLECTUAL PROPERTY	17
	 	13.1.	 	Grant of License	17
	 	13.2.	 	No Copies	17
	 	13.3.	 	Proprietary Notices	18
	 	13.4.	 	Security	18
	 	13.5.	 	No Reverse Engineering	18
	 	13.6.	 	Open Source Software	18
	 	13.7.	 	Reporting	18
	 	13.8.	 	Relief	18
	 	13.9.	 	Improvements	18
	 	13.10.	 	Ownership	19
	 	13.11.	 	Enforcement	20
	 	13.12.	 	Duration and Transfers	20
	 	13.13.	 	Government End Users	21
	 	13.14.	 	Reservation of Rights	21
	14.	DEFAULTS AND REMEDIES.	21
	 	14.1.	 	Supplier Defaults	21
	 	14.2.	 	Buyer Defaults	21
	 	14.3.	 	Remedies	22
	15.	INDEMNIFICATION	22
	 	15.1.	 	General	22
	 	15.2.	 	Infringement Indemnification by Supplier	23
	 	15.3.	 	Infringement Indemnification by Buyer	24
	 	15.4.	 	Indemnification Procedures	25
	 	15.5.	 	Limited Waiver of Certain Immunities	25
	 	15.6.	 	Survival	26
	16.	LIMITATIONS OF LIABILITY	26
	 	16.1.	 	WAIVER OF CERTAIN DAMAGES	26
	 	16.2.	 	MAXIMUM LIABILITY	26
	 	16.3.	 	EFFECTIVENESS	26
	 	16.4.	 	Commencement of Claims	26
	17.	CONFIDENTIALITY.	27
	 	17.1.	 	Confidential Information	27
	 	17.2.	 	Non-Disclosure	27
	 	17.3.	 	Exceptions	27
	 	17.4.	 	Representatives Bound	27
	 	17.5.	 	Survival	27
	18.	REPRESENTATIONS AND WARRANTIES	28
	 	18.1.	 	Representations of the Parties	28
	 	18.2.	 	Additional Representations of Supplier	28
	19.	ENVIRONMENT, HEALTH AND SAFETY	29
	 	19.1.	 	Compliance and Related Matters	29
	 	19.2.	 	On-Site Environmental and Safety Responsibility	30
	 	19.3.	 	Health and Safety Plan	30
	20.	OPEN SOURCE SOFTWARE.	31
	21.	EXPORT CONTROL AND FOREIGN TRADE REGULATIONS	31
	 	21.1.	 	Acknowledgement and Compliance	31
	 	21.2.	 	Export Licenses	31
	 	21.3.	 	Provision of Trade Data	31
	 	21.4.	 	Changes	32
	 	21.5.	 	Additional Buyer’s Obligations	32
	 	21.6.	 	Certain Relief	32



 






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	22.	CODE OF CONDUCT	32
	23.	COMPLIANCE WITH LAWS AND PERMITS	32
	24.	DISPUTE RESOLUTION	33
	 	24.1.	 	Referral to Senior Management	33
	 	24.2.	 	Referral to Arbitration	33
	 	24.3.	 	Neutral Arbitrators	33
	 	24.4.	 	Procedures and Costs	33
	 	24.5.	 	Award	34
	 	24.6.	 	Confidentiality	34
	 	24.7.	 	Continued Performance; Provisional Remedies	34
	 	24.8.	 	Waiver of Jury Trial	34
	25.	MISCELLANEOUS	34
	 	25.1.	 	Governing Law	34
	 	25.2.	 	Records	34
	 	25.3.	 	Intentionally Omitted	35
	 	25.4.	 	Insurance	35
	 	25.5.	 	Assignment; Successors	35
	 	25.6.	 	Subcontracting	35
	 	25.7.	 	Other Terms and Amendments	35
	 	25.8.	 	Government Contracts	35
	 	25.9.	 	Relationship of the Parties	35
	 	25.10.	 	Publicity	35
	 	25.11.	 	Non-Exclusive Remedies and Non-Waivers	36
	 	25.12.	 	Severability	36
	 	25.13.	 	Survival	36
	 	25.14.	 	Affirmative Action	36
	 	25.15.	 	Complete Agreement and Counterparts	36
	 	25.16.	 	Counterparts	36
	 	25.17.	 	No Pre-Printed Terms	36
	 	25.18.	 	Priority	37
	 	25.19.	 	Notices	37
	 	25.20.	 	Joint Effort	38
	 	25.21.	 	Language of the Agreement, Correspondence, Documentation	38



 


Exhibits


 


	Exhibit A	Form of Purchase Order
	Exhibit B	Form of Joinder Agreement
	Exhibit C	Substance Declaration
	Exhibit D	Code of Conduct
	Exhibit E	Insurance
	Exhibit F	Affirmative Action




 


Attachment A Description of Supplier’s Equipment and Services


 






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THIS
AMENDED AND RESTATED EQUIPMENT AND SERVICES PURCHASE AGREEMENT (this “Agreement”) is made and entered into
on [●], 2021, between Siemens Industry, Inc., whose
principal place of business is at 100 Technology Drive, Alpharetta, Georgia 30005 hereinafter referred to as “Supplier”
and Fluence Energy, LLC, whose principal place of business is 4601 N. Fairfax Drive, Suite 600, Arlington, Virginia 22203
hereinafter referred to as “Buyer”. Each of Supplier and Buyer are referred to herein as a “Party”
and collectively are referred to herein as the “Parties.”


 


WHEREAS, Buyer sells electrical storage solutions
to Customers;


 


WHEREAS, Supplier sells electrical balance of
plant equipment and related services which Buyer may want to purchase to incorporate within its energy storage equipment and related
services projects;


 


WHEREAS, Supplier wishes to cooperate with Buyer
in order to fulfill Buyer’s requirements and provide preferred purchasing conditions to Buyer for those electrical balance of plant
equipment and related services;


 


WHEREAS, Supplier and Buyer are parties to that
certain Equipment and Services Purchase Agreement, dated as of January 1, 2018, by and between Supplier and Buyer (the “Prior
Agreement”); and


 


WHEREAS, Supplier is party to the Second Amended
and Restated Limited Liability Company Agreement of Buyer, dated as of June 9, 2021(the “LLC Agreement”);


 


WHEREAS, Supplier, Buyer and certain other parties
are entering into a series of transactions in connection with the formation of Fluence Energy, Inc., a Delaware corporation (“Issuer”)
to serve as the vehicle through which the public will own indirect interests in Buyer through an initial public offering; and


 


WHEREAS, in connection with the closing of initial
public offering, the LLC Agreement is being amended and restated in its entirety by the Third Amended and Restated Limited Liability
Company Agreement, dated on or about the date hereof (the “Restated LLC Agreement”), to, among other things, reflect
Issuer’s ownership of Supplier and the restructuring of Supplier and its Affiliates.


 


NOW, THEREFORE, the Parties agree that on the
Effective Date, the Prior Agreement is hereby amended and restated in its entirety by this Agreement, and further agree as follows:


 


		1.	DEFINITIONS;
                                            INTERPRETATION.



 


		1.1.	Definitions.
                                            Initially-capitalized terms used in this Agreement (including the preamble and Recitals hereto)
                                            and not otherwise defined herein shall have the meanings specified below.



 


“Affiliate” means,
at any time, and with respect to any Person or group of Persons, a Person that at such time directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common Control with such Person or group of Persons. No Person shall be considered
an Affiliate of another Person or under the Control of such other Person so long as (i) it is owned less than 50% by such other
Person, (ii) such other Person has no capacity to elect or appoint the majority of the board of directors or similar governing body
of the subject Person, (iii) such other Person does not consolidate the subject Person in its financial reporting and (iv) there
is no other management or services agreement pursuant to which such other Person exerts control over the subject Person. With respect
to Supplier, none of Gamesa Corporación Technológica S.A., Siemens Healthineers AG nor any of their respective Subsidiaries
shall be considered an Affiliate of Supplier.


 






    


     


    

 


“Agreement” has
the meaning set forth in the Preamble hereto.


 


“Applicable Law”
means any applicable constitutional provision, statute, act, code, law, regulation, rule, ordinance, order, decree, ruling, proclamation,
resolution, judgment, decision or declaration of a Governmental Authority having valid jurisdiction.


 


“Business Day” means
any day except a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.


 


“Buyer” has the
meaning set forth in the Preamble hereto.


 


“Buyer Event of Default”
has the meaning set forth in Section 14.2.


 


“Buyer Furnished Property”
has the meaning set forth in Article 9.


 


“Change Order” has
the meaning set forth in Section 12.1.


 


“Change Order Information”
has the meaning set forth in Section 12.2.


 


“Claims” has the
meaning set forth in Section 15.1.


 


“Confidential Information”
has the meaning set forth in Section 17.1.


 


“Control” means,
with respect to the relationship between two or more Persons, the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through ownership of voting securities, as trustee or executor, by
contract or otherwise. The terms “Controlled” or “under common Control with” have correlative meanings.


 


“Defect” means any
material defect in design, manufacturing, materials or workmanship in or to the Equipment, or any failure of the Equipment to materially
comply with the Technical Specifications, excluding in all cases any of the foregoing attributable to or caused by ordinary wear and
tear of the Warranted Equipment.


 


“Deliver”, “Delivered”
or “Delivery” means that Supplier has caused the delivery of the applicable Equipment to the Delivery Point in accordance
with the terms of this Agreement.


 


“Delivery Point”
means the delivery location set forth in a Pricing Notice, provided that, if no such location is specified in the applicable Pricing
Notice, the Delivery Point for the Equipment shall be the location of Supplier’s facility.


 


“Derivative Software”
has the meaning set forth in Article 20.


 


“EAR” has the meaning
set forth in Section 21.1.


 






    	 	2	 



     


    

 


“Effective Date”
shall have the meaning assigned to such term in Section 2.1.


 


“EHS Laws” has the
meaning set forth in Section 19.1.


 


“Enforcement Action”
has the meaning set forth in Section 13.11.


 


“Equipment” means
any electrical balance of plant equipment offered by Supplier pursuant to this Agreement, as set forth in Attachment A.


 


“Equipment Warranty”
has the meaning set forth in Section 8.1.


 


“Equipment Warranty Period”
has the meaning set forth in Section 8.1.


 


“Export Controls and Sanctions
Laws” has the meaning set forth in Section 21.1.


 


“Force Majeure”
means any event which is not within the reasonable control of the Party affected and with the exercise of due diligence could not reasonably
be prevented, avoided or removed by such Party, which causes the affected Party to be delayed, in whole or in part, or unable, using
commercially reasonable efforts, to partially or wholly perform its obligations under this Agreement (other than an obligation for the
payment of money) and is not caused by or resulting from the negligence or breach or failure of such Party to perform its obligations
under this Agreement, which, subject to the foregoing, may include: acts of God or the public enemy, natural disasters, war, terrorism,
insurrection, sabotage, unavoidable accidents, orders, decrees, rulings and policies of any Governmental Authority, fires, floods, earthquakes,
volcanic activity, severe weather conditions not reasonably foreseeable taking into account the location of performance and the climate
patterns applicable thereto, explosions, riots, general strikes and area lockouts. Force Majeure shall not include a Party’s financial
inability to perform under this Agreement or any Purchase Order.


 


“Further Buyer Contracting
Parties” has the meaning set forth in Section 3.2.


 


“Governmental Authority”
means a federal, state, local or foreign governmental authority (including any regulatory authority); a state, province, commonwealth,
territory or district thereof; a county; a city, town, township, or other municipality; a district, ward or other subdivision of any
of the foregoing; any executive, legislative or other governing body of any of the foregoing; any agency, authority, board, department,
system, service, office, commission, committee, council or other administrative body of any of the foregoing; any court or other judicial
body; and any officer, official or other representative of any of the foregoing.


 


“Guaranteed Delivery Date”
has the meaning set forth in Section 5.2.


 


“Hazardous Materials”
has the meaning set forth in Section 19.1.


 


“Indemnified Party”
has the meaning set forth in Section 15.1.


 


“Indemnifying Party”
has the meaning set forth in Section 15.1.


 






    	 	3	 



     


    

 


“Infringement Claim Costs”
means any and all judgments, damages, fines, awards, penalties, and interest associated with any of the foregoing, that, in each case,
are finally awarded in a claim for which an Indemnifying Party is obligated to indemnify an Indemnified Party under Section 15.2
or 15.3, as applicable, and costs and expenses, including reasonable attorneys’ fees, court costs and other reasonable costs of
suit, arbitration, dispute resolution or other similar proceedings, associated with such claim.


 


“Initial Term” has
the meaning set forth in Section 2.1.


 


“Intellectual Property”
means United States and foreign: (a) Patents; (b) Trademarks; (c) copyrights, whether registered or unregistered, and
all applications and registrations therefor, web sites, proprietary domain names, mask works, and all applications and registrations
therefor; (d) Know-How; (e) Software; and (f) similar or other intellectual property rights, subject matter of any of
the foregoing, tangible embodiments of any of the foregoing, licenses in, to and under any of the foregoing.


 


“Know-How” means
all proprietary and confidential information and data (irrespective as to whether such information or data is available by way of documentation,
orally or in electronic format, or protected by copyrights), including business and trade secrets, technical and business information
and data, know-how and similar proprietary rights in confidential information and processes, discoveries, analytic models, improvements,
techniques, devices, methods, patterns, formulations and specifications, all to the extent that such information and data are proprietary
and confidential and neither Software nor a Patent.


 


“License” has the
meaning set forth in Section 13.1.


 


“Licensed Technology”
means, collectively, all of the following to the extent owned by, or licensed (with the right to grant sublicenses) to, Supplier, relating
to the Equipment or the uses and purposes contemplated in connection with this Agreement or any Purchase Order issued hereunder for such
Equipment: (a) Software embedded in or integrated with the Equipment, (b) any other trade secrets, proprietary information,
know-how or other Intellectual Property incorporated into or embedded within the Equipment or necessary for the installation, operation,
maintenance, and ownership of the Equipment, (c) any improvements of or updates to any of the foregoing provided to Buyer pursuant
to this Agreement, if any, and (d) all Intellectual Property rights of Supplier in the Licensed Technology listed in any of clauses
(a) through (d) above, in each case, for use solely in connection with the installation, commissioning, operation and maintenance
of the Equipment at the Project Site or such other site as Buyer shall elect.


 


“LLC Agreement”
has the meaning set forth in the Recitals hereto.


 


“OFAC” means the
Office of Foreign Assets Control of the U.S. Department of the Treasury.


 


“Open License Terms”
has the meaning set forth in Article 20.


 


“Open Source Software”
has the meaning set forth in Article 20.


 


“Party” has the
meaning set forth in the Preamble hereto.


 


“Parties” has the
meaning set forth in the Preamble hereto.


 






    	 	4	 



     


    

 


“Patents” means
all patents, utility models, patent and utility model applications, and all priorities and rights related thereto, including all reissues,
reexaminations, divisions, continuations, continuations-in-part, provisionals, continued prosecution applications, substitutions, extensions,
additions or renewals of any of the foregoing.


 


“Person” means any
natural person, corporation, partnership, joint venture, trust, estate, unincorporated association, limited liability company or any
other entity (whether or not having separate legal personality), and shall include any successor (by merger or otherwise) of such entity.


 


“Pricing Notice”
has the meaning set forth in Section 4.1.


 


“Pricing Request”
has the meaning set forth in Section 4.1.


 


“Prohibited Person”
means (i) any individual or entity that has been determined by competent authority to be the subject of a prohibition in any law,
regulation, rule, or executive order administered by OFAC or the U.S. Department of State; (ii) the government, including any political
subdivision, agency or instrumentality thereof, of a Sanctioned Country; (iii) any individual or entity that acts on behalf of or
is owned or controlled by the government of a Sanctioned Country; (iv) any individual or entity that has been identified on the
OFAC Specially Designated Nationals and Blocked Persons List (Appendix A to 31 C.F.R. Ch. V) or any other similar list published by OFAC,
including, but not limited to, the Foreign Sanctions Evaders List, the Part 561 List, and the Non SDN Iranian Sanctions List; (v) any
individual or entity that has been designated on any similar list or order published by the United States government, including, without
limitation, the Denied Persons List, Entity List, or Unverified List of the U.S. Department of Commerce, or the Debarred List or Nonproliferation
Sanctions List of the U.S. Department of State; or (vi) any entity beneficially owned or controlled, directly or indirectly, by,
any of the individuals or entities listed in subparagraphs (i)-(v) above.


 


“Prudent Industry Practices”
means those practices, methods, specifications and standards of safety, performance, dependability, efficiency and economy generally
recognized by electrical utility industry members, including Supplier, in the U.S. as good and proper, and such other practices, methods
or acts which, in the exercise of reasonable judgment by those reasonably experienced in the industry in light of the facts known at
the time a decision is made, would be expected to accomplish the result intended at a reasonable cost and consistent with Applicable
Laws, reliability, safety and expedition. Prudent Industry Practices are not intended to be limited to the optimum practices, methods
or acts to the exclusion of all others, but rather to be a spectrum of good and proper practices, methods and acts.


 


“Purchase Order”
means a purchase order in the form attached hereto as Exhibit A issued for the purchase of Equipment and Services pursuant to and
in accordance with the terms and conditions of this Agreement.


 


“Representatives”
means, with respect to any Person, such Person’s shareholders, members, officers, directors, employees, accountants, consultants,
legal counsel, financial advisors and other representatives and agents.


 






    	 	5	 



     


    

 


“Sanctioned Country”
means any country or territory against which the United States maintains comprehensive economic sanctions or embargoes, including, without
limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria.


 


“Services” means
any Equipment related services offered for sale by Supplier pursuant to this Agreement, as set forth in Attachment A.


 


“Services Warranty”
has the meaning set forth in Section 8.2.


 


“Services Warranty Period”
has the meaning set forth in Section 8.2.


 


“Software” means
all computer programs, operating systems, applications, systems, firmware, and software of any nature, whether operational, active, under
development, or design, non-operational or inactive, including all object code, source code, comment code, algorithms, processes, formulae,
interfaces, navigational devices, menu structures or arrangements, icons, operational instructions, scripts, commands, syntax, screen
designs, reports, designs, concepts, visual expressions, technical manuals, test scripts, user manuals, and other documentation therefore,
whether in machine-readable form, programming language, or any other language or symbols, and whether stored, encoded, recorded, or written
on disk, tape, film, memory device, paper, or other media of any nature and all databases necessary or appropriate to operate any such
computer program, operating system, applications system, firmware, or software.


 


“Subsidiary” means,
with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (a) if
a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a limited liability company,
partnership, association or other business entity (other than a corporation), a majority of partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company,
partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority
of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing member,
general partner or analogous controlling Person of such limited liability company, partnership, association or other business entity.
For purposes hereof, references to a “Subsidiary” of any Person shall be given effect only at such times that such Person
has one or more Subsidiaries.


 


“Supplier” has the
meaning set forth in the Preamble hereto.


 


“Supplier Documents”
means the documents and deliverables to be provided by Supplier to Buyer to the extent reasonably required for the installation, commissioning,
operation and maintenance of the Equipment, as more fully set forth in the applicable Purchase Order.


 


“Supplier Event of Default”
has the meaning set forth in Section 14.1.


 






    	 	6	 



     


    

 


“Taxes” means any
and all forms of taxation, charges, duties, imposts, levies and rates whenever imposed by any Governmental Authority, including income
tax, withholding tax, corporation tax, capital gains tax, capital transfer tax, sales tax, business and occupation tax, inheritance tax,
water rates, value added tax, customs duties, capital duty, excise duties, betterment levy, stamp duty, stamp duty reserve tax, national
insurance, social security or other similar contributions, and generally any tax, duty, impost, levy, rate or other amount and any interest,
penalty or fine in connection therewith.


 


“Technical Specifications”
means the technical specifications for the Equipment as set forth in the applicable Purchase Order.


 


“Term” has the meaning
set forth in Section 2.1.


 


“Territory” means
(i) for purposes of the sales and marketing by Buyer of the Equipment, worldwide and (ii) for all other use of the Equipment,
the country in which the Equipment is installed for use.


 


“Trademarks” means
all trademarks, trademark applications, service marks, service mark applications, trade dress, trade names, identifying symbols, words,
colors, designs, product names, company names, slogans, logos or insignia, whether registered or unregistered, and all applications and
registrations therefor, and all goodwill associated therewith.


 


“TSCA” has the meaning
set forth in Section 19.1.


 


“Work Site” has
the meaning set forth in Section 19.2.


 


		1.2.	Interpretation.



 


		(a)	References
                                            to Recitals, Articles, Sections, Exhibits, Annexes and Attachments are, unless otherwise
                                            indicated, to Recitals, Articles, Sections, Exhibits, Annexes and Attachments to this Agreement.
                                            All Exhibits, Annexes and Attachments to this Agreement are incorporated herein by this reference
                                            and made a part hereof for all purposes.



 


		(b)	As
                                            used in this Agreement, the masculine gender shall include the feminine and neuter and the
                                            singular number shall include the plural, and vice versa.



 


		(c)	Unless
                                            expressly stated otherwise, references to a Person include its successors and permitted assigns
                                            and, in the case of a Governmental Authority, any Person succeeding to its functions and
                                            capacities.



 


		(d)	As
                                            used in this Agreement, references to “days” shall mean calendar days, unless
                                            the term “Business Days” is used. If the term “Business Days” is
                                            used and the time for performing an obligation under this Agreement expires on a day that
                                            is not a Business Day, the time shall be extended until that time on the next Business Day.



 


		(e)	As
                                            used in this Agreement, where a word or phrase is specifically defined, other grammatical
                                            forms of such word or phrase have corresponding meanings; the words “herein,”
                                            “hereunder” and “hereof” refer to this Agreement, taken as a whole,
                                            and not to any particular provision of this Agreement; “including” means “including,
                                            for example and without limitation,” and other forms of the verb “to include”
                                            are to be interpreted similarly.



 






    	 	7	 



     


    

 


		(f)	As
                                            used in this Agreement, all references to a given agreement, instrument or other document
                                            shall be a reference to that agreement, instrument or other document as modified, amended,
                                            supplemented and restated through the date as of which such reference is made. Any term defined
                                            or provision incorporated in this Agreement by reference to another document, instrument
                                            or agreement shall continue to have the meaning or effect ascribed thereto whether or not
                                            such other document, instrument or agreement is in effect.



 


		2.	TERM
                                            AND TERMINATION OF AGREEMENT.



 


		2.1.	Term.
                                            This Agreement shall become effective and the term shall commence on the day on which the
                                            Class A Common Stock of the Issuer is issued to the underwriters in its initial public
                                            offering (the “Effective Date”); provided, that if the Effective Date
                                            does not occur on or prior to December 31, 2021, this Agreement shall be deemed terminated
                                            as of such date and of no force or effect without further notice or action by the Parties,
                                            and the Prior Agreement shall remain in full force and effect without any amendment thereto.
                                            The term of this Agreement shall continue until the fourth (4th) anniversary of
                                            the Effective Date (the “Initial Term”) and thereafter shall be automatically
                                            extended in successive one (1) year increments (the Initial Term together with any such
                                            extensions, the “Term”).



 


		2.2.	Early
                                            Termination. Either Party may terminate this Agreement effective upon the expiration
                                            of the Initial Term or the expiration of any extension thereof upon not less than six (6) months
                                            prior written notice of termination furnished to the other Party. No termination of this
                                            Agreement pursuant to this Section 2.2 shall affect any Purchase Orders executed between
                                            the Parties prior to the date of termination. If this Agreement is terminated pursuant to
                                            this Section 2.2, the Parties shall attempt, in fair dealing and good faith, to agree
                                            on reasonable post-termination procedures in compliance with applicable law and antitrust
                                            requirements.



 


		3.	SCOPE
                                            OF AGREEMENT.



 


		3.1.	Scope
                                            Generally. This Agreement shall apply to all purchases by Buyer from Supplier of Equipment
                                            and Services during the Term. Notwithstanding the foregoing, nothing herein shall be construed
                                            to mean that either Buyer or Supplier is committing to any specific level of business or
                                            quantity of Equipment and Services to be purchased or supplied other than that specified
                                            in Purchase Orders issued to Supplier during the Term of this Agreement by Buyer; provided,
                                            however, Buyer shall consider Equipment and Services from Supplier when sourcing Equipment
                                            and Services available from Supplier hereunder as long as the “most favored nation”
                                            pricing described in Section 4.3 remains in effect. Attachment A hereto sets
                                            forth the various standard Equipment and Services offerings of Supplier, it being understood
                                            that any project-specific requirements associated with any particular order hereunder shall
                                            be as set forth in the applicable Purchase Order therefor. Supplier may from time to time
                                            update the Equipment and Services offered for sale hereunder by furnishing to Buyer an update
                                            to Attachment A hereto, it being agreed that no such update shall affect any previously issued
                                            Purchase Order unless and to the extent set forth in a Change Order thereto.



 






    	 	8	 



     


    

 


		3.2.	Further
                                            Buyer Contracting Parties. Buyer and its Subsidiary companies (hereinafter referred to
                                            as “Further Buyer Contracting Parties”) shall be entitled to conclude
                                            individual Purchase Orders under the terms of this Agreement provided that such Further Buyer
                                            Contracting Parties either: (a) execute a joinder agreement acceptable to Supplier and
                                            otherwise in the form of Exhibit B hereto; or (b) agree that that the terms of
                                            this Agreement will govern the subject transaction by including a conspicuous cross-reference
                                            in the applicable Purchase Order which confirms that the Terms of the Equipment and Services
                                            Purchase Agreement will apply to the Purchase Order.



 


		3.3.	Cooperation.
                                            The Parties agree to jointly review opportunities to optimize Equipment, Services and Software
                                            for inclusion in the Equipment and Services (as such terms are defined in the Storage Core
                                            Frame Purchase Agreement entered into by Buyer and Supplier).



 


		3.4.	Interfaces.
                                            In order to implement Section 3.3, the Parties shall nominate permanent contact
                                            persons on both sides to act as liaison for effective cooperation and communication between
                                            Supplier and Buyer. These contact persons shall schedule regular meetings. These contact
                                            persons include, but are not limited to, the following for day to day interactions on the
                                            procurement of Equipment and Services:



 


		(a)	Buyer
                                            Procurement; and



 


		(b)	Supplier
                                            MS PA eBoP Program Manager.



 


These contact persons include, but
are not limited to, the following for system optimization and market requirement exchange:


 


		(a)	Supplier
                                            MS PA eBoP Program Manager;



 


		(b)	Supplier
                                            PLM Inverters (MS PA);



 


		(c)	Supplier
                                            PLM Microgrid (Digital Grid);



 


		(d)	Supplier
                                            PLM PSS (Digital Grid);



 


		(e)	Buyer
                                            PLM (Product Requirement); and



 


		(f)	Buyer
                                            R&D.



 


		4.	ORDERS.



 


		4.1.	Pricing
                                            Requests. If Buyer desires to purchase Equipment and Services from Supplier during the
                                            Term, Buyer shall furnish Supplier with written request (a “Pricing Request”)
                                            detailing the Equipment and Services it wishes to purchase and requesting pricing therefor
                                            from Supplier, including in such Pricing Request such information as may be reasonably necessary
                                            for Supplier to determine pricing therefor and any other project-specific requirements, including
                                            Buyer’s requested delivery schedule. Supplier shall provide Buyer with a written notice
                                            (a “Pricing Notice”) detailing Supplier’s pricing and delivery schedule
                                            for the Equipment and Services that Buyer wishes to purchase (including therein any terms,
                                            conditions and specifications required by Supplier in connection with the particular project
                                            and/or purchase contemplated by Buyer, which terms and conditions may be different than,
                                            and shall supersede, those set forth in this Agreement), which Pricing Notice Supplier shall
                                            endeavor to provide within ten (10) Business Days of receipt of Buyer’s Pricing
                                            Request. If Buyer does not issue a Purchase Order to Supplier pursuant to Section 4.2
                                            in response to the Pricing Notice within ten (10) Business Days of issuance thereof,
                                            the Pricing Notice shall be deemed rejected.



 






    	 	9	 



     


    

 


		4.2.	Purchase
                                            Orders. If Buyer desires to purchase the Equipment and Services on the terms specified
                                            in a Pricing Request, it shall issue a Purchase Order to Supplier in the form attached hereto
                                            as Exhibit A, which Purchase Order shall include: (i) the pricing and any other
                                            terms, conditions and specifications set forth in Supplier’s Pricing Notice; and (ii) a
                                            detailed description of the Equipment and Services to be purchased, consistent with those
                                            set forth in the Pricing Request and to the extent modified thereby, the Pricing Notice.
                                            Purchase Orders shall only be binding when issued in compliance with the requirements of
                                            this Agreement and sent by e-mail, by fax or by electronic data interchange to Supplier.
                                            Supplier shall accept or reject a Purchase Order within ten (10) Business Days after
                                            receipt. Acceptance or rejection shall be declared in the form of the Purchase Order. If
                                            a Purchase Order is neither accepted nor rejected within ten (10) Business Days after
                                            receipt, it shall be deemed rejected.



 


		4.3.	Most
                                            Favored Nation Pricing. Subject to Applicable Law, during the Term, Supplier will offer
                                            its Equipment and Services to Buyer at Most Favored Nation Pricing in the Pricing Notice
                                            so long as Supplier and its Affiliates collectively own at least a twenty percent (20%) interest
                                            in Buyer.  “Most Favored Nation Pricing” shall be reasonably determined
                                            by the Supplier by reference to recent (last six (6) months) sales arrangements with
                                            customers, resellers or project developers, as applicable, taking into account purchase volumes,
                                            regional market conditions, the geographic location of the projects, and the relative size
                                            and technology to be used.  Supplier shall not be obligated to provide such pricing
                                            if it no longer offers the relevant products or services for sale and Supplier shall have
                                            no obligations to offer or continue to offer any such products or services for sale. If requested
                                            by Buyer, Supplier shall furnish to Buyer a certificate executed by an executive officer
                                            of Supplier and attesting to the methodology used by Supplier in determining the Most Favored
                                            Nation Pricing set forth in the applicable Pricing Notice. Supplier shall provide Buyer with
                                            supporting information concerning the comparable purchase volumes, regional market conditions,
                                            the geographic location of the projects, relative size and technology to be used, and any
                                            other variables that Supplier considered when determining the Most Favored Nation Pricing;
                                            provided that Suppler may always anonymize information about other customers’ projects,
                                            in Supplier’s sole discretion. In the event that Buyer believes the price indicated
                                            in the Pricing Notice does not accurately reflect Most Favored Nation Pricing, then the parties
                                            shall retain a mutually-agreeable auditing firm to independently and confidentially review
                                            Supplier’s methodology and pricing inputs and to render a decision regarding whether
                                            Supplier must offer a lower price in order to satisfy its Most Favored Nation Pricing obligation
                                            as set forth above. The decision of the independent auditor shall be final and binding on
                                            both Parties. The costs of the independent auditor shall be shared equally between Supplier
                                            and Buyer.



 


		4.4.	Payment
                                            Terms. Unless otherwise provided in a Pricing Notice, all payments for Equipment are
                                            due and payable net thirty (30) days following invoice based on delivery of the applicable
                                            Equipment. Unless otherwise provided in a Purchase Order, all payments for Services are due
                                            and payable net thirty (30) days following invoice based on progress of the Services being
                                            performed.  Payment(s) shall be by electronic banking method identified on the
                                            Purchase Order.  Buyer will not make payments to Supplier in cash or bearer instruments,
                                            nor to an account other than that specified in the Purchase Order..  Buyer will make
                                            no unlawful payments, nor make payments through any trust, intermediate entity or other party. 
                                            Buyer will not make payment(s) to an individual, employee, or other designee of Supplier.



 






    	 	10	 



     


    

 


		4.5.	Disputed
                                            Payments. If a dispute arises regarding the payments to be made hereunder, Buyer or Supplier,
                                            as applicable, shall pay all undisputed amounts, and the Parties shall attempt in good faith
                                            to resolve the dispute as promptly as practicable.



 


		4.6.	Late
                                            Payments. Any amount owed by a Party hereunder beyond the date that such amount first
                                            becomes due and payable under this Agreement shall accrue interest from the date that it
                                            first became due and payable until the date that it is paid at the lesser of (a) LIBOR
                                            plus four percent (4%) per annum or (b) the maximum rate permitted by Applicable Law.



 


		4.7.	Taxes;
                                            Export and Import Duties. Notwithstanding anything herein to the contrary, (i) Supplier
                                            shall collect and withhold any and all sales taxes arising in connection with or relating
                                            to the supply, sale or Delivery of the Equipment and imposed by any Governmental Authority
                                            having jurisdiction over Supplier at the Delivery Point and (ii) Buyer shall be responsible
                                            for any and all other Taxes arising in connection with or relating to the supply, sale or
                                            Delivery of the Equipment, any and all export duties from the jurisdiction or jurisdictions
                                            in which the Equipment is manufactured or from which the Equipment may be shipped and any
                                            and all import duties, in each case, arising in connection with or relating to the supply,
                                            sale or Delivery of the Equipment. Buyer shall also be responsible for and pay all Taxes
                                            in relation to the operation of its business, including in connection with the use of the
                                            Equipment. Buyer and Seller shall cooperate to obtain exemption from, or to minimize, any
                                            Taxes.



 


		5.	DELIVERY.



 


		5.1.	Delivery
                                            Terms; Inspection. Unless otherwise provided in a Pricing Notice, delivery of the Equipment
                                            shall be made FCA (Incoterms 2010) at Supplier’s facility. Prior to Delivery a representative
                                            of Supplier and a representative of Buyer may inspect the Equipment for damage and record
                                            such damage, if any.



 


		5.2.	Guaranteed
                                            Delivery Date. Supplier shall use commercially reasonable efforts to Deliver Equipment
                                            to the applicable Delivery Point by the applicable guaranteed Delivery date therefore, if
                                            any, as set forth in the applicable Purchase Order, subject to extension as provided under
                                            this Agreement (as may be extended hereunder, the “Guaranteed Delivery Date”).
                                            Any other dates in a Purchase Order for performance by Supplier of any work and any other
                                            obligations of Supplier pursuant to such Purchase Order are estimated, and not guaranteed,
                                            dates. The failure of Supplier to timely achieve such other Supplier milestones or obligations
                                            by the applicable dates set forth in the Purchase Order shall not be a breach under this
                                            Agreement. Neither the Purchase Order nor any milestone date contained therein, including
                                            the Guaranteed Delivery Date for the Equipment, may be changed unless the same has been modified
                                            by a duly executed Change Order. If an unexcused delay originates with Supplier or its Representatives,
                                            Supplier shall be solely responsible for expedited delivery and other charges to meet Delivery
                                            dates.



 






    	 	11	 



     


    

 


		5.3.	Delay
                                            Liquidated Damages. Except as may be otherwise agreed in a Purchase Order, if Delivery
                                            of the Equipment has not occurred by the Guaranteed Delivery Date for reasons that are not
                                            excused hereunder, and Buyer can prove that as a direct result thereof it must pay delay
                                            liquidated damages to its Customer, Supplier shall reimburse Buyer for such delay liquidated
                                            damages (such reimbursement not to exceed an amount equal to 0.5% of the price set forth
                                            in the Purchase Order allocable to the delayed Equipment for every completed week of delay)
                                            for each completed week after the Guaranteed Delivery Date that Buyer pays such liquidated
                                            damages to its Customer as a result of Supplier’s delay, provided, however, that the
                                            amount of delay liquidated damages payable by Supplier shall be reduced by any amounts received
                                            by Buyer under any delay in startup insurance policies providing coverage for any such losses
                                            or damages. Payment of the delay liquidated damages shall be the sole and exclusive remedy
                                            of Buyer for delay and under no circumstances shall the total aggregate liability of Supplier
                                            exceed five percent (5%) of the price set forth in the applicable Purchase Order.



 


		5.4	Buyer Caused Delay. If Buyer fails
                                            to perform any obligations under a Purchase Order or otherwise causes a delay in the performance
                                            by Supplier of its obligations under a Purchase Order, and such failure or delay results
                                            in an increase in Supplier’s costs and/or impacts Supplier’s ability to meet
                                            any Supplier milestone in accordance with the schedule contemplated by the applicable Purchase
                                            Order, Supplier shall be entitled to a Change Order increasing the price payable under the
                                            applicable Purchase Order and extending the date for completion of any Supplier milestones
                                            commensurate with such delay and added cost, including overtime charges for labor and equipment.



 


		6.	TITLE,
                                            RISK OF LOSS AND CARE, CUSTODY AND CONTROL.



 


		6.1.	Transfer
                                            of Title and Risk of Loss. Title, care, custody, control and risk of loss of any portion
                                            of the Equipment shall pass to Buyer upon Delivery of the Equipment to the Delivery Point.
                                            Notwithstanding the foregoing, in no event will title to the Licensed Technology or any other
                                            Intellectual Property used in the Equipment or otherwise provided to Buyer, including any
                                            Software, transfer to Buyer.



 


		6.2.	Warranty
                                            of Title. Supplier warrants to Buyer that, when title to the Equipment or any portion
                                            thereof is transferred to Buyer in accordance herewith, Buyer shall have good title to the
                                            Equipment or such portion thereof free and clear of all Liens, other than any such Liens
                                            which may arise in connection with Buyer’s failure to make payments as they become
                                            due under this Agreement. In the event of any nonconformity with the foregoing, Supplier,
                                            at its own expense, upon written notice of such failure, shall indemnify Buyer from the consequences
                                            of such nonconformity and defend the title to such Equipment, and Supplier shall either promptly
                                            replace such Equipment or any affected portion thereof or remedy the title defect.



 


		7.	INSPECTION
                                            AND QUALITY CONTROL.



 


		7.1.	Inspection
                                            Rights. Supplier shall permit Buyer, its Representatives and/or customer(s), at Buyer’s
                                            expense, to inspect Equipment/Services during manufacture at Supplier’s facilities
                                            or during performance and shall use commercially reasonable efforts to facilitate similar
                                            inspections at the manufacturing facilities of third party suppliers. Buyer shall provide
                                            Supplier with written notice of its intent to make any such inspection not less than ten
                                            (10) Business Days prior to the proposed inspection date. Buyer’s inspections/tests
                                            will not unduly interfere with Supplier’s business or the business of its third party
                                            suppliers.



 






    	 	12	 



     


    

 


		7.2.	Quality
                                            Control. Supplier shall maintain quality control with respect to the Equipment and Services
                                            as mutually agreed upon by the Parties and provide Buyer with quality assurance documentation,
                                            manuals or certifications.



 


		8.	WARRANTIES.



 


		8.1.	Equipment
                                            Warranty. Supplier warrants to Buyer that (i) the Equipment as Delivered shall be
                                            new at the time of Delivery and shall have been manufactured using new components and (ii) during
                                            the Equipment Warranty Period the Equipment shall be free of any Defects (the “Equipment
                                            Warranty”). As used herein or otherwise agreed in a Purchase Order, the “Equipment
                                            Warranty Period” means the period of time commencing on the earlier to occur of
                                            (i) the date that the Equipment is placed into service as evidenced by the operation
                                            thereof for commercial purposes and (ii) the day that is sixty (60) days after the date
                                            of Delivery of the Equipment and continuing to and ending on (A) the first (1st) anniversary
                                            of such date or (B) such longer period as required by Applicable Law applicable to a
                                            particular Purchase Order.



 


		8.2.	Services
                                            Warranty. Supplier warrants to Buyer that any Services shall at the time of performance
                                            thereof and during the Services Warranty Period be (i) performed in a good and workmanlike
                                            manner and free of any fault, defect or deficiency that would preclude or impair the ability
                                            of such Services to fulfill the purposes set forth in the applicable Purchase Order therefor
                                            in all material respects, (ii) consistent with a level of care, skill and judgment which
                                            conforms with Prudent Industry Practices, and (iii) in compliance with the requirements
                                            of this Agreement and the applicable Purchase Order (the “Services Warranty”).
                                            As used herein or otherwise agreed in a Purchase Order, the “Services Warranty Period”
                                            means the period of time commencing on the date of performance of the applicable Service
                                            and continuing to and ending on (A) the first (1st) anniversary of such date or (B) such
                                            longer period as required by Applicable Law applicable to a particular Purchase Order.



 


		8.3.	Notification
                                            Requirements. Buyer shall promptly (but in any event within ten (10) Business Days
                                            after obtaining notice or knowledge thereof) notify Supplier of any failure of the Equipment
                                            to satisfy the Equipment Warranty or any failure of the Services to satisfy the Services
                                            Warranty, in each case by delivering written notice to Supplier of a warranty claim. The
                                            written notice of warranty claim shall, to the extent reasonably practicable, identify the
                                            applicable failure and the circumstances or conditions observed by Buyer that indicates the
                                            presence of such failure.



 


		8.4.	Corrective
                                            Action. If, at any time prior to the expiration of the Equipment Warranty Period, either
                                            Party discovers any Defect, Supplier agrees that it shall Deliver a replacement for the applicable
                                            Defective part, without cost or expense to Buyer. When a Defective part has been Delivered
                                            to Buyer, such replaced part shall be covered by the Equipment Warranty until the later of
                                            (a) twelve (12) months from the time such replacement part was Delivered to Buyer, and
                                            (b) the end of the Equipment Warranty Period. All replacement parts shall be of good
                                            and workmanlike quality and shall be new or newly refurbished. If, at any time prior to the
                                            expiration of the Services Warranty Period, either Party discovers any failure of the Services
                                            to satisfy the Services Warranty, Supplier agrees that it shall, in its sole discretion,
                                            either correctly re-perform or otherwise correct the defective Services, without cost or
                                            expense to Buyer. When a defective Service has been remedied, such remedied Service shall
                                            be covered by the Services Warranty until the later of (a) twelve (12) months from the
                                            time such remedy was completed, and (b) the end of the Services Warranty Period.



 






    	 	13	 



     


    

 


		8.5.	Warranty
                                            Exclusions. The Equipment Warranty and the Services Warranty shall not apply if (a) the
                                            applicable Defect or failure is attributable to Buyer’s failure to operate, repair
                                            or maintain the Equipment in material compliance with the procedures set forth in any Supplier
                                            Documents furnished to Buyer, which procedures are identified therein as necessary to maintain
                                            the effectiveness of the warranties or (b) the applicable Defect or failure is attributable
                                            to Buyer’s or Buyer’s contractor’s misuse or abuse of the Equipment (c) if
                                            the Equipment has been used in a manner contrary to Supplier's instructions set forth in
                                            the Supplier Documents that are identified therein as necessary to maintain the effectiveness
                                            of the warranties; (d) the applicable Defect or failure is attributable to any materials
                                            or equipment provided by Buyer; or (e) if the Equipment has failed as a result of ordinary
                                            wear and tear.



 


		8.6.	NO
                                            IMPLIED WARRANTIES. THE WARRANTIES OF SUPPLIER SET FORTH IN THIS AGREEMENT ARE SUPPLIER'S
                                            SOLE AND EXCLUSIVE WARRANTIES AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
                                            STATUTORY OR OTHERWISE. THE REMEDIES SET FORTH HEREIN WITH RESPECT TO SUCH WARRANTIES ARE
                                            BUYER'S SOLE AND EXCLUSIVE REMEDIES, AND SUPPLIER'S SOLE AND EXCLUSIVE LIABILITY, FOR ANY
                                            BREACH OF SUCH WARRANTIES. OTHER THAN THE WARRANTIES OF SUPPLIER SET FORTH IN THIS AGREEMENT,
                                            SUPPLIER HEREBY DISCLAIMS, AND BUYER HEREBY WAIVES, ALL OTHER EXPRESS WARRANTIES AND ALL
                                            OTHER WARRANTIES, CONDITIONS, DUTIES AND OBLIGATIONS, STATUTORY OR OTHERWISE, IMPLIED
                                            IN LAW, INCLUDING THOSE OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
                                            NON-INFRINGEMENT, CUSTOM, USAGE, OR OTHERWISE. THERE ARE NO OTHER WARRANTIES, CONDITIONS,
                                            AGREEMENTS, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, OR UNDERSTANDINGS, WHETHER OR NOT IN
                                            A CONTEMPORANEOUSLY EXECUTED OR DATED AGREEMENT OR SPECIFICATION, THAT EXTEND BEYOND THOSE
                                            SET FORTH HEREIN AND NO OTHER WARRANTIES, CONDITIONS, AGREEMENTS, ORAL OR WRITTEN, STATUTORY
                                            OR OTHERWISE, WHICH MIGHT HAVE BEEN GIVEN BY AN EMPLOYEE, AGENT OR REPRESENTATIVE OF SUPPLIER
                                            OR ITS AFFILIATES ARE AUTHORIZED BY SUPPLIER.



 


		8.7.	Reserved
                                            Rights. Without limiting Supplier’s obligations hereunder to remedy Defects, Supplier
                                            reserves the right (i) to make changes and improvements in its equipment and products
                                            without incurring any obligation to make such changes and improvements to any Equipment previously
                                            sold under a Purchase Order pursuant to this Agreement; and (ii) to change the terms
                                            of the warranty it provides to other Persons in the future without incurring any right or
                                            obligation to make the revised terms applicable to any Equipment previously sold under a
                                            Purchase Order pursuant to this Agreement. The provisions of this Section 8.7 shall
                                            survive the termination or expiration of this Agreement.



 






    	 	14	 



     


    

 


		9.	BUYER
                                            FURNISHED PROPERTY.



 


The term “Buyer Furnished
Property” shall mean all tools, patterns, equipment, materials or other property which is either supplied by, or purchased
by or on behalf of, Buyer or its Representatives to Supplier to perform the Services or furnish the Equipment. Title to Buyer Furnished
Property shall remain with Buyer and risk of loss shall be with the Party who has possession. For Buyer Furnished Property in Supplier’s
possession, custody or control, Supplier shall insure against loss and damage in an amount equal to full replacement cost. Buyer Furnished
Property shall carry no guarantee or warranty, express or implied. Supplier shall not use Buyer Furnished Property on any work other
than the Equipment/Services. Supplier shall clearly mark Buyer Furnished Property to show Buyer's ownership and prevent a lien, encumbrance
or challenge to Buyer's title thereto. Supplier shall, at its own expense, maintain and repair Buyer Furnished Property returning it
to Buyer in the condition in which received, reasonable wear and tear excepted. Upon expiration or termination of the Purchase Order,
Supplier shall dispose of Buyer Furnished Property as Buyer directs in writing. Buyer reserves the right to abandon Buyer Furnished Property
at no additional cost to Buyer. The applicable Purchase Order pursuant to which Buyer Furnished Property was furnished to Seller shall
remain in effect so long as Supplier possesses Buyer Furnished Property.


 


		10.	PACKAGING.



 


Except
where the Purchase Order includes alternative requirements, Supplier shall be responsible for packaging Equipment, and the clear and
conspicuous marking of Equipment and packaging, in accordance with Applicable Law, industry standards and in a manner sufficient to permit
efficient handling, to provide adequate protection and comply with requirements of carrier and Applicable Law. Packing slips identifying
the Purchase Order number, and part number must accompany each shipment. The exterior of each shipping container or package will be clearly
marked with Buyer’s Purchase Order number and country of origin, which shall also be marked on Equipment, in a clear, conspicuous
and permanent manner. Supplier shall provide all necessary shipping documents, including, but not limited to, customs invoices and packing
lists in accordance with Buyer’s requirements and Applicable Law. Damages and costs incurred by Buyer, its Representative or customer
resulting from Supplier or its Representative’s failure to comply with this Article 10 shall be paid by Supplier. If Supplier
imports wood packaging materials, in accordance with 7 CFR 319.40, Supplier warrants that such wood packaging material is treated and
marked under an official program developed and overseen by the National Plant Protection Organization in the country of export.


 


		11.	FORCE
                                            MAJEURE.



 


		11.1.	Effect
                                            of Force Majeure. A Party shall not be considered to be in breach or default of this
                                            Agreement or any Purchase Order hereunder if and to the extent that its failure or delay
                                            in performance or its efforts to cure are prevented by Force Majeure.



 


		11.2.	Procedures.
                                            If either Party, as a result of the occurrence of a Force Majeure, is rendered wholly or
                                            partially unable to perform its obligations under this Agreement or any Purchase Order, such
                                            Party shall comply with the following:



 


		(a)	the
                                            affected Party shall promptly notify the other Party hereto in writing, and in any event
                                            within five (5) Business Days after the affected Party becomes aware of the occurrence
                                            of such Force Majeure event, describing in such notice the particulars of the occurrence;



 


		(b)	the
                                            affected Party shall give the other Party written notice estimating the event’s expected
                                            duration and probable impact on the performance of such Party’s obligations under this
                                            Agreement, and such affected Party shall continue to furnish timely regular reports with
                                            respect thereto during the continuation of the event;



 






    	 	15	 



     


    

 


		(c)	the
                                            suspension of performance shall be of no greater scope and of no longer duration than is
                                            reasonably required by the event;



 


		(d)	no
                                            liability of either Party which arose before the occurrence of the event causing the suspension
                                            of performance shall be excused as a result of the occurrence;



 


		(e)	the
                                            affected Party shall exercise all reasonable efforts to mitigate or limit damages to the
                                            other Party, promptly taking appropriate and sufficient corrective action, including the
                                            expenditure of all reasonable sums of money;



 


		(f)	the
                                            affected Party shall use all reasonable efforts to continue to perform its obligations under
                                            this Agreement and to correct or cure the event excusing performance; and



 


		(g)	when
                                            the affected Party is able to resume performance of the affected obligations under this Agreement,
                                            the affected Party shall promptly resume performance and give the other Party written notice
                                            to that effect.



 


		11.3.	Termination
                                            for Extended Force Majeure. If Supplier experiences a Force Majeure Event completely
                                            preventing Supplier’s performance for more than forty-five (45) consecutive days, Buyer
                                            shall have the right to terminate the applicable Purchase Order and shall be entitled to
                                            a refund of all monies advanced to Supplier.



 


		12.	CHANGE
                                            ORDERS.



 


		12.1.	Change
                                            Order. A “Change Order” is a written instrument signed by the Parties
                                            and stating their mutual agreement upon a change in the obligations of the Parties under
                                            this Agreement or any Purchase Order, including if applicable the amount of the adjustment
                                            in the purchase price and the extent of any adjustment to the Delivery schedule, including
                                            the Guaranteed Delivery Date.



 


		12.2.	Change
                                            Order Process. In addition to circumstances set forth herein where the Parties are entitled
                                            to a Change Order, either Party may request changes in the obligations of the Parties under
                                            this Agreement within the scope of this Agreement consisting of additions, deletions, or
                                            other revisions to such obligations. If either Buyer or Supplier wishes to change such obligations,
                                            it shall submit a change request to the other Party in writing. If the requested change relates
                                            to a change to the Equipment supply obligations or results from a condition in which Supplier
                                            is entitled to a Change Order under this Agreement, then, within fifteen (15) Business Days
                                            following receipt or delivery, as applicable, of the requested change, Supplier shall submit
                                            a proposal to Buyer stating (i) the increase or decrease, if any, in the purchase price
                                            and changes to the Delivery schedule and/or the Guaranteed Delivery Date, if any, that would
                                            result from such change (collectively, the “Change Order Information”).
                                            If the proposed change relates to any other matter, the requesting Party, at the time the
                                            request for the change is made, shall provide the proposed Change Order Information. Within
                                            five (5) Business Days following receipt of the Change Order Information, the Parties
                                            shall meet and, acting reasonably, negotiate in good faith a mutually acceptable Change Order
                                            in accordance with the principles set forth herein. Following agreement on the terms and
                                            conditions of the Change Order, the Parties shall execute the same. If the Parties do not
                                            agree upon the terms and conditions of the Change Order, and the proposed change relates
                                            to circumstances in which a Party is entitled to a Change Order under this Agreement, then
                                            either Party may submit the matter to dispute resolution pursuant to Article 24.



 






    	 	16	 



     


    

 












		12.3.	Change
                                            Order Restrictions. Notwithstanding anything herein to the contrary, Buyer shall not
                                            be entitled reduce the scope of the Equipment supply obligations under any Purchase Order.



 


		12.4.	No
                                            Change. Supplier shall not be obligated to proceed with any change in the Equipment supply
                                            obligations requested by Buyer unless and until a Change Order is executed by the Parties
                                            in relation to such change. Further, Supplier shall not be required to implement a requested
                                            change in the Equipment supply obligations by Buyer if Supplier reasonably believes the implementation
                                            of such change would impair Supplier’s ability to comply with any of the warranties
                                            or the covenants set forth in this Agreement or the applicable Purchase Order.



 


		13.	INTELLECTUAL
                                            PROPERTY.



 


		13.1.	Grant
                                            of License. Upon transfer of title with respect to any Equipment purchased hereunder
                                            and upon providing parts under the Equipment Warranty hereunder, Supplier hereby grants to
                                            Buyer a non-exclusive, transferable, fully paid-up with no further royalty obligation, worldwide,
                                            license in and to, all Intellectual Property owned or licensed by Supplier which are necessary
                                            for the use and enjoyment by Buyer of Equipment hereunder (the “License”)
                                            to import into the Territory and use the Licensed Technology (including any Intellectual
                                            Property in the Licensed Technology) within the Territory, and solely in accordance with
                                            the terms of this Agreement. Such license includes a perpetual license to use software provided
                                            for the operation of the Equipment including but not limited to all modifications or additions
                                            to software upon payment of commercially reasonable service charges to be negotiated, as
                                            well as all related documentation and technical information. With respect to any Confidential
                                            Information contained within the Licensed Technology, Buyer may disclose such Confidential
                                            Information to third party contractors who have a need to know such parts of the Licensed
                                            Technology solely for Buyer’s use and operation of the Equipment and in accordance
                                            with the terms of this Agreement; provided that such third parties shall first execute
                                            a confidentiality agreement consistent with this Agreement containing restrictions on disclosure
                                            and use at least as restrictive as those in Article 17 (and such third party contractors
                                            shall not be permitted to disclose the Licensed Technology to any other third party). The
                                            Licensed Technology is Confidential Information of Supplier as defined in Section 17.1
                                            even if not marked as “confidential,” “proprietary” or with other
                                            such similar language, except where an exception in Section 17.3 applies.



 


		13.2.	No
                                            Copies. Except as otherwise permitted by this Agreement, Buyer shall not make any copies
                                            of the Licensed Technology without first obtaining express written permission from Supplier.
                                            Notwithstanding the foregoing, Buyer may make such number of copies of (i) the documentation
                                            and manuals for the Equipment or other Intellectual Property licensed hereunder that is not
                                            embedded in the Equipment as are required for Buyer’s normal use and operation hereunder
                                            (including such copies as may be included in or attached to electronic mail messages by Buyer
                                            for delivery to Persons who are otherwise permitted recipients of Supplier’s Confidential
                                            Information hereunder) and (ii) the Licensed Technology as are reasonably required for
                                            back-up, disaster recovery and archival purposes.



 






    	 	17	 



     


    




 


		13.3.	Proprietary
                                            Notices. Buyer shall not remove or alter, or permit to be removed or altered, any proprietary
                                            notices that appear on or with the Licensed Technology. Buyer shall include on and with the
                                            Licensed Technology a written notice stating: “Confidential and Proprietary Information
                                            of Siemens Industry, Inc.. Access and Use Restricted by License.” or such other
                                            or additional notice as Supplier reasonably may prescribe.









 


		13.4.	Security.
                                            Buyer shall take all reasonable steps to ensure that no unauthorized persons have access
                                            to the Licensed Technology, and to ensure that no persons authorized to have such access
                                            shall take any action which would be in violation of this Agreement. Such steps shall include,
                                            but shall not be limited to, imposing password restrictions on use of the Licensed Technology
                                            securing Buyer’s network on which such Licensed Technology resides from outside intrusion,
                                            preventing the making of unauthorized copies of the Licensed Technology and administering
                                            and monitoring use of the Licensed Technology.



 


		13.5.	No
                                            Reverse Engineering. The Licensed Technology includes trade secrets of Supplier or its
                                            Affiliates. In order to protect the Licensed Technology, Buyer shall not modify, translate,
                                            decompile, reverse engineer, decrypt, extract or disassemble the Licensed Technology or otherwise
                                            reduce or attempt to reduce any Software in the Licensed Technology to source code form.
                                            Buyer shall ensure, both during and (if Buyer still has possession of the Licensed Technology)
                                            after the performance of this Agreement, that (a) Persons who are not bound by a confidentiality
                                            agreement consistent with this Agreement shall not have access to the Licensed Technology
                                            and (b) Persons who are so bound are put on written notice that the Licensed Technology
                                            contains trade secrets, owned by and proprietary to Supplier or its Affiliates.



 


		13.6.	Open
                                            Source Software. Buyer shall not sell, sublicense, or otherwise make available the Licensed
                                            Technology or any part thereof as Open Source Software, nor combine the Licensed Technology
                                            with any Open Source Software in a manner that could require the release, disclosure or distribution
                                            of the Licensed Technology, or otherwise infect the Licensed Technology so as to impose any
                                            obligation on Supplier or diminish any rights Supplier may have therein.



 


		13.7.	Reporting.
                                            Buyer shall promptly report to Supplier any actual or suspected violation of this Article 13,
                                            and shall take such further steps as may reasonably be requested by Supplier to prevent or
                                            remedy any such violation.



 


		13.8.	Relief.
                                            Because unauthorized use or transfer of the Licensed Technology is likely to diminish substantially
                                            the value of such Licensed Technology and irreparably harm Supplier and will not be susceptible
                                            of cure by the payment of monetary damages, if Buyer breaches the provisions of this Article 13,
                                            Supplier shall be entitled to injunctive and/or other equitable relief, in addition to other
                                            remedies afforded by law, to prevent or restrain such breach.



 


		13.9.	Improvements.



 


		(a)	By
                                            Supplier. Any improvement hereafter made by or for Supplier or any of its Affiliates
                                            in the Licensed Technology (including those set out in (b) and (c) below) that
                                            is approved and adopted by Supplier for use by Buyer under this Agreement shall be included
                                            in the Licensed Technology for purposes of the License. The Parties agree that Supplier may
                                            decide in its sole discretion which improvements it shall approve and adopt for purposes
                                            of Buyer’s use under the License; provided, however, that if Supplier
                                            makes improvements available to buyers similarly situated to Buyer in terms of project scope
                                            and fees paid, Supplier also shall make such improvements available to Buyer on terms at
                                            least as favorable to Buyer as the terms generally provided to such similarly situated buyers.



 






    	 	18	 



     


    







 


		(b)	By
                                            Buyer with respect to Licensed Technology, excluding the Inverter Hardware (“Non-IH
                                            Licensed Technology”). Buyer may not modify the Non-IH Licensed Technology except
                                            as expressly permitted in this Section 13.9(b). Buyer may suggest modifications in the
                                            Non-IH Licensed Technology to Supplier. Any modification or improvement in the Non-IH Licensed
                                            Technology suggested by Buyer must first be approved by Supplier in accordance with Section 13.9(a).



 


		(c)	By
                                            Buyer with respect to Inverter Hardware. Buyer will be permitted to make modifications
                                            or improvements to the Inverter Hardware listed in Annex A. Supplier will provide to Buyer
                                            Know-How that is reasonably requested by Buyer and that is required to enable Buyer to make
                                            modifications or improvements pursuant to this Section 13.9(c). Any modifications or
                                            improvements made by Buyer pursuant to this Section 13.9(c) will be owned by Supplier
                                            and will be licensed under Section 13.1. Notwithstanding the foregoing, Supplier shall
                                            have no liability to Buyer as a result of Buyer’s modifications or improvements to
                                            the Inverter Hardware.



 


		(d)	With
                                            respect to both Section 13.9(b) and 13.9(c), Buyer shall own any modifications
                                            or improvements to both the Non-IH Licensed Technology and the Inverter Hardware, only if
                                            such ownership is mandated by Applicable Law. If Buyer’s ownership is legally mandated,
                                            Buyer hereby grants to Supplier and its Affiliates a non-exclusive, perpetual, worldwide,
                                            royalty-free license to make, have made, import, offer for sale, sell, copy, make derivative
                                            works, use and sublicense to others the right to use these modifications or improvements.



 


		13.10.	Ownership.



 


		(a)	Supplier.
                                            As between the Parties, Supplier or its Affiliates shall own the Licensed Technology, including
                                            any modifications, discoveries, derivative works and improvements derived from or based on
                                            it, whether developed by Supplier, by Buyer, or by the Parties jointly, all Intellectual
                                            Property therein and any Intellectual Property developed during, or arising out of, the performance
                                            of Supplier’s obligations under this Agreement, to the extent permitted by Applicable
                                            Law. Buyer acquires only certain rights to use the Licensed Technology under the License,
                                            strictly in compliance with the terms of this Agreement, and does not acquire any ownership
                                            rights or title to it.



 


		(b)	Buyer.
                                            As between the Parties, Buyer or its Affiliates shall own (1) any Intellectual Property
                                            developed or acquired by Buyer prior to or independently of this Agreement, and (2) all
                                            Intellectual Property therein, excluding in each case any of the Licensed Technology incorporated
                                            therein or any Intellectual Property in any combination of the Licensed Technology.



 


		(c)	Cooperation.
                                            Buyer shall reasonably cooperate with Supplier to assist in perfecting Supplier’s ownership
                                            in any Intellectual Property in modifications, discoveries, derivative works and improvements
                                            to Licensed Technology developed by Supplier or by the Parties jointly, including by executing
                                            declarations, oaths, assignments or other formalities documents as needed.



 






    	 	19	 



     


    

 





		13.11.	Enforcement.
                                            Each Party shall notify the other promptly in writing of any suspected infringement by a
                                            third party of the Licensed Technology or any of the Intellectual Property therein. Supplier
                                            shall have the exclusive right to enforce and defend the rights appurtenant to the Licensed
                                            Technology or the Intellectual Property therein in Supplier’s sole discretion and shall
                                            have the sole right of control of any such enforcement action or proceeding it elects to
                                            initiate (an “Enforcement Action”), at Supplier’s sole cost and
                                            expense. Supplier shall keep Buyer timely and reasonably informed as to significant events
                                            during the course of all such Enforcement Actions as would reasonably be expected to affect
                                            Buyer’s use of the Licensed Technology whether conducted for Supplier’s or Buyer’s
                                            account. Buyer shall provide on Supplier’s written request reasonable assistance in
                                            preparing and advancing Supplier’s case, in consideration of which Supplier shall reimburse
                                            Buyer’s reasonable out-of-pocket costs incurred in doing so (including reasonable attorneys’
                                            fees). Supplier may retain any monetary damages or other compensation or recovery awarded
                                            to it in any Enforcement Action under this Section 13.11. Notwithstanding the foregoing,
                                            Buyer may participate and be represented in any Enforcement Action by its own counsel at
                                            its own expense, to the extent such participation and representation does not materially
                                            interfere with Supplier’s right to control such Enforcement Action. Supplier shall
                                            not settle any such Enforcement Action in a manner materially and adversely affecting Buyer’s
                                            rights in this Agreement, or in a manner including an admission of wrongdoing by Buyer, without
                                            obtaining the prior written consent of Buyer, which consent shall not be unreasonably withheld,
                                            conditioned or delayed. Buyer has no right to enforce Supplier’s Intellectual Property
                                            in the Licensed Technology against any third parties.



 


		13.12.	Duration
                                            and Transfers. Subject to termination in accordance with this Agreement, the License
                                            (i) shall continue for so long as Buyer or any successor retains ownership of the Equipment
                                            and continues operating the same (ii) shall terminate automatically if and when the
                                            Equipment is permanently removed from service (subject to earlier termination in accordance
                                            herewith) and (iii) shall transfer as part of an assignment that is permitted under
                                            Section 25.5. If Buyer sells or transfers the Equipment, or any portion thereof, apart
                                            from an Assignment of this Agreement, the License will terminate as to Buyer with respect
                                            to the Equipment, or any portion thereof sold or transferred and Buyer must, as a condition
                                            thereof, notify Supplier in writing and assign to the transferee thereof the License with
                                            respect to the Equipment, or any portion thereof sold or transferred, and procure from the
                                            transferee an assumption of such License, on substantially the same terms as set forth in
                                            this Article 13 and in form subject to Supplier’s prior reasonable approval, to
                                            the extent the License is applicable to the assets being sold or transferred. The License
                                            may not be assigned, transferred or sublicensed except as expressly permitted in this Section 13.12.
                                            Buyer shall be responsible for, and indemnify, defend and hold harmless Supplier, Supplier’s
                                            Parent, Supplier’s Affiliates, and their respective officers, directors, members, agents
                                            and employees from and against any damage, injury or loss resulting from the failure of Buyer
                                            to comply with the terms of this Article 13. Supplier may terminate the License, except
                                            with respect to any Licensed Technology that is integrated in any Equipment as to which title
                                            has transferred to Buyer hereunder, on written notice to Buyer if Buyer (a) fails to
                                            cure any material breach of an obligation in this Article 13 which is capable of being
                                            cured within thirty (30) days after Supplier’s written notice specifying the breach,
                                            or (b) on more than two (2) occasions in any five (5) year period, Buyer is
                                            found, through resolution of a Dispute, whether by settlement or otherwise, to have materially
                                            breached the terms and conditions of this Article 13 in substantially the same manner.



 






    	 	20	 



     


    







 


		13.13.	Government
                                            End Users. The Software portion of the Licensed Technology is a “commercial item”
                                            as that term is defined at 48 CFR 2.101, and includes “commercial computer software”
                                            and “commercial computer software documentation” as such terms are used in 48
                                            CFR 12.212 and in the event the Licensed Technology is provided to the US Government, such
                                            Licensed Technology shall be provided to the US Government only as a commercial end item.
                                            Consistent with 48 CFR 12.212, civilian US Government end users acquire the Software and
                                            documentation with only those license rights set forth herein as restricted by 48 CFR 12.212(a)(1) and
                                            (a)(2); Department of Defense end users acquire the Software and documentation with only
                                            those license rights set forth herein as restricted by 48 CFR 227.7202-1 through 227.7202-4.



 


		13.14.	Reservation
                                            of Rights. Supplier reserves all rights in the Licensed Technology not expressly granted
                                            to Buyer in this Agreement. No right or license is granted (expressly or by implication or
                                            estoppel) by Supplier to Buyer or its Affiliates under any tangible, Intellectual Property,
                                            or other proprietary right.



 


		14.	DEFAULTS
                                            AND REMEDIES.



 


		14.1.	Supplier
                                            Defaults. The occurrence of any one or more of the following events shall constitute
                                            an event of default by Supplier hereunder (a “Supplier Event of Default”):



 


		(a)	Supplier
                                            fails to pay to Buyer any payment required under this Agreement (which is not subject to
                                            a good faith dispute) when due, and such failure continues for ten (10) Business Days
                                            after receipt of written notice of such failure;



 


		(b)	Supplier
                                            voluntarily commences bankruptcy, insolvency, reorganization, stay, moratorium or similar
                                            debtor-relief proceedings, or shall have become insolvent or generally does not pay its debts
                                            as they become due, or admits in writing its inability to pay its debts, or makes an assignment
                                            for the benefit of creditors;



 


		(c)	Insolvency,
                                            receivership, reorganization, bankruptcy, or similar proceedings shall have been commenced
                                            against Supplier and such proceedings remain undismissed or unstayed for a period of ninety
                                            (90) days;



 


		(d)	Supplier
                                            fails to deliver Equipment by the date upon which Supplier exhausts its liability for liquidated
                                            damages for delayed deliveries under Section 5.3; or



 


		(e)	Except
                                            as otherwise expressly provided for in this Section 14.1, Supplier is in material breach
                                            of its obligations under this Agreement and such material breach continues uncured for sixty
                                            (60) days after receipt of written notice from Buyer.



 


		14.2.	Buyer
                                            Defaults. The occurrence of any one or more of the following events shall constitute
                                            an event of default by Buyer hereunder (a “Buyer Event of Default”):



 


		(a)	Buyer
                                            fails to pay to Supplier any payment required under this Agreement (which is not subject
                                            to a good faith dispute) when due, and such failure continues for ten (10) Business
                                            Days after receipt of written notice of such failure;



 






    	 	21	 



     


    

 


		(b)	Buyer
                                            voluntarily commences bankruptcy, insolvency, reorganization, stay, moratorium or similar
                                            debtor-relief proceedings, or shall have become insolvent or generally does not pay its debts
                                            as they become due, or admits in writing its inability to pay its debts, or makes an assignment
                                            for the benefit of creditors;









 


		(c)	Insolvency,
                                            receivership, reorganization, bankruptcy, or a similar proceeding shall have been commenced
                                            against Buyer and such proceeding remains undismissed or unstayed for a period of ninety
                                            (90) days;



 


		(d)	Any
                                            Assignment by Buyer not in conformity with Section 25.5; or



 


		(e)	Except
                                            as otherwise expressly provided for in this Section 14.2, Buyer is in material breach
                                            of its obligations under this Agreement and such material breach continues uncured for sixty
                                            (60) days after receipt of written notice from Supplier.



 


		14.3.	Remedies.
                                            Upon the occurrence of a Supplier Event of Default, Buyer may, by written notice to Supplier,
                                            terminate the outstanding Purchase Order(s) under which the Supplier Event of Default
                                            has arisen and/or shall be entitled to such rights and remedies as may be available at law
                                            or in equity. Upon the occurrence of a Buyer Event of Default, Supplier may, by written notice
                                            to Buyer, terminate the outstanding Purchase Order(s) under which the Buyer Event of
                                            Default has arisen and/or shall be entitled to such rights and remedies as may be available
                                            at law or in equity. Any rights and remedies available under Applicable Law upon termination
                                            of this Agreement pursuant to this Section 14.3 shall be limited in all respects by
                                            the limitations of liability set forth in Article 16. For sake of clarity, in the event
                                            that there are more than one Buyer under this Agreement, (i) a Buyer Event of Default
                                            by one such Buyer shall not constitute a Buyer Event of Default by any other Buyer and any
                                            remedies available to Supplier shall be exercisable only as against the defaulting Buyer
                                            and as regards the non-defaulting Buyer(s) this Agreement and any related Purchase Orders
                                            shall continue in full force and effect, and (ii) a Supplier Event of Default with respect
                                            to any particular Purchase Order shall only count as a Supplier Event of Default for the
                                            applicable Purchase Order and as regards any other Purchase Orders and any other Buyer(s),
                                            this Agreement and any related Purchase Orders shall continue in full force and effect.



 


		15.	INDEMNIFICATION.



 


		15.1.	General.
                                            Each Party (the “Indemnifying Party”) shall indemnify, defend and hold
                                            harmless the other Party, its Affiliates, and their Representatives and assigns (the “Indemnified
                                            Party”) from and against all claims, suits, causes of action, losses, liabilities,
                                            liens, damages, assessments, costs, expenses, demands, complaints or actions including but
                                            not limited to reasonable attorneys’ fees and court costs (collectively, “Claims”)
                                            of third parties concerning: (i) death, personal injury, or property damage of third
                                            parties, (ii) nonpayment of wages, benefits, fees, amounts owed, and/or any taxes (including
                                            penalties and interest) associated therewith arising from the Indemnifying Party’s
                                            Representatives, suppliers, contractors, and/or materialmen which may include liens or encumbrances
                                            on the Equipment/Services or the premises on which located and (iii) violations by the
                                            Indemnifying Party or any Person for whom the Indemnifying Party is responsible of Applicable
                                            Law; in each case to the extent arising or resulting from the Indemnifying Party’s
                                            or its Representative’s negligence, willful misconduct, or breach of this Agreement.
                                            For sake of clarity, if both Parties are negligent or otherwise at fault or strictly liable
                                            without fault, then the obligations of indemnification under this Section 15.1 shall
                                            continue, but the Indemnifying Party shall indemnify the Indemnified Party only for the percentage
                                            of responsibility for the damage or injuries attributable to the Indemnifying Party.



 






    	 	22	 



     


    







 


		15.2.	Infringement
                                            Indemnification by Supplier.



 


		(a)	Indemnity.
                                            If an action is brought or threatened against Buyer claiming that Buyer’s use, as permitted
                                            herein, of the Licensed Technology within the Territory infringes any Intellectual Property
                                            arising or existing under Applicable Law, Supplier shall defend, indemnify and hold harmless
                                            Buyer, its Affiliates, and their Representatives and assigns at Supplier’s expense
                                            from and against any and all Infringement Claim Costs of Buyer to the extent arising from
                                            such action or claim.



 


		(b)	Corrective
                                            Actions. If Buyer’s permitted use of the Licensed Technology within the Territory
                                            is materially impaired or if Supplier’s performance of the Equipment supply obligations
                                            under this Agreement or any other obligation is materially impaired by reason of such third
                                            party claim, Supplier shall use commercially reasonable efforts, at its expense, to continue
                                            its performance of the Equipment supply obligations under this Agreement or the other affected
                                            obligations, including at its own election and expense (i) to substitute an equivalent
                                            non-infringing item or process for the allegedly infringing item or process, (ii) to
                                            modify the allegedly infringing item or process so that it no longer infringes but remains
                                            functionally equivalent or better or (iii) to obtain for Buyer the right to continue
                                            using such item or process. Supplier shall, prior to proceeding with any of the foregoing
                                            actions, consult with Buyer as to the proposed action and consider in good faith any reasonable
                                            request of Buyer in respect thereof. Nothing herein constitutes a guarantee by Supplier that
                                            such efforts will succeed in avoiding the infringement claim or that Supplier will be able
                                            to replace the infringing item or process with an item or process of comparable functionality
                                            or effectiveness. If Supplier reasonably believes that an injunction against use of the Licensed
                                            Technology in the Territory may be granted against Buyer, either imminently or with the passage
                                            of time, Supplier may at its expense, and upon reasonable prior written notice to Buyer,
                                            take any of the foregoing actions in order to minimize its liability.



 


		(c)	Exclusions.
                                            This Section 15.2 does not apply to, and Supplier assumes no liability with respect
                                            to, claims for patent infringement or copyright infringement or improper use of other proprietary
                                            rights (including any license or Intellectual Property, whether by way of copyright or otherwise)
                                            to the extent that such claims relate, in whole or in part, to (i) Buyer’s modification
                                            or alteration of the Licensed Technology (except, subject to clause (iv) below, to the
                                            extent permitted by this Agreement) or the Equipment, in either case made without Supplier’s
                                            written consent or contrary to Supplier’s instructions, (ii) the combination of
                                            the Licensed Technology with other Software, products, materials, equipment, parts or apparatus
                                            and not approved in writing by Supplier, (iii) a failure to promptly install an update
                                            required by Supplier or (iv) Buyer’s modifications or improvements to the Inverter
                                            Hardware pursuant to Section 13.9(c).



 


		(d)	Entire
                                            Liability. THE FOREGOING PROVISIONS OF THIS SECTION 15.2 STATE THE ENTIRE LIABILITY
                                            AND OBLIGATION OF SUPPLIER AND ITS AFFILIATES AND THE EXCLUSIVE REMEDY OF BUYER, WITH RESPECT
                                            TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL
                                            PROPERTY BY THE EQUIPMENT OR THE LICENSED TECHNOLOGY OR ANY PART THEREOF, EXCEPT TO
                                            THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED IN ACCORDANCE WITH MANDATORY LEGAL REQUIREMENTS.



 






    	 	23	 



     


    

 





		(e)	Notifications.
                                            Buyer shall promptly notify Supplier in writing following receipt of written notice of any
                                            claims alleging infringement of patents or other proprietary rights (including Intellectual
                                            Property) in connection with Buyer’s permitted use of the Licensed Technology or Supplier’s
                                            performance of the Equipment supply obligations under this Agreement or Equipment Warranty
                                            obligations, and shall provide Supplier with all information in its possession relevant to
                                            such claim. In turn, Supplier shall notify Buyer as soon as practical in writing of any claims
                                            which Supplier may receive alleging infringement of patents or other proprietary rights which
                                            may affect Supplier’s performance of the Equipment supply obligations under this Agreement
                                            or Equipment Warranty obligations under this Agreement or Buyer’s right to own, operate
                                            and maintain the Equipment.



 


		15.3.	Infringement
                                            Indemnification by Buyer.



 


		(a)	Indemnity.
                                            If an action is brought or threatened against Supplier claiming that any condition or event
                                            described in Section 15.2(c) results in an infringement upon any Intellectual Property
                                            within the Territory arising or existing under Applicable Law, Buyer shall defend, indemnify
                                            and hold harmless the Supplier Indemnified Parties at Buyer’s expense from and against
                                            any and all Infringement Claim Costs of Supplier to the extent arising from such action or
                                            claim.



 


		(b)	Corrective
                                            Actions. If performance of Supplier’s obligations hereunder is enjoined by reason
                                            of a claim subject to Section 15.3(a), Buyer shall use commercially reasonable efforts,
                                            at its option and expense, at its own election (i) to substitute an equivalent non-infringing
                                            item or process for the allegedly infringing item or process, (ii) to modify the allegedly
                                            infringing item or process so that it no longer infringes but remains functionally equivalent,
                                            or (iii) to obtain for Supplier the right to continue using such item or process. Nothing
                                            herein constitutes a guarantee by Buyer that such efforts will succeed in avoiding the infringement
                                            claim or that Buyer will be able to replace the infringing item or process with an item or
                                            process of comparable functionality or effectiveness.



 


		(c)	Exclusions.
                                            This Section 15.3 does not apply to, and Buyer assumes no liability with respect to,
                                            claims for patent infringement or copyright infringement or improper use of other proprietary
                                            rights (including any license or Intellectual Property, whether by way of copyright or otherwise),
                                            to the extent that such claims relate, in whole or in part, to (i) a modification to
                                            the Licensed Technology or the Equipment requested by Buyer but executed by Supplier or with
                                            Supplier’s supervision and control (except for Buyer’s modifications or improvements
                                            to Inverter Hardware pursuant to Section 13.9(c) for which Supplier shall have
                                            no liability) or (ii) the combination of the Licensed Technology with other products,
                                            materials, equipment, parts or apparatus approved in writing by Supplier.



 






    	 	24	 



     


    

 


		15.4.	Indemnification
                                            Procedures.



 


		(a)	If
                                            an Indemnified Party receives written notice of a Claim, the Indemnified Party shall give
                                            prompt written notice to the Indemnifying Party, including a reasonably detailed description
                                            of the facts and circumstances relating to such Claim, a complete copy of all notices, pleadings
                                            and other papers related thereto, and a description in reasonable detail of the basis for
                                            the potential claim for indemnification with respect thereto. The Indemnified Party’s
                                            delay or deficiency in notifying Supplier shall not relieve Supplier of liability or obligation
                                            except to the extent (and only to the extent) such delay materially impacts the defense of
                                            the Claim.









 


		(b)	The
                                            Indemnifying Party shall be entitled to assume the defense and to represent the interests
                                            of the Indemnified Party, which shall include the right to select and direct legal counsel
                                            and other consultants (all of whom shall be reasonably acceptable to the Indemnified Party),
                                            appear in proceedings on behalf of the Indemnified Party and to propose, accept or reject
                                            offers of settlement, subject to Section 15.4(c) below, all at its sole cost. Nothing
                                            herein shall prevent an Indemnified Party from retaining its own legal counsel and other
                                            consultants or participating in its own defense at its own cost and expense. Notwithstanding
                                            the foregoing, if (i) the claim is primarily for non-monetary damages against the Indemnified
                                            Party, or primarily for an injunction or other equitable relief that, if granted, would reasonably
                                            be expected to be material to the Indemnified Party, (ii) there is a material actual
                                            or potential conflict of interest that makes representation of the Indemnifying Party and
                                            the Indemnified Party by the same counsel or the counsel selected by the Indemnifying Party
                                            inappropriate, or (iii) the claim is a criminal proceeding, then in each case the Indemnified
                                            Party may, upon notice to the Indemnifying Party, assume the exclusive right to defend (and
                                            in the case of clause (iii) above, compromise and settle), such claim and the reasonable
                                            fees and expenses of the Indemnified Party’s separate counsel shall be borne by the
                                            Indemnifying Party; however the settlement of any claim pursuant to clauses (i) and
                                            (ii) above shall be governed by Section 15.4(c) below. Notwithstanding anything
                                            to the contrary herein, for sake of clarity, the Parties agree that the foregoing provisions
                                            shall not be construed so as to permit the Indemnified Party to control or assume the defense
                                            of any action, lawsuit, proceeding, investigation, demand or other claim brought against
                                            the Indemnifying Party concurrently with or in a joint proceeding in respect of any claim
                                            that is the subject of an indemnification claim hereunder by the Indemnified Party.



 


		(c)	Notwithstanding
                                            anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or
                                            admit any liability with respect to any third party Claim without the prior written consent
                                            of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless
                                            the relief consists solely of (i) money damages (all of which the Indemnifying Party
                                            shall pay), and (ii) includes a provision whereby the plaintiff or claimant in the matter
                                            releases the Indemnified Party from all liability with respect thereto. If the Indemnified
                                            Party assumes the defense of or represents their own interests, no settlement shall be made
                                            without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably
                                            withheld or delayed).



 


		15.5.	Limited
                                            Waiver of Certain Immunities. Each of the Parties hereby specifically and expressly agrees
                                            that with respect to any and all claims against an Indemnified Party by any representative
                                            of an Indemnifying Party, any indemnification available hereunder shall not be limited by
                                            reason of any immunity to which such Indemnifying Party may be entitled under any workers
                                            compensation and/or industrial insurance acts, disability benefit acts, or other employee
                                            benefits acts and any limitation on the amount or type of damages, compensation, or benefits
                                            payable by or for the Indemnifying Party to such representative with respect to any such
                                            claim. For the sake of clarity, the Indemnifying Party’s waiver of immunity by the
                                            provisions of this section extends only to indemnification claims against the Indemnifying
                                            Party by or on behalf of the Indemnified Party under or pursuant to this Agreement, and does
                                            not apply to any claims made by the Indemnifying Party’s representatives directly against
                                            the Indemnifying Party.



 






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		15.6.	Survival.
                                            The indemnities set forth in this Article 15 shall survive the termination or expiration
                                            of this Agreement.



 


		16.	LIMITATIONS
                                            OF LIABILITY.



 


		16.1.	WAIVER
                                            OF CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANY PURCHASE ORDER
                                            EXECUTED HEREUNDER TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE, WHETHER BASED IN CONTRACT,
                                            GUARANTY, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, INDEMNITY
                                            OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR: LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST,
                                            GOODWILL OR OPPORTUNITY, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE,
                                            LOSS OF INFORMATION AND DATA, LOSS OF POWER, VOLTAGE IRREGULARITIES OR FREQUENCY FLUCTUATION,
                                            CLAIMS ARISING FROM BUYER’S THIRD PARTY CONTRACTS, OR FOR ANY TYPE OF INDIRECT, SPECIAL,
                                            PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER
                                            LOSS OR COST OF A SIMILAR TYPE.



 


		16.2.	MAXIMUM
                                            LIABILITY. SUPPLIER’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE
                                            PURCHASE PRICE SET FORTH IN THE APPLICABLE PURCHASE ORDER PURSUANT TO WHICH THE APPLICABLE
                                            CLAIM AROSE.



 


		16.3.	EFFECTIVENESS.
                                            THE PARTIES AGREE THAT THE EXCLUSIONS AND LIMITATIONS IN THIS ARTICLE 16 WILL PREVAIL
                                            OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT OR ANY PURCHASE ORDER EXECUTED
                                            HEREUNDER AND MUST BE GIVEN FULL FORCE AND EFFECT, WHETHER OR NOT ANY OR ALL SUCH REMEDIES
                                            ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY
                                            ARE EFFECTIVE EVEN IF SUPPLIER HAS BEEN ADVISED BY BUYER OF THE POSSIBILITY OF SUCH DAMAGES.
                                            THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY
                                            EXPRESSED IN THIS ARTICLE 16 EXTEND TO THE PARTIES’ RESPECTIVE AFFILIATES, PARTNERS,
                                            PRINCIPALS, MEMBERS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS, AGENTS, AND
                                            SUCCESSORS AND ASSIGNS.



 


		16.4.	Commencement
                                            of Claims. Except with respect to claims arising under Article 13, Article 15
                                            or Article 17, any legal action of either Party arising under this Agreement or any
                                            Purchase Order issued hereunder must be commenced within two (2) years after the Delivery
                                            of the applicable Equipment or performance of the applicable Service. To the maximum extent
                                            permitted by Applicable Law, each Party hereby waives any right to commence any claim or
                                            action after such two (2) year period.



 






    	 	26	 



     


    

 





		17.	CONFIDENTIALITY.



 


		17.1.	Confidential
                                            Information. Each Party shall, and shall cause its respective Affiliates and Representatives
                                            to, keep confidential any information which it may have or acquire before or after the date
                                            of this Agreement, concerning the other Party and its assets, business, operations, affairs,
                                            financial condition or such information, “Confidential Information”).



 


		17.2.	Non-Disclosure.
                                            Neither Party shall use any Confidential Information in any manner detrimental to the other
                                            Party nor shall any of them disclose, publish or make accessible, directly or indirectly,
                                            any Confidential Information to any person. In addition, the Parties shall exercise all reasonable
                                            efforts to prevent any other person from gaining access to such Confidential Information
                                            and take such protective measures as may be or become reasonably necessary to preserve the
                                            confidentiality of such Confidential Information.



 


		17.3.	Exceptions.
                                            Notwithstanding Section 17.1 and Section 17.2, either Party may disclose Confidential
                                            Information:



 


		(a)	to
                                            any Representative of such Party, provided that such Representative has a need to know and
                                            has been informed of the confidential nature of the information pursuant to Section 17.4;



 


		(b)	to
                                            the extent required by (i) any Applicable Law of any Governmental Authority (including
                                            any rule or regulation of the Securities and Exchange Commission), (ii) any stock
                                            exchange rule or regulation or (iii) any binding judgment, order or requirement
                                            of any court or other Governmental Authority of competent jurisdiction; provided, that the
                                            Party required to disclose Confidential Information, as the case may be, has delivered written
                                            notice to and consulted, to the extent practicable, with the other Party prior to disclosure
                                            of such Confidential Information; and



 


		(c)	to
                                            the extent such Confidential Information becomes available within the public domain (otherwise
                                            than as a result of a breach of this Article 17).



 


		17.4.	Representatives
                                            Bound. Each Party shall inform any representative to whom it provides Confidential Information
                                            that such information is confidential and shall instruct them (a) to keep such Confidential
                                            Information confidential and (b) not to disclose it to any third party (other than those
                                            persons to whom such Confidential Information has already been disclosed in accordance with
                                            the terms of this Agreement). The disclosing Party shall be responsible for any breach of
                                            this Article 17 by the person to whom the Confidential Information is disclosed.



 


		17.5.	Survival.
                                            Notwithstanding anything herein to the contrary, the provisions of this Article 17 shall
                                            survive the termination of this Agreement for a period of three (3) years and, with
                                            respect to each Party, shall survive for a period of three (3) years following the date
                                            on which such Party is no longer a Party.



 






    	 	27	 



     


    

 


		18.	REPRESENTATIONS
                                            AND WARRANTIES.



 


		18.1.	Representations
                                            of the Parties.As of the Effective Date (or, with respect to each Further Buyer Contracting
                                            Party that becomes a Buyer hereunder, as of the time of execution of a joinder hereto), and
                                            as of the entry into of each Purchase Order hereunder, each Party represents to the other
                                            Party as follows:









 


		(a)	Due
                                            Formation. Such Party (i) is a duly formed, validly existing and in good standing
                                            under the laws of the jurisdiction of its formation, (ii) has the requisite power and
                                            authority to own its properties and carry on its business as now being conducted and currently
                                            proposed to be conducted and to execute, deliver and perform its obligations under this Agreement,
                                            and (iii) is qualified to do business in every jurisdiction in which failure so to qualify
                                            could be reasonably be expected to have a material adverse effect on such Party’s ability
                                            to perform its obligations hereunder.



 


		(b)	Authorization;
                                            Enforceability. Such Party has taken all action necessary to authorize it to execute,
                                            deliver and perform its obligations under this Agreement. This Agreement constitutes a legal,
                                            valid and binding obligation of such Party enforceable in accordance with its terms, subject
                                            to bankruptcy, reorganization, moratorium or other similar laws affecting the enforcement
                                            of the rights of creditors generally and subject to general principles of equity.



 


		(c)	No
                                            Conflict. The execution, delivery and performance by such Party of this Agreement does
                                            not and will not (i) violate any Applicable Law, (ii) result in any breach of such
                                            Party’s constituent documents or (iii) conflict with, violate or result in a breach
                                            of or constitute a default under any agreement or instrument to which such Party or any of
                                            its properties or assets is bound or result in the imposition or creation of any lien or
                                            security interest in or with respect to any of such Party’s property or assets, other
                                            than in each case any such violations, conflicts, breaches or impositions which could not
                                            be reasonably be expected to have a material adverse effect on such Party’s ability
                                            to perform its obligations hereunder.



 


		(d)	No
                                            Authorization. No authorization or approval or other action by, and no notice to or filing
                                            with, any Governmental Authority or any third party (other than those which have been obtained)
                                            is required for the due execution, delivery and performance by such Party of this Agreement,
                                            other than any such authorizations, approvals or actions the failure of which to obtain could
                                            not reasonably be expected to have a material adverse effect on such Party’s ability
                                            to perform its obligations hereunder.



 


		(e)	Litigation.
                                            Such Party is not a party to any legal, administrative, arbitration or other proceeding,
                                            and, to such Party’s knowledge, no such proceeding is threatened, before any Governmental
                                            Authority that seeks to restrain or prohibit or otherwise challenge the consummation, legality
                                            or validity of this Agreement, the subject matter hereof, or that which could be reasonably
                                            be expected to have a material adverse effect on such Party’s ability to perform its
                                            obligations hereunder.



 


		18.2.	Additional
                                            Representations of Supplier.In addition to representations and warranties set forth elsewhere
                                            in this Agreement, Supplier hereby represents and warrants as of the Effective Date and as
                                            of the entry into of each Purchase Order hereunder as follows:



 


		(a)	None
                                            of Supplier, its Affiliates or Representatives is the target of or designated under any sanctions
                                            program that is established by statute or regulation of the United States, by Executive Order
                                            of the President of the United States, or by designations of any department or agency of
                                            the United States government including but not limited to those designations reflected in
                                            the “list of Specially Designated Nationals and Blocked Persons” of the Office
                                            of Foreign Asset Control, U.S. Department of the Treasury;



 






    	 	28	 



     


    







 


		(b)	Supplier’s
                                            Representatives are legally authorized to work in the United States and Supplier shall complete
                                            as required by Applicable Law the Department of Labor’s Form I-9 and to retain
                                            it for the statutorily designated period and, if requested by Buyer, Supplier shall provide
                                            copies of such Forms I-9 to Buyer unless such disclosure shall be prohibited by Applicable
                                            Law;



 


		(c)	For
                                            Services provided at Buyer’s, it’s customer or third party’s premises,
                                            Supplier has examined the worksite in order to acquaint itself with the local conditions,
                                            including applicable regulations codes, permits, licenses, registrations, environmental standards,
                                            and notification requirements concerning site safety and/or security;



 


Supplier
has not and will not, absent prior written approval from Buyer, take any actions that: (i) create, or purport to create, any obligation
on behalf of Buyer, or (ii) grant, or purport to grant, any rights or immunities to any third party under Buyer’s intellectual
property or proprietary rights; and


 


		(d)	The
                                            bank account named by Supplier to Buyer for all payments to be effected in connection with
                                            any Purchase Order hereunder is held in Supplier’s name and solely for its account.



 


		19.	ENVIRONMENT,
                                            HEALTH AND SAFETY.



 


		19.1.	Compliance
                                            and Related Matters.



 


		(a)	Each
                                            of the Parties shall, in addition to other obligations set forth in this Agreement, during
                                            the course of performance of their respective obligations under this Agreement or any Purchase
                                            Order issued hereunder:



 


		(i)	comply
                                            with Applicable Laws concerning health, the environment, safety, or pertaining to or regulating
                                            pollutants, contaminants, or hazardous, toxic or radioactive substances, materials or wastes,
                                            including without limitation the handling, transportation and disposal thereof, or governing
                                            or regulating the health and safety of personnel, including but not limited to the Occupational
                                            Safety and Health Act of 1970, the Resource Conservation and Recovery Act, and the Toxic
                                            Substance Control Act (“TSCA”), as amended (collectively referred to as
                                            “EHS Laws”) (pollutants, contaminants, or hazardous, toxic or radioactive
                                            substances, materials or wastes as defined under EHS Laws shall be referred to collectively
                                            as “Hazardous Materials”);



 


		(ii)	take
                                            reasonable and prudent measures, as appropriate, consistent with applicable industry standards,
                                            to mitigate hazards to the environment and to the health and safety of persons;



 






    	 	29	 



     


    

 


		(iii)	select
                                            and use only equipment, including but not limited to personal protection equipment, that
                                            comports with EHS Laws, implement programs to train its Representatives in the use of such
                                            equipment in a safe and lawful manner, and maintain such equipment in good working order
                                            at all times; and









 


		(iv)	promptly
                                            notify the other Party of any incident involving death, injury or damage to any person or
                                            property in connection with any Equipment or Purchase Order.



 


		(b)	Supplier
                                            shall, in addition to other obligations set forth in this Agreement, during the course of
                                            performance of its obligations under this Agreement or any Purchase Order issued hereunder:



 


		(i)	ensure
                                            that Equipment/Services comply with EHS Laws;



 


		(ii)	ensure
                                            the Equipment, and any and all parts, components, or material thereof, as Delivered by Supplier,
                                            bear all markings, labels, warnings, notices or other information required under applicable
                                            EHS Laws at the time of such Delivery; and



 


		(iii)	comply
                                            with any applicable substance declarations and other requirements set forth in Exhibit C.



 


		19.2.	On-Site
                                            Environmental and Safety Responsibility. Where the Purchase Order includes the presence
                                            of Supplier or its Representatives on the premises of Buyer, Buyer’s customer, or any
                                            other location other than the premises of Supplier (“Work Site”), Supplier
                                            shall: (1) be responsible for the safety, health, medical surveillance, industrial hygiene,
                                            training and all other matters required under EHS Laws relating to safety and health of its
                                            Representatives at the Work Site, (2) appoint a competent person as its representative
                                            for environmental, health and safety who shall take part in safety discussions with Buyer,
                                            its Representatives, customer, or the owner of the Work Site, (3)  be responsible for
                                            the handling, use, transportation and disposal of any and all substances regulated under
                                            the EHS Laws which Supplier or its Representatives bring onto the Work Site or generate in
                                            the performance of Supplier’s work pursuant to the applicable Purchase Order, including
                                            but not limited to excess, waste or residue, containers or any of such substances not consumed,
                                            and for any spills, releases or discharges of such substances to the extent attributable
                                            to acts or omissions of Supplier or its Representatives, strictly in accordance with EHS
                                            Laws, and (4) ensure Supplier’s Representatives participate in any site-specific
                                            safety training and comply with all rules and requirements of Buyer, its customer, or
                                            such other owner of the Work Site, in each case, of which Buyer provides Supplier advance
                                            written notice.



 


		19.3.	Health
                                            and Safety Plan. Prior to commencing any Services at a Work Site, Supplier shall, in
                                            accordance with EHS Laws provide and comply with a site specific health and safety plan,
                                            Work Site requirements, and shall make the same available to Buyer or its Representatives
                                            at Buyer’s request. If Supplier fails to comply with this Article 19, Buyer may,
                                            at its sole option and without limiting its other rights, order Supplier or its Representatives
                                            to cease Services until Supplier complies at Supplier’s sole cost and expense. If Supplier
                                            is unable or refuses to take corrective action hereunder Buyer may contract with a third
                                            party or otherwise continue such Services at the Work Site and charge Supplier any excess
                                            cost reasonably incurred by Buyer. Buyer shall have the right, at its sole discretion, to
                                            remove Supplier or its Representatives from a Work Site for violation of this Article 19.



 






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		20.	OPEN
                                            SOURCE SOFTWARE.



 


Supplier
shall inform Buyer no later than ten (10) Business Days following receipt of any written request from Buyer in connection with a
Purchase Order, whether the Equipment/Services contemplated thereby include “Open Source Software.” As used herein “Open
Source Software” means any Software that is licensed royalty-free (i.e., fees for exercising the licensed rights are prohibited,
whereas fees for reimbursement of costs incurred by licensor can be permitted) under any license terms or other contract terms (“Open
License Terms”) which require, as a condition of use, modification and/or distribution of such Software and/or any other Software
incorporated into, derived from or distributed with such software (“Derivative Software”), either of the following:
(i) that the source code of such Software and/or any Derivative Software be made available to third parties; or (ii) that permission
for creating derivative works of such software and/or any Derivative Software be granted to third parties. If
Open Source Software is included, Supplier shall deliver to Buyer, not later than the date of order confirmation, (A) a schedule
of all Open Source Software files known to be used, indicating the relevant license(s) to the extent known by Supplier; and (B) a
written notice that Supplier is not aware of any violation of such license(s) due to such Use of Open Source Software.


 


		21.	EXPORT
                                            CONTROL AND FOREIGN TRADE REGULATIONS.



 


		21.1.	Acknowledgement
                                            and Compliance. The Parties acknowledge that all Equipment to be delivered and Services
                                            to be provided according to this Agreement are subject to export control and sanctions laws
                                            and regulations, including, without limitation, the U.S. Export Administration Regulations
                                            (“EAR”) (15 C.F.R. §§ 730-774), the U.S. Foreign Trade Regulations
                                            (15 C.F.R. Part 30), and the regulations, rules, and executive orders administered by
                                            OFAC (collectively, the “Export Controls and Sanctions Laws”). Each Party
                                            agrees to comply with all Export Controls and Sanctions Laws applicable to any such Equipment/Services
                                            and shall not take any action that will cause the other Party to violate or be subject to
                                            penalty under the Export Controls and Sanctions Laws.



 


		21.2.	Export
                                            Licenses. Supplier shall obtain all necessary export licenses, unless Buyer or any party
                                            other than Supplier is required to apply for the export licenses pursuant to the applicable
                                            Export Controls and Sanctions Laws. To the extent Supplier is requested to deliver Equipment/Services
                                            regulated under the Arms Export Control Act or the Atomic Energy Act, Supplier shall advise
                                            Buyer in advance of order or contract acceptance.



 


		21.3.	Provision
                                            of Trade Data. At the request of Buyer, Supplier shall provide Buyer for Equipment and
                                            Services delivered the following trade data as applicable: (i) “Export Control
                                            Classification Number” according to the EAR’s Commerce Control List (ECCN) or
                                            the Munitions List Category Designation according to the US International Traffic in Arms
                                            Regulations, and all other export control list numbers; (ii) the statistical commodity
                                            code according to the current commodity classification for foreign trade statistics and the
                                            HS (Harmonized System) coding; (iii) the country of origin (non-preferential origin);
                                            and (iv) Supplier’s declaration for preferential origin (in case of European suppliers)
                                            or preferential certificates, Supplier’s declaration for preferential origin (in case
                                            of European suppliers) or preferential certificates (in case of non-European suppliers) such
                                            as NAFTA certificates of origin.









 









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		21.4.	Changes.
                                            In the event Supplier has knowledge of any alterations to origin and/or characteristics of
                                            the Equipment/Services, it shall notify the Buyer not later than ten (10) Business Days
                                            after discovery thereof.



 


		21.5.	Additional
                                            Buyer’s Obligations. Buyer agrees that it will not, in violation of applicable
                                            Export Controls and Sanctions Laws:



 


		(a)	directly
                                            or indirectly, export, reexport, or transfer Equipment or Services to, or transship Equipment
                                            or Services through, a Sanctioned Country;



 


		(b)	directly
                                            or indirectly, release, sell, provide, export, reexport, transfer, divert, loan, lease, consign,
                                            allow access to, or otherwise dispose of Equipment or Services to a Prohibited Person; or



 


		(c)	use
                                            Equipment or Services to produce products that will be shipped, sold, or supplied, directly
                                            or indirectly, to a Sanctioned Country or a Prohibited Person.



 


		21.6.	Certain
                                            Relief. No Party shall be obligated to fulfill this Agreement if such fulfillment is
                                            prevented by any impediments arising out of national or international foreign trade or customs
                                            requirements or any embargoes or other sanctions.



 


		22.	CODE
                                            OF CONDUCT.



 


Supplier
shall comply with the principles and requirements of the "Code of Conduct" attached hereto as Exhibit D (hereinafter the
 “Code of Conduct”). If and as requested by Buyer, Supplier shall, not more than once a year (at its option), provide
to Buyer either (A) a written self-assessment in substantially the form provided by Buyer or (B) a written report reasonably
acceptable to Buyer describing the actions taken or to be taken by Supplier to assure compliance with the Code of Conduct. In addition
to any other rights and remedies Buyer may have, in the event of Supplier's material or repeated failure to comply with the Code of Conduct,
after providing Supplier reasonable notice and a reasonable opportunity to remedy, Buyer may terminate any outstanding Purchase Orders
under this Agreement without any liability whatsoever. Material failures include, but are not limited to, incidents of child labor, corruption
and bribery. The notice and remedy provisions herein shall not apply to material failures set forth in the preceding sentence.


 


		23.	COMPLIANCE
                                            WITH LAWS AND PERMITS.



 


The
Parties and their Representatives shall comply with all Applicable Laws in the course of the performance of their respective obligations
under this Agreement and any Purchase Orders issued hereunder. In addition, Supplier and Buyer shall each obtain all required licenses,
permits, authorizations, registrations or approvals required with respect to the performance of their respective obligations under this
Agreement and any Purchase Orders issued hereunder.


 






    	 	32	 



     


    

 


		24.	DISPUTE
                                            RESOLUTION.



 


		24.1.	Referral
                                            to Senior Management. Except as otherwise provided by this Agreement, any dispute, controversy
                                            or claim arising out of or in connection with, or relating to, this Agreement or any breach
                                            or alleged breach hereof (which breach or alleged breach by a Party remains uncured within
                                            ten (10) Business Days after receipt of written notice thereof from another Party) or
                                            the validity or termination hereof or the relationship created between the Parties by and/or
                                            through this Agreement (a “Dispute”) shall first be settled as far as
                                            possible by good faith negotiations between the parties to the Dispute, in the form of meetings
                                            between senior- management level representatives of such Parties, upon the written request
                                            by any such Party to the other parties to the Dispute, which writing shall set forth in reasonable
                                            detail the nature and extent of the Dispute.



 





		24.2.	Referral
                                            to Arbitration. If the parties to the Dispute are unable for any reason to resolve a
                                            Dispute within thirty (30) days after receipt by any Party of written notice of a Dispute,
                                            then any Party may submit the Dispute to arbitration to be finally and exclusively resolved
                                            under the Arbitration Rules of the American Arbitration Association (“AAA”)
                                            then in effect, except as modified herein, with respect to Equipment and Services to be provided
                                            to a Customer with the United States (as applicable, the “Rules”). There
                                            shall be three (3) arbitrators. If there are two (2) parties to the Dispute, each
                                            of the parties to the Dispute shall nominate one (1) arbitrator in accordance with the
                                            Rules. If there are more than two (2) parties to the Dispute, the arbitrators shall
                                            be nominated in accordance with the Rules; provided, however, that any Party and its Affiliates
                                            shall be entitled to nominate only one (1) such arbitrator. The arbitrators so nominated,
                                            once confirmed by the AAA, shall nominate an additional arbitrator to serve as chairman,
                                            such nomination to be made within fifteen (15) days of the confirmation by the AAA of the
                                            second arbitrator. If the initial arbitrators shall fail to nominate an additional arbitrator
                                            within such fifteen (15) day period, such additional arbitrator shall be appointed by the
                                            AAA. The arbitrators shall be required to submit a written statement of their findings and
                                            conclusions. Except as otherwise agreed by the parties to such Dispute, exclusive venue of
                                            arbitration with the AAA will be Wilmington, Delaware, and the language of the arbitration
                                            shall be English. Each of the Parties will submit to the non-exclusive jurisdiction of the
                                            state and federal courts located in Wilmington, Delaware for preliminary relief in aid of
                                            arbitration and for the enforcement of any arbitral award from AAA. By agreeing to arbitration,
                                            the Parties do not intend to deprive any national court of its jurisdiction to issue any
                                            pre-arbitral injunction, pre-arbitral attachment or other order in aid of arbitration proceedings.



 


		24.3.	Neutral
                                            Arbitrators. None of the Parties or the arbitrators shall select any arbitrator for the
                                            arbitral tribunal who has any interest in the Dispute or who has, or within the immediately
                                            preceding five (5) years has had, any economic or other relationship with any party
                                            to the Dispute.



 


		24.4.	Procedures
                                            and Costs. The arbitrators shall not have the right to award consequential, incidental,
                                            indirect, special, treble, multiple or punitive damages. The arbitral tribunal shall not
                                            be empowered to decide any dispute ex aequo et bono or amiable compositeur, and the arbitral
                                            tribunal shall decide the Dispute under the substantive laws of the State of Delaware, without
                                            regard to applicable choice of law provisions thereof. The arbitration award shall be decided
                                            by majority opinion and issued in writing in the English language and shall state the reasons
                                            upon which it is based. It may be made public only with the consent of each participating
                                            Party or as may be required by law or regulatory authority or as necessary for enforcement
                                            of such award. The arbitrators shall allocate the fees and costs of the arbitration. The
                                            losing Party(ies) shall pay the prevailing Party(ies)’ attorney’s fees and costs
                                            and the costs associated with the arbitration, including the expert fees and costs and the
                                            arbitrators’ fees and costs borne by the prevailing Party(ies), all as determined by
                                            the arbitrators. Each Party shall bear its own fees and costs until the arbitrators determine
                                            which, if any, Party is the prevailing Party(ies) and the amount that is due to such prevailing
                                            Party(ies).



 






    	 	33	 



     


    

 





		24.5.	Award.
                                            The award rendered by the arbitrators shall be final and binding on the participating Parties
                                            and shall be the sole and exclusive remedy between and among the participating Parties regarding
                                            any claims, counterclaims, issues or accounting presented to the arbitral tribunal. The award
                                            shall be issued no later than one hundred twenty (120) days from the signing or ratification
                                            of the Terms of Reference (as defined in the Rules) or as soon thereafter as practicable.
                                            The award shall be paid within thirty (30) days after the date it is issued and shall be
                                            paid in U.S. Dollars in immediately available funds, free and clear of any Liens, Taxes or
                                            other deductions. A judgment confirming or enforcing such award may be rendered by any court
                                            of competent jurisdiction.



 


		24.6.	Confidentiality.
                                            The arbitration shall be confidential. No Party may disclose the fact of the arbitration,
                                            any award relating thereto or any settlement relating to any Dispute without the prior consent
                                            of the other Party(ies); provided, that such matters may be disclosed without the prior consent
                                            of the other Party(ies) to lenders, auditors, tax or other Governmental Authority or as may
                                            be required by law or regulatory authorities or as necessary to enforce any award.



 


		24.7.	Continued
                                            Performance; Provisional Remedies. Notwithstanding the existence of any Dispute, the
                                            Parties shall continue to perform their respective obligations under this Agreement unless
                                            the Parties otherwise mutually agree in writing. Notwithstanding anything in this Agreement
                                            to the contrary, nothing in this Agreement is intended to, nor shall it, prevent the Parties
                                            from seeking temporary injunctive relief at any time as may be available under Law or in
                                            equity to preserve its rights pending the outcome of any arbitration. Without prejudice to
                                            such provisional remedies as may be available under the jurisdiction of a national court,
                                            the arbitral tribunal shall have full authority to grant provisional remedies or order the
                                            Parties to request that a court modify or vacate any temporary or preliminary relief issued
                                            by a court, and to award damages for the failure of any Party to respect the arbitral tribunal’s
                                            orders to that effect. The Parties agree that any issue regarding the arbitrability of any
                                            claims or disputes arising under, relating to or in connection with this Agreement is an
                                            issue solely for the arbitrators, not a court, to decide.



 


		24.8.	Waiver
                                            of Jury Trial. THE PARTIES HEREBY EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY OR OTHERWISE
                                            ON ANY CLAIM, CAUSE OF ACTION, SUIT OR PROCEEDING PERMITTED UNDER THIS ARTICLE 24. THE
                                            PROVISIONS OF THIS AGREEMENT RELATING TO WAIVER OF TRIAL BY JURY SHALL SURVIVE THE TERMINATION
                                            OR EXPIRATION OF THIS AGREEMENT.



 


		25.	MISCELLANEOUS.



 


		25.1.	Governing
                                            Law. This Agreement shall be controlled by and construed in accordance with the substantive
                                            laws of the State of Delaware without regard to conflict of laws principles. The United Nations
                                            Convention on Contracts for the International Sale of Equipment of April 11, 1980 shall
                                            be excluded.



 


		25.2.	Records.
                                            Supplier and its Representatives shall maintain accurate and complete records of all contracts,
                                            papers, correspondence, copybooks, applications, accounts, invoices, and/or other information
                                            reasonably relating to this Agreement and any Purchase Orders issued hereunder (collectively,
                                            “Records”) in accordance with recognized commercial accounting practices,
                                            and shall retain such Records for a period of seven (7) years unless a longer period
                                            is required under Applicable Law.



 






    	 	34	 



     


    




 


		25.3.	Intentionally
                                            Omitted.



 


		25.4.	Insurance.
                                            Supplier and its Representatives shall comply with the Insurance requirements set forth in
                                            Exhibit E attached hereto.



 


		25.5.	Assignment;
                                            Successors. Neither Party may assign all or any part of this Agreement or any Purchase
                                            Order issued hereunder, or any rights or obligations hereunder or thereunder, without the
                                            prior written consent of the other Party, which consent shall not be unreasonably withheld.
                                            Any purported assignment which fails to comply with the requirements of this Section 25.5
                                            shall be null and void. Notwithstanding the foregoing: (i) either Party may, without
                                            the prior written consent of the other Party, assign all or any part of this Agreement or
                                            any Purchase Order issued hereunder, or any rights or obligations hereunder or thereunder,
                                            to an Affiliate, which will accept such assignment and assume all obligations related to
                                            this Agreement and any applicable Purchase Orders (including by executing a joinder to this
                                            Agreement in the form of Exhibit B hereto); provided  that,
                                            notwithstanding any such assignment, the assigning Party shall not be relieved of any of
                                            its obligations hereunder by reason of such assignment and shall remain liable hereunder
                                            to the same degree that the assigning Party would be responsible had there been no assignment.



 


		25.6.	Subcontracting.
                                            Supplier shall be solely responsible for the proper selection, supervision, acts and omissions
                                            of its subcontractors.



 


		25.7.	Other
                                            Terms and Amendments. The terms and conditions contained in any sales order, acknowledgment,
                                            invoice, website, letter, writing, software or file (such as “clickwrap”, “shrinkwrap”,
                                            or website terms of use), or other document or medium shall not be applicable or amend this
                                            Agreement or any Purchase Order issued hereunder nor bind the Parties hereto or their Affiliates
                                            or Representatives. This Agreement and any Purchase Order issued hereunder may only be amended
                                            by a written instrument signed by authorized Representatives of the Parties.



 


		25.8.	Government
                                            Contracts. When the Equipment/Services are to be used in the performance of a contract
                                            or subcontract with a Governmental Authority, applicable government contract requirements
                                            attached to this Agreement shall apply and are incorporated herein by reference.



 


		25.9.	Relationship
                                            of the Parties. Nothing contained in this Agreement shall be construed as creating a
                                            partnership, joint venture, agency, employee-employer relationship, trust or other association
                                            of any kind between the Parties and each Party shall be individually responsible only for
                                            its obligations as set forth in this Agreement. Any Services provided by Supplier, its Affiliates
                                            and Representatives pursuant to this Agreement are provided as independent contractors of
                                            Buyer and not in the capacity of an employee or agent of Buyer.



 


		25.10.	Publicity.
                                            No Party hereto shall refer to or use, or permit any persons to refer to or use, any other
                                            Party’s name, trademarks, service marks or logos in any advertising, promotional materials,
                                            press releases or other publicity without obtaining the prior written consent of the applicable
                                            Party.



 






    	 	35	 



     


    

 





		25.11.	Non-Exclusive
                                            Remedies and Non-Waivers. No delay or omission by the Parties in exercising any right
                                            or remedy provided for herein shall constitute a waiver of such right or remedy nor shall
                                            it be construed as a bar to or waiver of any such right or remedy on any future occasion.
                                            Any waiver authorized on one occasion must be made in writing and is effective only in that
                                            instance and only for the purpose stated, and does not operate as a waiver on any future
                                            occasion. The rights and remedies of the Parties herein shall not be exclusive and are in
                                            addition to any other rights and remedies provided by Applicable Law or in equity.



 


		25.12.	Severability.
                                            Any provision of this Agreement or any Purchase Order issued hereunder that is prohibited
                                            or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only
                                            to the extent of such prohibition or unenforceability without invalidating the remaining
                                            provisions hereof (provided the substance of the agreement between the Parties is not thereby
                                            materially altered), and any such prohibition or unenforceability in any jurisdiction shall
                                            not invalidate or render unenforceable such provision in any other jurisdiction. To the extent
                                            permitted by Applicable Laws, the Parties hereto hereby waive any provision of Applicable
                                            Law which renders any provision hereof prohibited or unenforceable in any respect.



 


		25.13.	Survival.
                                            The Title and Risk of Loss, Warranties, Intellectual Property, Defaults and Remedies, Indemnification,
                                            Limitations of Liability, Confidentiality, Export Control and Foreign Trade Regulations,
                                            Dispute Resolution and Miscellaneous sections of this Agreement, and any provision that contemplates
                                            performance or observance subsequent to termination or expiration shall survive termination
                                            or expiration of this Agreement.



 


		25.14.	Affirmative
                                            Action. Supplier shall, to the extent applicable, comply with Buyer’s requirements
                                            as promulgated by the U.S. Department of Labor, Office of Federal Contract Compliance Programs
                                            set forth in Exhibit F.



 


		25.15.	Complete
                                            Agreement and Counterparts. This Agreement, together with all Purchase Orders issued
                                            hereunder, shall constitute the entire agreement between Buyer and Supplier and shall supersede
                                            all previous communications, representations, agreements or understandings, whether oral
                                            or written, with respect to the subject matter hereof. The headings used in this Agreement
                                            are for reference and shall not limit or affect the meaning or interpretation of any of the
                                            terms hereof. Upon the effectiveness of this Agreement, if at all, the Prior Agreement shall
                                            be deemed amended and restated and superseded and replaced in its entirety by this Agreement,
                                            and shall be of no further force or effect.



 


		25.16.	Counterparts.
                                            This Agreement may be executed in multiple counterparts, each of which when so executed and
                                            delivered shall constitute a duplicate original and all counterparts together shall constitute
                                            one and the same instrument. Transmission of the executed signature page of a counterpart
                                            of this Agreement by electronic mail shall be effective as delivery of an executed counterpart
                                            of this Agreement.



 


		25.17.	No
                                            Pre-Printed Terms. Pre-printed terms or conditions in any invoice, quotation, shipping
                                            notice or order acknowledgement issued by Buyer or Supplier shall be of no force or effect,
                                            except to the extent included in a Pricing Notice. The terms and conditions applicable to
                                            each Purchase Order issued by Buyer shall be those set forth herein and in such Purchase
                                            Order and the applicable Pricing Notice therefor.



 






    	 	36	 



     


    

 






		25.18.	Priority. In the event of inconsistency between or among the provisions of this Agreement, a Purchase
Order and the applicable Pricing Notice therefor, the following order of precedence, from highest to lowest, shall govern:



 


		(a)	mutually agreed Change Orders;



 


		(b)	Purchase Order;



 


		(c)	this Agreement.



 


		25.19.	Notices.



 


		(a)	All notices and other communications which either Party is required or may desire to serve upon the other
shall be addressed to the Party to be served as follows, unless a different address is designated in writing by the Party to be served:



 


To Supplier:


 


Siemens Industry, Inc.

4800 North Point Parkway

Alpharetta, GA 30005

Attn: Craig Langley, Associate General Counsel

Email: langley.craig@siemens.com


 


To Buyer:


 


Fluence Energy, LLC

4601 N. Fairfax Drive, Suite 600

Arlington, VA 22203

Attn: Marek Wolek, SVP – Strategy & Partnerships

Email: marek.wolek@fluenceenergy.com


 


With a copy to:


 


Fluence Energy, LLC

4601 N. Fairfax Drive, Suite 600

Arlington, VA 22203

Attn: Frank Fuselier, General Counsel


Email:
frank.fuselier@fluenceenergy.com


 






    	 	37	 



     


    

 


		(b)	All notices, requests, consents and other communications under this Agreement must be in writing and shall
be deemed to have been duly given and effective (i) immediately (or, if not delivered or sent on a Business Day, the next Business
Day) if delivered or sent and received by electronic mail, (ii) on the date of delivery if by hand delivery (or, if not delivered
on a Business Day, the next Business Day) or (iii) on the first Business Day following the date of dispatch (or, if not sent on a
Business Day, the next Business Day after the date of dispatch) if by a nationally recognized overnight delivery service (all fees prepaid).
In the case of notice via email, each Party shall provide confirmation of receipt or non-receipt upon the request of the transmitting
Party.



 


		(c)	All notices, requests, consents and other communications under this Agreement shall include reference
to the applicable Purchase Order number, if any.



 


		25.20.	Joint Effort. Preparation of this Agreement has been a joint effort of the Parties and the resulting
document shall not be construed more severely against one of the Parties than against the other. Any rule of construction that ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement, or any amendments or Exhibits
hereto.



 


		25.21.	Language of the Agreement, Correspondence, Documentation. The language of this Agreement shall
be English. Unless to the extent agreed otherwise, correspondence, technical and commercial documents as well as any other information
exchanged between the Consortium Members relating to this Agreement shall be in English.



 


[SIGNATURE PAGE FOLLOWS]


 






    	 	38	 



     


    

 


IN WITNESS WHEREOF,
intending to be legally bound, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the
date first below above.


 


Siemens Industry, Inc.


 


	By:		 
	Name:	 
	Title:	 
		 
	By:		 
	Name:	 
	Title:	 
		 
	Fluence Energy, LLC	 
	 	 
	By:		 
	Name:	 
	Title:	 
		 
	By:		 
	Name:	 
	Title:	 



 


[Signature Page to Amended and Restated Equipment and Services Purchase Agreement]


 



    39 


     


    




 


Exhibit A


 


Form of Purchase Order


 


The following sets forth the minimum terms and conditions to be included
on a Purchase Order under this Agreement, which terms and conditions may be modified or supplemented by the mutual agreement of the Parties:


 


Equipment:


 


1. Type of Equipment


 


2. Quantity of Equipment


 


3. Unit Price of Equipment


 


4. Total Price of Equipment on this Purchase Order


 


5. Manufacturing Location


 


6. Incoterms and Delivery Location


 


7. Guaranteed Delivery Date


 


8. Insurance


 


9. Equipment Warranty Period


 


10. IP/Software Terms


 


11. Supplier Documents


 


12. Technical Specifications


 


13. Special Packaging Requirements


 


Services:


 


1. Type of Services


 


2. Amount of Services


 


3. Price of Services


 


4. Total Price of Services on this Purchase Order


 


5. Performance Location


 


6. Performance Date(s)


 


7. Insurance


 


8. Services Warranty Period


 


9. IP/Software Terms


 


10. Supplier Documents


 


11. Specifications


 


Other Terms:


 


1. Electronic Banking Method for Payments


 


2. Buyer Furnished Property


 



    	 		 



     


    




 


EXHIBIT B


 


Joinder Agreement Template


 


This Joinder Agreement
(the "Joinder Agreement") to the Equipment and Services Purchase Agreement, dated January 1, 2018 between Siemens
Industry, Inc. and Fluence Energy, LLC is made and entered into


 


by and between


 





___


 


with its registered seat in [Place], [Country]


 


- hereinafter referred to as "Supplier"
-


 


and


 


___,


 


with its registered seat in [Place], [Country]


 


- hereinafter referred to as "Buyer"
-


 


- Supplier and Buyer are hereinafter individually

referred to as a "Party" and collectively as the "Parties" -


 






    	 		 



     


    

 


WHEREAS, Supplier and Fluence Energy, LLC
(“Fluence”) entered on January 1, 2018 into the Equipment and Services Purchase Agreement (the "Agreement")
which is attached hereto as Annex 1;


 


WHEREAS, Buyer
is an Affiliate of Fluence and wishes to become a party to the Agreement and to adopt the terms and conditions thereof, and consequently
Supplier and Buyer wish to enter into this Joinder Agreement.


 


NOW THEREFORE,
in consideration of the mutual covenants and premises contained herein, the Parties agree as follows:


 


Adoption
of the AGREEMENT


 


		a)	Buyer hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, Buyer
shall be deemed a party to the Agreement for all purposes of the Agreement, and shall have all of the obligations of a “Buyer”
under the Agreement, as though an original party to the Agreement. Buyer hereby ratifies, as of the date hereof, and agrees to be bound
by, and subject to, all of the covenants, terms, provisions and conditions applicable to “Buyer” contained in the Agreement.
The terms and conditions as set out in the Agreement are incorporated herein by reference and are made applicable between the Parties.



 


		b)	Without limiting the generality of the foregoing, Buyer hereby represents and warrants that each of the
representations and warranties of “Buyer” contained in the Agreement is true and correct as of the date of the execution and
delivery of this Joinder Agreement.



 


		c)	This Joinder Agreement shall be controlled by and construed in accordance with the substantive laws of
the State of Delaware without regard to conflict of laws principles.



 


		d)	This Joinder Agreement contains the entire agreement between the Parties and supersedes any and all prior
negotiations, correspondence, understandings between the Parties concerning the subject matter hereof. It may not be changed orally, but
only by an agreement in writing signed by both Parties hereto.



 


		e)	This Joinder Agreement may be executed in multiple counterparts, each of which when so executed and delivered
shall constitute a duplicate original and all counterparts together shall constitute one and the same instrument. Transmission of the
executed signature page of a counterpart of this Joinder Agreement by electronic mail shall be effective as delivery of an executed
counterpart of this Agreement.



 






    	 		 



     


    

 


Specific
stipulations under this JOINDER Agreement


 


[ONLY country specific deviations
from the Agreement are to be stipulated here.]


 


		a)	[Delivery and Payment terms]



 


		b)	[Term and Termination]



 


		c)	[Country specific regulations (jurisdiction, governing law, tax etc.)]



 


		d)	...



 






    	 		 



     


    

 


Order
of Precedence between the Agreement and the Adoption Agreement


 


In the event of any conflict or inconsistency
between the terms of this Joinder Agreement and the Agreement, the Joinder Agreement shall prevail over the Agreement.


 


	Supplier	 	Buyer
	 	 	 
	Place, Date:	 	 	 	Place, Date:	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Name:	 	Name:	 	Name:	 	Name:
	 	 	 	 	 	 	 
	(Print)	 	(Print)	 	(Print)	 	(Print)
	 	 	 	 	 	 	 
	Title:	 	Title:	 	Title:	 	Title:
	 	 	 	 	 	 	 



 


Annex 1:
Equipment and Services Purchase Agreement


 



    	 		 



     


    




 


Exhibit C


 


Substance Declaration


 


If Supplier furnishes Equipment that is subject
to restrictions, rules or regulations for Hazardous Materials or other substances comprising, part of or contained in such Equipment,
including but not limited to (1) EHS Laws, including TSCA, (2) other statutes, rules, regulations, codes, rules, standards and
requirements governing, controlling or regulating Hazardous Materials, including but not limited to the Restriction on the Use of Certain
Hazardous Substances in Electrical and Electronic Equipment (hereinafter “RoHS”), Directives 2002/96/EC and 2012/19/EU as
well as their respective incorporation into EU member states’ legislation including any amendments thereto (hereinafter “WEEE”), (3) the
Regulation EC 1907/2006 of the European Parliament and of the Council of the European Union concerning the Registration, Evaluation, Authorization
and Restriction of Chemicals including any amendment thereto (hereinafter “REACH”), and/or (4) EC Directive 2006/66/EC
on Batteries and Accumulators and Waste Batteries and Accumulators, without limiting Supplier’s obligations under this Agreement,
Supplier shall comply with the requirements of this “Substance Declaration”.


 


Supplier shall submit to Buyer with the Equipment,
a list of the chemical substances contained therein, and/or Material Safety Data Sheets, Safety Data Sheets or other such documentation
as required by Applicable Laws (including without limitation the OSHA Hazardous Communication Standard 29 CFR 1910.1200 et seq.). If
Supplier furnishes Equipment that is subject to substance restrictions, rules or regulations including but not limited to those
identified in this Exhibit, Supplier shall declare such substances on the Buyer web database BOMcheck (www.BOMcheck.net) or, only if
and approved in writing in advance by Buyer, in another reasonable format provided to Buyer no later than first delivery date of the
Equipment, and Supplier shall prior to Supplier’s first delivery of Equipment complete and comply with the Declarable Substances-Form (hereinafter
 “Substance Declaration”) in the Buyer supplier portal “c4seasy” or in hard copy forwarded to Buyer. In addition,
for Equipment that is subject to substance restrictions, rules or regulations Supplier shall provide Buyer with a safety data sheet
required in Article 31 of the Regulation EC 1907/2006 (REACH ) for Equipment that is or contains substances subject to such substance
restrictions, rules or regulations, and Supplier shall keep this Substance Declaration up to date. Should a delivery hereunder contain
 “dangerous goods” as so classified pursuant to Applicable Laws, Supplier shall notify Buyer in writing in sufficient detail
to identify the Equipment, the hazards, and the laws, rules or regulations applicable thereto no later than three (3) business
days after receipt of the Purchase Order.


 



    	 		 



     


    




 


Exhibit D


 


Code of Conduct


 


This Code of Conduct defines the basic requirements
placed on Buyer’s suppliers and third party intermediaries concerning their responsibilities towards their stakeholders and the
environment. Buyer reserves the right to reasonably change the requirements of this Code of Conduct. In such event Buyer expects the supplier
to accept such reasonable changes.


 


The supplier
and/or third party intermediary declares herewith:


 


•     Legal
compliance 


o            to
comply with the laws of the applicable legal Equipment and Services. 


•     Prohibition
of corruption and bribery 


		o	to tolerate no form of and not to engage directly or indirectly in any form of corruption or bribery and not to grant, offer or promise
anything of value to a government official or to a counterparty in the private sector to influence official action or obtain an improper
advantage.






•     Fair
competition, anti-trust laws and intellectual property rights 


		o	to act in accordance with national and international competition laws and not to participate in price fixing, market or customer allocation,
market sharing or bid rigging with competitors;






o            to
respect the intellectual property rights of others. 


•     Conflicts
of interest 


o            to
avoid all conflicts of interest that may adversely influence business relationships. 


•     Respect
for the basic human rights of employees 


		o	to promote equal opportunities for and treatment of its employees irrespective of skin color, race, nationality, social background,
disabilities, sexual orientation, political or religious conviction, sex or age;






o            to
respect the personal dignity, privacy and rights of each individual; 


o            to
refuse to employ or make anyone work against his will; 


		o	to refuse to tolerate any unacceptable treatment of employees, such as mental cruelty, sexual harassment or discrimination;






		o	to prohibit behavior including gestures, language and physical contact, that is sexual, coercive, threatening, abusive or exploitative;






		o	to provide fair remuneration and to guarantee the applicable national statutory minimum wage;






		o	to comply with the maximum number of working hours laid down in the applicable laws;






		o	to recognize, as far as legally possible, the right of free association of employees and to neither favor nor discriminate against
members of employee organizations or trade unions.






•     Prohibition
of child labor 


		o	to employ no workers under the age of 15 or, in those countries subject to the developing country exception of the ILO Convention
138, to employ no workers under the age of 14.






•     Health
and safety of employees 


o            to
take responsibility for the health and safety of its employees; 


		o	to control hazards and take the best reasonably possible precautionary measures against accidents and occupational diseases;



 






    	 		 



     


    

 





		o	to provide training and ensure that employees are educated in health and safety issues;









		o	to set up or use a reasonable occupational health & safety management system.









•     Environmental
protection





		o	to act in accordance with the applicable statutory and international standards regarding environmental protection;






		o	to minimize environmental pollution and make continuous improvements in environmental protection;






o            to
set up or use a reasonable environmental management system 


•     Supply
chain 


		o	to use reasonable efforts to promote among its suppliers compliance with this Code of Conduct;






		o	to comply with the principles of nondiscrimination with regard to supplier selection and treatment.






•     Conflict
Minerals 


		o	to take reasonable efforts to avoid in its products the use of raw materials which directly or indirectly finance armed groups who
violate human rights.



 



    	 		 



     


    




 


Exhibit E


 


Insurance


 


(A)  Supplier
shall, at its sole expense, maintain, and shall require its Representatives to maintain, the types of insurance coverage(s) listed
below. The coverage limits for each type of insurance listed below shall be the greater of: (i) the coverage limits listed below;
or (ii) if the applicable Attachments require Supplier to maintain higher limits, then the coverage limits specified in the Attachments.
Evidence of insurance required by this Agreement is to be furnished before any Equipment/Services is commenced. Supplier and its Representatives
shall maintain such insurance in full force and effect during the term of this Agreement, and, in addition, for as long as Supplier is
under any warranty obligations arising out of this Agreement. All insurers on required insurance coverage(s) shall have an A.M. Best
Rating of A- /VIII or better. Buyer and its subsidiaries, affiliates, and its or their Representatives, and/or any other party designated
on the Face Page as applicable shall be named as an additional insured, with respect to the Commercial General Liability and Automobile
Liability policies/coverage(s). All insurance certificates shall be in a form satisfactory to Buyer. Supplier shall deliver the certificates
of insurance, naming Buyer and, if applicable, Buyer’s customer, as the Certificate Holder. All of Supplier’s policies of
insurance, except for Workers’ Compensation and Employers Liability, shall be primary insurance and noncontributing with any other
insurance maintained by Buyer, Buyer’s customer and/or other parties. All of Supplier’s policies of insurance, except for
Worker’s Compensation and Employer’s Liability, shall contain a cross-liability or severability of interest clause. The limits
of insurance set forth below may be satisfied by any combination of excess and primary insurance coverage. Supplier shall require all
its insurers to waive all rights of subrogation against Buyer, Buyer’s customer, and their respective subsidiaries, affiliates,
and Representatives, and any other party designated as an additional insured.


 


B) Supplier shall maintain the following insurance
coverage(s):


 


Worker's
Compensation Insurance in accordance with the statutory requirements of the location in which the Purchase Order is performed.
If there is an exposure to injury to Supplier’s employee under the U.S. Longshoremen’s and Harbor Worker’s Compensation
Act, the Jones Act or under laws, regulations or statutes applicable to maritime employees, coverage required by law shall be provided
for same.


 


Employer's
Liability Insurance with the following limits of liability:


 


·     $1,000,000
for each occurrence;


 


·     $1,000,000
Disease Policy


 


·     $1,000,000
Each Employee.


 


Commercial
General Liability Insurance, in occurrence coverage form, with minimum limits of $5 million per occurrence, including the following
coverages:


 


·     Products
and Completed Operations


 


·     Contractual
Liability insuring the obligations assumed by Supplier under this Agreement


 






    	 		 



     


    

 


·     Premises/Operations


 


·     Underground,
Undermining, Explosion and Collapse (XCU) Hazard,


 


·     Supplier’s
Contractor’s Protective Liability


 


·     Broad
Form Property Damage (including Completed Operations)


 


Automobile
Liability Insurance, including coverage for owned, hired, and non-owned automobiles and trucks used by or on behalf of the
Supplier providing insurance for bodily injury, liability and property damage liability with minimum limits for each type of coverage
of $5,000,000 per occurrence.


 


(C ) The following are required if a Purchase Order
involves such exposures: (i) Exposure to Hazardous Materials, then Environmental Impairment Liability Insurance (including
Asbestos) with limits of $5,000,000 per occurrence; (ii) Involves watercraft owned, operated or chartered by Supplier or its Representatives,
liability arising out of such watercraft shall be insured by the General Liability or by Protection and Indemnity Insurance with a CSL
of no less than $1,000,000 per each occurrence; (iii) Involves the hauling and/or rigging of property in excess of $100,000, Supplier
shall carry “All Risk” Transit Insurance, or “All Risk” Motor Truck Cargo Insurance (Such insurance shall provide
a limit of not less than the replacement cost of the highest value single lift or highest value being moved, whichever is greater, and
insuring the interest of Supplier, Buyer and Buyer’s customer, as their respective interests may appear); (iv) Involves aircraft
(fixed wing or helicopter) owned, operated or chartered by Supplier or its Representatives, liability arising out of such aircraft shall
be insured for not less than $1,000,000 CSL each occurrence. If required by a Purchase Order, Supplier shall obtain insurance covering
loss or damage to Buyer or Buyer’s customer’s property under the care, custody and control of Supplier or Supplier’s
Representatives on a 100 percent replacement cost basis, and/or if the Equipment/Services involve access, storage, transmission or processing
of Buyer’s, its customer’s, its or their Representatives’ confidential information, a Cyber Liability Errors and Omissions
Policy shall be procured by Supplier providing coverage, on a per occurrence basis, for acts, errors, omissions, and negligence of employees
and contractors giving rise to potential liability, financial and other losses relating to data security and privacy, including cost of
defense and settlement, in an amount of at least $2,000,000.


 


(D)  The procurement, maintenance or acceptance
of insurance coverage by Buyer, if any, shall not: (i) relieve Supplier of liability for loss or damage in excess of the policy coverage
limits specified herein; or (ii) limit or release Supplier of its obligations or liabilities under the Purchase Order.


 


(E)  No delay or failure in declaring any
default or in enforcing any of the requirements of this Section, and no course of dealing between Buyer and Supplier shall constitute
a waiver of any of the requirements of this Section.


 



    	 		 



     


    




 


Exhibit F


 


Affirmative Action


 


Should Buyer become a federal contractor/subcontractor,
Buyer will be required to comply with certain federal regulations, including the regulations promulgated by the U.S. Department of Labor,
Office of Federal Contract Compliance Programs (“OFCCP”). Should Buyer become a federal contractor, Buyer will also be required
to ensure compliance of the OFCCP by its subcontractors, vendors and suppliers covered under the OFCCP (each, a “Covered Party”).
Supplier is hereby notified of Buyer’s policy related to affirmative action and its mutual OFCCP obligations to the extent Supplier,
its subcontractors, vendors or suppliers is a Covered Party.


 


Buyer is an equal
opportunity/affirmative action employer and does not discriminate on the basis of race, color, creed, religion, national origin, ancestry,
sex, age, physical or mental disability, marital status, pregnancy, genetic information, sexual orientation, gender identity, protected
veteran or military status, or any other consideration not related to the person’s ability to do the job or otherwise made unlawful
by federal, state or local law in the following employment practices, including among others: recruiting, hiring, placement, transfer,
promotion, demotion, selection for training, layoff, termination, shift assignment, determination of service, rates of pay, benefit plans,
and all forms of compensation and other personnel actions.


 


Should Buyer become a federal contractor/subcontractor,
Buyer’s Covered Parties (including Supplier and its Covered Parties, if applicable) will also have an obligation to comply with
equal opportunity and affirmative action principles. Therefore, Buyer’s Covered Parties (including Supplier and its Covered Parties,
if applicable) will take appropriate action in support of these principles. Through our mutual effort and cooperation, we will continue
to provide a working environment that appreciates and encourages diversity, promotes equal employment opportunity and is free from any
type of discrimination.


 


Supplier and its Covered Parties, if applicable,
shall abide by the requirements of the “Equal Opportunity Clause” in Section 202 of Executive Order 11246. See 41 CFR
60-1.4(a).


 


The following shall also apply if the Supplier
is a Covered Party:


 


For contracts
of $100,000 or more, Supplier shall comply with the following: This Supplier, contractor and subcontractor shall abide by the
requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative
action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.


 


For contracts of $10,000 or more, Supplier
shall comply with the following: This Supplier, contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This
regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered
prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.


 



    	 		 



     


    




 


Attachment A


 


DESCRIPTION OF SUPPLIER’S EQUIPMENT AND
SERVICES


 


See attached.1


 


 


 









1
Within sixty (60) days of the Effective Date, the Parties agree to discuss and use reasonable efforts to update Attachment
A, if mutually desired, to meet the expectations of the Parties.