In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

Ex Input:
Exhibit 10.37 DISTRIBUTORSHIP AGREEMENT THIS DISTRIBUTORSHIP AGREEMENT (the Agreement) is entered into and made effective as of ____________ (the Effective Date), by and between STAAR SURGICAL AG, a Swiss corporation, with a principal place of business at Hauptstrasse 104, CH - 2560 Nidau, Switzerland, (STAAR), and _______________, a corporation organized and existing under the laws of _________________, with its principal place of business at _______________________ (Distributor). Recitals A. STAAR is engaged in the manufacture, global distribution and sale of ophthalmic products, including a range of devices for cataract, glaucoma and refractive surgery. B. Distributor is engaged in and has experienced and trained personnel for the marketing, distribution and sale of ophthalmic products in ________________. C. STAAR desires to engage Distributor, and Distributor desires to be engaged by STAAR, to market, distribute and sell the Products (as defined below) in _______________ on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants and conditions contained herein, and other good and valuable consideration, the parties hereby agree as follows: Agreement 1. Appointment and Acceptance 1.1 STAAR hereby appoints Distributor, and Distributor hereby accepts such appointment, to purchase the Products from STAAR and market, distribute and sell them in the Territory on the terms and conditions set forth herein. Distributor shall not have the right to appoint any subdistributors, subcontractors or other third parties to market, distribute or sell the Products. All Products shall be marketed, distributed and sold solely under STAAR's Trademarks. STAAR may utilize any of its affiliates to carry out STAAR's obligations under this Agreement; provided that STAAR shall remain liable for the due observance and performance of this Agreement by any such affiliate. 1.2 Distributor shall (a) procure the Products solely from STAAR (or its affiliates) and not (b) procure, manufacture, market or sell in the Territory any implantable medical devices that compete directly or indirectly with the Products, during the term of this Agreement. Distributor shall use its best efforts to promote and sell the Products to the maximum number of responsible customers in the Territory. 1.3 Subject to Section 8.3, Distributor's right to market, distribute and sell the Products in the Territory shall be exclusive. Distributor shall not sell any Products to a customer if Distributor knows or has reason to believe that such customer intends to remove those Products from the Territory. Distributor acknowledges and agrees that STAAR retains the right to sell the Products in the Territory directly or indirectly, including but not limited to via electronic commerce (without compensation to the Distributor). The Distributor shall cooperate with STAAR in servicing corporate accounts for customers operating in multiple Territories.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





1.4 During the term of this Agreement, and subject to the terms and conditions hereof, STAAR hereby grants to Distributor, and Distributor hereby accepts, the limited, nontransferable, nonexclusive right and license to use the trade name, trademarks, and logos of STAAR (collectively, Trademarks), without the right to grant sublicenses, solely in connection with the marketing, distribution and sale of the Products in the Territory pursuant to this Agreement. Distributor shall use and display the Trademarks solely in the manner, form, design, color and layout agreed by STAAR in its sole discretion. Distributor shall not use the Trademarks as part of or in combination with Distributor's trade name or marks. Distributor shall only market, distribute and sell the Products under the Trademarks and shall not use the Trademarks in any advertising or promotional campaigns or otherwise, or use any confusingly similar names or logos, in any manner that, in STAAR's sole discretion, may be misleading or harmful to STAAR (or its affiliates). Subject to the limited use rights granted to Distributor in respect of the Trademarks under this Agreement, all powers that would be conferred on authorized users under other laws are expressly excluded. 1.5 The term Products shall mean those certain products, specified by brand name, manufactured and marketed under the Trademarks by STAAR that are listed on Exhibit A-1 hereto. STAAR may from time to time modify or change the Products on Exhibit A-1 in its sole discretion, and if so, will notify Distributor promptly thereof. In the event that STAAR discontinues a Product, it will provide at least thirty (30) days' prior written notice to Distributor. Distributor shall not modify, disassemble or reverse engineer any Product, in whole or in part. 1.6 The term Territory shall mean ________. Distributor shall not promote, market, distribute or sell the Products outside the Territory. 1.7 Except for the rights expressly granted to Distributor pursuant to Sections 1 and 2, Distributor acknowledges and agrees that STAAR reserves and retains all rights with respect to the marketing, distribution and sale of the Products in the Territory (and elsewhere). Notwithstanding any other provision hereof to the contrary, STAAR shall have the unrestricted right, at its sole discretion, directly or indirectly through third party distributors, to among other things (a) supply, market, distribute and sell any product in the Territory other than the Products, (b) supply, market, distribute and sell any Product in the Territory on an OEM basis under third party trademarks, and (c) market, distribute and sell the Products (or any other product) in any geographic region outside the Territory. 2. Business of Distributor Distributor is and shall remain an independent contractor. Distributor agrees that STAAR has granted it no authority to act or make any representations or warranties on behalf of STAAR. Distributor is at all times acting for its own account, and at its own expense. Distributor represents to STAAR that Distributor has trained and experienced personnel, facilities and other resources in the Territory in order to diligently, professionally and effectively market, distribute and sell the Products. Distributor shall comply with all applicable laws, statutes, regulations and treaties relating to the marketing, distribution and sale of the Products and the performance of its duties and obligations hereunder. Distributor shall be free to establish its own pricing for Products sold by Distributor and shall notify STAAR of its pricing, as in effect from time to time.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





3. Term The term of this Agreement shall commence on the Effective Date and terminate in _____________, on _____________, unless terminated earlier pursuant to the terms of this Agreement; provided, however, that this Agreement may be renewed for successive one (1) year periods if STAAR and Distributor expressly agree in writing and in their sole discretion to renew this Agreement prior to the foregoing termination date or any successive renewal term. 4. Prices and Terms 4.1 The prices which Distributor shall pay to STAAR for the Products shall be as specified on Exhibit A 1. Such prices are exclusive of any national, state, local or other governmental sales, transfer, use, excise, value-added or other taxes, customs duties, or similar tariffs and fees, which shall be the sole responsibility of Distributor. In the event that STAAR is required to pay any such taxes, duties, tariffs or fees, the full amount thereof shall be added to the applicable invoice and payable by Distributor. Company may change the prices of the Products from time to time with thirty (30) days prior written notice to Distributor. 4.2 Payment for the Products shall be in U.S. Dollars, or such other currency as STAAR may require in its sole discretion, and made within thirty (30) days of STAAR's invoice. Late payments shall be subject to an interest charge of 1% per month or the maximum amount permitted by applicable law, whichever is less. 4.3 In the event STAAR establishes a line of credit for Distributor or permits Distributor to purchase Products on open account, STAAR retains title to said Products and reserves all rights with respect to such delivered Products permitted by law, including, without limitation, the rights of recession, repossession, resale and stoppage in transit until the full amount due from Distributor in respect of such Products has been paid. 5. STAAR Obligations STAAR shall, during the term of this Agreement: 5.1 Provide Product training, at mutually acceptable times and places, for a reasonable number of Distributor's personnel; provided that Distributor shall pay all expenses of its personnel attending such training sessions (including without limitation salaries and transportation); 5.2 Furnish Distributor, without charge, reasonable quantities of English-language Product literature which STAAR may publish or prepare from time to time; 5.3 Render reasonable periodic assistance to Distributor on Product technical and sales issues; and

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





5.4 Invoice Distributor for each Product sold by Distributor. 6. Distributor Obligations Distributor shall, during the term of this Agreement, and at its expense: 6.1 Actively use its best efforts to advertise, promote and penetrate the market for the Products in the Territory; 6.2 Employ adequate staff having specialized technical training, maintain adequate stocks of Products, and maintain facilities and other resources within the Territory, at its own expense, in order to maximize the distribution and sale of the Products; 6.3 Provide STAAR with an annual marketing plan setting forth Distributor's plan for the marketing, distribution and sale of the Products in the Territory, including (a) Distributor's goals and objectives for Product promotion, sales, and distribution, (b) advertising campaigns for trade journals and other publications, (c) customer training and education, (d) participation at trade shows and exhibits, (e) special promotions and financing and acquisition programs, such as reagent rental programs, (f) distribution strategies and market analysis, including a detailed summary of the activities of competitors in the marketplace, and (g) anticipated capital expenditures, personnel requirements and other resources to be utilized in the succeeding year; 6.4 Participate in appropriate exhibitions and trade shows as part of its marketing of the Products in the Territory, it being understood and agreed that STAAR and its affiliates also shall have the right to participate in exhibitions and trade shows in the Territory; 6.5 Submit to STAAR regular quarterly status reports reflecting sales activities (detailed by customer name and units sold per customer per month), anticipated requirements of customers in the Territory, general market conditions, and a summary of activities by competitors; 6.6 Provide customer training and warranty services; and 6.7 Refrain from making any claims or representations concerning the Products other than as set forth in the applicable specifications or labeling therefor and never disparage either STAAR or the Products. 6.8 In the event that Distributor terminates this Agreement, then for one year thereafter, Distributor shall not sell, promote, advertise or market in the Territory products which are competitive with the Products. 7. Forecasts/Purchase Orders/Minimum Product Quantities 7.1 Distributor shall on a calendar-quarter basis furnish to STAAR a written good-faith, non-binding estimate of Distributor's Product requirements in the Territory and requested shipping dates (the Forecast) for each of the succeeding twelve (12) months. Any purchase orders issued by Distributor are subject to acceptance by STAAR and will not be deemed accepted until a written confirmation has been dispatched by STAAR.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





7.2 Distributor shall order Products from STAAR under this Agreement by submitting to STAAR a written purchase order specifying Products, quantities, and requested delivery dates to enable STAAR to fill the order. Each purchase order submitted to STAAR is subject to acceptance by STAAR at its offices to which such order was submitted. The purpose of the purchase order to be issued under this Agreement is for scheduling only; no terms and conditions of Distributor's purchase orders or any other document or instrument of Distributor shall be binding upon STAAR or amend or modify this Agreement in any manner, notwithstanding any language to the contrary contained in any such purchase order, instrument or document. Distributor should place its last order in each quarter by the tenth day of the last month in each quarter (e.g., March 10, June 10, September 10, and December 10). 7.3 During each Contract Year, as defined below, Distributor shall purchase from STAAR the minimum quantity of each Product that shall be mutually agreed between the parties in advance of the applicable Contract Year (Minimum Product Quantities). The Minimum Purchase Quantities for the Contract Year are as set forth on Exhibit B attached hereto. Within ninety (90) days prior to the expiration of each Contract Year, the parties will discuss in good faith and agree on the Minimum Product Quantities for the successive Contract Year; provided, however, that, if the parties fail to reach agreement on or otherwise specify the Minimum Purchase Quantities for the successive Contract Year, the Minimum Product Quantities for such successive Contract Year shall be __________ percent (___%) of the Minimum Purchase Quantities for the existing Contract Year. Contract Year means for the first Contract Year of the Agreement, the period commencing on the Effective Date hereof and ending one year thereafter and for subsequent Contract Years, the successive twelve (12) month period thereafter. Failure of Distributor to purchase the Minimum Purchase Quantities for any Contract Year, shall be considered a material breach of this Agreement. 8. Delivery 8.1 Delivery of all Products ordered by Distributor shall be made Ex Works at STAAR's export manufacturing or other facility or named shipping point as determined by STAAR. ICC INCOTERMS (2010 edition) shall apply, except insofar as these INCOTERMS may be inconsistent with the terms of this Agreement. 8.2 In the event Distributor fails to take delivery and/or shipment of Products pursuant to the terms of this Agreement: (a) STAAR shall be entitled to store the Products in a warehouse at the expense and risk of Distributor; (b) the price of the Products shall become immediately due and payable by Distributor; and (c) after thirty (30) days from the date upon which the price becomes payable, STAAR may dispose of the Products in a commercially reasonable manner without notice to Distributor and recover any shortfall and related expenses from Distributor. 8.3 All Products ordered pursuant to accepted purchase orders shall be scheduled for delivery in accordance with STAAR's then current and normal delivery times.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





9. Warranty and Quality Control 9.1 STAAR warrants that, for the period of twelve (12) months from the date of delivery to Distributor hereunder (the Warranty Period), the Products will meet STAAR's published specifications or labeling for such Products as in effect at the time of such delivery (Warranty). To the maximum extent permitted by applicable law and except as otherwise stated in this Agreement: (a) the foregoing Warranty is exclusive; and (b) all other terms, representations, undertakings, rights, remedies and warranties are excluded, whether express or implied (including but not limited to any warranties of merchantability, fitness for a particular purpose or against infringement). To the maximum extent permitted by applicable law, the exclusive remedy for breach of the Warranty shall be, at STAAR's option, the repair or replacement, at STAAR's expense, of the non-conforming Product; provided that Distributor notifies STAAR of the non-conformity and returns the non-conforming Product within the Warranty Period. Products may only be returned by Distributor when accompanied by a return material authorization number issued by STAAR. Shipping expenses for Products returned by Distributor will be prepaid by Distributor. STAAR shall pay for the return or replacement shipment to Distributor of Products repaired or replaced under the Warranty. For Products returned for repair or replacement that are not covered under Warranty, STAAR's standard repair charges shall be applicable in addition to all shipping expenses. The above Warranty is contingent upon proper installation, use and maintenance of the Products and does not apply to Products which have been misused, mishandled, adulterated, repaired or modified without STAAR's written approval. To the maximum extent permitted by applicable law, STAAR shall not be responsible for any incidental or consequential loss, damage, or expense which arises directly or indirectly from the use of any Product. Without limiting the above, and to the maximum extent permitted by applicable law, Distributor's sole remedy in contract or in tort (including in negligence) and STAAR's liability shall be limited to the repair or replacement of any Product which is returned to and found to be defective or non-conforming by STAAR. 9.2 Distributor shall not make any representation or warranty as to the Products except for the warranty stated in Section 9.1 above. Distributor shall not alter the Products and shall not recommend or knowingly sell the Products for any uses except as described in STAAR's Product label and labeling and in accordance with the written instructions and warnings furnished by STAAR. Distributor agrees to deliver to its customers at or before sale all specifications, inserts, instructions, and warnings furnished by STAAR and to retain records evidencing such delivery. 10. Regulatory and Post-Market Surveillance Requirements 10.1 During the term of this Agreement and for at least ten (10) years thereafter, Distributor shall maintain records to allow for traceability of individual serial/lot numbers to customers for all sales of the Products. Upon request by STAAR, Distributor shall supply STAAR with a report of the information contained in such records. 10.2 In the event that STAAR deems it necessary to recall any Product, or any governmental authority requests recall of any Product distributed or sold by Distributor in the Territory, Distributor and STAAR shall cooperate fully with each other in effecting such recall, with an effort to reduce as much as possible the expense thereof and Distributor must notify STAAR of any contemplated or requested recalls as soon as possible (and at all times within any period required to notify any regulatory authority under applicable law) and prior to Distributor taking any steps to effect such a recall. Without limiting Distributor's obligations under law, as between Distributor and STAAR, the decision of whether or not to recall any Product shall be made solely by STAAR. Distributor shall notify all customers who received the recalled Product and shall record all receipts of Product returned under any recall. Distributor shall maintain copies of recall notification letters and maintain distribution logs that detail where each Product was shipped by Distributor.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





10.3 Distributor shall fully document and inform STAAR in writing of any Complaints or other matters addressed in this Section 10. Documentation with respect to Complaints shall include the Product model and serial or lot number, customer contact information, and as much detail as possible regarding the nature of the Complaint. Distributor will forward to STAAR any Complaint involving significant bodily injury, illness or death resulting from use of Products within one (1) calendar day of receipt and Distributor must notify STAAR of any such incident prior to issuing any notice required by law in respect of such incident (including those to be issued to governmental or regulatory authorities). Distributor shall forward to STAAR all other Complaints within five (5) calendar days of receipt. If any evaluation of Product involved in a Complaint by STAAR is necessary or appropriate, Distributor will use best efforts to retrieve the affected Product, if available, and return it to STAAR. STAAR will pay for the return shipment of such Product to STAAR. STAAR will be responsible for investigating all Complaints, determining if reporting to regulatory authorities in the Territory is required, and submitting such reports to regulatory authorities when required. The term Complaints as used in this Section 10.3 means any report, complaint or other communication received by Distributor (or its employees, contractors, agents or representatives) from end users of Products or their healthcare providers related to the safety or efficacy of the Products. 10.4 STAAR informs Distributor that Sections 10.1, 10.2, and 10.3 above are requirements of the Medical Device Directive (93/42/EEC), and that non-compliance by Distributor of these Sections will constitute grounds for STAAR to immediately cease supply of Products to Distributor and will be deemed a failure by Distributor to perform a material obligation, warranty, duty or responsibility hereunder. 10.5 Distributor acknowledges and agrees that it has full understanding of and shall duly observe and abide by any and all legal and regulatory requirements applicable to the import, commercialization, marketing, distribution or sale of Products in the Territory (collectively, Regulatory Requirements). Distributor further acknowledges and agrees that STAAR does not take any, and shall not be responsible for, any legal liability or responsibility for damages, costs or legal consequences that may result from any failure by Distributor to observe or comply with any Regulatory Requirements. 10.6 Distributor shall observe all transport and storage requirements and conditions applicable to the Products as indicated on any Product packaging. 11. Governmental Approvals and Registrations 11.1 With the exception of the health registrations for the Products provided for in Section 11.2 below, Distributor shall secure (and provide copies thereof to STAAR) all necessary governmental permits, licenses, sponsorships and registrations required in connection with the importation and resale of the Products in the Territory. Upon expiration or termination of this Agreement, Distributor shall transfer to STAAR (or its nominee) all right and title to all sponsorships or import licenses or permits governing the importation and resale of the Products into the Territory.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





11.2 STAAR shall provide to Distributor all necessary information and data to obtain appropriate health registrations and applications in the Territory. Distributor shall use its best efforts to obtain all necessary registrations, which registrations shall be obtained in the name of STAAR. Distributor agrees that it will have no right or interest in said registrations and applications; that STAAR is and shall remain the exclusive owner of such registrations and applications free and clear of any claims by Distributor; and that Distributor shall make no claim to the same at any time during or after the term of this Agreement. Distributor shall respect such property rights of STAAR and comply with all local laws and regulations in respect thereof. Distributor shall also assist STAAR, at STAAR's request, in taking any steps necessary to defend such rights, and any reasonable expenses incurred in this regard by Distributor shall be reimbursed by STAAR. 11.3 Distributor shall at all times keep STAAR apprised of all Regulatory Requirements and any changes thereto and, on an annual basis, shall report to STAAR in writing of any such changes and confirm in such report that there have been no changes in any Regulatory Requirements other than as specified in the annual report. 11.4 Copies of all permits, licenses, sponsorships and registrations referred in Sections 11.1 and 11.2 shall be promptly forwarded to STAAR. 12. STAAR's Proprietary Information and Rights 12.1 Distributor recognizes and understands that all information not generally known concerning Company and the Products, including but not limited to Company's organization and business affairs, customer lists, sales information, operating procedures and practices, technical data, designs, software, know-how, trade secrets, and processes (the Proprietary information), whether owned by Company or licensed by Company from third parties, are subject to a valuable proprietary interest of Company, and that Distributor is under an obligation to maintain the confidentiality of such Proprietary Information. Without limiting the generality of the foregoing obligations, Distributor agrees that for the term of this Agreement and thereafter until such time as the Proprietary information is in the public domain, Distributor will (i) not disclose, publish or disseminate any Proprietary Information, (ii) not use any Proprietary Information for its own account, (iii) not authorize any other person to disclose, publish or disseminate the Proprietary information, and (iv) treat all Proprietary Information in a confidential manner, including appropriate marking and secure storage of written Proprietary Information. 12.2 No title or ownership of the software bundled or included with any Product (Software) is transferred to Distributor, and such Software remains the proprietary property of Company. The Software is protected by the U.S. Copyright. Act and by international copyright treaties. All Software, including documentation and any subsequent updates provided by Company to Distributor, is licensed only for use on the single Product on which the Software is first installed. Unauthorized copying of the Software is expressly forbidden, and Distributor agrees not to distribute copies of the Software to nonlicensed parties. In no event shall Distributor reverse engineer, decompile, or disassemble the Software.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





12.3 Distributor acknowledges that the Company is the owner and/or licensee in the Territory of the trademark(s) indicated on the Product packaging, advertising or promotional material or utilized in the sale of the Products (the Trademarks). During the term of this Agreement, Distributor is authorized to use the Trademarks solely in connection with Distributor's advertisement, promotion and distribution of the Products in the Territory. Whenever the Trademark is used, e.g., on any package, label or advertisement, the right or most prominent use shall always be accompanied by a legend acceptable to Company indicating that the Trademark is licensed to the Distributor by Company. 12.4 Distributor shall neither use nor permit others to use the name STAAR, or any abbreviation or modification thereof, or the Trademarks or any other trademark or trade name of Company as part of the Distributor's firm name or corporate titles, in signs or in letterheads without the prior written consent of Company. Distributor may designate itself as a Distributor of Products in the Territory in such form and manner as Company may approve of in advance in writing. Distributor shall not grant this privilege to any third party or to any affiliates without Company's prior written consent. 12.5 Distributor acknowledges that Company owns and retains all patents, trademarks, copyrights and other proprietary rights in the Products, and agrees that it will not at any time during or after the termination of this Agreement assert or claim any interest in or take any action which may adversely affect the validity or enforceability of any trademark, trade name, trade secret, copyright, or other proprietary right owned by or licensed to Company. No license, either express or implied, is granted to the Distributor by this Agreement to any patents, trademarks, copyrights, processes, or other proprietary rights of Company or its affiliates, except the right to sell the Products sold to the Distributor hereunder in the Territory, and the license to use the Software and Trademarks in connection therewith. 12.6 Distributor acknowledges that any breach of the provisions of this Section shall result in serious and irreparable injury to STAAR for which STAAR cannot be adequately compensated by monetary damages alone. Thus, Distributor agrees that, in addition to any other remedy it may have, STAAR shall be entitled to enforce the specific performance of the obligations of Distributor under this Section and to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages. Distributor shall be responsible for any breach of the provisions for this Section by any employee, agent or representative of Distributor. 13. Indemnification; Infringement; Insurance; and Limitation of Liability 13.1 Distributor shall indemnify, defend with competent and experienced counsel and hold harmless STAAR, and its officers, directors, employees, affiliates and agents (each, a Indemnities), from and against any and all claims, demands, suits or actions (including without limitation attorneys' fees and disbursements) which may be asserted against STAAR for any kind of damages, including without limitation damage or injury to property or persons and incidental and consequential damages, by any third party or any of the Indemnities arising out of, in connection with or resulting from (a) any breach of any representation or performance obligation of Distributor hereunder, or (b) any act or omission of Distributor, its employees, agents or representatives.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





13.2 Distributor shall, at its own expense, maintain at a minimum general and product liability coverage in the Territory of at least US$2 million per occurrence, US$5 million in the aggregate. On a separate endorsement, Distributor shall name STAAR as an additional named insured. Such separate endorsement shall indicate that Distributor's insurance is primary and that STAAR's coverage as an additional named insured is not contributory. Each such insurance policy and endorsement shall provide that the insurance will not be canceled or reduces without at least thirty (30) days' prior written notice to STAAR. On request, Distributor shall provide STAAR with copies or certificates of all such insurance policies. 13.3 EXCEPT FOR EACH PARTY'S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 12 AND INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 13, WITHOUT LIMITING ANY RIGHT DISTRIBUTOR MAY HAVE UNDER LOCAL STATUTES THAT CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, OR FOR DAMAGES DUE TO LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 14. Termination 14.1 STAAR or Distributor shall have the right, at its option, to terminate this Agreement, by giving written notice to the other party, effective immediately on receipt of such notice, on the occurrence of any of the following events: (a) In the event that the other party becomes or is deemed insolvent; proceedings are instituted by or against it in bankruptcy, insolvency, reorganization or dissolution; or it makes a general assignment for the benefit of creditors; (b) In the event that the other party fails to observe or perform any obligation, warranty, duty or responsibility under this Agreement and such failure continues unremedied for a period of thirty (30) days following written notice thereof by the non breaching party; or 14.2 STAAR shall have the right to terminate this Agreement by giving written notice to Distributor, effective immediately on receipt of such notice, (a) if Distributor fails to meet the Annual Minimum Volume as set forth in Section 7.2 or (b) pursuant to Section 15, or in the event the parties are unable to agree upon changes in the prices for Products within thirty (30) days following STAAR's notice thereof. 14.3 Notwithstanding the provisions of Section 3 above, either party shall have the right to terminate this Agreement, without cause, upon no less than ninety (90) days' prior written notice to the other party.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





14.4 Upon any termination or expiration of this Agreement: (a) All sums due to either party from the other shall be promptly paid; (b) Distributor orders received and accepted by STAAR prior to the effective date of the termination of this Agreement shall be fulfilled in accordance with their terms; (c) All property belonging to one party but in the custody of the other shall be returned; (d) STAAR shall have the option to repurchase any or all current and resalable Products in Distributor's inventory at eighty percent (80%) of Distributor's original net purchase price (reflecting a twenty percent (20%) restocking and administrative fee); (e) Distributor shall cease all display, advertising and use of STAAR trade names, trademarks (including the Trademarks), logos and designations, except uses on the Products which remain in Distributor's possession, and shall transfer all registrations and sponsorships for the Products to STAAR or its designee; and (f) The parties have considered the possibility that one or both parties will incur expenses in preparing for performance of this Agreement and that one or both parties will incur expenses and suffer losses as a result of termination, and the parties have nevertheless agreed that the terminating party shall not incur any liability whatsoever for any damage, loss or expense of any kind suffered or incurred by the other party (or for any compensation to the other party) arising from or incident to any termination or non-renewal of this Agreement by the terminating party pursuant to its terms, whether or not the terminating party is aware of any such damage, loss or expense. Without limiting the generality of the foregoing, upon any termination of this Agreement by either Party in accordance with its terms (or otherwise), in no event shall STAAR be required to pay to Distributor any good will or other payment of any nature or kind based on the sales, business development or other activities of Distributor during the term of this Agreement. Distributor, for itself and on behalf of each of its employees, hereby waives any rights which may be granted to it or them under the laws and regulations of the Territory or otherwise which are not granted to it or them by this Agreement. Termination is not the sole remedy under this Agreement, and, whether or not termination is effected, all other remedies shall remain available. 15. U.S. Laws and Regulations 15.1 Distributor acknowledges and agrees that it shall comply in all respects with all United States and local country laws, regulations and standards applicable to its activities under this Agreement, including but not limited to the exporting and importing requirements (including the prohibition of the re-export of Products and associated technical data) set forth in this Agreement and in applicable governmental regulations.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





15.2 Distributor warrants and represents that neither Distributor nor any person acting on Distributor's behalf shall make, directly or indirectly, any offer or promise or authorization of a bribe, kickback, payoff or any other payment or gift intended to improperly influence an agent, government official, political party or candidate for public office to exercise their discretionary authority or influence in order to assist in the sale, marketing, promotion, importation, licensing or distribution of the Products and shall complete and sign the attached Foreign Corrupt Practices Certification (Exhibit C). Specifically, Distributor shall not (a) violate any applicable anti-bribery or anti-corruption laws; or (b) offer, pay or promise to pay, give or promise to give, or authorize the payment or giving of, anything of value to any official representative of any Governmental Entity or authority or any political party or officer thereof or any candidate for office in any jurisdiction (individually and collectively, a Government Official), (i) for the purpose of (A) influencing any act or decision of such Government Official in his official capacity, (B) inducing such Government Official to do or omit to do any act in violation of his lawful duty, (C) securing any improper advantage, or (iv) inducing such Government Official to influence or affect any act or decision of any Government Entity, or (ii) in order to assist Distributor in obtaining or retaining business for or with, or directing business to Distributor or any of its affiliates. The term Governmental Entity as used in this Section 15.2 means any government or any department, agency or instrumentality thereof, including any entity or enterprise owned or controlled by a government, or a public international organization. Distributor shall maintain for at least two (2) years and make readily available to STAAR or its duly authorized representatives' books, records and accounts prepared in accordance with generally accepted accounting principles that accurately and completely reflect the nature of every transaction related to the sale of the Products. 16. Data Protection 16.1 For the purposes of this Section, the following terms shall have the following meanings: Data Protection Laws means any applicable data protection or privacy laws. It shall include: (a) the EU Data Protection Directive 95/46/EC and EU ePrivacy Directive 2002/58/EC as implemented by countries within the European Economic Area (EEA); (b) from 25 May 2018, the EU General Data Protection Regulation (GDPR) as implemented by countries within the EEA and the UK; and/or (c) other laws that are similar, equivalent to, successors to, or that are intended to or implement the laws that are identified in (a) and (b) above; Shared Personal Data shall have the meaning as set out in Section 16.4; and The terms data controller, data subject, personal data, processing, and sensitive personal data shall have the same meanings ascribed to them under Data Protection Laws. 16.2 STAAR and Distributor each acknowledge and agree that where a party processes personal data under or in connection with this Agreement it alone determines the purposes and means of such processing as a data controller. 16.3 Each Party confirms that it has complied, and will continue to comply, with its obligations relating to personal data that apply to it under applicable Data Protection Laws. 16.4 To the extent Distributor discloses, provides or otherwise makes available, personal data to STAAR under or in connection with the Agreement (Shared Personal Data), Distributor acknowledges that STAAR and/or its service providers or agents may process such Shared Personal Data for any purpose related to this Agreement, including, without limitation, for any purpose necessary for STAAR and/or its service providers or agents to comply with applicable law.

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16.5 In connection with the Shared Personal Data, Distributor warrants that it: (a) has provided adequate notices to, and obtained valid consents from, the relevant individuals, in each case, to the extent necessary for STAAR and/or its service providers or agents to process the Shared Personal Data (including any sensitive personal data) in connection with this Agreement which may include the transfer of the Shared Personal Data to STAAR outside of the EEA; and (b) shall not, by act or omission, cause STAAR to violate any Data Protection Laws, notices provided to, or consents obtained from, data subjects as result of processing the Shared Personal Data in connection with this Agreement. 16.6 To the extent of any conflict in relation to personal data between the terms contained in this Section and the rest of the Agreement, then the terms of this Section shall control to the extent of such conflict. 17. Survival In addition to Distributor's obligation to pay STAAR all amounts due hereunder, the provisions under Sections 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 24 and 25 shall survive termination of the Agreement, as well as such other provisions which by their meaning and intent have applicability beyond the terms of this Agreement. 18. Publicity Distributor agrees that any publicity or advertising which shall be released by it in which STAAR is identified in connection with the Products shall be in accordance with the terms of this Agreement and with any information or data which STAAR has furnished in connections with this Agreement (or related to the Product). STAAR shall have the right to review and approve all such publicity and advertising prior to dissemination thereof. 19. Assignment Neither party may, directly or indirectly (including in connection with a change of control transaction), transfer or assign this Agreement or any of the rights or obligations hereunder without the prior written consent of the other; provided that STAAR may assign any of its rights and delegate any of its obligations hereunder to its subsidiaries and affiliated companies or in connection with a sale or transfer of all or substantially all of its business to which this Agreement relates, whether by merger, sale of assets or otherwise, without Distributor's prior written consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 20. Integrated Agreement This Agreement constitutes the entire understanding and agreement between STAAR and Distributor regarding the subject matter hereof and terminates and supersedes all prior formal or informal understandings or agreements relating thereto.

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21. Force Majeure Performance of the parties hereto of their respective obligations hereunder shall be subject to force majeure and acts of God, including but not limited to insurrections, riots, wars and war-like operations, terrorist acts, explosions, governmental acts, epidemics, failure of contractors to perform, strikes, fires, accidents, acts of any public enemy, inability to obtain required materials, supplies, products or qualified labor, delay in transportation and any applicable law, regulation or restriction of any foreign, federal, state or local governmental entity or instrumentality. However, the parties hereto shall use their commercially reasonable efforts to avoid, remove or cure said circumstances. Any party temporarily excused for performances hereunder by any such circumstance shall resume performance with utmost dispatch when such circumstances are removed or cured. Any party claiming such circumstances as an excuse for delay in performance shall give prompt notice in writing thereof to the other party. Nothing herein and no contrary provisions of any law, regulation, or governmental pronouncement shall, however, relieve Distributor of its obligation to make the payments to STAAR required hereunder at the times and in the manner herein specified. 22. No Waiver No waiver by either party of any breach or default of any of the covenants or agreements herein contained shall be deemed a waiver as to any subsequent or similar breach or default. No right or remedy herein conferred upon either party is exclusive of any other right or remedy herein or by law or in equity provided or permitted. 23. Severability This Agreement is divisible, and provisions herein held to be violate of any applicable treaties, statutes or regulations of any governmental agency having jurisdiction shall effect only that portion held to be invalid or inoperative, and the remaining portions of this Agreement shall remain in full force and effect. 24. Notice Any notice required or permitted to be given hereunder shall be in writing and (a) delivered in person or by internationally-recognized express delivery or courier service (e.g., FedEx, DHL or UPS), (b) sent by facsimile, or (c) deposited in the mail registered or certified first class, postage prepaid and return receipt requested (provided that any notice given pursuant to clause (b) is also confirmed by the means described in clause (a) or (c)), to the address or facsimile number of the party appearing below its signature below or to such other address as such party from time to time may designate in writing in compliance with the terms hereof. Each notice shall be deemed given when so delivered personally, or sent by facsimile transmission, or, if sent by express delivery or courier service four (4) business days after being sent, or if mailed, ten (10) days after date of deposit in the mail. 25. Governing Law and Dispute Resolution 25.1 This Agreement, which is in English, shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. The parties hereby expressly disclaim and exclude any applicable provisions of the United Nations Convention for the International Sales of Goods.

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25.2 The parties waive their rights to seek remedies in court (except where the relief sought is an injunction or other equitable relief), including any right to a jury trial. Except in a case where the relief sought is an injunction or other equitable relief, the parties agree that any dispute between the parties arising out of, relating to or in connection with this Agreement, whether characterized or sounding in contract or tort or otherwise, shall be resolved exclusively through binding arbitration conducted in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitration shall be held in Los Angeles, California, USA. Judgment upon the award rendered may be entered in any court having jurisdiction. Each party shall bear its own expenses of the arbitration, but the arbitration fees and costs shall be borne equally between the parties participating in the arbitration. Disputes shall not be resolved in any other forum or venue. 26. Counterparts This Agreement may be executed in duplicate counterparts, each of which shall be deemed to be an original and all of which counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, STAAR and Distributor have caused their duly authorized representatives to execute this Distributorship Agreement on this __ day of ____, 20___. STAAR SURGICAL AG DISTRIBUTOR By: By: Name: Name: Title: Title:

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EXHIBIT A-1

List of Products and Prices

All prices in U.S. dollars, or such other currency as STAAR determines in its sole discretion.

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018





EXHIBIT B Minimum Product Quantities

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EXHIBIT C Foreign Corrupt Practices Certification I, _________, as the [__________] of ___________ hereby certify as follows: 1. I understand and will comply with the anti-bribery provisions of the U.S Foreign Corrupt Practices Act and the UK Bribery Act. Neither I, nor any person employed by me or my business or representing my business, has or will make, offer, promise or authorize, directly or indirectly, any payment or transfer of anything of value to any official, representative or employee of any government, government agency or instrumentality, for the purpose of influencing a decision by any of them to take actions favorable to STAAR Surgical Company or its subsidiaries (STAAR) or represent them on any matter related directly or indirectly to the purchase of any of STAAR's products. 2. No officer, director, partner, owner, principle, employee or agent of my business is an official or employee of a governmental agency or instrumentality in a position to influence action or decisions regarding me or my business activities on behalf of STAAR and I will inform STAAR, by written notice, if, and as soon as , any such person assumes such a position as official or employee of a governmental agency or instrumentality while at the same time remaining an officer, director, partner, owner, principle, employee or agent of mine or my business at which time STAAR may elect to terminate this contract without any further liability to me or my business. 3. I will indemnify an hold harmless STAAR from any and all fines, damages, losses, costs and expenses (including without limitation reasonable attorneys' fees) incurred by STAAR as a result of any breach of this Certification by me. 4. I understand and agree that failure to comply with the terms of this Certification will entitle STAAR to terminate any and all if its contractual relationships with me and my business. DISTRIBUTOR: By: Officer Title: Print Name: Date:

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Source: STAAR SURGICAL CO, 10-Q, 8/1/2018 
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?

Ex Output:
Distributor acknowledges that Company owns and retains all patents, trademarks, copyrights and other proprietary rights in the Products, and agrees that it will not at any time during or after the termination of this Agreement assert or claim any interest in or take any action which may adversely affect the validity or enforceability of any trademark, trade name, trade secret, copyright, or other proprietary right owned by or licensed to Company.


Ex Input:
SOFTWARE DEVELOPMENT AGREEMENT THIS SOFTWARE DEVELOPMENT AGREEMENT (Agreement ) is made December 3rd, 2018 (the Effective Date) by and between DOT COM LLC, OBA Seattle Software Developers, a Delaware limited liability company (Developer ), and (Client) Pelican Delivers Inc. for the performance of software design services and software development as detailed herein (Developer and Client are individually referred to herein as a Party, and collectively as the Parties).

1. Term Unless otherwise provided herein, this Agreement will commence on the Effective Date and continue through the completion or termination of Developer's services and work product as mutually agreed upon between the Parties (the Project).

2. Statement of Work Developer will design, develop, and deliver, satisfactory to Client, the Pelican Delivers Application Phase 1 (collectively, the Subject Program), and all elated Project services (collectively, the Services), Project work product (collectively, the Deliverables), and user manuals and other written material that describe he functionality or assist in the use of the Subject Program (collectively, the Documentation), pursuant to the Project specifications detailed in the SO (collectively, Specifications), as described in the enclosed statement of work (the SOW; as provided in APPENDIX A hereto). The Parties may execute multiple SOWs should there be multiple or separate Projects. In the event of any conflict or inconsistency between the terms of this Agreement and any SOW, the terms of this Agreement will control.

3. Delivery Schedule; Acceptance; Change Orders 3.1 DELIVERY SCHEDULE; MILESTONES Each SOW will include a delivery schedule for Services and Deliverables (the Delivery Schedule) that will identify mutual agreed upon Project time deadlines concerning the performance of Services, delivery of Deliverables, Client testing of the same (collectively, Milestones), as well as a final Subject Program delivery date (Final Delivery Date).

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3.2 PROJECT DELIVERY AND INSTALLATION As detailed in a SOW hereto, Developer will provide certain Services, Deliverables and Documentation to Client upon a designated Milestone in accordance with such Milestone's specific Specifications (collectively, Specific Specifications). Prior to completing a Milestone, Developer will: (a) inform Client of the availability of each portion of a Deliverable otherwise required be delivered by such Milestone date for testing by Client (he Acceptance Test Date); and (b) deliver to Client sue Deliverable (each a Milestone Deliverable) including the source code and object code form compatible with the platform(s) described in the SOW for such Milestone Deliverable. 3.3 ACCEPTANCE AND BETA TESTS Within the time periods designated in the SOW, Client shall perform any tests or evaluation of the Subject Program (collectively, the Acceptance Tests) after the Acceptance Test Date, to determine whether each Deliverable: (a) conforms to the SOW; and (b) performs repetitively on an appropriate variety of data and platforms, without failure, as more fully described in the Specifications. Upon completion of II Deliverables, the Acceptance Tests shall be performed on the Subject Program in its entirety in order to determine whether the Subject Program (i) meets the Specifications and (ii) operates with internal consistency. 3.4 ACCEPTANCE OF MILESTONE DELIVERABLE; CHANGE REQUESTS Client will notify Developer in writing of any failure of a Milestone Deliverable to comply with the Specifications, or of any other objections, corrections, changes or amendments required (a Change Request), within ten (10) days of such Milestone's Acceptance Test Date. Any Change Request shall be sufficient to identify, with clarity, any objection, correction, change or amendment to such Milestone Deliverable. In the absence of a Change Request from Client within the time periods detailed herein, the Milestone Deliverable will be deemed accepted by Client. 3.5 REJECTION OF MILESTONE DELIVERABLE If any Milestone Deliverable does not satisfy the Client's Acceptance Test and Client provides Developer a Change Request concerning the same, Developer will have twenty (20) days from the receipt of such Change Request to correct the deficiencies, errors, corrections, modifications, bug- fixes or changes to the Deliverables as identified in the Change Request. Upon Client's receipt of a Milestone Deliverable following Developer's modification pursuant to Change Request (a Modified Deliverable), Client will have five (5) days to inspect, test and reevaluate such Modified Deliverable to determine acceptance. If Client does not notify Developer of any further failures, objections, changes, defects, or bugs in such Modified Deliverable, the Modified Deliverable will be deemed accepted by Client.

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3.6 FAILURE OF DEVELOPER TO CORRECT DEFECTS Should Developer reasonably fail to meet the requirements of Section 3. or Section 3.5 of this Agreement such that a Milestone Deliverable or Modified Deliverable does not satisfy Client's reasonable acceptance criteria within the time periods set forth in the same, Client will have the option of: (a) repeating the procedures set forth in Section 3.4 or Section 3.5 Above; or (b) terminating this Agreement pursuant to Section 8 of this agreement. 3.7 FINAL DELIVERABLE AND SUBJECT PROGRAM TESTING Notwithstanding anything contained herein, upon completion of the Final Deliverable set out in the Specifications thereto, Client will perform Acceptance Test on the Subject Program within fifteen (15) calendar days from the Acceptance Test Date in order to determine whether the Subject Program satisfies the acceptance criteria and operates with internal consistency. If the completed Subject Program does not satisfy the Client's Acceptance Tests and Client provides Developer a Change Request concerning the same, Developer will have fifteen (15) calendar days from the receipt of such Change Request to correct the deficiencies errors, corrections, modifications, bug-fixes or changes. Client shall then have ten (10) additional days to inspect, test and reevaluate the completed and modified Subject Program or Final Deliverable. If the Subject Program or Final Deliverable still does not satisfy the Client's acceptance criteria and/or the Acceptance Tests, Client shall have the option of either: (a) repeating the procedure set forth above; or (b) terminating this Agreement pursuant to Section 12 of this Agreement . If the Client does not notify the Developer of any further failures, objections, changes, or other defects, or bugs of or in the Subject Program via a Change Request, Client will be deemed to have accepted the Subject Program. 3.8 CLIENT ASSISTANCE Client shall provide Developer assistance to complete the Services, and produce the Deliverables, as reasonably requested, including but not limited to providing the necessary information or documentation required from Developer for the development of the Subject Program. Client shall conduct all Acceptance Tests in good faith and shall not delay any acceptance of any Service or Deliverable without reasonable justification. The evaluation of any Service or Deliverable for any Acceptance Test will be based on material compliance with applicable Specifications and Client shall not arbitrarily withhold acceptance of any Milestone Deliverable or Subject Program. 3.9 DEVELOPER DUTIES FOR ACCEPTANCE TESTS Unless otherwise agreed by the Parties in writing, regardless of the acceptance or rejection of any Milestone Deliverable, Developer shall continue to perform all Services and deliver all Deliverables in accordance with the Delivery Schedule. Developer shall use its best efforts to make any necessary corrections, modifications, bug-fixes, or other changes promptly to complete the Services and Deliverables by the Final Delivery Date.

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4.10 CLIENT TERMINATION SERVICES If elected pursuant to the Agreement, Developer will provide Client Termination Assistance Services at an hourly rate of $[125.00 per hour].

4. Change Orders Sometimes during the term of this Agreement change order may or may not be requested by Client. However, If Client requests that Developer provide any additional Services or Deliverables or functionalities beyond those detail d in an applicable SOW, or requests a modification or change to any of the Services or Deliverables if possible, client will: (A) Submit to Developer, by means of a written order, all requests r additional services that alter, amend, enhance, add to, or delete any of the Services or Deliverables (a Change Order); (B) Developer will evaluate each Change Order, and within five (5) days of its receipt, will provide Client with (i) the change in Fee costs as a result of the Change Order, (ii) the impact, if any, of the Change Order on an aspect of the Delivery Schedule including any Milestone Date, Acceptance Test Date, or the Final Delivery Date, and (iii) the availability of Developer' resources to carry out the additional requested services detailed in the Change Order; (C) If Developer agrees to carry out the proposed Change Order, the Parties will execute an amended SOW or Change Order reflecting the Service and Deliverable changes; (D) Upon duly executing an amended SOW or executed Change Ord r, Developer will begin performance in accordance with the same. Developer has no obligation to perform any additional services before receiving the duly- executed amended SOW or executed Change Order, and Client has no obligation to pay Developer any Fees for services performed pursuant to an amended SOW or Change Order before the same; and (E) Once fully completed and executed, each amended SOW or Change Order will be deemed to be incorporated into and be part of this Agreement and will constitute a formal amendment to this Agreement.

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5. Payment 5.1 FEES AND EXPENSES Client will pay fees to Developer for Project Services and Deliverables as Described in the SOW (the Fees). Developer will pay its own expenses for the Project (collectively, the Expenses) unless stated otherwise in the SOW. 5.2 FEES AND EXPENSES All Fees shall be due pursuant to the Fee payment schedule provided in a SOW hereto (the Fee Payment Schedule). Client's failure to remit payment to Developer for Fees due and owning will constitute a material breach of this Agreement. 5.3 BONUS If Developer completes the Services, and delivers the Deliverables, as reasonably accepted by Client, upon a date prior to the Final Delivery Date as specific in a SOW hereto, Client will pay Developer a bonus Fee in the amount detailed in the applicable SOW (the Bonus). 5.4 PAYMENT Client shall pay Fees, Expenses (if any), and any Bonus to Developer via w re to Developer's bank account at: Chase Bank 1955 156th Avenue NE Bellevue, Washington 98007 425-590-4010 Routing: 325070760 Account :676313880

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6. Intellectual Property 6.1 WORK MADE FOR HIRE AND ASSIGNMENT OF RIGHTS Except as otherwise detailed in this Agreement, the Parties acknowledge and agree that the Subject Program including without limitation the Deliverables and Documentation (collectively, the Works) are work made for hire in accordance with the U.S. Copyright Act, 17 U.S.C. § 101 et seq. Accordingly, Client will be the copyright author and owner of all of the Works. To the extent permissible, Developer hereby assigns and transfers to Client all copyright and other intellectual property ownership in the Works. Developer agrees to assist Client, as well as execute any documents reasonably necessary, to perfect the assignment of such rights to Client. Developer acknowledges and agrees that the payment of Fees and a Bonus (if any), as referenced in Section 5 of this Agreement, shall be the full consideration to Developer for the assignment of rights herein. Upon payment in full of all obligations hereunder, Developer unconditionally and irrevocably grants to Client all software, improvements, code and other work produce produced by the Developer during the course of this agreement. The code shall be the sole and exclusive property of the Client. 6.2 DEVELOPER'S INTELLECTUAL PROPERTY Notwithstanding the provisions of Section 6.1 of this Agreement, the Par acknowledge and agree that: (a) Developer may use its proprietary information software (collectively, Developer Technology) in providing Services, and Deliverables, to Client; and (b) Developer shall retain full ownership over its Developer Technology. If Developer uses any of its Developer Technology in any of the Works, Client will: (i) not acquire any proprietary or ownership rights to any of Developer Technology by virtue of this Agreement; and (ii) agree not to market or use any Developer Technology as an independent stand-alone program without the prior written consent of Developer. 6.3 LICENSE TO CLIENT'S INTELLECTUAL PROPERTY To assist Developer to complete all Project-related Services and deliverable Deliverables to Client in a complete and timely manner, Client shall provide Developer access and licensed rights to the following as necessary to complete the Project: (a) text, software, graphics, photos, sounds, music, videos, designs, compilations, magnetic translations, digital conversion interactive features and the like (collectively, the Content); (b) any trademarks, service marks, trade dress and logos, whether owned or licensed by Client (collectively, the Marks); and (c) any know-how, methodologies, equipment, or processes used by Client in its operations {collectively, the Procedures); and (d) Client's Confidential Information (as defined below). As such, Client hereby grants Developer a royalty-free, worldwide, license to use its Content, Marks, Procedures and Confidential Information in order to complete the Project. Client hereby acknowledge and agrees that Client waives all moral rights to be identified as the author on any and all material or content identified under this subsection of this Agreement.

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6.4 CONFIDENTIALITY AND NON-DISCLOSURE 6.4.1 Confidential Information. Each Party acknowledges and agrees that it will receive confidential information and trade secrets from the other Party in otherwise carrying out the actions contemplated by this Agreement (collective, Confidential Information). Confidential Information does not include information at: (a) is available to the public or that becomes available to the public through no act or failure to act by the receiving Party (Receiving Party); (b) is known to the Receiving Party prior to the date of disclosure by the disclosing Party (Disclosing Party), unless the Receiving Party agreed to keep such information in confidence at the time of receipt of the information; (c) is properly obtained hereafter from a source that is not under an obligation of confidentiality with respect to such information; or (d) is developed independently by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information. 6.4.2 Non-Disclosure. Neither Party shall use or disclose Confidential Information of the other Party to any third party, without the written consent of the Disclosing Party of such Confidential Information. Receiving Party agrees to undertake reasonable measures to maintain and preserve the Confidential Information of the Disclosing Party in confidence, which measures shall be no less than the measures taken by the Receiving Party to protect its own confidential information and in no vent shall be less than reasonable care. Upon expiration or termination of this Agreement, Receiving Party will immediately destroy or erase all copies of documents or materials containing any Confidential Information provided by Disclosing Party and, upon the Disclosing Party's request, promptly confirm destruction of same by signing and returning to the Disclosing Party a certificate of destruction reasonably satisfactory to the Disclosing Party. 6.4.3 Derivatives. All Confidential Information, and any Derivatives thereof whether created by Client or Developer, remain the property of the Disclosing Party and no license or other rights to any Confidential Information or Derivatives is granted or implied hereby. For purposes of this Agreement, Derivatives shall mean: (a) for copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed or adapted ;(b) for patentable or patented material, any improvement thereon; and (c) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected under applicable copyright, patent, or trade secret law. 6.4.4 Notification of Suspected Disclosure. The Receiving Party further agrees to immediately notify Disclosing Party of any actual or suspected misuse misappropriation, or unauthorized disclosure of Confidential Information, which may come to Receiving Party's attention.

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6.4.5 Injunctive Relief for Breach. Because of the unique nature of the Confidential Information and other elements of the Parties business relationship, the Parties acknowledge and agree that a breach of any of the provisions of Section 6 of this Agreement by Receiving Party will irreparably harm the Disclosing Party. Accordingly, in the event of a breach or threatened breach of Section 6 of this Agreement, Disclosing Party will be entitled to seek injunctive relief to enforce the terms of Section 6 of this Agreement without the necessity of posting a bond or if a bond is required, at the minimum amount legally required.

7. Parties Relationship 7.1 INDEPENDENT CONTRACTOR Developer is undertaking the services set forth in this Agreement as an independent contractor, working at Developer's own hours and using Developer's own equipment and at Developer's own chosen place of work, with discretion concerning the revision of Services and Deliverables within Client's general direction. Nothing contained in this Agreement will be construed to constitute the Parties as partners, employees, agents or joint ventures of each other. No Party will have the authority to bind the other Party in any respect. 7.2 NON-EXCLUSIVITY Subject to the terms and conditions herein, the Parties expressly acknowledge that this Agreement does not create an exclusive business relationship between the Parties. Subject to the terms and conditions herein, Developer shall be entitled to offer and provide software design and development services to third parties solicit other clients and otherwise advertise its services.

8. Taxes Developer acknowledges and agrees that as an independent contractor, developer is responsible for the payment of such taxes and withholding on its income and activities as may be due under federal, state and local law and regulations. If appropriate, Developer will furnish Client with a Form 1099 or equivalent for the payments made to Developer.

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9. Warranties and Representations 9.1 CLIENT Client represents, warrants and covenants that: (a) Client is a duly organized, validly existing and in good standing (b) Client has the full right and legal author y to enter into and fully perform its duties and obligations under this Agreement; (c) Client owns all right, title, and interest in, or otherwise has full right and authority to permit Developer's use of Content, Marks, Procedures and Client's Confidential Information, as detailed in this Agreement; (d) is solely responsible for compliance with all federal, ate, and local laws, rules, regulations, executive orders, ordinances, standards, and best practices applicable to Client's business or industry; and (e) Client will comply with all federal, state, and local laws, rules, regulations, executive orders, ordinances, standards, and best practices applicable to Client's business or industry.

10. Indemnification 10 1 CLIENT Client shall defend, indemnify and hold harmless Developer, its member owners, officers, employees, independent contractors and agents, from and against all losses, claims, liabilities or damages and any related costs and expenses, including attorneys' fees and costs arising out of, or in any way related to any claim or action against Developer arising out of or in any way related to: (a) Client's breach of this Agreement; (b) a breach of any agreement between Client and its clients or customer; (c) Client's gross negligence or willful misconduct; (d) Client's act or omission constituting a violation of applicable federal, state, local law or regulation; or (e) any claim made against Client asserting a violation of any third party right. 10.2 DEVELOPER Developer shall defend, indemnify and hold harmless Client, its members owners, officers, employees, independent contractors and agents, from and against all losses, claims, liabilities or damages and any related costs and expenses, including attorneys' fees and costs arising out of, or in any way related to any claim or action against Client arising out of or in any way related to: (a) Developer's material breach of his Agreement; (b) Developer's gross negligence or willful misconduct; (c) De eloper's act or omission constituting a violation of applicable federal, state, local law or regulation; or (d) any claim made against Client asserting a violation of any third party intellectual property right pertaining to the Subject Program.

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Source: PELICAN DELIVERS, INC., S-1, 2/11/2020





10.3 NON DISPARAGEMENT CLAUSE The Client and the Designer both agree to never to disparage or speak ill of the other party to anyone and or post negative or disparaging comments Online regarding any of the Designer's products, services, affiliates, subsidiaries, officers, directors, employees or shareholders, and will take reasonable steps to prevent and will not knowingly permit any of their respective employees or agents to, disparage or speak ill of such persons. For purposes of this Section, disparage shall mean any negative statement whether written or oral, about Seattle Software Developers, Inc., Dot Com LLC. and or any of its affiliates. The Client and Designer both agree not to post on defamatory websites or review websites any negative posts concerning each other, the names of our companies, and our employees. Both the Client and the Designer both agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in the Company refusing to enter into this Agreement. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer and Client both agree to indemnify, save and hold armless each other from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer's representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.

11. Termination 11.1 TERMINATION WITHOUT CAUSE Either Party may terminate this Agreement at any time during the term of this Agreement for any reason upon two weeks written notice to the other Party. Upon termination of this Agreement for any reason: (a) all provision of Service and Deliverables by Developer will immediately cease; (b) Client will pay Fees or all Services and Deliverables provided by Developer to Client up to and including the ate of termination; and (c) in compliance with Section 6.1 of this Agreement, Developer will transfer all Works to Client as of the date of termination. 11.2 TERMINATION FOR CAUSE This Agreement may be immediately terminated by notice of the terminating Party upon: (a) the other Party's material breach of this Agreement and fails to cure such default within ten (10) calendar days after receipt of a notice of default from the terminating Party; (b) if Client fails to pay to Developer any undisputed Fees when du and fails to cure any such breach within ten (10) calendar days after receiving notice from Developer of such failure; (c) misappropriation or unauthorized disclosure of Confidential Information by the Receiving Party; or (d) the other Party engages in any act or omission that is determined to be illegal or in violation of any applicable law or regulation.

21

Source: PELICAN DELIVERS, INC., S-1, 2/11/2020





11.3 OBLIGATIONS UPON TERMINATION If Client terminates this Agreement or any SOW for any reason, Client will pay Developer any Fees due and payable on the effective date of such termination or expiration, and Developer will refund to Client any non-accrued pre-paid Fees. In the event of a termination or expiration of this Agreement or any SOW for any reason, developer will, as requested by and at additional cost to Client, provide up to three (3) months of Fee billable assistance (collectively, the Termination Assistance Services) in transitioning from Developer to an alternative software service provider including, without limitation, the following: (a) knowledge transfer regarding the operation, use, and support of the subject Program; return of all documentation containing Content, Marks, Procedures a d Confidential Information in a format reasonably specified by Client and assistance with data migration to an alternative solution; and (c) any related additional services as requested by Client. Developer shall provide Termination Assistance Services to Client in a manner that does not interfere with, interrupt or degrade the Subject Program. The term of this Agreement or applicable SOW shall not be deemed to have expired or terminated until the Termination Assistance Services are completed.

12. General 12.1 CHOICE OF LAW AND VENUE This Agreement will be governed by the laws of the State of Washington without regards for its conflict of laws principle. The Parties will conduct friendly negotiations to resolve any dispute arising from this Agreement, including mediation if requested by either Party. Should mediation fail, each party consents to the personal jurisdiction of the state and federal courts located in King County, Washington. If there is a dispute between the Parties relating to this Agreement, the Party substantially prevailing will be entitled to recover all costs and expenses of any subsequent proceeding (including trial, appellate, and arbitration proceedings), including reasonable attorneys' fees and costs incurred therein.

22

Source: PELICAN DELIVERS, INC., S-1, 2/11/2020





12.2 NOTICE A notice required or permitted under this Agreement will be deemed given if in writing, and delivered by a Party in person, one (1) business day after being sent via overnight carrier, or three (3) business days after being sent by certified mail return receipt requested to the address set forth below, or such other address as may be supplied by either Party subsequently: If to Developer: SEATTLE SOFTWARE DEVELOPERS, INC 4-102ND AvenueNE, Suite 300 Bellevue, Washington 98004 IF to attorney: Copy to: Perkins Coie 1201 third avenue, Seattle, Washington 98101 Attn: LUCAS S. MICHELS, ESQ.

If to Client: Pelican Delivers Inc. Dave Comeau 5452 Pineridge Drive Bremerton, WA 983 360-731-6611

12.3 SEVERABILITY If any provision of this Agreement is held by a court of law to be illegal, invalid or unenforceable: (a) that provision shall be deemed amended to achieve s nearly as possible the same economic and/or protective effect as the original provision; and (b) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. 12.4 WAIVER No delay or omission by either Party hereto to exercise any right or pow r occurring upon any noncompliance or default by the other Party with respect to a y of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in is Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity, or otherwise. 12.5 ASSIGNMENT This Agreement will be binding on and inure to the benefit of the Parties their respective successors, assigns, heirs and personal representatives. Unless as provided herein, neither Party may assign, delegate, assign, nor subcontract their obligations and duties hereunder without the prior written consent of the non-assigning Party. Notwithstanding the foregoing, Developer may assign it rights and benefits under this Agreement, and delegate the performance of its obligations and duties hereunder, to any corporation or unincorporated business that is the successor to the business of Developer, without Client express or implied authorization.

23

Source: PELICAN DELIVERS, INC., S-1, 2/11/2020





12.6 OTHER DEFINITIONAL TERMS, TERMS OF CONSTRUCTION The words hereof, herein and hereunder and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The words include, includes and including shall be deemed to be followed by the phrase without limitation. Unless the context in which used herein otherwise clearly requires, or has the inclusive meaning represented by the phrase and/or. All incorporations by reference of covenants, terms, definitions or other provisions from other agreements are incorporated into this Agreement as if such provisions were fully set forth herein, and include all necessary definitions and related provisions from such other agreements. All covenants, terms, definition and other provisions from other agreements incorporated into this Agreement by reference will survive termination of this Agreement. References to statutes, regulations or laws, include any amendments, modifications or replacements of such statutes, regulations, or laws. 12.7 COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and t e same instrument. Counterparts may be delivered via facsimile, e-mail (including pdf) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. 12.8 ENTIRE AGREEMENT AND UNDERSTANDING This Agreement and Appendices hereto are the complete and exclusive statement of agreement of the Parties as to matters covered by it. This Agreement and its Appendices replaces and supersedes all prior written or oral agreement or statements by and among the Parties with respect to the matters covered by it. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party.

24

Source: PELICAN DELIVERS, INC., S-1, 2/11/2020





13. Acknowledgement by Client Client agrees to the terms of this Agreement and Appendices hereto an acknowledges receipt of a copy of this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date Acceptance by Developer By: /s/ Julian Valentine Julian Valentine, VP

Acceptance by Client: By: /s/ Dave Comeau Dave Comeau, Shareholder

25

Source: PELICAN DELIVERS, INC., S-1, 2/11/2020





Source: PELICAN DELIVERS, INC., S-1, 2/11/2020 
Question: Highlight the parts (if any) of this contract related to Post-Termination Services that should be reviewed by a lawyer. Details: Is a party subject to obligations after the termination or expiration of a contract, including any post-termination transition, payment, transfer of IP, wind-down, last-buy, or similar commitments?

Ex Output:
If elected pursuant to the Agreement, Developer will provide Client Termination Assistance Services at an hourly rate of $[125.00 per hour].


Ex Input:
Exhibit 10.14

EXECUTION VERSION

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

MASTER OPERATION AND MAINTENANCE AGREEMENT

by and between

DIAMOND STATE GENERATION PARTNERS, LLC

and

BLOOM ENERGY CORPORATION

dated as of April 13, 2012

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





TABLE OF CONTENTS Page

ARTICLE 1 DEFINITIONS 2

Section 1.1 Definitions 2 Section 1.2 Other Definitional Provisions 11

ARTICLE 2 SYSTEM SERVICES 12

Section 2.1 In General 12 Section 2.2 Operation and Maintenance Services 12 Section 2.3 Service Fees 13 Section 2.4 System Services Warranty 13 Section 2.5 System Service Warranty Claims 13 Section 2.6 Performance Warranty 14 Section 2.7 Efficiency Warranty 14 Section 2.8 Gas Payment Shortfall 15 Section 2.9 Exclusions 15 Section 2.10 No Duplication of Terms 16 Section 2.11 Title 16 Section 2.12 Record-Keeping Documentation 16 Section 2.13 Remote Monitoring 17 Section 2.14 Permits 17 Section 2.15 Intentionally deleted 17 Section 2.16 Performance Standards 17 Section 2.17 Rights to Deliverables 18 Section 2.18 Appointment of Service Provider 18 Section 2.19 Operating Budget 18

ARTICLE 3 TERM 18

Section 3.1 Term 18

ARTICLE 4 TERMINATION 19

Section 4.1 Default 19 Section 4.2 Termination of Warranties 20 Section 4.3 Replacement of Agreement 20

ARTICLE 5 DATA ACCESS 21

Section 5.1 Access to Data and Meters 21 i

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





ARTICLE 6 INDEMNITY 21

Section 6.1 Indemnification of Operator by Owner 21 Section 6.2 Indemnification of Owner by Operator 21 Section 6.3 Indemnity Claims Procedure 22 Section 6.4 No Duplication of Claims 22

ARTICLE 7 LIMITATIONS ON LIABILITY 22

Section 7.1 Aggregate Limit of Liability 22 Section 7.2 No Duplication of Claims 23

ARTICLE 8 REPRESENTATIONS AND WARRANTIES 24

Section 8.1 Representations and Warranties of Owner 24 Section 8.2 Representations and Warranties of Operator 25

ARTICLE 9 MISCELLANEOUS 26

Section 9.1 Amendment and Modification 26 Section 9.2 Waiver of Compliance; Consents 26 Section 9.3 Notices 27 Section 9.4 Assignment 27 Section 9.5 Dispute Resolution; Governing Law 27 Section 9.6 Governing Law, Jurisdiction, Venue 27 Section 9.7 Counterparts 28 Section 9.8 Interpretation 28 Section 9.9 Appendices and Exhibits 28 Section 9.10 Entire Agreement 28 Section 9.11 Construction of Agreement 28 Section 9.12 Severability 29 Section 9.13 Attorneys' Fees 29 Section 9.14 Further Assurances 29 Section 9.15 Independent Contractors 29 Section 9.16 No Contract for the Sale of Goods 29 Section 9.17 Time of Essence 29 Section 9.18 Confidentiality 29 Section 9.19 Force Majeure 31 Section 9.20 Right of Offset 31 Section 9.21 No Liens 31 Section 9.22 Insurance 31

Exhibit A Service Fees Exhibit B Efficiency Bank Operation Example Calculation ii

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Appendix A [Intentionally Omitted] Appendix B Minimum Power Product Example Calculation Appendix C Facilities Appendix D Power Performance Warranty Claim Example Calculation Appendix E Efficiency Warranty Claim Example Calculation Appendix F Gas Payment Shortfall Claim Example Calculation iii

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





MASTER OPERATION AND MAINTENANCE AGREEMENT

This MASTER OPERATION AND MAINTENANCE AGREEMENT (this Agreement), dated as of April 13, 2012, between BLOOM ENERGY CORPORATION, a Delaware corporation (BE or, in its capacity as operator hereunder, Operator), and DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (Owner) (each, a Party, and together, the Parties), covers (i) the Portfolio of on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels, having an aggregate Nameplate Capacity of up to 30 MW (each a Bloom System, and together the Bloom Systems) and (ii) the BOF installed by BE pursuant to the MESPA, in each case to the extent set forth herein.

WHEREAS, Owner is a company formed at the direction of BE for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity and capacity generated by the Bloom Systems into the PJM Grid;

WHEREAS, the customer base of Delmarva Power & Light Company (DPL), an investor owned utility company regulated by the Delaware Public Service Commission (DPSC), will be subject to a charge to be collected on behalf of Owner by DPL under the REPS Act and the Tariffs, and DPL has agreed to provide natural gas service and to serve as the collection and disbursement agent of Owner pursuant to the Tariffs and the DPL Agreements;

WHEREAS in 2011, Owner purchased from Operator pursuant to the December 30 Bill of Sale certain Bloom Systems and other parts and equipment to be incorporated into the Bloom Systems, and Owner presently owns such Bloom Systems and other parts and equipment;

WHEREAS, Operator has entered into that certain Master Energy Server Purchase Agreement dated as of the date hereof (the MESPA) with Owner, under the terms of which Owner will purchase additional Bloom Systems and the BOF from BE in order for Owner to provide electricity and capacity generated by the Bloom Systems into the PJM Grid;

WHEREAS, pursuant to REPS Act Section 352(16), BE will be a Qualified Fuel Cell Provider (QFCP), and pursuant to the QFCP-RC Tariff, Owner will be a QFCP Generator (QFCP Generator), and pursuant to REPS Act Section 352(17) the Facilities shall constitute a Qualified Fuel Cell Provider Project (Qualified Fuel Cell Provider Project); and

WHEREAS, Operator has agreed to provide certain operation and maintenance services to Owner subject to the conditions of this Agreement.

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

ARTICLE 1 DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

Actual kWh means the actual energy output in kWh produced by each Bloom System and aggregated together.

Administrative Services Agreement means the Administrative Services Agreement dated as of April 13, 2012 among BE, Owner and Diamond State Generation Holdings, LLC.

Affiliate of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.

Agreement means this agreement.

Annual Reports is defined in Section 2.12.

Base Case Model is defined in the ECCA.

BE is defined in the recitals.

Bloom System or Bloom Systems is defined in the introductory paragraph hereof.

BOF means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems, and any other ancillary facilities and equipment installed in connection with the Facility at each Site.

BOF Work is defined in the MESPA.

Business Day means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

Claiming Party is defined in Section 9.19.

Code means the Internal Revenue Code of 1986, as amended.

Commencement of Operations means, with respect to any Bloom System, the completion and the performance of all of the following activities:

(a) such Bloom System has been Placed in Service; 2

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





(b) such Bloom System (i) has been attached to the load at the Site and (ii) is performing at the Warranty Specifications (measured over a 24 hour period and not over the Look Back Period or on a Portfolio basis as referenced in the definition of Warranty Specifications; provided that for this purpose the percentage in Minimum Power Product shall be deemed to be 100% rather than 85%);

(c) such Bloom System has satisfied the conditions precedent for Facility Commercial Operation Date and the Initial Delivery Date (each as defined in the QFCP-RC Tariff) and Operator has performed and successfully completed all necessary acts under the Interconnection Agreements (including performance testing) and has obtained written permission from the applicable Person granting Owner permission to interconnect with the PJM Grid pursuant thereto;

(d) Operator shall have furnished a written certification from Operator addressed to Owner certifying, without any qualification, that Operator has installed such Bloom System in accordance with Performance Standards; and

(e) Operator shall have furnished a written certification from the Independent Engineer addressed to Owner certifying, without any qualification, that (i) such Bloom System's commissioning has been successfully completed and (ii) such Bloom System has achieved commercial operation (and if such Bloom System is the first Bloom System installed at such Facility then the Independent Engineer must also certify, without qualification, that Operator has installed all BOF Work necessary for the operation of that Facility).

Company LLC Agreement means the Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of April 13, 2012, between Clean Technologies II, LLC and Mehetia Inc.

Confidential Information is defined in Section 9.18(a).

Credit Agreement has the meaning set forth in the ECCA.

Credit Documents has the meaning set forth in the ECCA.

DDOT means the Delaware Department of Transportation.

DDOT Site Lease means the Lease Agreement between DDOT and Owner dated as of July, 2011, as it may be amended to extend the term or otherwise.

December 30 Bill of Sale means the Bill of Sale and Agreement, effective as of December 30, 2011, between BE and Owner pursuant to which Safe Harbor Systems and Safe Harbor Equipment were sold by BE to Owner for purposes of meeting the 5% safe harbor for Grant eligibility under the Guidance. 3

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Delivery Date has the meaning provided in the MESPA.

DPL has the meaning provided in the recitals.

DPL Agreements means the service applications between Owner and DPL with respect to the REPS Act and the Tariffs, whereby DPL shall (a) serve as the agent for collection of amounts due from Owner (if any) and for disbursement of amounts due to Owner under the QFCP-RC Tariff and (b) sell to Owner natural gas under the Gas Tariff.

DPL Site Lease means the Lease Agreement between DPL and Owner dated as of February 10, 2012.

DPSC has the meaning provided in the recitals.

ECCA means the Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC, among Clean Technologies II, LLC, Diamond State Generation Holdings, LLC, Owner and Mehetia Inc., dated as of March 16, 2012.

Efficiency means the quotient of E/F, where E = the electricity produced by the Portfolio, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by the Portfolio, measured in BTUs on a Lower Heating Value basis.

Efficiency Bank means banked volumes of natural gas which the Owner is permitted to accrue in a tracking account under the QFCP-RC Tariff Section C.(5) and which are available to offset any Efficiency Warranty shortfall. An example of the operation of the Efficiency Bank is attached as Exhibit B.

Efficiency Warranty has the meaning provided in Section 2.7.

Efficiency Warranty Period has the meaning provided in Section 2.7.

Electrical Interconnection Facilities means the equipment and facilities required to safely and reliably interconnect a Facility to the PJM Grid or the transmission system of another Transmitting Utility in whose territory the Facility is located, as applicable, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

Energy means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

Facility means the Bloom Systems and the BOF at a Site.

Facility Meter means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the Interconnection Agreement), which Facility Meter shall register all Energy produced by a Facility and delivered to the Interconnection Point. 4

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Facility Service Warranty is defined in Section 2.4.

Facility Services is defined in Section 2.1.

FERC means the Federal Energy Regulatory Commission and any successor.

Force Majeure Event means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. It shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the elements, the gas supplier's failure to comply with gas delivery, quality or pressure requirements, the external power delivery system (a/k/a the grid) being out of the required specifications or total failure (a/k/a brownout or blackout), PJM or other electric grid curtailment, or failure of equipment not utilized by or under the control of the Party claiming the Force Majeure Event (or any Affiliate or subcontractor of such Party). Force Majeure Event does not include the lack of economic resources of a Party or Operator's failure to design and construct the Bloom Systems and the BOF so as to meet the respective warranties hereunder.

Gas Payment Shortfall means the cost of natural gas, in any billing period under the QFCP-RC Tariff, for the quantity of natural gas used by the Owner that exceeds the quantity of natural gas that would have been utilized at the Target Heat Rate (as defined in the QFCP-RC Tariff) and the Efficiency Bank does not have a positive balance available to offset such excess.

Gas Tariff means DPL's Service Classification LVG-QFCP-RC filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by the DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC's Findings, Opinion and Order No. 8079, dated December 1, 2011.

Governmental Approvals means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

Governmental Authority means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

Grant is defined in the Company LLC Agreement. 5

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Guidance is defined in the ECCA.

Indemnifiable Loss means any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys' fees and reasonable disbursements in connection therewith).

Indemnified Party is defined in Section 6.3.

Indemnifying Party is defined in Section 6.3.

Independent Engineer is defined in the MESPA.

Interconnection Agreement means an agreement among Owner, DPL and/or PJM regarding interconnection of the Facility to the transmission or distribution system of the Transmitting Utility.

Interconnection Point is defined in the QFCP-RC Tariff.

kW means kilowatt.

kWh means kilowatt-hour.

Legal Requirement means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff (including the Tariffs), order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

Letter Agreement means that certain Letter Agreement dated October 10, 2011 between Operator and the State of Delaware, as may be amended from time to time.

Liens means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

Look Back Period means each calendar year following the Commencement of Operations for a Bloom System (or, in the case of the calendar year in which the Delivery Date for a Bloom System has occurred, the portion of such calendar year commencing on the date such Bloom System achieved Commencement of Operations), but excluding with respect to each relevant Bloom System any period during such calendar year when such Bloom System was (a) subject to a Force Majeure Event, (b) not delivering Energy to the PJM Grid because of a failure to perform by DPL under the DPL Agreements or PJM under the PJM Agreements, or (c) required to be disconnected from the PJM Grid or otherwise required not to deliver Energy to the PJM Grid as the result of a Legal Requirement or action by or a directive from the applicable electric utility or PJM with respect to such Bloom System (e.g., due to a grid event). 6

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Material Adverse Change means a fact, event or circumstance that, alone or when taken with other events or conditions occurring or existing concurrently with such event or condition, (a) has or is reasonably expected to have a material adverse effect on the business, operations, condition (financial or otherwise), assets, liabilities, prospects, or properties of a Person; (b) has or is reasonably expected to have any material adverse effect on the validity or enforceability of this Agreement; (c) materially impairs or is reasonably expected to materially impair the ability of a Person to meet or perform its obligations under this Agreement; or (d) has or is reasonably expected to have any material adverse effect on a Person's rights under this Agreement.

Maximum Liability means, with respect to Operator, the aggregate Residual Value of the Portfolio as of such date, and with respect to Owner, One Million Dollars ($1,000,000); provided that a reduction in the Maximum Liability of Operator shall never result in a requirement for Owner or any Owner Indemnitee to return any money to Operator. Maximum Liability will be determined on an aggregate basis between this Agreement and the MESPA.

MESPA is defined in the Recitals to this Agreement.

Minimum Efficiency Level means fifty percent (50%) Efficiency while a Bloom System is operating at Nameplate Capacity, measured over the Efficiency Warranty Period.

Minimum kWh means the product of (x) the number of hours in the applicable Power Performance Warranty Period minus the number of hours for each Bloom System in the Portfolio as of the last day of the applicable Power Performance Warranty Period when each such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy to the PJM Grid because of a failure to perform by DPL under the DPL Agreements or PJM under the PJM Agreements, or (iii) was required to be disconnected from the grid or otherwise required not to deliver Energy to the PJM Grid as the result of a Legal Requirement or action by or a directive from the applicable electric utility or PJM with respect to such Bloom System (e.g., due to a grid event), and (y) the Minimum Power Product for the applicable Power Performance Warranty Period.

Minimum Power Product means the aggregate Nameplate Capacity of the Bloom Systems in the Portfolio in kW for the applicable Power Performance Warranty Period multiplied by (1) eighty-five percent (85%) when this term is used for the One-Month Power Performance Warranty or (2) ninety-five percent (95%) when this term is used for the One-Year Power Performance Warranty. An example of a calculation of the Minimum Power Product is set forth in Appendix B.

MW means megawatt.

MWh means megawatt-hour. 7

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Nameplate Capacity means the maximum rated output of a generator, prime mover, or other electric power production equipment under specific conditions designated by the manufacturer.

One-Month Power Performance Warranty Period is defined in Section 2.6.

One-Year Power Performance Warranty Period is defined in Section 2.6.

Operator is defined in the introductory paragraph hereof.

Operator Indemnitee is defined in Section 6.1.

Owner is defined in the introductory paragraph hereof.

Owner Indemnitee is defined in Section 6.2.

Owner's Lender means any Person providing senior or subordinated construction, debt or equity financing or refinancing for or in connection with the development, construction, purchase, or installation of the Facility or any part thereof, including any equity and tax investor providing financing or refinancing in connection therewith, and any trustee or agent acting on their behalf, and any Person providing interest rate protection agreements to hedge any of the foregoing debt obligations.

Party or Parties is defined in the introductory paragraph hereof.

Performance Standards is defined in Section 2.16.

Permits means all Governmental Approvals that are necessary under applicable Legal Requirements, this Agreement, or the MESPA to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement, the MESPA, or the ECCA, to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

Person means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

PJM means PJM Interconnection, LLC, a regional transmission organization.

PJM Agreements is defined in the QFCP-RC Tariff.

PJM Grid means the system of transmission lines, distribution lines, and associated facilities that have been placed under PJM's operational control. 8

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Placed in Service means, with respect to any Bloom System, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and permits for the operation of such Bloom System and the sale of power generated by the Bloom System, (2) completion of critical tests necessary for the proper operation of such Bloom System, (3) synchronization of such Bloom System onto the electric distribution and transmission system of the relevant local utility and/or the PJM Grid and (4) the commencement of daily operation of such Bloom System.

Portfolio means, on an aggregate basis, all Bloom Systems owned by Owner that were purchased pursuant to the MESPA or the December 30 Bill of Sale and that have achieved Commencement of Operations.

Portfolio Warranty means the warranty provided for under Section 8.1 of the MESPA.

Power Performance Warranty is defined in Section 2.6.

Power Performance Warranty Period is defined in Section 2.6.

Prudent Electrical Practices means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating in the United States as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC, PJM, and all applicable Legal Requirements.

Purchase Order is defined in the MESPA.

Purchase Price is defined in the MESPA.

QFCP is defined in the recitals.

QFCP Generator is defined in the recitals.

QFCP-RC Tariff' means DPL's Service Classification QFCP-RC for REPS Qualified Fuel Cell Provider Projects as approved by the DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC's Findings, Opinion and Order No. 8079, dated December 1, 2011.

Qualified Fuel Cell Provider Project is defined in the recitals.

Representatives of a Party means such Party's authorized representatives, including its professional and financial advisors. 9

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REPS Act means the Renewable Energy Portfolio Standards Act, as amended by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

Residual Value means, for any Bloom System, [***] of the Purchase Price for such Bloom System until [***], declining by [***] [***] on each anniversary of such date thereafter. (For example, on the fifth anniversary of Commencement of Operations, the Residual Value will be [***] of the Purchase Price).

Safe Harbor Equipment means all parts and equipment to be used in Bloom Systems sold by BE to Owner pursuant to the December 30 Bill of Sale.

Safe Harbor Systems means all Bloom Systems sold by BE to Owner pursuant to the December 30 Bill of Sale.

SCADA means the supervisory control and data acquisition systems.

Section 8.2(b) Warranty is defined in the MESPA.

Service Fees is defined in Section 2.3.

Service Provider means an operation and maintenance contractor appointed by Operator and approved by Owner pursuant to Section 2.18.

Service Technicians is defined in Section 2.2(c).

Site means, as applicable, (a) the parcel of land leased from DPL to Owner under the DPL Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Owner which provide access to the applicable Facility, or (b) the parcel of land leased from the DDOT to Owner under the DDOT Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Owner which provide access to the applicable Facility, in each case on which BE shall install a Facility pursuant to the MESPA.

Site Leases means, collectively, the DPL Site Lease and the DDOT Site Lease.

Tariffs means the QFCP-RC Tariff and the Gas Tariff.

Term is defined in Section 3.1.

Third Party Claim means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, (b) an Affiliate of a Party to this Agreement or (c) Mehetia Inc. or an Affiliate of Mehetia Inc. (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement). [***] Confidential Treatment Requested 10

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Training Materials is defined in Section 2.17.

Transaction Documents means this Agreement, the Company LLC Agreement, the ECCA, the MESPA and the Administrative Services Agreement.

Transmitting Utility has the meaning set forth in the QFCP-RC Tariff.

Warranty Period means, (i) for each Bloom System, the period beginning on the day following the date that the Warranty Period for such Bloom System under and as defined in the MESPA has expired and ending on the twenty-first (21st) anniversary of the date of Commencement of Operations for such Bloom System and (ii) for the BOF, the period beginning on the day following the date that the Section 8.2(b) Warranty for such BOF has expired and ending on the twenty-first (21st) anniversary of such starting date.

Warranty Specifications means (a) that the Portfolio has (i) achieved the Minimum kWh as provided in Section 2.6 and (ii) performed at no less than the Minimum Efficiency Level as provided in Section 2.7 and (b) that Operator is in compliance with Section 2.8.

Section 1.2 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words hereof', herein, hereunder, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term including will mean including without limitation.

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns. 11

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ARTICLE 2 FACILITY SERVICES

Section 2.1 In General. During the Warranty Period, Operator shall provide services to Owner so that the Portfolio meets the Warranty Specifications and so that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as more fully set forth in this Article 2 (such services, collectively, the Facility Services). The Facilities covered under this Agreement are set forth in Appendix C hereto, which may be amended from time to time by written agreement between the Parties.

Section 2.2 Operation and Maintenance Services. Operator is hereby granted the right and authority (and, to the extent necessary to carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Owner, to operate safely and reliably the Facilities and to maintain during the Warranty Period in accordance with the terms of this Agreement each Facility in good condition and repair in accordance with the Warranty Specifications and Prudent Electrical Practices. During the Warranty Period, the specific responsibilities of Operator under this Agreement shall include the following:

(a) Facility Operations. Operator shall ensure that all Facility components are operated and maintained in a manner designed to meet the Efficiency Warranty and the Power Performance Warranty with a goal of achieving the performance levels assumed in the Base Case Model (as defined in the Company LLC Agreement).

(b) Facility Maintenance. Operator shall perform, or cause to be performed, all scheduled and unscheduled maintenance required on each Facility in order to meet the Warranty Specifications. In that regard, Operator's responsibilities hereunder shall include, without limitation, promptly correcting any Bloom System or BOF malfunctions, either by (i) recalibrating or resetting the malfunctioning Bloom System or BOF, or (ii) repairing or replacing Bloom System or BOF components which are defective, damaged, worn or otherwise in need of replacement.

(c) Personnel. Operator shall ensure that all operations and maintenance functions contemplated by this Section are performed by technically competent and qualified personnel (the Service Technicians). Operator shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic refresher training programs. The Operator shall at all times retain an operations manager who shall be dedicated to the overall supervision and management of performance of its obligations under this Agreement.

(d) Spare Parts. Operator shall establish and maintain an adequate spare parts inventory, to be located at one or both Sites to serve exclusively the Facilities. 12

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(e) Programs and Procedures. Prior to the date of the Commencement of Operations for the first Bloom System in the Portfolio, Operator shall have adopted and implemented programs and procedures intended to ensure safe and reliable operation of the Facilities.

The rights and obligations in this Section 2.2 are without duplication of the rights and obligations of Owner and Operator as Buyer and Seller under, and as defined in, the MESPA.

Section 2.3 Service Fees.

(a) Owner shall compensate Operator for the Facility Services for each Facility, on an annual basis at the rate specified in Exhibit A hereto (the Service Fees). With respect to each year of such Facility's Warranty Period, the Service Fees shall be invoiced not later than thirty (30) days prior to the end of the calendar month in which the anniversary of the date of Commencement of Operations for such Bloom System occurred, and shall be payable within thirty (30) days of invoice. Interest shall accrue daily on the Service Fees not paid when due, at the lesser of the monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on such unpaid balance. Operator shall be under no obligation to provide or perform services hereunder for any Bloom System whose Service Fee has not been paid in full for the then-current warranty year.

(b) In connection with Facility Services for the BOF, Operator shall provide all required labor but shall charge Owner for, and Owner shall reimburse Operator for, the cost of all required spare parts. Billing for such spare parts shall be done in the same manner as Services Fees, as set forth in Section 2.3(a).

Section 2.4 Facility Services Warranty. During the Warranty Period, Operator shall perform the services to the Bloom Systems and the BOF necessary for the Portfolio to perform to the Warranty Specifications (the System Service Warranty). In the event that Owner desires Operator to service the Bloom Systems and the BOF beyond the Warranty Period, the rate for such time-based services will be quoted by Operator to Owner quarterly for the following quarter, and materials will be invoiced at the retail prices for such materials.

Section 2.5 Facility Service Warranty Claims.

(a) If Owner desires to make a Facility Service Warranty claim during the Warranty Period, Owner must notify Operator of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Power Performance Warranty for a One-Month Power Performance Period or the Efficiency Warranty, upon receipt of such notice and verification by Operator that such One-Month Power Performance Warranty or Efficiency Warranty is applicable, Operator (or its designated subcontractor) or the Service Provider (or its designated subcontractor) will promptly repair or replace, at Operator's sole option and discretion, any Bloom System whose repair or replacement is required in order for the Portfolio to perform consistent with the Power Performance Warranty or the Efficiency Warranty, as applicable. Owner is hereby notified that refurbished parts may be used in repair or replacement, 13

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but any such refurbished parts will have passed the same inspections and tests performed by Operator on its new parts of the same type before such refurbished parts are used in any repair. If such repair or replacement is not possible (as determined at Operator's sole option and discretion), Operator will refund the Purchase Price of any such Bloom System to Owner notwithstanding Section 7.1. in which case Operator shall be deemed to have taken title to such Bloom System, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio. Operator shall make such determination as promptly as practicable, but in any event within 90 days of Operator's receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination. If it is determined that a Bloom System will be removed pursuant to this Section 2.5. Operator shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the Site to extent required under the Site Lease) from the Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all applicable Legal Requirement and Site Lease.

(c) In the case of a claim relating to the Power Performance Warranty for a One-Year Power Performance Warranty Period, upon receipt of such notice and verification that such One-Year Power Performance Warranty is applicable, Operator shall make a payment to Owner in an amount to be calculated pursuant to Section 2.6; provided that the cumulative aggregate amount of Operator's liability for all claims under this Section 2.5(c) shall not exceed [***] of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period and the purchase price under the December 30 Bill of Sale (inclusive of any amounts paid or for which a pending claim has been made under the Power Performance Warranty or the Section 8.2(b) Warranty, as applicable, under the MESPA).

Section 2.6 Power Performance Warranty. During the Warranty Period, Operator shall determine (i) for each full calendar month (the One- Month Power Performance Warranty Period) within five (5) Business Days after the end of such month and (ii) for the most recent Look Back Period (the One-Year Power Performance Warranty Period, and, together with the One-Month Power Performance Warranty Period, each a Power Performance Warranty Period), whether the Bloom Systems in the Portfolio during such Power Performance Warranty Period have delivered to the Interconnection Point the Minimum kWh during such Power Performance Warranty Period (the Power Performance Warranty). If such Power Performance Warranty calculation indicates that the Actual kWh of the Bloom Systems was less than the Minimum kWh during such Power Performance Warranty Period, then Operator shall so notify Owner in writing of the basis of its determination and Owner may make a claim under Section 2.5. An example of a Power Performance Warranty calculation for purposes of a Section 2.5 claim is attached as Appendix D.

Section 2.7 Efficiency Warranty. During the Warranty Period, Operator shall determine for each full calendar month (the Efficiency Warranty Period) within five (5) Business Days after the end of such month whether the Portfolio has performed at the Minimum Efficiency Level (the Efficiency Warranty); provided that the Efficiency Bank shall be utilized to the extent necessary to meet the Efficiency Warranty. If the Minimum Efficiency Level has [***] Confidential Treatment Requested 14

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not been met during such Efficiency Warranty Period, then Operator shall so notify Owner in writing of the basis of its determination and Owner may make a claim under Section 2.5. An example of an Efficiency Warranty calculation for purposes of a Section 2.5 claim is attached as Appendix E.

Section 2.8 Gas Payment Shortfall. During the Warranty Period, Operator shall perform such services on the Bloom Systems as shall cause the Efficiency Bank to maintain a positive balance at all times. If the Efficiency Bank reaches a balance of less than zero during the Warranty Period, Operator shall reimburse Owner for any Gas Payment Shortfall that Owner incurs within ten (10) days after Owner provides notice to Operator of such shortfall amount; provided that Operator's cumulative aggregate liability under this Section 2.8 plus any payments required to be made by Operator under Section 2.5(c) shall not exceed an amount equal to (i) one hundred percent (100%) of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period and the purchase price under the December 30 Bill of Sale (inclusive of any amounts paid or for which a pending claim has been made for under the Gas Payment Shortfall under the MESPA), less (ii) the aggregate of all amounts paid by Operator (or claimed against Operator in the case of any claims that are pending at the time of such calculation) with respect to claims under Section 2.5(c) hereunder or Sections 8.2(b) and 8.3(c) of the MESPA. An example of a Gas Payment Shortfall calculation for purposes of a Section 2.8 claim is attached as Appendix F.

Section 2.9 Exclusions. The Facility Service Warranty shall not cover any obligations on the part of Operator caused by or arising from (a) Owner's (as opposed to Operator, Operator's Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from vandalism or other third-party's actions or omissions, (b) Owner's (as opposed to Operator, Operator's Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) failure to use the specified input fuel; (c) Owner's (as opposed to Operator, Operator's Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed, (e) accidents, abuse, neglect, improper third party testing, vandalism, Force Majeure Events or acts of third parties, (f) DPL's failure to comply with Operator's gas delivery, quality or pressure requirements, (g) installation, operation, repair or modification of the Bloom Systems by anyone other than Operator or (h) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by BE, provided that the exclusions in this clause (h) shall not extend to any Portfolio Warranty claim to the extent caused by or arising from (A) any defect in construction materials or workmanship of the BOF or (B) any deficiency in design of the BOF by BE, in each case during the period while either the Section 8.2(b) Warranty or the warranty under Section 2.5(c) is in effect. OPERATOR SHALL HAVE NO OBLIGATION UNDER THE FACILITY SERVICE WARRANTY AND MAKES NO REPRESENTATION AS TO FACILITIES WHICH HAVE BEEN OPENED OR MODIFIED BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR'S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON'S REPRESENTATIVES. 15

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Section 2.10 No Duplication of Terms. Notwithstanding anything to the contrary in this Agreement, to the extent that all or any portion of the Facility Service Warranty, a Gas Payment Shortfall payment or any other warranty, guarantee or indemnification provision set forth herein is duplicative of any warranty, guarantee or indemnification coverage provided under the MESPA, the Parties acknowledge and agree that Owner shall be entitled to make only a single claim under either this Agreement or the MESPA, as applicable, and that limitations of liability set forth in each such agreement are to be calculated on an aggregate basis taking into account all claims for indemnification, warranty or otherwise (if any) made under this Agreement and the MESPA.

Section 2.11 Title. Title to all items, parts, materials and equipment supplied under or pursuant to this Agreement to Owner shall transfer to Owner upon installation or inclusion in a Facility.

Section 2.12 Record-Keeping Documentation.

(a) Operator shall ensure that operation, service and maintenance records concerning Operator's activities hereunder are properly created and maintained at all times. Such records shall include, but not be limited to, the following:

(i) a separate Maintenance Specification Log for each Bloom System in a paper or electronic format (with entries made for each inspection, including any discrepancies found during such inspection), a copy of which shall be submitted, in paper or electronic format, to Owner along with the corresponding Annual Reports;

(ii) a Site service report completed in respect of each inspection, repair, replacement, service or other activity or observation made by Operator in connection with its responsibilities hereunder, detailing the nature of the problems detected and the specifics of the problem resolution and submitted to Owner within ten (10) Business Days of the date when a service technician is dispatched to the site in response to a Bloom System or BOF fault or routine inspection or service;

(iii) an annual report submitted to Owner within forty-five (45) Business Days after the end of each calendar year (Annual Report) containing sufficient information, detail and documentation as may be requested by Owner relating to the operating performance of the Bloom System for the preceding calendar year; and

(iv) all records and data that must be timely produced and turned over to (A) DPL pursuant the QFCP-RC Tariff (including without limitation, the Heat Rate calculations as set forth in QFCP-RC Tariff Section C., and monthly documentation of PJM Revenues as set forth in QFCP-RC Tariff Section H.) and the DPL Agreements, (B) PJM pursuant to the PJM Agreements or (C) the Owner's Lender pursuant to the Credit Documents; and 16

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(v) such other reports and/or documentation prepared by Operator concerning its activities hereunder as may be reasonably required of an Operator of a Qualified Fuel Cell Project under the REPS Act and the QFCP-RC Tariff or as requested by Owner from time to time.

(b) All such records required to be created and maintained pursuant to Section 2.12(a) shall be kept available at the Operator's office and made available for the Owner's inspection upon request at all reasonable times. Any documentation prepared by Operator during the Term for the purposes of this Agreement, excluding the Training Materials, shall be directly prepared for Owner's benefit and immediately become Owner's property. Any such documentation shall be stored by Operator on behalf of Owner until its final delivery to Owner. Operator may retain a copy of all records related to each Facility for future analysis.

Section 2.13 Remote Monitoring. For purposes of determining when repair services are necessary, Operator shall monitor and evaluate the information gathered through remote monitoring of each Facility as well as the maintenance and inspection Site visits.

Section 2.14 Permits.

(a) Operator shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform the Facility Services under this Agreement;

(b) Owner agrees to cooperate with and assist Operator in obtaining all Permits.

Section 2.15 Intentionally deleted.

Section 2.16 Performance Standards. For the purpose of this Agreement, the Operator shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) permitted plans and specifications applicable to each Facility; (B) the manufacturer's recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals, (F) the PJM Agreements and the DPL Agreements; (G) any applicable provisions of the Site Leases, including any landlord rules and regulations, and (H) Prudent Electrical Practices (collectively, the Performance Standards); provided, however, that meeting these requirements shall not relieve Operator of its other obligations under this Agreement. 17

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Section 2.17 Rights to Deliverables. Owner agrees that Operator shall retain all rights, title and interest, including intellectual property rights, in any Training Materials in connection with the services performed hereunder. Operator grants to Owner the limited right to use any Training Materials which are provided under this Agreement, and Owner agrees that upon termination of this Agreement for any reason, Owner shall return all Training Materials, including any copies, to Operator. Owner will not make copies nor will it permit its employees, contractors, affiliates, or representatives to make copies of any Training Materials without Operator's prior written consent. Training Materials means any and all materials, documentation, notebooks, forms, diagrams, manuals and other written materials and tangible objects, describing how to maintain the Facilities, including any corrections, improvements and enhancements thereto to the Bloom Systems which are delivered by Operator to Owner, but excluding any data and reports delivered to Owner.

Section 2.18 Appointment of Service Provider. Operator may appoint an unrelated third party, who is appropriately qualified, licensed, and financially responsible, to operate and maintain the Facilities throughout the Term (a Service Provider). Operator shall submit such appointment of any Service Provider to Owner for its prior written approval, which approval shall not be unreasonably withheld or delayed, and if applicable, to PJM and/or DPL. No such appointment nor the approval thereof by Owner, however, shall relieve Operator of any liability, obligation, or responsibility resulting from a breach of this Agreement.

Section 2.19 Operating Budget. Operator shall operate and maintain the Portfolio, or cause the Portfolio to be operated and maintained, within amounts for (a) any Operating Budget Category (as defined in the Credit Documents) that is applicable to the Facility Services not to exceed 110% (on a year-to-date basis) and (b) for all Operating Budget Categories (or such Operating Budget Categories applicable to the Facility Services) not to exceed 105% (on a year- to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget (as defined in the Credit Documents).

ARTICLE 3 TERM

Section 3.1 Term. The term of this Agreement (the Term) (a) shall commence on the first day of the Warranty Period for the first Bloom System to achieve Commencement of Operation and (b) shall, unless terminated earlier under Section 4.1 of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Bloom System to achieve Commencement of Operation. 18

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ARTICLE 4 TERMINATION

Section 4.1 Default.

(a) Operator Default. Any of the following shall constitute an Operator Default:

(i) If Operator: (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Operator's assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Operator's assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control;

(ii) unless due to a Force Majeure Event, the failure of Operator to perform or cause to be performed any other obligation required to be performed by Operator under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct in all material respects as and when made; provided, however, that if such failure by its nature can be cured, then Operator shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Operator Default shall not be deemed to exist during such period; provided, further, that if Operator commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days; or

(iii) a Force Majeure Event occurs which prevents Operator from performing its material obligations under this Agreement for a continuous period of at least one hundred eighty (180) days and Owner reasonably concludes such prevention is not reasonably likely to be remedied within a further period of one hundred eighty (180) days.

(b) Owner Default. Any of the following shall constitute an Owner Default:

(i) The failure of Owner to pay any amounts owing to Operator on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Owner's failure to cure each such failure within ten (10) days after Owner receives written notice from Operator of each such failure; or

(ii) unless due to a Force Majeure Event, the failure of Owner to perform or cause to be performed any other obligation required to be performed by Owner under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct in all material respects as and when made; provided, however, that if such failure by its nature can be cured, then Owner shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and an Owner Default shall not 19

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be deemed to exist during such period; provided, further, that if Owner commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

(c) Owner's Remedies Upon Occurrence of a Operator Default. If an Operator Default has occurred under Section 4.1(a)(i) or (a)(iii), Owner may terminate this Agreement by written notice, and assert all rights and remedies available to Owner under Legal Requirements subject to the limitations of liability set forth in Section 7.1. If an Operator Default has occurred under Section 4.1(a)(ii), Owner may terminate this Agreement only with respect to those Bloom Systems for which such Operator Default occurred (unless such Operator Default relates to ten (10) or more Bloom Systems, in which case Owner may terminate this Agreement with respect to all Bloom Systems) by written notice, and assert all rights and remedies available to Owner under Legal Requirements (other than the termination or suspension of this Agreement in its entirety, except where ten (10) or more Bloom Systems are involved), subject to the limitations of liability set forth in Section 7.1.

(d) Operator's Remedies Upon Owner Default.

(i) If an Owner Default has occurred under Section 4.1(b)(i) or (b)(ii), Operator may terminate this Agreement only with respect to those Bloom Systems for which such Owner Default occurred (unless such Owner Default relates to ten (10) or more Bloom Systems, in which case Operator may terminate this Agreement with respect to all Bloom Systems) by written notice, and assert all rights and remedies available to Operator under Legal Requirements (other than the termination or suspension of this Agreement in its entirety, except where ten (10) of more Bloom Systems are involved), subject to the limitations of liability set forth in Section 7.1.

(e) Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise.

Section 4.2 Termination of Warranties. Notwithstanding anything to the contrary in this Agreement or the MESPA, each of the Facility Service Warranty, the Efficiency Warranty, and the Power Performance Warranty shall terminate with respect to a Bloom System immediately upon termination of the Warranty Period for such Bloom System; provided that any claims under this Agreement that accrued before such termination shall survive such termination until the resolution of those claims. Operator shall be under no obligation for any Facility Service Warranty, Efficiency Warranty or Power Performance Warranty for a Bloom System during any period for which such Bloom System's Service Fees have not been paid in full.

Section 4.3 Replacement of Agreement. Notwithstanding anything to the contrary in this Agreement and in furtherance of continuing qualification under the QFCP-RC Tariff, in the event of the early termination of this Agreement pursuant to Article 4 hereof, BE and Operator agree to use commercially reasonable efforts to cooperate with Owner to facilitate Owner 20

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entering into a new agreement with a third party operator governing operation and maintenance services to be provided to Owner on terms substantially similar to the terms of this Agreement, so that such replacement Operator shall be deemed a QFCP.

ARTICLE 5 DATA ACCESS

Section 5.1 Access to Data and Meters. Throughout the Term, and thereafter to the extent relevant to calculations necessary for periods prior to the end of the Term and subject to any confidentiality obligation owed to any third party and/or any restrictions on the disclosure of information which may be subject to intellectual property rights restricting disclosure:

(a) Owner shall grant Operator access to all data relating to the electricity production of each Bloom System, it being understood that it is Operator's responsibility to determine the performance of the Bloom System, and any other calculations as required under this Agreement, and that it is Owner's responsibility to handle all accounting and invoicing activities; and

(b) Owner shall allow Operator access to all data from all Facility Meters.

Operator shall be entitled to use the foregoing data for its internal purposes and make such data available to third parties for analysis.

ARTICLE 6 INDEMNITY

Section 6.1 Indemnification of Operator by Owner. Owner shall indemnify, defend and hold harmless Operator, its officers, directors, employees, shareholders, Affiliates and agents (each, a Operator Indemnitee) from and against any and all Indemnifiable Losses asserted against or suffered by any Operator Indemnitee arising out of any Third Party Claims against a Operator Indemnitee to the extent arising out of or in connection with (i) Owner's breach of its representations, warranties or covenants in this Agreement, (ii) the negligent or intentional acts or omissions of Owner or its subcontractors, agents or employees or others under Owner's control or (iii) a breach by Owner of its obligations hereunder, provided that Owner shall have no obligation to indemnify Operator for any negligence, fraud or willful misconduct of any Operator Indemnitee or the breach by Operator of any Operator Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document.

Section 6.2 Indemnification of Owner by Operator. Operator shall indemnify, defend and hold harmless Owner, its members, managers, officers, directors, employees, Affiliates and agents (each, an Owner Indemnitee) from and against any and all Indemnifiable Losses asserted against or suffered by any Owner Indemnitee arising out of any Third Party Claims against an Owner Indemnitee to the extent arising out of or in connection with (i) Operator's breach of its representations, warranties or covenants in this Agreement, (ii) the negligent or intentional acts or omissions of Operator or its subcontractors, agents or employees or others under Operator's control or (iii) a breach by Operator of its obligations hereunder; provided that 21

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Operator shall have no obligation to indemnify Owner for any negligence, fraud or willful misconduct of any Owner Indemnitee, the breach by Owner of its covenants and warranties under this Agreement or the inability to utilize any tax benefits (for the avoidance of doubt, the Grant is not considered a tax benefit).

Section 6.3 Indemnity Claims Procedure. If any indemnifiable claim is brought against a Party (the Indemnified Party), then the other Party (the Indemnifying Party) shall be entitled to participate in, and, unless in the opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party's defense through separate counsel of the Indemnified Party's choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 6.4 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that no claiming or indemnified party shall be entitled to a double recovery under the indemnification provisions of this Agreement and the indemnification provisions of the MESPA.

ARTICLE 7 LIMITATIONS ON LIABILITY

Section 7.1 Aggregate Limit of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an aggregate amount in excess of the Maximum Liability; provided that such limitation of liability shall not apply to any liability that is the result of (i) gross negligence, fraud or willful misconduct of a Party, (ii) a Third Party Claim, (iii) the failure to pay the Service Fees (which amount shall not be included in calculating Owner's Maximum Liability), (iv) a claim of Owner against BE or Operator in the event of any breach, default or misrepresentation of any representation and warranty or covenant set forth in Section 8.2(e) or (v) a claim of Owner against BE or Operator under Section 2.8. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (a) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 7.1 shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys' fees and reasonable 22

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Owner, Diamond State Generation Holdings, LLC, or both, and (b) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Owner).

(b) Notwithstanding anything to the contrary provided herein, in no event shall Operator be liable under this Agreement (including with respect to its obligations related to the Facility Service Warranty, the Power Performance Warranty or Warranty Specification) for (i) any failure of or damage to the Bloom System or (ii) any obligations on the part of Operator (including internal rate of return or other financial metrics or any obligations to deliver power to Owner or service the Bloom System) caused by or arising from (A) Owner's (as opposed to Operator or Operator's Affiliate or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from vandalism or other third- party's actions or omissions, (B) Owner's (as opposed to Operator or Operator's Affiliate or subcontractor acting as operator under this Agreement) failure to use the specified input fuel; (C) Owner's (as opposed to Operator or Operator's Affiliate or subcontractor acting as operator under this Agreement) removal of any safety devices, (D) Force Majeure Events, (E) installation, operation, repair or modification of the Bloom Systems by anyone other than Operator or Operator's authorized agents or Owner's operator acting pursuant to a operating and maintenance agreement provided such operator is acting in accordance with Prudent Electrical Practices and information or materials supplied by Operator or its Affiliates, or (F) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by BE, provided that the exclusions in this clause (F) shall not extend to any warranty claim to the extent caused by or arising from (1) any defect in construction materials or workmanship of the BOF or (2) any deficiency in design of the BOF by BE, in each case during the period while the MESPA Section 8.2(b) Warranty is in effect. OPERATOR SHALL NOT BE RESPONSIBLE FOR DAMAGE TO BLOOM SYSTEMS OR THEIR COMPONENTS DUE TO THEIR OPENING OR MODIFICATION BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR'S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON'S REPRESENTATIVES. Except for Owner's payment of money to Operator, and subject to Section 9.19 hereof, neither Party shall be liable under any circumstance, nor be deemed to be in breach of this Agreement, for any delay or failure in performance or interruption of service resulting from any Force Majeure Event, or any other cause or causes which are beyond such Party's reasonable control.

Section 7.2 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that the limitations of liability set forth in this Agreement and the MESPA are to be calculated on an aggregate basis taking into account all claims (if any) made under this Agreement and the MESPA. 23

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





ARTICLE 8 REPRESENTATIONS AND WARRANTIES

Section 8.1 Representations and Warranties of Owner. Owner represents and warrants to Operator as follows:

(a) Organization. Owner is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

(b) Authority. Owner has full limited liability company power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery by Owner of this Agreement and the consummation by Owner of the transactions contemplated hereby have been duly and validly authorized by all necessary limited liability company action required on the part of Owner and this Agreement has been duly and validly executed and delivered by Owner. This Agreement constitutes the legal, valid and binding agreement of Owner, enforceable against Owner in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals: No Violation. Neither the execution, delivery and performance by Owner of this Agreement nor the consummation by Owner of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Owner, or (ii) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Owner is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Owner.

(d) Legal Proceedings. There are no pending or, to Owner's knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against or otherwise affecting Owner which challenges the enforceability of this Agreement or the ability of Owner to consummate the transactions contemplated hereby.

(e) DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8.1 AND THE OTHER TRANSACTION DOCUMENTS, OWNER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT. 24

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Section 8.2 Representations and Warranties of Operator. Operator represents and warrants to Owner as follows:

(a) Incorporation; Qualification. Operator is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Operator is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on Operator's ability to perform its obligations under this Agreement.

(b) Authority. Operator has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated thereby. The execution and delivery by Operator of this Agreement and the consummation by Operator of the transactions contemplated thereby have been duly and validly authorized by all necessary corporate action required on the part of Operator and this Agreement have been duly and validly executed and delivered by Operator. This Agreement constitutes the legal, valid and binding agreement of Operator, enforceable against Operator in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of this Agreement nor the consummation by Operator of the transactions contemplated thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Operator, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Operator's assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Operator is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a Material Adverse Change with respect to Operator; or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Operator, which violations, individually or in the aggregate, would result in a Material Adverse Change with respect to Operator.

(d) Legal Proceedings. There are no pending or, to Operator's knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against or otherwise affecting Operator which challenges the enforceability of this Agreement or the ability of Operator to consummate the transactions contemplated thereby. 25

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





(e) QFCP Tariff. Operator represents and warrants to Owner that, during the Term, the Portfolio shall not fail to receive full payment and service under the Tariffs for any of the following reasons:

(i) Operator shall not remain a Qualified Fuel Cell Provider throughout the original term of the QFCP Tariff.

(ii) Operator shall take any action which causes or is likely to cause: (i) Owner not to qualify (or lose qualification) for service under the QFCP Tariff or (ii) the Portfolio not to qualify (or lose qualification) as a Qualified Fuel Cell Project.

(iii) Operator shall have not complied with any of its obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first Bloom System).

(f) DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8.2 AND THE OTHER TRANSACTION DOCUMENTS, OPERATOR EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

ARTICLE 9 MISCELLANEOUS

Section 9.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Owner and Operator. To the extent that this Agreement must be modified in order to maintain service under the Tariffs, the Parties shall exercise their commercially reasonable efforts to amend the Agreement to continue such service.

Section 9.2 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith. 26

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Section 9.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment, or when delivered or when delivery is refused if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided; however, that notices of a change of address shall be effective only upon receipt thereof): To Operator: Bloom Energy Corporation 1299 Orleans Drive Sunnyvale, CA 94089-1137 Attention: [***] Telephone: [***] Fax: [***] Email: [***]

To Owner: Diamond State Generation Partners, LLC c/o Bloom Energy Corporation 1299 Orleans Drive Sunnyvale, CA 94089-1137 Attention: [***] Telephone: [***] Fax: [***]

Section 9.4 Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by operation of law or otherwise, without the prior written consent of the other Party; provided that either Party may collaterally assign its rights under this Agreement to any party providing debt or equity financing to such Party without the consent of the other Party. Notwithstanding the foregoing sentence, Operator shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate under common ownership with Operator; provided that such assignment will not disqualify or otherwise impair either the Owner or the Portfolio from receiving service under the QFCP-RC Tariff.

Section 9.5 Dispute Resolution: Governing Law. In the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days, then, subject to the limitations on remedies set forth in Section 4.1 and Article 7, either Party may pursue whatever rights it has available under this Agreement, at law or in equity.

Section 9.6 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION

[***] Confidential Treatment Requested 27

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 9.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

Section 9.8 Interpretation. The articles, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 9.9 Appendices and Exhibits. Except as otherwise provided in this Agreement, all exhibits and appendices referred to herein are intended to be and hereby are specifically made a part of this Agreement.

Section 9.10 Entire Agreement.

(a) This Agreement, the MESPA and the exhibits, schedules, documents, certificates and instruments referred to herein and therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(b) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (b), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

Section 9.11 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Owner and Operator, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Owner and Operator hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement. 28

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Section 9.12 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 9.13 Attorneys' Fees. If any action or proceeding to enforce this Agreement or any provision hereof is brought by any Party, the prevailing Party shall be entitled to recover from the non prevailing Party its attorneys' fees and its costs and expenses of suit, including actual attorneys' and consultants' fees. In the event that any Party secures a judgment in any proceeding brought to enforce or interpret this Agreement, then any cost of expense incurred in enforcing or in successfully appealing from such judgment, including actual attorneys' fees shall be paid by the Party against whom such judgment has been rendered or against whom an appeal is won, and shall be recoverable separately from and in addition to any other amount included in such judgment.

Section 9.14 Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

Section 9.15 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

Section 9.16 No Contract for the Sale of Goods. Both Parties agree that this Agreement relates predominantly to the rendition of services accompanied only by the incidental sale of parts for the Bloom Systems; and therefore, this Agreement is not subject to the Delaware Uniform Commercial Code or any other commercial code for the sale of goods. The Parties expressly disclaim, to the extent permitted under applicable law, any and all provisions of the Uniform Commercial Code of any state or other applicable law relating to the commercial sale of goods.

Section 9.17 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 9.18 Confidentiality.

(a) Confidential Information. Subject to the other terms of this Section 9.18. the Parties shall, and shall cause their Affiliates and their respective stockholders, members, Subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Operator and Owner and their respective assets, business, operations or prospects or this Agreement (the Confidential Information), including, but not limited to, all software, 29

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





documentation, financial, marketing and nonpublic PJM Grid data and other business information, all data related to the internal design and performance of the Bloom Systems and any other material or information that is either marked as confidential or disclosed under circumstances that one would reasonably expect it to be confidential. Furthermore, Owner agrees that the Bloom Systems and services performed hereunder contain Operator's valuable trade secrets, and further, Owner agrees to maintain the secrecy of and not disclose without the express written permission of Operator any trade secrets which Owner may have received from Operator; provided, however, that Confidential Information shall not include information that (A) is or becomes generally available to the public other than as a result of a disclosure by a Party or any of its Representatives or (B) is or becomes available to a Party or any of its Representatives on a nonconfidential basis prior to its disclosure by the other Party or its Representatives.

(b) Legally Compelled Disclosure. Confidential Information may be disclosed (A) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (B) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit, or (C) as reasonably required by the DPL Agreements, the PJM Agreements or the Tariffs. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Party with prompt notice so that the other Party may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 9.18(b) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Party waive compliance with the non-disclosure provisions of this Section 9.18(b) with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (B) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(c) Disclosure to Representatives. Notwithstanding the foregoing, a Party may disclose Confidential Information received by it to its actual or potential financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential. 30

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





(d) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party from using such Confidential Information in connection with (i) any claim against another Party and (ii) any exercise by a Party of any of its rights hereunder, (iii) a financing or proposed financing by Operator or Owner or their Affiliates; (iv) a disposition or proposed disposition by Operator or any Affiliate of Operator of all or a portion of such Person's direct or indirect equity interest in Operator and (v) a disposition or proposed disposition by any direct or indirect Affiliate of Owner of all or a portion of such Person's equity interests in Owner; provided that, in the case of items (iii), (iv) and (v), the potential purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party.

Section 9.19 Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the Claiming Party) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that: (i) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (ii) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (iii) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (iv) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (v) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

Section 9.20 Right of Offset. Owner at its sole option is hereby authorized to setoff any amounts owed Owner under the MESPA or this Agreement, as applicable, against any amounts owed by Owner to Operator under the MESPA or this Agreement. The rights provided by this paragraph are in addition to and not in limitation of any other right or remedy (including any right to set-off, counterclaim, or otherwise withhold payment) to which a Owner may be entitled (whether by operation of law, contract or otherwise).

Section 9.21 No Liens. To the extent that Operator has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System or the Site for such Bloom System, then Operator shall promptly cause such Liens to be removed or bonded over in a manner reasonably satisfactory to Owner.

Section 9.22 Insurance. At all times during the Term without cost to Owner, Operator shall maintain in force the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Owner 31

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change:

(a) Worker's Compensation Insurance as required by the laws of the state where Operator's facilities are located;

(b) Employer's liability insurance with limits not less than One Million Dollars ($1,000,000); and

(c) Commercial General Liability Insurance, including bodily injury and property damage liability including premises operations, contractual liability endorsements, products liability and completed operations with limits not less than Five Million Dollars ($5,000,000).

Operator shall cause Owner (and such additional parties as Owner designates in writing) to be named additional insured(s), must be written as primary policy not contributing to or in excess of any policies carried by the Owner, and each contain a waiver of subrogation endorsement, in form and substance reasonably satisfactory to the Owner, in favor of the Owner.

[Signatures follow on next page] 32

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





IN WITNESS WHEREOF, the Parties have executed this Master Operation and Maintenance Agreement as of the date first above written.

BLOOM ENERGY CORPORATION

By: Name: Title:

[Signature Page to the Master Operation and Maintenance Agreement]

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





DIAMOND STATE GENERATION PARTNERS, LLC

By: Name: William E Brockenborough Title: Vice President

[Signature Page to the Master Operation and Maintenance Agreement]

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





EXHIBIT A to

MASTER OPERATION AND MAINTENANCE AGREEMENT

SERVICE FEES

Exhibit A-1

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





MOMA

Exhibit A

Service Fees

Period

Rate Per kW (nameplate) Per Year

Equivalent Rate Per kWh Year 1 [***] [***] Year 2 [***] [***] Year 3 [***] [***] Year 4 [***] [***] Year 5 [***] [***] Year 6 [***] [***] Year 7 [***] [***] Year 8 [***] [***] Year 9 [***] [***] Year 10 [***] [***] Year 11 [***] [***] Year 12 [***] [***] Year 13 [***] [***] Year 14 [***] [***] Year 15 [***] [***] Year 16 [***] [***] Year 17 [***] [***] Year 18 [***] [***] Year 19 [***] [***] Year 20 [***] [***] Year 21 [***] [***] [***] Confidential Treatment Requested

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





EXHIBIT B to

MASTER OPERATION AND MAINTENANCE AGREEMENT

EFFICIENCY BANK OPERATION EXAMPLE CALCULATION

Exhibit B-1

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Efficiency Bank -MOMA

Exhibit B

Efficiency Bank Operation Example Calculation 2014 Assumptions Number of active Systems 150 Nameplate capacity 200 Hours in the year 8760 Look back period 30 Days BTUs/kWh 3,412 LHV to HHV conversion 1.107 Actual power performance 96%

One-Month Efficiency analysis One-Month Efficiency Warranty 50% Actual system efficiency 56%

Maximum MMbtu 156,643 Actual MMbtu 139,860 MMbtu to be drawn from Efficiency Bank — MMbtu to be deposited into Efficiency Bank 16,783

Efficiency Bank beginning balance 104,429 Change 16,783 Efficiency Bank ending balance [***] [***] Confidential Treatment Requested

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





APPENDIX A to

MASTER OPERATION AND MAINTENANCE AGREEMENT BLOOM SYSTEMS

[Intentionally Omitted] Appendix A-1

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





APPENDIX B to

MASTER OPERATION AND MAINTENANCE AGREEMENT

Minimum Power Product Example Calculation Appendix B-1

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Minimum Power Product - MOMA

MOMA

Appendix B

Sample One-Month Minimum Power Product Example Calculation 2014 Assumptions Number of active Systems 150 Nameplate capacity 200kW One-Month Power Performance Warranty 85%

Minimum Power Product Analysis

Minimum Power Product 25,500kW

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Minimum Power Product - MOMA

MOMA

Appendix B

Sample One-Year Minimum Power Product Example Calculation 2014 Assumptions Number of active Systems 150 Nameplate capacity 200kW One-Year Power Performance Warranty 95%

One-Year Minimum Power Product Analysis

Minimum Power Product 28,500kW

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





APPENDIX C to

MASTER OPERATION AND MAINTENANCE AGREEMENT

Facilities1

All Bloom Systems now or hereafter purchased under the MESPA from and after the date such Bloom Systems are purchased, and including without limitation those Bloom Systems detailed in the chart below from time to time, together with the BOF installed in connection with each such Bloom System at each Site. Serial No. Site Location Bloom System Capacity Brookside 3MW Total IOM-5700-00076 0.2MW PWM-5700-00416-SH PWM-5700-00417-SH PWM-5700-00418-SH PWM-5700-00419-SH PWM-5700-00420-SH PWM-5700-00421-SH IOM-5700-00077 0.2MW PWM-5700-00422-SH PWM-5700-00423-SH PWM-5700-00424-SH PWM-5700-00425-SH PWM-5700-00426-SH PWM-5700-00427-SH IOM-5700-00078 0.2MW PWM-5700-00428-SH PWM-5700-00429-SH PWM-5700-00430-SH 1 Includes Safe Harbor Systems, Bloom Systems to be ordered and delivered in Q2 2012.

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





PWM-5700-00431-SH PWM-5700-00432-SH PWM-5700-00433-SH TBD - Brookside 4 0.2MW TBD - Brookside 5 0.2MW TBD - Brookside 6 0.2MW TBD - Brookside 7 0.2MW TBD - Brookside 8 0.2MW TBD - Brookside 9 0.2MW TBD - Brookside 10 0.2MW TBD - Brookside 11 0.2MW TBD - Brookside 12 0.2MW TBD - Brookside 13 0.2MW TBD - Brookside 14 0.2MW TBD - Brookside 15 0.2MW

Red Lion 5.8MW Total IOM-5700-00079 0.2MW PWM-5700-00434-SH PWM-5700-00435-SH PWM-5700-00436-SH PWM-5700-00437-SH PWM-5700-00438-SH PWM-5700-00439-SH IOM-5700-00080 0.2MW PWM-5700-00440-SH PWM-5700-00441-SH PWM-5700-00442-SH PWM-5700-00443-SH PWM-5700-00444-SH PWM-5700-00445-SH Delaware001 0.2MW

Red Lion 2.8MW Total Delaware002 0.2MW 2

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Red Lion 7.2MW Total Delaware003 0.2MW Delaware004 0.2MW

Red Lion 11.2MW Total Delaware005 0.2MW Delaware006 0.2MW Delaware007 0.2MW 3

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





APPENDIX D to

OPERATION AND MAINTENANCE AGREEMENT

Power Performance Warranty Claim Example Calculation Appendix D-1

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Performance - MOMA

MOMA

Appendix D

Sample One-Month Power Performance Warranty Claim Example Calculation 2014 Assumptions Number of active Systems 150 Nameplate capacity 200 Hours in the year 8760 Look back period 30 Days

One-Month Power Performance Warranty analysis One-Month Power Performance Warranty 85% Actual system output 80%

Minimum kWh 18,360,000 Actual kWh 17,280,000 Underperformance (kWh) 1,080,000

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Performance - MOMA

Appendix D

Sample One-Year Power Performance Warranty Claim Example Calculation 2015 Assumptions Number of active Systems 150 Nameplate capacity 200 Hours in the year 8760 Look back period 365 Days Project COE - Applicable QFCP-RC Tariff disbursement rate $ [***] /kWh

One-Year Power Performance Warranty analysis One-Year Power Performance Warranty 95% Actual system output 80%

Minimum kWh 249,660,000 Actual kWh 210,240,000 Underperformance (kWh) 39,420,000

Power Performance Warranty Payment $ [***] [***] Confidential Treatment Requested

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





APPENDIX E to

OPERATION AND MAINTENANCE AGREEMENT

Efficiency Warranty Claim Example Calculation Appendix E-1

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Efficiency - MOMA MOMA

Appendix E

Sample One-Month Efficiency Warranty Claim Example Calculation 2014 Assumptions Number of active Systems 150 Nameplate capacity 200 Hours in the year 8760 Look back period 30 Days BTUs/kWh 3,412 LHV to HHV conversion 1.107 Actual power performance 96%

One-Month Efficiency analysis One-Month Efficiency Warranty 50% Actual system efficiency 48%

Maximum MMbtu 156,643 Actual MMbtu 163,170 MMbtu to be drawn from Efficiency Bank (6,527) MMbtu to be deposited into Efficiency Bank —

Efficiency Bank beginning balance 104,429 Change (6,527) Efficiency Bank ending balance [***] [***] Confidential Treatment Requested

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





APPENDIX F to

OPERATION AND MAINTENANCE AGREEMENT

Gas Payment Shortfall Claim Example Calculation Appendix F-1

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018





Gas Payment - MOMA

Appendix F

Sample Gas Payment Shortfall Claim Example Calculation 2015 Assumptions Number of active Systems 150 Nameplate capacity 200 Hours in the year 8760 Look back period 30 Days BTUs/kWh 3,412 LHV to HHV conversion 1.107 Actual power performance 96% Cost of gas - Price charged under Gas Tariff for relevant period $ [***] /MMbtu

Gas Shortfall analysis One-Month Efficiency Warranty 50% Actual system efficiency 40%

Maximum MMbtu 156,643 Actual MMbtu 195,804 MMbtu to be drawn from Efficiency Bank (39,161) MMbtu to be deposited into Efficiency Bank —

Efficiency Bank beginning balance 30,000 Change (39,161) Efficiency Bank shortfall (9,161)

Gas Shortfall payment $ [***] [***] Confidential Treatment Requested

Source: BLOOM ENERGY CORP, DRS/A (on S-1), 3/21/2018 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

Ex Output:
written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change:

(a) Worker's Compensation Insurance as required by the laws of the state where Operator's facilities are located;

(b) Employer's liability insurance with limits not less than One Million Dollars ($1,000,000); and

(c) Commercial General Liability Insurance, including bodily injury and property damage liability including premises operations, contractual liability endorsements, products liability and completed operations with limits not less than Five Million Dollars ($5,000,000).