ex1023-amendedandrestate






Amended and Restated  Storage Core Frame Purchase Agreement  by and between  Siemens Industry, Inc.  as Buyer  and  Fluence Energy, LLC  as Supplier  dated October 27, 2021    EXECUTION  VERSION Exhibit 10.23 





 






  i    Table of Contents  Page  1. DEFINITIONS; INTERPRETATION. ................................................................................. 1  1.1. Definitions ..................................................................................................................... 1  1.2. Interpretation ................................................................................................................. 9  2. TERM AND TERMINATION OF AGREEMENT. ..............................................................10  2.1. Term ............................................................................................................................10  2.2. Early Termination ........................................................... Error! Bookmark not defined.  3. SCOPE OF AGREEMENT. .............................................................................................10  3.1. Scope Generally ...........................................................................................................10  3.2. Further Siemens Contracting Parties ............................................................................10  4. ORDERS. ........................................................................................................................11  4.1. Pricing Requests ..........................................................................................................11  4.2. Purchase Orders ..........................................................................................................11  4.3. Exclusivity and Certain Related Priorities .....................................................................11  4.4. Non-Competition ..........................................................................................................14  4.5. Payment Terms ............................................................................................................16  4.6. Disputed Payments ......................................................................................................17  4.7. Late Payments .............................................................................................................17  4.8. Taxes; Export and Import Duties ..................................................................................17  5. DELIVERY. .....................................................................................................................17  5.1. Delivery Terms; Inspection ...........................................................................................17  5.2. Guaranteed Delivery Date ............................................................................................17  5.3. Delay Liquidated Damages ..........................................................................................18  5.4. Buyer Caused Delay ....................................................................................................18  6. TITLE, RISK OF LOSS AND CARE, CUSTODY AND CONTROL. ..................................18  6.1. Transfer of Title and Risk of Loss .................................................................................18  6.2. Warranty of Title ...........................................................................................................18  7. INSPECTION AND QUALITY CONTROL. .......................................................................18  7.1. Inspection Rights ..........................................................................................................18  7.2. Quality Control .............................................................................................................19  8. WARRANTIES. ...............................................................................................................19  8.1. Equipment Warranty ....................................................................................................19  8.2. Services Warranty ........................................................................................................19  8.3. Notification Requirements ............................................................................................19  8.4. Corrective Action ..........................................................................................................19  8.5. Warranty Exclusions.....................................................................................................20  8.6. NO IMPLIED WARRANTIES ........................................................................................20  8.7. Reserved Rights ...........................................................................................................20  8.8. Access to Buyer Data ...................................................................................................20  9. BUYER FURNISHED PROPERTY. .................................................................................20  10. PACKAGING. ..................................................................................................................21  11. FORCE MAJEURE. .........................................................................................................21  11.1. Effect of Force Majeure .............................................................................................21  11.2. Procedures ...............................................................................................................21  11.3. Termination for Extended Force Majeure ..................................................................22  12. CHANGE ORDERS. ........................................................................................................22  12.1. Change Order ...........................................................................................................22  12.2. Change Order Process .............................................................................................22  12.3. Change Order Restrictions ........................................................................................23  





 






ii  12.4. No Change ................................................................................................................23  13. INTELLECTUAL PROPERTY. .........................................................................................23  13.1. Grant of License........................................................................................................23  13.2. No Copies .................................................................................................................23  13.3. Proprietary Notices ...................................................................................................24  13.4. Security .....................................................................................................................24  13.5. No Reverse Engineering ...........................................................................................24  13.6. Open Source Software ..............................................................................................24  13.7. Reporting ..................................................................................................................24  13.8. Relief ........................................................................................................................24  13.9. Improvements ...........................................................................................................24  13.10. Ownership .............................................................................................................25  13.11. Enforcement ..........................................................................................................25  13.12. Duration and Transfers ..........................................................................................26  13.13. Government End Users .........................................................................................26  13.14. Reservation of Rights.............................................................................................27  14. DEFAULTS AND REMEDIES. .........................................................................................27  14.1. Supplier Defaults .......................................................................................................27  14.2. Buyer Defaults ..........................................................................................................27  14.3. Remedies..................................................................................................................28  15. INDEMNIFICATION.........................................................................................................28 15.1. General .....................................................................................................................28  15.2. Infringement Indemnification by Supplier ..................................................................28  15.3. Infringement Indemnification by Buyer ......................................................................30  15.4. Indemnification Procedures .......................................................................................30  15.5. Limited Waiver of Certain Immunities ........................................................................31  15.6. Survival .....................................................................................................................32  16. LIMITATIONS OF LIABILITY. ..........................................................................................32  16.1. WAIVER OF CERTAIN DAMAGES ...........................................................................32  16.2. MAXIMUM LIABILITY ...............................................................................................32  16.3. EFFECTIVENESS ....................................................................................................32  16.4. Commencement of Claims ........................................................................................32  17. CONFIDENTIALITY.........................................................................................................32 17.1. Confidential Information ............................................................................................32  17.2. Non-Disclosure .........................................................................................................33  17.3. Exceptions ................................................................................................................33  17.4. Representatives Bound .............................................................................................33  17.5. Survival .....................................................................................................................33  18. REPRESENTATIONS AND WARRANTIES. ...................................................................33  18.1. Representations of the Parties ..................................................................................33  18.2. Additional Representations of Supplier .....................................................................34  19. ENVIRONMENT, HEALTH AND SAFETY. ......................................................................35  19.1. Compliance and Related Matters ..............................................................................35  19.2. On-Site Environmental and Safety Responsibility .....................................................36  19.3. Health and Safety Plan .............................................................................................36  2 0 .  OPEN SOURCE SOFTWARE. ....................................................................................36  21. EXPORT CONTROL AND FOREIGN TRADE REGULATIONS.......................................37  21.1. Acknowledgement and Compliance ..........................................................................37  21.2. Export Licenses ........................................................................................................37  21.3. Provision of Trade Data ............................................................................................37  21.4. Changes ...................................................................................................................37  





 






  iii    21.5. Additional Buyer’s Obligations ...................................................................................37  21.6. Certain Relief ............................................................................................................38  22. BUYER CODE OF CONDUCT. .......................................................................................38  23. COMPLIANCE WITH LAWS AND PERMITS...................................................................38  24. DISPUTE RESOLUTION. ................................................................................................38  24.1. Referral to Senior Management ................................................................................38  24.2. Referral to Arbitration ................................................................................................39  24.3. Neutral Arbitrators .....................................................................................................39  24.4. Procedures and Costs...............................................................................................39  24.5. Award .......................................................................................................................39  24.6. Confidentiality ...........................................................................................................40  24.7. Continued Performance; Provisional Remedies ........................................................40  24.8. Waiver of Jury Trial ...................................................................................................40  25. MISCELLANEOUS. .........................................................................................................40  25.1. Governing Law ..........................................................................................................40  25.2. Records ....................................................................................................................40  25.3. Intentionally Omitted .................................................................................................40  25.4. Insurance ..................................................................................................................40  25.5. Assignment; Successors ...........................................................................................41  25.6. Subcontracting ..........................................................................................................41  25.7. Other Terms and Amendments .................................................................................41  25.8. Government Contracts ..............................................................................................41  25.9. Relationship of the Parties ........................................................................................41  25.10. Publicity .................................................................................................................41  25.11. Non-Exclusive Remedies and Non-Waivers ...........................................................41  25.12. Severability ............................................................................................................42  25.13. Survival ..................................................................................................................42  25.14. Affirmative Action ...................................................................................................42  25.15. Complete Agreement and Counterparts .................................................................42  25.16. Counterparts ..........................................................................................................42  25.17. No Pre-Printed Terms ............................................................................................42  25.18. Priority ...................................................................................................................42  25.19. Notices ..................................................................................................................43  25.20. Joint Effort .............................................................................................................43  25.21. Language of the Agreement, Correspondence, Documentation .............................44    Schedule 1.1(a) Applications    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 Requirements  Exhibit G Key Agreements    Attachment A Description of Supplier’s Battery Storage Equipment and Services     





 






      THIS AMENDED AND RESTATED STORAGE CORE FRAME PURCHASE AGREEMENT (this  “Agreement”) is made and entered into on October 27, 2021 between Siemens Industry, Inc.  hereinafter referred to as “Buyer” and Fluence Energy, LLC, whose principal place of business  is 4601 N. Fairfax Drive, Suite 600, Arlington, Virginia 22203 hereinafter referred to as “Supplier”.   This Agreement shall become effective upon the Effective Date defined in Section 2.1 below.   Each of Buyer and Supplier are referred to herein as a “Party” and collectively are referred to  herein as the “Parties.”   WHEREAS, Buyer is a company providing products, services and solutions to the buildings and  energy markets;   WHEREAS, Buyer may want to purchase energy storage equipment and related services to  incorporate within its electrical transmission and distribution projects;  WHEREAS, Supplier sells energy storage equipment and related services; WHEREAS, Supplier  wishes to cooperate with Buyer in order to fulfill Buyer’s requirements and provide preferred  purchasing conditions to Buyer for those energy storage equipment and related services;  WHEREAS, Supplier and Buyer are parties to that certain Storage Core Frame Purchase  Agreement, dated as of January 1, 2018, by and between Supplier and Buyer (the “Prior  Agreement”); and  WHEREAS, Buyer is party to the Second Amended and Restated Limited Liability Company  Agreement of Supplier, 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 Supplier through an initial  public offering;  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; and  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.  “AES Grid Stability” means AES Grid Stability, LLC.  “AES Storage Core Frame Purchase Agreement” means that certain Amended and  Restated Storage Core Frame Purchase Agreement, dated of even date herewith,  between AES Grid Stability and Supplier.  





 






  2    “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 Buyer, none of Gamesa Corporación Technológica S.A., Siemens  Healthineers AG nor any of their respective Subsidiaries shall be considered an Affiliate  of Buyer.   “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.   “Application” means one of the stationary, battery based energy storage solutions and  services for the grid connected storage market (including systems both in front of and  behind the meter) set forth on Schedule 1.1(a).  “Battery” means a battery included within the Equipment supplied pursuant to this  Agreement.   “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 Data” has the meaning set forth in Section 13.10(b).  “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.   





 






  3    “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  Equipment comprised of batteries shall be at the facility of the supplier thereof and the  Delivery Point for all other Equipment shall 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.  “eBoP” shall have the meaning assigned to such term in Section 4.3(d).  “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 energy storage equipment offered for sale 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.  “Exclusive Activities” means the development, marketing and sale of an Integrated  Solution for one or more Applications, where the size of such Integrated Solution is equal  to or greater than 500 kilowatts, including those Integrated Solutions marketed, sold and  delivered through a Buyer sales channel or another Supplier sales channel as  contemplated in Supplier’s then current business plan.   “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  





 






  4    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 Siemens 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.  “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.   “Integrated Solution” means an integrated, stationary, battery based energy storage  solution, comprised of inverters, a control system including software, and electrical battery.   Notwithstanding the foregoing, the following will not be considered Integrated Solutions:  (i) uninterruptable power supply (UPS) systems (other than for use in Applications), (ii) a  virtual energy storage network built out of individual, connected, geographically distributed  product units of less than 150 kilowatts per unit (a “swarm”), (iii) static synchronous  compensators (Statcom), (iv) supercapacitors, (v) the technology for the storage medium  (e.g. batteries), (vi) energy storage inverters, (vii) stationary storage systems sold as part  of an integrated product in conjunction with the sale of energy storage systems on board  of vessels, vehicles or locomotives, where the main purpose of the stationary storage  system is to charge or to be charged by such on board energy storage system or the  vehicle brake energy and (viii) stationary storage systems providing power directly and  primarily to electric vehicle charging stations.  “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.   





 






  5    “Key Agreements” means the various contracts between Supplier and certain of its  members or their Affiliates listed on Exhibit G, as the same may be amended and/or  restated from time to time.  “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.  “Lockup Period” shall have the meaning assigned to such term in Section 4.3(a).  “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.  “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  





 






  6    having separate legal personality), and shall include any successor (by merger or  otherwise) of such entity.  “Potential Project” shall have the meaning assigned to such term in Section 4.3(b)(ii).  “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.   “Project Bid” shall have the meaning assigned to such term in Section 4.3(b)(iv).  “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.  “Revised Project Bid” shall have the meaning assigned to such term in Section 4.3(b)(v).  “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.    





 






  7    “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.  “Shares” means (i) the Class A Common Stock of the Issuer, calculated on a fully diluted  basis and assuming that all options, warrants and any other rights to purchase shares of  Class A Common Stock of the Issuer have been exercised in full, including, for sake of  clarity, the Underlying Class A Shares plus (ii) any other equity securities now or hereafter  issued by the Issuer, together with any options thereon and any other shares of stock or  other equity securities issued or issuable with respect thereto (whether by way of a stock  dividend, stock split or in exchange for or in replacement or upon conversion of such  shares or otherwise in connection with a combination of shares, recapitalization, merger,  consolidation or other corporate reorganization); provided, however, that in no event shall  the Shares include the Class B Common Stock of the Issuer.  “Siemens AG” means Siemens Aktiengesellschaft, a German corporation headquartered  in Munich and Berlin.  “Siemens BUs” means, separately and collectively in the aggregate, Siemens DG,  Siemens DS and Siemens EP.  In the event the lines of business conducted by Siemens  DG, Siemens DS or Siemens EP as of the date hereof are transferred to other business  units within the Siemens organizational structure, such lines of business shall continue to  be subject to the terms and conditions of this Agreement to the same extent as if they  remained part of the applicable Siemens BUs.  “Siemens DG” means the business unit of Siemens AG that serves as a global supplier  of hardware and software products, systems, solutions, micro-grid solutions, information  technology integration, engineering, consulting and services for protections and control,  automation and control, power quality and substation automation of infrastructure grids for  utilities (power transmission, distribution, generation, multi-utilities), municipalities,  industry, critical infrastructure (e.g. but not limited to dams/water reservoirs, bridges,  telecommunication towers/stations) and other related infrastructure or such business as  conducted by any successor thereto.  “Siemens DS” means the business units of Siemens AG that serves as a global supplier  of products, systems, solutions and services for the distribution of electrical power to its  customers (primarily utility companies and industrial customers), whose portfolio currently  includes utility scale and large commercial scale battery based electrical energy storage  systems and solutions, low-voltage power distribution products and solutions,  medium-voltage switchgear and devices, eBoP, emobility or such business as conducted  by any successor thereto.  “Siemens EP” means the business unit of Siemens AG that serves as a global supplier of  low and medium voltage distribution products, control components and systems for  industrial applications, infrastructure, buildings and low voltage power grids (M4 market  excluded) or such business as conducted by any successor thereto.  





 






  8    “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.  “Sunset Date” means the earlier to occur of (i) the seventh (7th) anniversary of the  Effective Date and (ii) that date on which Buyer and Affiliates collectively hold Shares  representing less than twenty percent (20%) of the then outstanding Voting Power.  “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.  “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.   





 






  9    “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.  “Terminating Event” shall have the meaning assigned to such term in Section 4.3(a)(i).  “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.  “Third Party” means any Person, other than a member of Supplier or such member’s  Affiliates.  “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.  “Underlying Class A Shares” means all shares of Class A Common Stock of the Issuer  issuable upon redemption of Common Units of the Supplier, assuming all such Common  Units are redeemed for Class A Common Stock of the Issuer on a one for one basis.  “Voting Power” means the total voting power of all Shares entitled to vote generally in the  election of directors (for clarity, on a basis that assumes that all Common Units of Supplier  have been redeemed for shares of Class A Common Stock of the Issuer on a one for one  basis and that there are no shares of Class B Common Stock of the Issuer outstanding).  “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  





 






  10    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.  (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 from the Effective Date until the date that the obligations  contained in Section 4.4(a) (Non-Competition) cease to apply to Buyer (the “Term”).  The  expiration or early termination of the Term of this Agreement shall not affect any Purchase  Orders executed between the Parties prior to the date of termination or expiration, and in  such event the Parties shall attempt, in fair dealing and good faith, to agree on reasonable  post-termination or post-expiration 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. 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.  3.2. Further Siemens Contracting Parties.  Siemens AG and its Subsidiary companies  (hereinafter referred to as “Further Siemens Contracting Parties”) shall be entitled to  





 






  11    conclude individual Purchase Orders under the terms of this Agreement provided that  such Further Siemens Contracting Parties either:  (a) execute a joinder agreement  acceptable to Supplier and otherwise in the form of Exhibit B hereto or (b) agree 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 this  Agreement will apply to the Purchase Order.   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 endeavor to  provide an initial response to any Pricing Request within five (5) Business Days, indicating  (i) whether or not Supplier intends to furnish an offer to Buyer for the requested Equipment  and Services on the timeline requested by Buyer and (ii) indicating what, if any, additional  information Supplier may need in order to furnish such offer.  Within fourteen (14)  days  after a final written scope of work is agreed with Buyer, or one of its Affiliates, 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.  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 rec- eipt, it shall be deemed rejected.  4.3. Exclusivity and Certain Related Priorities.    (a) Subject to Applicable Law, during the period from the Effective Date until the  Sunset Date, Buyer shall cause the Siemens BUs to:  (i) purchase exclusively from Supplier any battery-based energy  storage technology systems/solutions that are (A) within the Exclusive Activities  (provided that for the purposes of this paragraph only, the term “Application”  





 






  12    within Exclusive Activities shall also include power quality and microgrid/island  applications (in each case as described on Schedule 1.1(a))) and (B) offered for  sale by Supplier; provided, however, it is hereby agreed that the exclusive  purchase obligations contained in this Section 4.3(a)(i)4.3(a)(i) shall immediately  cease to apply with respect to the particular purchase opportunity in the event that  (1) either (x) Supplier fails to provide an initial response within five (5) Business  Days following receipt of a Pricing Request from Buyer, or one of its Affiliates, or  (y) Supplier fails to submit a bona fide Pricing Notice within fourteen (14) days after  a final written scope of work is agreed with Buyer, or one of its Affiliates, provided  that if a shorter response time is required for a final bid by the customer or project  related thereto, the parties will discuss and mutually agree on such shorter time  period, or (2) the prerequisite of a public tender specifies using a particular vendor,  other than Supplier, to provide such battery-based energy storage technology  systems/solutions (the matters set forth in the immediately preceding clause (1)  and clause (2), may each individually be referred to herein as a “Terminating  Event”); and  (ii) prioritize the purchase of any other battery-based energy storage  technology systems/solutions that are offered for sale by Supplier and request that  each of the Siemens BUs notify Supplier if it intends to purchase such  systems/solutions, such that Supplier shall have an opportunity to sell such  systems/solutions thereto.  It is hereby agreed that any opportunity described  above is subject to other factors, including that such systems/solutions offered by  Supplier are competitive in the discretion of the Siemens BUs, taking into account  economic, financial and technological aspects as well as the ability to perform and  deliver in terms of timeframes and logistics, that such systems/solutions comply  with specific customer requirements, country-specific requirements or mandatory  external regulation and in all cases subject to Applicable Laws.  In each case of clause (i) and Error! Reference source not found. above, the  above provisions shall apply to the extent that such systems/solutions are needed  as components of, or parts for, its other products/services or for its own needs or  for reselling; excluding, however, inverters, which may be sourced independently.  (b) With respect to Section 4.3(a)(ii), it is hereby agreed that the following shall apply  with respect to any requirement to prioritize the purchase of any battery-based  energy storage technology systems/solutions that are offered for sale by Supplier:  (i) (A) any such opportunity described therein is subject to other factors,  including that such systems/solutions offered by Supplier are competitive  in the discretion of the applicable Siemens BU, taking into account  economic, financial and technological aspects as well as the ability to  perform and deliver in terms of timeframes and logistics, that such  systems/solutions comply with specific customer requirements,  country-specific requirements or mandatory external regulation and in all  cases subject to Applicable Laws and (B) the purchase priority obligations  contained in Section 4.3(a)(ii) shall immediately cease to apply with respect  to the particular purchase opportunity upon the occurrence of a Terminating  Event;  





 






  13    (ii) Buyer shall cause the Siemens’ BUs to consult regarding Supplier’s  products, solutions and technology and keep regular contact with the  Siemens’ BUs concerning projects and opportunities for which Supplier’s  products, solutions and technology may be suitable (each, a “Potential  Project”);  (iii) Buyer shall cause the Siemens BUs to notify Supplier of each such  Potential Project and support Supplier’s preparing bids or proposals  therefor, subject to Applicable Law and Third Party contractual restrictions;  (iv) In the event that Supplier makes a formal bid or proposal with respect to a  Potential Project (each, a “Project Bid”) and such Project Bid is not  accepted by the applicable Siemens BU, subject to Applicable Law and  Third Party contractual restrictions, Buyer shall cause the applicable  Siemens BU to inform Supplier of the main considerations of such Siemens  BU which led to Supplier’s Project Bid not being accepted with respect to  such Potential Project;  (v) If Supplier is able to submit a revised Project Bid to the applicable Siemens  BU (the “Revised Project Bid”), and such Revised Project Bid is not  accepted, subject to Applicable Law and Third Party contractual  restrictions, Buyer shall cause the applicable Siemens BU to inform  Supplier of the main considerations of such Siemens BU which led to  Supplier’s Revised Project Bid not being accepted with respect to such  Potential Project.  If Supplier is able to submit a Project Bid and, if  applicable, a Revised Project Bid to the applicable Siemens BU for the  Potential Project and such Revised Project Bid is satisfactory to such  Siemens BU in all respects and is deemed by such Siemens BU in its  judgment to be the best bid for the Potential Project, then such Siemens  BU shall proceed with Supplier’s Revised Project Bid.  In the event that  Supplier is ultimately not chosen by such Siemens BU for such Potential  Project based on its initial Project Bid or subsequent Revised Project Bid,  Buyer shall cause such Siemens BU to discuss with Supplier how Supplier  can improve the competitiveness of its products, solutions and technology  for future offerings.  (c) Subject to Applicable Law, during the period from the Effective Date until the  Sunset Date, Supplier will offer its Equipment and Services to Buyer and the  Siemens BUs at Most Favored Nation Pricing in the Pricing Notice.  “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  





 






  14    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.    (d) Subject to Applicable Law, during the period from the Effective Date until the  Sunset Date, if Supplier seeks certain non-exclusive supply agreements to make  use of Buyer electrical balance of plant (“eBoP”) components (e.g. inverters,  switch gear or other electrical components etc.) and/or services, in each case, as  used in the Core Offering (as defined in Supplier’s then current business plan)  where applicable, Buyer shall provide “most favored nation pricing” to Supplier for  such eBoP components and/or services, it being understood that Buyer shall not  be obligated to provide such pricing if it no longer offers the relevant products or  services for sale and Buyer shall have no obligation to offer or continue to offer  any such products or services for sale.  4.4. Non-Competition.    (a) Subject to compliance with Applicable Law or regulatory requirements, Buyer  agrees that until the earlier to occur of (i) the seventh (7th) anniversary of the  Effective Date and (ii) that date on which Buyer and Affiliates collectively hold  Shares representing less than ten percent (10%) of the then outstanding Voting  Power, neither it nor its Affiliates will directly or indirectly engage in any Exclusive  Activities; provided, however, that beginning on October 1, 2023, if Supplier has  not achieved at least $25,000,000 in average annual gross revenues over a rolling  period of three fiscal years (such rolling period commencing on October 1, 2020)  for Application No. 9 (as set forth on Schedule 1.1(a)), then Buyer, at its sole  discretion, may, upon written notice to the other members of Supplier, remove  Application No. 9 as an Exclusive Activity for all purposes hereunder). If Buyer  removes Application No. 9 as an Exclusive Activity pursuant to this Section 4.4(a),  then Application No. 9 shall simultaneously and automatically also be removed as  an “Exclusive Activity” under the AES Storage Core Frame Purchase Agreement.   In addition, if AES Grid Stability removes Application No. 4 as an “Exclusive  Activity” pursuant to the AES Storage Core Frame Purchase Agreement, then  Application No. 4 shall simultaneously and automatically also be removed as an  Exclusive Activity under this Agreement.    (b) Notwithstanding the foregoing, the restrictions set forth in this Section 4.4 shall not  affect or prohibit Buyer or its Affiliates from:  (i) (A) engaging in activities expressly permitted or contemplated herein or in  the Key Agreements, or as otherwise approved by Issuer as Supplier’s  managing member, (B) selling Supplier’s Equipment and Services to  





 






  15    Buyer’s customers with Supplier acting as a sub-supplier to Buyer, or (C)  engaging in the development and sale of larger solutions incorporating an  Integrated Solution from a Third Party, which is subject to the provisions of  Section 4.3 hereof;  (ii) acquiring and owning, through its venture capital or growth capital  activities, a non-controlling interest of up to thirty-five percent (35%) of the  equity or debt securities of any legal entity that is engaged in whole or in  part in any Exclusive Activity, provided, that the products and/or services  of such legal entity that are included within the scope of Exclusive Activities  are not sold or marketed by Buyer or its Affiliates; or  (iii) acquiring or owning any debt or equity securities of any legal entity  engaged in whole or in part in any Exclusive Activities through any  employee benefit or pension plan maintained by Buyer or its Affiliates or  solely for purposes of asset or treasury management; or  (iv) acquiring control of a business or legal entity (an “Acquired Business”)  engaged in whole or in part in any Exclusive Activities (a “Competing  Business”) where the annual revenues attributable to the Competing  Business of the Acquired Business over its previous fiscal year were less  than both (A) twenty-five percent (25%) of the total annual revenues of the  Acquired Business for such fiscal year, and (B) twenty-five percent (25%)  of the total annual revenues of the Issuer and its Subsidiaries for such fiscal  year(collectively, the “Non-Triggering Acquisition Thresholds”);  provided, that the Non-Triggering Acquisition Threshold set forth in clause  (B) above shall only apply in the case where the annual revenues  attributable to the Competing Business of the Acquired Business over its  previous fiscal year were more than $25.0 million; and provided, further,  that in each case where revenue is only available for a part of a fiscal year,  references to annual revenues in this Section 4.4(b)(iv) and in Section  4.4(b)(v) shall mean the annualized revenues reasonably determined by  extrapolation from such partial fiscal year revenues;  (v) either (i) acquiring control of an Acquired Business where at the time of  such acquisition the annual revenues attributable to the Competing  Business of the Acquired Business over its most recent fiscal year (x) equal  or exceed either of the Non-Triggering Acquisition Thresholds and (y) are  less than forty percent (40%) of the total annual revenues of the Acquired  Business for its most recently completed fiscal year,(ii) acquiring control of  an Acquired Business where at the time of such acquisition the annual  revenues attributable to the Competing Business of the Acquired Business  over its most recent fiscal year (x) equal or exceed forty percent (40%) of  the total annual revenues of the Acquired Business for its most recently  completed fiscal year and (y) are equal to or less than twenty-five million  dollars ($25,000,000) for its most recently completed fiscal year, or (iii)  continuing to own and control a Competing Business of an Acquired  Business at any time after such acquisition when the non-compete  restrictions herein apply, once the annual revenues attributable to the  Competing Business of the Acquired Business over its most recent fiscal  year equal or exceed both twenty-five percent (25%) of the total annual  





 






  16    revenues of the Issuer and its Subsidiaries for such fiscal year and twenty- five million dollars ($25,000,000) (either such circumstance as described in  clauses (i), (ii) or (iii) above, a “Triggering Event”); provided, that, within  thirty (30) days following the occurrence of such Triggering Event, Buyer  shall, or shall cause its Affiliate to, (A) offer to sell the equity interests or  assets comprising the Competing Business to Issuer for a price not greater  than the Fair Market Value thereof (appropriately taking into account the  assumption of liabilities and Indebtedness of (to the extent not included in  determining or calculating the purchase price or valuation for)), the  Competing Business (which, in the case of a Triggering Event existing as  of the closing of an acquisition of an Acquired Business, shall not exceed  that portion of the price paid by Buyer or its Affiliate that was allocable in  good faith to the Competing Business) (each, a “Competing Business  Offer”) and (B) provide Issuer with such material information regarding the  applicable Competing Business, subject to any restrictions of confidentiality  or Applicable Law, that Buyer or its Affiliate determines in good faith will  permit Issuer to make an informed decision as to whether to accept or reject  such Competing Business Offer.  (c) Buyer or its Affiliate shall provide such additional information regarding the  applicable Competing Business, subject to any restrictions of confidentiality or  Applicable Law, as may be reasonably requested by Issuer following Issuer’s  receipt of the Competing Business Offer that it determines is reasonably necessary  to permit Issuer to make an informed decision as to such Competing Business  Offer.  (d) In the event that the Issuer accepts a Competing Business Offer, Buyer and  Supplier shall (and shall cause their respective Affiliates to) act in good faith to  consummate the acquisition of such Competing Business which is the subject of  the Competing Business Offer, including with respect to securing financing, either  through equity or debt financing, as necessary;  (e) Issuer shall have eighteen (18) months from receipt of such Competing Business  Offer to enter into a legally binding commitment with Buyer or its Affiliate to acquire  the Competing Business which is the subject of the Competing Business Offer. In  addition, Issuer shall have up to six (6) months after entering into such legally  binding commitment to consummate such acquisition, or such longer period as  may be reasonably required to obtain any required regulatory approvals. Failure  to meet either of the timelines set forth above notwithstanding the good faith efforts  of Buyer, Supplier, and their respective Affiliates to consummate the transaction  will be deemed to be a rejection of the Competing Business Offer.  (f) In case of rejection of a Competing Business Offer, Buyer or its Affiliate shall be  free to continue to own and control the Competing Business.  4.5. Payment Terms.  Unless otherwise provided in a Pricing Notice, all payments for  Equipment are due and payable net thirty (30) days following invoice. Payment terms will  be mutually agreed in the Purchase Order and may be milestone based such that  payments match cost outflow timing and conditions similar to 20%, 30%, 40%, 10% for  Order, Delivery, Project Substantial Completion, Project Final Completion. Unless  otherwise provided in a Purchase Order, all payments for Services are due and payable  





 






  17    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.  4.6. 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.  4.7. 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.  4.8. 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  Equipment comprised of Batteries shall be made FCA (Incoterms 2010) at facility of the  supplier thereof and delivery of all other Equipment shall be FCA (Incoterms 2010)  Supplier location.  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,  





 






  18    Supplier shall be solely responsible for expedited delivery and other charges to meet  Delivery dates.    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  





 






  19    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.   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, 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 the first (1st) anniversary of such date. Notwithstanding the foregoing,  (i) the Parties may agree in any particular Purchase Order to address defect warranties  with respect to Batteries separately and (ii) any performance guarantees with respect to  Batteries shall be solely as set forth in the applicable 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, 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 the first (1st) anniversary of such date.     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  





 






  20    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.  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.  8.8. Access to Buyer Data.  Real time access on a 24/7 basis to all Buyer Data shall be  determined on a case by case basis and set forth in the applicable Purchase Order.  9. BUYER FURNISHED PROPERTY.  





 






  21    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;  





 






  22    (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;  (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  





 






  23    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.    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  





 






  24    Technology as are reasonably required for back-up, disaster recovery and archival  purposes.  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 Supplier.  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 that is approved and adopted by Supplier for  use by Buyer under this Agreement shall be included in the Licensed Technology  





 






  25    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.  (b) By Buyer.  Buyer may not modify the Licensed Technology except as expressly  permitted in this Section 13.9(b).  Buyer may suggest modifications in the Licensed  Technology to Supplier.  Any modification in the Licensed Technology suggested  by Buyer must first be approved by Supplier in its sole discretion in writing before  it is used by Buyer hereunder.  If Buyer develops any material modification or  improvement in the Licensed Technology (whether permitted or not), it shall  promptly disclose it to Supplier in writing.  If and only if, and to the extent,  Applicable Law mandates that Buyer own any modifications to or improvements in  the Licensed Technology, in whole or in part, and notwithstanding the terms of this  Agreement, 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 others 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, (2) all data generated or collected by the Equipment or Buyer or its  customer during the commercial use of the Equipment (the “Buyer Data”), and (3)  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 and Buyer Data.    (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.  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  





 






  26    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.   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  





 






  27    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;  (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;  





 






  28    (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.  15.2. Infringement Indemnification by Supplier.    





 






  29    (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 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 or (iii) a failure to promptly install an update required by Supplier.    (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.   (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  





 






  30    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 or (ii) the combination of the Licensed Technology with  other products, materials, equipment, parts or apparatus approved in writing by  Supplier.  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.   





 






  31    (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.  





 






  32    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.  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”).  





 






  33    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.  18. REPRESENTATIONS AND WARRANTIES.  18.1. Representations of the Parties.  As of the Effective Date (or, with respect to each Further  Siemens 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  





 






  34    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;  (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  





 






  35    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;  (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.  





 






  36    (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.  2 0 .  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.,  





 






  37    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.    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:  





 






  38    (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. BUYER CODE OF CONDUCT.   Supplier shall comply with the principles and requirements of the "Code of Conduct for  Siemens Suppliers and Third Party Intermediaries" 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.   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.  





 






  39    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 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).  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  





 






  40    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.   25.3. Intentionally Omitted.    25.4. Insurance.  Supplier and its Representatives shall comply with the Insurance requirements  set forth in Exhibit E attached hereto.   





 






  41    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.  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  





 






  42    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, 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.  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;  





 






  43    (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 Buyer:   Siemens Industry, Inc.  4800 North Point Parkway  Alpharetta, GA 30005  Attn: Craig Langley, Associate General Counsel   Email:  langley.craig@siemens.com  To Supplier:   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    (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  





 






  44    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]  





 






[Signature Page to Amended and Restated Storage Core Frame Purchase Agreement]  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: Ruth Gratzke  Title:    Chief Executive Officer  By:   Name:  Marsha Smith   Title:     Chief Financial Officer  Fluence Energy, LLC  By: Fluence Energy, Inc., as managing member  By:    Name:   Manuel Perez Dubuc  Title:  Chief Executive Officer  By:  __________________________  Name:   Dennis Fehr  Title:  Chief Financial Officer Digitally signed by Gratzke Ruth  DN: cn=Gratzke Ruth, o=Siemens, Date: 2021.10.26 17:06:53 -04'00' Gratzke Ruth Digitally signed by Smith Marsha  DN: cn=Smith Marsha, o=Siemens,  Date: 2021.10.26 17:47:30 -04'00' Smith Marsha 





 






[Signature Page to Amended and Restated Storage Core Frame Purchase Agreement]  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: Ruth Gratzke  Title:    Chief Executive Officer  By:  Name:  Marsha Smith   Title:     Chief Financial Officer  Fluence Energy, LLC  By: Fluence Energy, Inc., as managing member  By:  Name:   Manuel Perez Dubuc  Title:      Chief Executive Officer  By:  __________________________  Name:   Dennis Fehr  Title:      Chief Financial Officer 





 






[Signature Page to Amended and Restated Storage Core Frame Purchase Agreement]  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: Ruth Gratzke  Title:    Chief Executive Officer  By:  Name:  Marsha Smith   Title:     Chief Financial Officer  Fluence Energy, LLC  By: Fluence Energy, Inc., as managing member  By:  Name:   Manuel Perez Dubuc  Title:      Chief Executive Officer  By:  __________________________  Name:   Dennis Fehr  Title:      Chief Financial Officer 





 






Schedule 1.1(a)  The information contained in columns C and D is provided for informational purposes only.  For  purposes of this Agreement, the definition of “Applications” shall include Column E.  A  N o  B  Applicati on  C  Typical  Custome r  D  Typical  system  Size in  MW  E  Definition  1 Flexible  capacity  Power  Plant  50 to 100  MW  Flexible capacity is the use of energy storage as a substitute for peak  generating capacity or to meet flexible dispatch ability needs in order  to secure grid stability.  Such fast acting power sources are an  integral part of the grid to provide the required flexible capacity.  The  control system is designed such to monitor the grid condition,  recognize the need and acts immediately until the grid returns to  stable condition, or to be dispatched by the grid operator.  The  system is connected to Grids with a Voltage level > 1kV.  The control  system makes sure the storage is at the needed stage of charge  (subject to setting)  2 Conventio nal hybrid  Power  Plant  up to  10MW  Conventional hybrid is the use of energy storage in conjunction with  a conventional generation resource to react on e.g. peak demands.  The system is connected to Grids with a Voltage level > 1kV.  The  storage is monitoring and acting based on its own control system  3 Frequenc y Control  TSO /  DSO &  PP /  Investor  up to  50MW  and  greater  single  system  size  Frequency regulation is the use of energy storage to regulate electric  system frequency as a primary, secondary, or contingency reserve  resource.  Energy Storage system is installed usually before the  meter and secures the power grid frequency within the frequency  band defined by the regulator.  Spinning reserve is a subset of  frequency control to deliver the mandatory reserve power out of a  storage unit instead of a Power Plant.  The system is connected to  Grids with a Voltage level > 1kV.  4 Renewabl e hybrid  TSO /  DSO &  PP /  Investor  up to  5MW  Renewable hybrid is the use of energy storage in conjunction with a  renewable generation resource; (e.g. wind and solar) to control  (integral control system) the ramp-up and ramp-down of the power  generation or to make the power injection into the power grid stable  in relation to the forecast considering parameter such as weather  forecast.  The system is connected to Grids with a Voltage level >  1kV.  5 T&D  investme nt/  replacem ent  deferment  TSO /  DSO  up to  10MW  Transmission and distribution investment, replacement and deferral  is the use of energy storage to replace or defer investment in new  conventional electric transmission or distribution infrastructure  assets.  The system is connected to Grids with a Voltage level > 1kV.  The storage is monitoring and acting based on its TSO / DSO up to  10MW own control system  6 T&D  capacity  release  TSO /  DSO  up to  10MW  Transmission and distribution capacity release is the use of energy  storage to improve the utilization of existing conventional electric  transmission or distribution infrastructure assets.  The system is  connected to Grids with a Voltage level > 1kV.  The own Storage  





 






      A  N o  B  Applicati on  C  Typical  Custome r  D  Typical  system  Size in  MW  E  Definition  control system is monitoring the grid conditions and takes corrective  action if needed  7 Microgrid  and  Islands*  On shore  Microgrid  owners  and  utilities on  geographi cal  islands  1-3MW Energy Storage systems combined with a Microgrid controller  providing the micro or island grid master role resulting in a  maximized usage of renewable power generation vs. conventional  power generation on a geographical or grid island while keeping  system voltage and frequency stable monitored and controlled by the  storage control systems.  Improving the efficiency of conventional  diesel generation where applicable.  The system is connected to  Grids with a Voltage level > 1kV.  8 Power  Quality  (MS  UPS)*  Industry /  Transport ation  1-25MW Energy Storage system placed behind the meter typically in an  industrial environment injecting power in case of grid failure and or  voltage dip.  The ability to disconnect ultrafast (<10ms) from the grid  to avoid the storage feeding a grid failure.  In addition the system can  bridge 15 to 30 minutes power interruption, possibly combined with a  diesel power generation.  The system operates on Voltage level >  1kV. The storage control system is monitoring and acting driven by  its on control system.  9 Consume r peak  shaving  (demand  charge  mgmt.)  Industry /  Transport ation  1-25MW Consumer peak shaving, the use of energy storage to reduce an  electric consumer’s bill, optimize an electric consumer’s  consumption, or to provide other reliability services to the electric  consume r.  This energy Storage system is placed behind the meter.   The system operates on Voltage level > 1kV.  The 1 – 25 MW  storage control system is monitoring and acting automatically  following the given settings.  10 Black  start  Gas  Turbine  power  Plants  and wind  power  generatio n  1-25MW Black start, the use of energy storage to support generation start-up  during recovery from a partial or total shutdown of an electric system  as an emergency Gas turbine start up solution.  The Energy Storage  system providing power according a defined process until ignition of  a gas turbine.  The system operates on Voltage level > 1kV.  The  initiation of the Black Start is usually manually, the control system  makes sure the black star process as such is following a defined  procedure.    * Included in the definition of “Application” solely for purposes of Section 4.3.   





 






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 Amended and Restated  Storage Core Frame Purchase Agreement, dated [  ], 2021 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  Siemens (Local Company) ___,  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 SIEMENS INDUSTRY, INC. (“Siemens”) entered on January 1, 2018  into the Amended and Restated Storage Core Frame Purchase Agreement (the "Agreement")  which is attached hereto as Annex 1;  WHEREAS, Buyer is an Affiliate of Siemens 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:  Name:   (Print)  Title:  Place, Date:  Name:   (Print)  Title:  Name:   (Print)  Title:  Annex 1: Amended and Restated Storage Core Frame Purchase Agreement  





 






Exhibit C  Substance Declaration  If Supplier furnishes Equipment that are 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 statutes, rules, regulations, codes, rules,  standards and requirements of (1) EHS Laws, (2) 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  concerning the Registration, Evaluation, Authorization and Restriction of Chemicals  including any amendment thereto (hereinafter “REACH”), (4) EC Directive 2006/66/EC  on Batteries and Accumulators and Waste Batteries and Accumulators and/or (5)  TSCA, without limiting Supplier’s obligations under this Purchase Order, Supplier shall  comply with the requirements of this “Substance Declaration”.   Supplier shall submit to Buyer with each Equipment, the chemical substances contained  therein or in the Service deliverable, 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 are 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’s 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 “SCM STAR” or in hard copy forwarded to Buyer. In addition, for  Equipment that are subject to substance restrictions, rules or regulations Supplier shall  provide ordering entity with a safety data sheet required in Article 31of the Regulation  EC 1907/2006 (REACH) 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 for Siemens Suppliers and Third Party Intermediaries  Siemens Group Code of Conduct  for Suppliers and Third Party Intermediaries  This Code of Conduct defines the basic requirements placed on the suppliers and third party  intermediaries of the Siemens Group concerning their responsibilities towards their stakeholders  and the environment. The supplier and/or third party intermediary declares herewith to:  Legal Compliance   Comply with the laws and regulations of the applicable legal systems. Human Rights and Labor Practices  To ensure respect of all internationally proclaimed human rights by avoiding causation of and complicity  in any human rights violations, heightened attention shall be paid to ensuring respect of human rights of  specifically vulnerable rights holders or groups of rights holders such as women, children or migrant  workers, or of (indigenous) communities.   Prohibition of Forced Labor  Neither use nor contribute to slavery, servitude, forced or compulsory labor and human trafficking.  Prohibition of Child Labor  Employ no workers under the age of 15 or, in those countries subject to the developing country exception of the ILO Convention 138, employ no workers under the age of 14.  Employ no workers under the age of 18 for hazardous work according to ILO Convention 182.  Non-Discrimination and Respect for Employees  Promote equal opportunities and treatment of employees, irrespective of skin color, race, nationality, ethnicity, political affiliation, social background, disabilities, gender, sexual identity and orientation, marital status, religious conviction, or age.  Refuse to tolerate any unacceptable treatment of individuals such as mental cruelty, sexual harassment or discrimination including gestures, language and physical contact, that is sexual, coercive, threatening, abusive or exploitative.  Working Hours, Wages & Benefits for Employees  Recognize the legal rights of workers to form or join existing trade unions and to engage in collective bargaining; neither disadvantage nor prefer members of employee organizations or trade unions.  Adhere to all applicable working-hours regulations globally.  Pay fair wages for labor and adhere to all applicable wage and compensation laws globally.  In the event of cross-border personnel deployment adhere to all applicable legal requirements, especially with regard to minimum wages.  Health & Safety of Employees  Act in accordance with the applicable statutory and international standards regarding occupational health and safety and provide safe working conditions.  Provide training to ensure employees are educated in health & safety issues.  Establish a reasonable occupational health & safety management system1.  Grievance Mechanism  Provide access to a protected mechanism for their employees to report possible violations of the principles of this Code of Conduct. Code of Conduct Version 4.0, October 2019   Page 1 of 2  





 






Environmental Protection   Act in accordance with the applicable statutory and international standards regarding the environment. Minimize environmental pollution and make continuous improvements in environmental protection.  Establish a reasonable environmental management system1. Fair Operating Practices   Anti-Corruption and Bribery  Tolerate no form of and do not engage directly or indirectly in any form of corruption or bribery and do not 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. This includes to renounce from giving or accepting improper facilitation payments.  Fair Competition, Anti-Trust Laws and Intellectual Property Rights  Act in accordance with national and international competition laws and do not participate in price fixing, market or customer allocation, market sharing or bid rigging with competitors.  Respect the intellectual property rights of others.  Conflicts of Interest  Avoid and/or disclose internally and to Siemens all conflicts of interest that may influence business relationships, and to avoid already the appearance thereof.  Anti-Money Laundering, Terrorism Financing  Not directly or indirectly facilitate money laundering or terrorism financing.  Data Privacy  Process personal data confidentially and responsibly, respect everyone’s privacy and ensure that personal data is effectively protected and used only for legitimate purposes.  Export Control and Customs  Comply with the applicable export control and customs regulations. Responsible Minerals Sourcing   Take reasonable efforts to avoid in its products the use of raw materials which originate from Conflict-Affected and High-Risk Areas and contribute to human rights abuses, corruption, the financing of armed groups or similar negative effects. Supply Chain   Use reasonable efforts to make its suppliers comply with the principles of this Code of Conduct.  Comply with the principles of non-discrimination with regard to supplier selection and treatment. 1 www.siemens.com/code-of-conduct/managementsystems  Code of Conduct Version 4.0, October 2019   





 






Exhibit E  Insurance  (A) Supplier shall, at its sole expense, 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 Purchase Order requires Supplier to maintain higher limits, then the coverage limits specified in the Purchase Order. Evidence of insurance required by this Purchase Order is to be furnished before any Goods/Services is commenced. Supplier and its Representatives shall maintain such insurance in full force and effect during the term of this Purchase Order, and, in addition, for as long as Supplier is under any warranty obligations arising out of this Purchase Order. All insurers on required insurance coverage(s) shall have an A.M. Best Rating of A- /VIII or better. Customer and its subsidiaries, Affiliates, and its or their Representatives, and/or any other party designated on the Purchase Order 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 Customer. Supplier shall deliver the certificates of insurance, naming Customer and, if applicable, Customer’s customer/end user, 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 Customer, Customer’s customer/end user 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 Customer, Customer’s customer/end user, 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): (i) 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.  (ii) 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. 





 






(iii) Commercial General Liability Insurance, in occurrence coverage form, with minimum limits of $5,000,000 per occurrence, including the following coverages:  • Products and Completed Operations • Contractual Liability insuring the indemnity obligations assumed by Supplier under this Purchase Order  • Premises/Operations • Underground, Undermining, Explosion and Collapse (XCU) Hazard, • Broad Form Property Damage (including Completed Operations) (iv) 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 coverages are specifically required if a Purchase Order involves: (i) [intentionally omitted]; (ii) 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) 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, Customer and Customer’s customer/end user, as their respective interests may appear); (iv) 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; (v) access, storage, transmission or processing of Customer’s, its customer’s /end user’s, its or their Representatives’ confidential information, a Cyber Liability Errors and Omissions Policy shall be procured by Supplier providing coverage, 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 each claim and in the aggregate; (vi) engineering, design and/or development services, Supplier shall procure Professional Liability and Errors and Omissions Liability Insurance providing coverage for acts, errors, omissions arising out of insured’s negligence in an amount not less than $5,000,000 (USD) per claim and in the aggregate; (vii) [intentionally omitted]; (viii) Supplier, its Affiliates and/or its and their respective Representative being granted access to Customer or Customer’s Affiliate’s facilities, premises and/or systems, Supplier shall procure Employee Dishonesty and Computer Fraud Insurance covering losses arising out of or in connection with any fraudulent or dishonest acts committed by its personnel, acting alone or with others, in an amount not less than $1,000,000 (USD) 





 






per occurrence. Furthermore, on a case by case basis, where a Purchase Order  specifies that environmental liability insurance is required for that specific project, then  Supplier shall obtain Environmental Impairment Liability Insurance for such project with  limits of $5,000,000 per occurrence and in the aggregate.  (D) The procurement, maintenance or acceptance of insurance coverage by Customer, 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 Exhibit E, and no course of dealing between Customer and Supplier shall constitute a waiver of any of the requirements of this Exhibit E. 





 






Exhibit F  Affirmative Action  As a federal contractor/subcontractor, Siemens is 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”). As a federal contractor, Siemens is also  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 Siemens’  policy related to affirmative action and our mutual OFCCP obligations to the extent Supplier, its  subcontractors, vendors or suppliers is a Covered Party.  Siemens 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.  As a federal contractor/subcontractor, Siemens’ Covered Parties (including Supplier and its  Covered Parties, if applicable) also have an obligation to comply with equal opportunity and  affirmative action principles.  Therefore, Siemens’ 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.  





 






Exhibit G  Key Agreements  1. Third Amended and Restated Limited Liability Company Agreement of Fluence Energy, LLC, dated as of October 27, 2021. 2. Amended and Restated Credit Support and Reimbursement Agreement dated as of June 9, 2021, among The AES Corporation, Siemens Industry, Inc. and Fluence Energy, LLC. 3. Amended and Restated Siemens License Agreement, dated as of June 9, 2021, between Fluence Energy, LLC and Siemens Aktiengesellschaft. 4. Amended and Restated Siemens License Agreement, dated as of June 9, 2021, between Fluence Energy, LLC and Siemens Industry, Inc. 5. Siemens Master Sales Cooperation Agreement, dated as of October 27, 2021, by and between Fluence Energy, LLC and Siemens Industry, Inc. 6. Services Agreement, dated as of January 1, 2018, between Siemens Aktiengesellschaft, Fluence Energy, LLC and such other companies as set forth therein. 7. Amended and Restated Company Name Affix and Trademark License Agreement, dated October 27, 2021, between Siemens Aktiengesellschaft and Fluence Energy, LLC. 8. Amended and Restated Equipment Services and Purchase Agreement, dated October 27, 2021, between Siemens Industry, Inc. and Fluence Energy, LLC. 





 






Attachment A  DESCRIPTION OF SUPPLIER’S BATTERY STORAGE EQUIPMENT AND SERVICES  [to be added]