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.

Example Input: Exhibit 10.1

TRANSPORTATION SERVICES AGREEMENT

THIS TRANSPORTATION SERVICES AGREEMENT (this Agreement) is dated as of June 11, 2015, by and between Marathon Petroleum Company LP (Shipper) and Marathon Pipe Line LLC, a Delaware limited liability company (MPL), both referred to jointly as the Parties and each individually as a Party.

WITNESSETH

WHEREAS, MPL owns and operates a common carrier pipeline system originating in Ohio, as further depicted on Exhibit A, that will provide both interstate and intrastate common carrier transportation services; and

WHEREAS, MPL also operates the assets of Ohio River Pipe Line LLC, a Delaware limited liability company (ORPL) and an affiliate of MPL. ORPL is the owner of a common carrier pipeline system originating in Ohio, as further depicted on Exhibit A, that provides common carrier transportation services; and

WHEREAS, MPL and ORPL desire to combine their systems (together referred to as the Pipeline) under a Joint Agreement (as defined below) in order to undertake certain improvements to provide expanded capacity on portions of the Pipeline and install additional infrastructure to other portions of the Pipeline pursuant to a multi-phase capital project (the Project); and

WHEREAS, MPL and ORPL conducted a joint binding open season with the understanding that MPL will file a joint tariff, commencing approximately 30 days prior to the in-service date of the Project, seeking binding commitments on the Pipeline; and

WHEREAS, Shipper responded to the binding open season and desires to commit to transport a specified volume of Product (as defined below) on the Pipeline over a multi-year period to destinations as provided in Exhibit C, subject to and upon the terms and conditions of this Agreement; and

WHEREAS, in exchange for the commitment by Shipper to transport a specific volume of Product on the Pipeline over a multi-year period, MPL will charge the rates as provided for in Exhibit B; and

NOW THEREFORE, in consideration of the premises and mutual covenants set forth hereinafter, MPL and Shipper agree as follows:

1. Definitions

Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries' controls, is controlled by or is under common control with, the Person in question.

Applicable Law means any applicable statute, law, regulation, ordinance, rule, determination, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect. Barrel means forty-two (42) U.S. gallons measured at sixty (60) degrees Fahrenheit.

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Change in Law means the adoption, implementation or amendment of any Applicable Law by any Governmental Authority after the Effective Date that causes MPL to incur additional expenses in order to operate the Pipeline in compliance with such Applicable Law.

Change in Law Event means the occurrence of a Change in Law that necessitates the expenditure of Compliance Costs.

Compliance Costs means the expenses in excess of $1,000,000 for a Change in Law Event, related specifically to the Department of Transportation, Pipeline and Hazardous Materials Safety Administration or Homeland Security, incurred by MPL to comply with a Change of Law, irrespective of whether such expenses are to be incurred as a onetime expenditure or periodically for an extended period. The definition for Compliance Costs shall in no way revise or modify the definitions of Change in Law or Change in Law Event.

Contract Year means the period beginning on the project in-service date in conjunction with the FERC tariff filing, and ending 365 days later (366 days later for any such period that includes a February 29.)

Confidential Information means any proprietary or confidential information that is competitively sensitive material or otherwise of value to a Party or its Affiliates and not generally known to the public, including trade secrets, scientific or technical information, design, invention, process, procedure, formula, improvements, product planning information, marketing strategies, financial information, information regarding operations, consumer and/or customer relationships, consumer and/or customer identities and profiles, sales estimates, business plans, and internal performance results relating to the past, present or future business activities of a Party or its Affiliates and the consumers, customers, clients and suppliers of any of the foregoing. Confidential Information includes such information as may be contained in or embodied by documents, substances, engineering and laboratory notebooks, reports, data, specifications, computer source code and object code, flow charts, databases, drawings, pilot plants or demonstration or operating facilities, diagrams, specifications, bills of material, equipment, prototypes and models, and any other tangible manifestation (including data in computer or other digital format) of the foregoing; provided, however, that Confidential Information does not include information that a receiving Party can show (a) has been published or has otherwise become available to the general public as part of the public domain without breach of this Agreement, (b) has been furnished or made known to the receiving Party without any obligation to keep it confidential by a third party under circumstances which are not known to the receiving Party to involve a breach of the third party's obligations to a Party or (c) was developed independently of information furnished or made available to the receiving Party as contemplated under this Agreement.

Construction Costs means all costs and expenses incurred by MPL in connection with the Project, including, without limitation, those costs relating to design, asset modification or enhancement and developmental costs, whether internal or external. Such costs include all expenditures that have been committed to by MPL via purchase order, contract or otherwise, even if MPL has not remitted funds for the goods or services that are the subjects thereof.

Construction Cost Reimbursement has the meaning set forth in Section 10.5.

Day means a period of twenty-four (24) consecutive hours commencing 12:00 a.m. Central Standard Time, or such other period upon which the Parties may agree.

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Deficiency Volume has the meaning set forth in Section 3.5.

Deliveries means the volume of Product delivered through the Pipeline.

Effective Date has the meaning set forth in Section 2.1.

Election Deadline has the meaning set forth in Section 6.6.

Expansion Notice has the meaning set forth in Section 6.6.

Expansion Volume Commitment has the meaning set forth in Section 6.6.

Extension Period has the meaning set forth in Section 2.2.

FERC means the Federal Energy Regulatory Commission.

Force Majeure means acts of God, fires, floods, storms; compliance with orders of courts or Governmental Authorities; explosions, wars, terrorist acts, riots, strikes, lockouts or other industrial disturbances; accidental disruption of service; breakdown of machinery, storage tanks or pipelines and inability to obtain or unavoidable delays in obtaining material or equipment; and similar events or circumstances, so long as such events or circumstances are beyond the affected Party's reasonable control and could not have been prevented by the affected Party's due diligence; provided, however, that a Party's failure to pay any amounts due hereunder shall not constitute an event of Force Majeure.

Force Majeure Notice has the meaning set forth in Section 5.1.

Force Majeure Period has the meaning set forth in Section 5.1.

Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.

Initial Term has the meaning set forth in Section 2.2.

Joint Agreement means the agreement between ORPL and MPL to undertake certain improvements to provide expanded capacity on portions of the ORPL systems and install additional infrastructure to portions of the MPL systems pursuant to a multi-phase capital project. This agreement will also establish a joint tariff between ORPL and MPL, which derives both entities local movements and rates. MPL will ultimately file the joint tariff.

Monthly Commitment has the meaning set forth in Section 3.6.

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

Pre-Service Increase Request has the meaning set forth in Section 3.9.

Prepaid Transportation Credits has the meaning set forth in Section 3.6.

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Product means the commodities commonly associated as specialty petroleum products, specifically condensate, natural gasoline, and diluent. Product may also include liquefied petroleum gas commodities such as butane. Product, as designed in this Agreement, does not refer to finished gasoline and diesel products.

Project Capacity means the aggregate of each system's total capacity that is made available for Product movements by means of the Project, by either expanding existing pipelines or building new pipelines.

Proportionate Share means, at any given time, the percentage equal to Shipper's volume commitment divided by the total volume commitments at such time.

Quarter means the three (3) calendar month periods, or portion thereof, commencing January 1, April 1, July 1 and October 1 of each year during Term hereof.

Quarterly Volume Commitment means Shipper's commitment to ship, or otherwise pay for, each Contract Year of the fifteen (15) year term of this Agreement, at posted Pipeline Tariff Rates as set forth in Exhibit B, which equals a total annual Product volume as determined from Exhibit C. With respect to the required quarterly volume, the volume of Product is equal to: (a) volume per day multiplied by; (b) the number of Days in such Quarter. The Quarterly Volume Commitment will be reduced proportionately for any partial Quarter during the Term.

Representatives has the meaning set forth in Section 7.1.

Requested Expansion Volume Commitment has the meaning set forth in Section 6.6.

Shipper Deliveries means the volume of Product that Shipper as the shipper of record delivered through the Pipeline.

Termination Notice has the meaning set forth in 5.1.

Tariff means the intrastate and/or interstate tariffs that set forth the rules, regulations and rates for services on the Pipeline, including supplements thereto and reissues thereof, under which Product is transported through the Pipeline.

Tariff Rates means the rates set forth in the Tariffs for transportation of Product on the Pipeline.

Term has the meaning set forth in Section 2.2.

Unsubscribed Capacity has the meaning set forth in Section 3.9.

1.1 The following Exhibits are attached to and incorporated into this Agreement: Exhibit A - Common Carrier Pipeline, including Origins and Destinations Exhibit B - Rate and Volume Commitment Table Exhibit C - Shipper's Submitted Capacity Request Form

2. Effective Date and Term

2.1 This Agreement is effective June 11, 2015 (the Effective Date). The Agreement shall continue through the project's in-service date and for a period of fifteen (15) years after the project's in-service date (Initial Term). MPL shall provide written notice to Shipper

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confirming the project's in-service date. Shipper acknowledges that the overall Project will be completed in several phases. New infrastructure will be completed first, with additional build-out projects and expansions completed in succession. MPL will provide a thirty (30) day notice to Shipper, notifying it of the actual in-service date for the included projects.

2.2 This Agreement shall be binding upon the Parties under the same conditions and provisions for a time period commencing on the Effective Date and shall continue through the Initial Term. This Agreement will automatically renew for up to two (2) renewal terms of five (5) years each (each, an Extension Period) unless either Party provides the other Party with written notice of its intent to terminate this Agreement at least six (6) months prior to the end of the Initial Term or the then current Extension Period. The Initial Term and Extension Period, if any, shall be referred to in this Agreement as the Term.

2.3 In the event Shipper does not wish to renew after the Initial Term or Extension Period or chooses to terminate the Agreement by written notice pursuant to Section 2.2, MPL reserves the option and right to hold a subsequent open season in which interested shippers can have opportunity to contract for resulting available volume, rate, and terms.

3. Volume Commitment and Quarterly Deficiency Charges

3.1 Shipper guarantees that during each Contract Year, Shipper will meet its Quarterly Volume Commitment or, in the event it fails to do so, shall remit to MPL the Quarterly Deficiency Payment pursuant to Section 3.5. All volumes moved by Shipper on the Pipeline will be subject to the applicable Tariff Rates and proration policies, as may be amended from time to time in accordance with FERC methodologies and as provided herein.

3.2 Shipper will have the opportunity to fulfill its Quarterly Volume Commitment on a calendar quarter basis for condensate, natural gasoline, and diluent service. These three Products are interchangeable from a volume commitment standpoint and shipping a total volume of any one or combination of these Products will be applied towards the Quarterly Volume Commitment. Should MPL proceed with butane service, Shipper will also have the opportunity to fulfill its Quarterly Volume Commitment on a calendar quarter basis for butane service, separate from condensate, natural gasoline, and diluent service.

3.3 Shipper shall be deemed to have shipped its Quarterly Volume Commitment on the Pipeline if the quantity of Product that Shipper ships on the Pipeline in any Quarter equals at least the Quarterly Volume Commitment for such Quarter.

3.4 Shipper agrees to pay MPL monthly: (a) the Tariff Rates in effect for all Shipper Deliveries transported by MPL on the Pipeline during such month; and (b) any loading, handling, transfer and other charges incurred with respect to such Shipper Deliveries for such month in accordance with the provisions as set forth in the Tariffs (or any other tariffs that may be applicable to such Shipper Deliveries). If the amount owed by Shipper is the subject of a good faith dispute, Shipper shall be obligated to pay only the undisputed portion of such amount pending the resolution of such dispute in accordance with this Agreement. Late payments of undisputed amounts shall accrue interest at a rate equal to two percent (2%) per annum, until paid. Such payments will be paid by Shipper to MPL within fifteen (15) Days of the invoice date or resolution of any dispute, if applicable.

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3.5 Subject to the provisions of Section 5 of this Agreement, if the volume of each Product shipped by Shipper on the Pipeline during the Quarter is less than the applicable Quarterly Volume Commitment for that Product then, in addition to paying any amounts incurred by Shipper pursuant to Section 3.4 with respect to Shipper Deliveries for such Quarter, Shipper shall also pay MPL a deficiency payment (the Quarterly Deficiency Payment); equal to the product of:

(a) the difference between the applicable Quarterly Volume Commitment for that Product for such Quarter and the volume of Shipper Deliveries of that Product on the Pipeline for such Quarter (the Deficiency Volume); and

(b) the applicable Tariff Rate for that Product for such Quarter.

Each Product to which the Shipper is obligated to move as part of its committed volumes will be added together for one total Quarterly Deficiency Payment.

Shipper's transportation of commodities outside this Agreement's definition of Product will not satisfy the obligation to move committed Product volume. All Product barrels moved by Shipper in excess of its Quarterly Volume Commitment will be attributed to Shipper's movements on the Pipeline as a Regular Shipper, subject to the applicable Rules & Regulations of the Tariff.

3.6 The dollar amount of any Quarterly Deficiency Payment paid by Shipper shall constitute prepayment for transportation of Product by Shipper on the Pipeline and will posted as a credit (Prepaid Transportation Credits) to Shipper's account for that type of Product. If, during any Quarter of the Contract Year, Shipper deliveries on the Pipeline exceed the applicable Quarterly Volume Commitment requirements, Shipper shall be permitted to apply Prepaid Transportation Credits against any amount due from Shipper and payable to MPL with respect to the transportation of volumes on the Pipeline for such Quarter. Any Prepaid Transportation Credits that are not used by Shipper during the four (4) Quarters immediately following the Quarter for which said Prepaid Transportation Credits were posted to Shipper's account (the Credit Period) will expire. Those Prepaid Transportation Credits that are in payment dispute in accordance with Section 3.4, shall be posted as a credit on the date the payment dispute is resolved. If during any such four (4) Quarter period the nominated volume on the Pipeline for any month equals or exceeds the applicable portion in the Quarterly Volume Commitment for the Pipeline for such month (the Monthly Commitment), but Shipper is prevented from shipping volumes in excess of the Monthly Commitment because of lack of available capacity, either because (a) the Pipeline is in allocation and Shipper is specifically subject to allocation per Exhibit C, (b) the Pipeline is undergoing testing, maintenance or repair, or (c) a Force Majeure has occurred that prevents MPL from transporting Shipper volumes on the Pipeline in excess of the Monthly Commitment, then the Credit Period shall be extended by an equivalent time period for which Shipper has been prevented from shipping volumes in excess of the Monthly Commitment. For the purposes of this Section 3.6, during the Term, if the Pipeline is in allocation for any portion of the month, the Pipeline will be considered to be in allocation for the entirety of such month.

3.7 Notwithstanding anything in Section 3.5 to the contrary, upon the expiration or termination of this Agreement for any reason to the extent that Shipper, at the time of such expiration or termination, holds any unused Prepaid Transportation Credits, Shipper shall be permitted to apply such Prepaid Transportation Credits against any amounts incurred by Shipper and

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payable to MPL with respect to any Shipper deliveries on the Pipeline until the expiration of the applicable Credit Period with respect to such Prepaid Transportation Credits. This Section 3.7 shall survive the expiration or termination of this Agreement.

3.8 Shipper may not apply Prepaid Transportation Credits on differing types of Products; i.e, a Shipper may not use Prepaid Transportation Credits received for butane service on condensate, natural gasoline, or diluent service, or vice versa. Condensate, natural gasoline, and diluent are interchangeable from a volume commitment standpoint and shipping a total volume of any one or combination of these Products will be applied towards the Quarterly Volume Commitment. Should MPL proceed with butane service, Shipper will also have the opportunity to fulfill its Quarterly Volume Commitment on a calendar quarter basis for butane service, separate from condensate, natural gasoline, and diluent service.

3.9 If, following the binding open season and prior to the in-service date of the Tariff, MPL determines that it has available capacity not subscribed to during the binding open season, not to exceed 90% of Project Capacity (Unsubscribed Capacity), to the extent permitted by Governmental Authority; MPL will provide Shipper the right to increase its Quarterly Volume Commitment as submitted on its Capacity Request Form on Exhibit C. MPL will provide at least sixty (60) days' advance written notice, simultaneously, to all shippers (including Shipper) who have executed a transportation service agreement during the binding open season of the availability and volume of Unsubscribed Capacity for additional volume commitments (the Additional Volume Commitments). No later than thirty (30) days following the date of MPL's written notice, Shipper must provide MPL with a written binding commitment identifying the additional volumes to be added to its Quarterly Volume Commitment (Pre-Service Increase Request). In the event MPL receives Pre-Service Increase Requests that are, in aggregate, less than or equal to the Unsubscribed Capacity, each shipper's volume commitment shall be increased by the volume of its Pre-Service Increase Request. In the event MPL receives Pre-Service Increase Requests that would, in aggregate, exceed the Unsubscribed Capacity, all Shippers will be allocated their Pre-Service Increases pro rata based on their then- current volume commitments. If Shipper makes a Pre-Service Increase Request, MPL shall notify Shipper of its new Quarterly Volume Commitment within thirty (30) days following receipt of Shipper's Pre-Service Increase Request, and Exhibit C shall be deemed revised to reflect Shipper's new volume commitment, which shall equal the sum of its original Capacity Request Form volume commitment and its Pre-Service Increase Request or its allocated portion thereof pursuant to this Section 3.9. If there is still Unsubscribed Capacity after shippers (including Shipper) exercise Additional Volume Commitments as set forth above, MPL may conduct a second open season to obtain additional volume commitments for any remaining Unsubscribed Capacity.

4. Transportation Charges

4.1 Shipper shall pay MPL a transportation charge for each Barrel of Product shipped under the terms of this Agreement and Exhibit C, at the rates provided for in Exhibit B, which shall be the Tariff Rates for the volume commitment on the Day of delivery of Product.

4.2 The rates in Exhibit B will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology in effect at the time of the escalation. There shall be no downward adjustment of the Rates in the event the annual FERC oil pipeline index rate is negative. Rates will typically be indexed during July of each year and would be first indexed in July of the year following project completion.

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4.3 If during the term of this Agreement, MPL becomes obligated as a result of a Change in Law Event to bear Compliance Costs, MPL shall have the right to increase the Tariff Rates on the Pipeline, including Shipper's committed rate as originally executed on Exhibit B in this Agreement or to impose a surcharge on its shippers (including Shipper) to recover such Compliance Costs. If MPL determines to recover any Compliance Costs from its shippers, it will do so in a manner that is reasonable and equitable to all shippers on the Pipeline.

4.4 A Committed Priority Shipper will receive transportation service exempt from prorationing provisions under normal operating conditions for its contractually committed volumes, in exchange for a commitment to transport (or pay for) those volumes, pursuant to the terms of this Agreement executed during the open season process. The rates vary depending upon project options, but in all instances will be $0.01 per barrel above the rates for uncommitted service for the same origin and destination points. A Committed Priority Shipper will have the same rates as the Committed Non-Priority Shipper (as defined below), unless the system in under prorationing. When under prorationing, the Committed Priority Shipper's rate will be charged the premium rate of $0.01 above the posted uncommitted rate. Shipper shall not be a Committed Priority Shipper solely through this Agreement. Shipper must submit a Capacity Request Form during MPL's binding open season (Exhibit C) which confirms the Shipper has elected Committed Priority Shipper Status.

4.5 A Committed Non-Priority Shipper will receive transportation service subject to prorationing provisions for its contractually committed volumes, in exchange for a commitment to transport (or pay for) those volumes, pursuant to the terms of this Agreement executed during the open season process. Those who elect to become a Committed Non-Priority Shipper will receive the benefit of discounted rates that will not be available to the Committed Priority Shippers or the uncommitted shippers. The rates will vary depending upon project options and commitment duration. MPL will not presume Shipper to be a Committed Non-Priority Shipper solely through this Agreement, unless the Capacity Request Form submitted by Shipper during MPL's binding open season (Exhibit C) shows the Shipper has elected Committed Non-Priority Shipper Status.

5. Force Majeure

5.1 As soon as possible upon the occurrence of a Force Majeure event, the affected Party shall provide the other Party written notice of the occurrence of such Force Majeure event (a Force Majeure Notice). A Party shall identify the full particulars and the approximate length of time that the Party reasonably believes in good faith such Force Majeure event shall continue (the Force Majeure Period). If a Party advises in any Force Majeure Notice that it reasonably believes in good faith that the Force Majeure Period shall continue for more than twelve (12) consecutive months, then, subject to Section 10 below, at any time after a Party delivers such Force Majeure Notice, either Party may terminate this Agreement, but only upon delivery to the other Party of a notice (a Termination Notice) at least twelve (12) months prior to the expiration of the Force Majeure Period; provided, however, that such Termination Notice shall be deemed canceled and of no effect if the Force Majeure Period ends prior to the expiration of such twelve (12) months period. For the avoidance of doubt, neither Party may exercise its right under this Section 5.1 to terminate this Agreement as a result of a Force Majeure event with respect to any machinery, storage, tanks, lines of pipe or other equipment that has been unaffected by, or has been restored to working order since, the applicable Force Majeure event.

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5.2 Notwithstanding the foregoing, if Shipper delivers a Termination Notice to MPL and, within thirty (30) days after receiving such notice, MPL notifies Shipper that MPL reasonably believes in good faith that it shall be capable of fully performing under its obligations under this Agreement within a reasonable period of time, then the Shipper Termination Notice shall be deemed revoked and the applicable portion of this Agreement shall continue in full force and effect as if such Shipper Termination Notice had never been given.

5.3 Subject to Section 6 of this Agreement, MPL's obligation to transport on the Pipeline may be temporarily suspended during occurrences of, and for the entire duration of, a Force Majeure event that prevents MPL from transporting on the Pipeline. If MPL is unable to transport due to a Force Majeure event or otherwise, then Shipper's obligation to ship the applicable Quarterly Volume Commitment and pay the applicable Quarterly Deficiency Payment shall be reduced to the extent that MPL is prevented from shipping the full applicable Quarterly Volume Commitment. At such time as MPL is capable of transporting volumes equal to the full applicable Quarterly Volume Commitment on the Pipeline, Shipper's obligation to ship the full Quarterly Volume Commitment shall be restored.

6. Capabilities of the Pipeline System

6.1 MPL shall use reasonable commercial efforts to minimize the disruption of service on the Pipeline and any portion thereof. MPL shall promptly inform Shipper of any anticipated partial or complete disruption of service on the Pipeline, including relevant information about the nature, extent, cause and expected duration of the disruption and the actions MPL is taking to resume full operations, provided that MPL shall not have any liability for any failure to notify, or delay in notifying, Shipper of any such matters except to the extent Shipper has been materially prejudiced or damaged by such failure or delay.

6.2 Subject to Force Majeure, disruptions for routine repair and maintenance consistent with pipeline industry standards and any requirements of Applicable Law, MPL shall accept for shipment on the Pipeline in accordance with pipeline industry standard Product. Further, MPL shall maintain and repair all portions of the Pipeline in accordance with pipeline industry standards and in a manner which allows the Pipeline to be capable, subject to Force Majeure or temporary shutdown for pipeline testing and maintenance, of shipping, storing and delivering volumes of Product.

6.3 If the Shipper has agreed to pay, pursuant to Exhibit B and Exhibit C, a premium rate for transportation of Product on the Pipeline, the Shipper Deliveries shall not be reduced under normal operating conditions if the capacity for Product shipments is otherwise subject to prorationing in accordance with the prorationing provisions in MPL's Rules and Regulations Tariff.

6.4 If, for any reason, including without limitation a Force Majeure event, the capacity of the Pipeline is reduced, then (a) during such period of reduced capacity, Shipper's obligation shall be reduced as described above in this Section 6; and (b) within a reasonable period of time after commencement of such reduction, MPL shall make repairs to and/or replace the affected portion of the Pipeline to restore capacity. MPL shall use commercially reasonable efforts to continue to provide transportation of Product tendered by Shipper under the Tariffs while restoration is being completed. Any work performed by MPL pursuant to this Section 6.4

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shall be performed and completed in a good and workmanlike manner consistent with applicable pipeline industry standards and in accordance with all applicable laws.

6.5 Expansion of Pipeline. MPL reserves the right, at its sole discretion, to expand the capacity of the Pipeline at any time or from time to time.

6.6 Right of Shipper to Secure Expansion Capacity. In the event that MPL decides in its sole discretion to expand the capacity of the Pipeline, then:

(a) MPL will provide each Shipper with notice of such proposed expansion not less than one hundred and eighty (180) days prior to the expected in-service date of such proposed expansion (Expansion Notice) and such Expansion Notice shall include:

(i) the amount of the proposed expansion capacity;

(ii) the expected rates and rules and regulations that will apply to such expansion capacity;

(iii) the expected in-service date of such expansion/extension.

The costs of any expansion shall not be rolled into the rates associated with any Pipeline capacity existing prior to such expansion.

(b) To the extent permitted by Governmental Authorities, MPL will provide to each Shipper a first right, on terms and conditions specified by MPL that is consistent with this first right, to submit a binding nomination to ship, or otherwise pay for, a committed volume of Product on the expansion capacity (Requested Expansion Volume Commitment). The amount of expansion capacity available for volume commitments pursuant to this Section 6.6 shall not exceed ninety percent (90%) of the total expansion capacity. No later than sixty (60) days following the date of MPL's Expansion Notice, Shipper must commit to, in a form acceptable to MPL in MPL's sole discretion, its Requested Expansion Volume Commitment (Election Deadline). In the event that, pursuant to this first right, MPL receives binding commitments for volumes that exceed the expansion capacity available for committed volumes, each Shipper that submitted a binding commitment pursuant to this first right procedure shall be allocated the lesser of: (i) its Requested Expansion Volume Commitment, or (ii) the Shipper's pro-rata share of the expansion capacity available for committed volumes, which shall be calculated by multiplying (1) the Shipper's Proportionate Share, times (2) the expansion capacity available for committed volumes (Expansion Volume Commitment). MPL shall notify Shipper of its Expansion Volume Commitment within thirty (30) days following the Election Deadline, and the Parties shall promptly execute a new and separate transportation service agreement reflecting Shipper's Expansion Volume Commitment. Any calculation of an Expansion Volume Commitment shall be without regard to and shall not affect any Volume Commitment on pre-existing capacity.

(c) In the event that any expansion capacity available for committed volumes remains after the procedure set forth in Section 6.6 is completed, MPL has the right, in its sole discretion, to offer such committed capacity pursuant to an open season in which all interested shippers will be given an opportunity to commit to transport a specified volume of Product on such remaining expansion capacity, subject to the terms and conditions specified by MPL pursuant to or in connection with such open season.

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7 Confidentiality

7.1 From and after the Effective Date, each Party shall hold, and shall cause its Affiliates and its and their respective directors, managers, officers, employees, agents, consultants, advisors, contractors, and other representatives (collectively, Representatives) to hold all Confidential Information of the other Party in strict confidence, with at least the same degree of care that applies to such Party's confidential and proprietary information and shall not use such Confidential Information except in connection with its performance or acceptance of services hereunder and shall not release or disclose such Confidential Information to any other Person, except its Representatives. Each Party shall be responsible for any breach of this Section 7 by any of its Representatives.

7.2 If a Party receives a subpoena or other demand for disclosure of Confidential Information received from any other Party or must disclose to a Governmental Authority any Confidential Information received from such other Party in order to obtain or maintain any required governmental approval, the receiving Party shall, to the extent legally permissible, provide notice to the providing Party before disclosing such Confidential Information. Upon receipt of such notice, the providing Party shall promptly either seek an appropriate protective order, waive the receiving Party's confidentiality obligations hereunder to the extent necessary to permit the receiving Party to respond to the demand, or otherwise fully satisfy the subpoena or demand or the requirements of the applicable Governmental Authority. If the receiving Party is legally compelled to disclose such Confidential Information or if the providing Party does not promptly respond as contemplated by this Section 7, the receiving Party may disclose that portion of Confidential Information covered by the notice or demand.

7.3 Each Party acknowledges that the disclosing Party would not have an adequate remedy at law for the breach by the receiving Party of any one or more of the covenants contained in this Section 7 and agrees that, in the event of such breach, the disclosing Party may, in addition to the other remedies that may be available to it, apply to a court for an injunction to prevent breaches of this Section 7 and to enforce specifically the terms and provisions of this Section 7. Notwithstanding any other section hereof, the provisions of this Section 7 shall survive the termination of this Agreement.

8. Assignment

8.1 Neither Party may assign its rights under this Agreement without prior written consent from the other Party, which consent shall not be unreasonably withheld; provided, however, that either Party may assign its rights under this Agreement to a successor in interest resulting from any merger, reorganization, consolidation or as part of a sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the successors and assigns of the Parties hereto.

9. Representations and Warranties

9.1 Each Party to this Agreement represents and warrants to the other that it is an entity duly organized, validly existing and in good standing under the laws of the state of its organization and has all requisite corporate power and corporate authority to enter into this Agreement and to carry out the terms and provisions hereof.

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9.2 MPL shall take reasonable steps to obtain all necessary approvals, and authorizations of all Governmental Authorities to modify and operate the Pipeline, including approval by FERC of the rate structure and any premium service, and all other approvals and authorizations necessary, in MPL's sole opinion, desirable in connection with the provision of Product transportation, in each case, in form and substance acceptable to MPL in its sole discretion.

9.3 Shipper hereby agrees (a) to take all such actions and do all such things as MPL reasonably requests in connections with its application for, and the processing of necessary approvals and authorizations of the FERC and other governmental authorities, (b) at all times to support the rate and (c) to not, directly or indirectly, take any action that is designed to or may delay review or approval of the applications to FERC or any other Governmental Authority or indicate a lack of support for the modifications of the Pipeline or the rate.

10. Termination and Amendment

10.1 This Agreement may not be terminated, except as expressly provided herein, nor may any of its provisions be amended or waived without prior written consent of both Parties hereto.

10.2 Neither failure nor delay by MPL or Shipper to exercise any right or remedy provided herein shall operate as a waiver with respect to a future exercise thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

10.3 Except as otherwise provided in Section 10.5, in the event of any breach of a term or condition of this Agreement by either Party, the other Party's remedy shall be limited to the direct damages caused thereby and in no event shall a Party be liable to the other Party for any consequential, indirect, pecuniary, punitive, or economic damages, howsoever caused.

10.4 Upon termination of this Agreement for reasons other than a default by Shipper, pursuant to any provisions of this Agreement or any other termination of this Agreement initiated by Shipper pursuant to Section 5, Shipper shall have the right to require MPL to enter into a new transportation service agreement with Shipper that (a) is consistent with the terms and objectives set forth in this Agreement and (b) has commercial terms that are, in the aggregate, equal to or more favorable to Shipper than fair market value terms as would be agreed by similarly-situated parties negotiating at arm's length provided.

10.5 Shipper acknowledges that MPL will incur certain building, expansion and improvement costs associated with its performance under this Agreement prior to the commencement of transportation service on the Pipeline. Shipper also acknowledges that MPL relied on the volume commitments received from Shipper on its Capacity Request Form in Exhibit C as part of an aggregate volume commitment received from all committed shippers during the binding open season to finalize the Project's ultimate scope, including but not limited to, pipe size, routing and destinations. If MPL is in compliance with the terms and conditions of this Agreement, and Shipper decides to terminate this Agreement after the Effective Date but prior to the commencement of transportation service on the Pipeline, Shipper shall notify MPL of its decision to terminate within one hundred and eighty (180) days of the Project's in-service date to allow MPL the opportunity to provide Shipper's unwanted capacity to other interested shippers as Unsubscribed Capacity as set forth in Section 3.8. If Shipper fails to notify MPL within one hundred and eighty (180) days of the Project's in-service date or if MPL is unsuccessful in obtaining additional volume commitments as provided for in Section 3.8 to

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fully replace Shipper's original volume commitment as submitted in its Capacity Request Form in Exhibit C, Shipper will reimburse MPL for Shipper's pro rata portion of actual and committed Construction Costs, plus, an administrative fee of ten (10) percent of said costs (such reimbursement is hereinafter referred to as the Construction Cost Reimbursement). The Parties agree that the Construction Cost Reimbursement shall be deemed liquidated damages and that such amount shall not be deemed a penalty, but rather represents a reasonable amount of liquidated damages in light of the anticipated or actual harm caused by Shipper's termination of this Agreement as stated, the difficulties of proof of loss, and the inconvenience or non- feasibility of otherwise obtaining an adequate remedy, and that the payment of such amount shall be MPL's sole and exclusive remedy for such termination by Shipper.

10.6 The Parties acknowledge and agree that this Agreement may be contingent on the Shipper executing a reasonably acceptable commodity supply agreement. Shipper must notify MPL if it is unable to execute a reasonably acceptable commodity supply agreement within one hundred and eighty (180) days of the Project in-service date. Furthermore, Shipper must make commercially reasonable efforts to enter into a commodity supply agreement within the one hundred and eighty (180) days. Provided, however, that Shipper acknowledges and agrees that Shipper remains responsible for the Construction Cost Reimbursement provided for in Section 10.5 of this Agreement if it is unable to reach and execute a commodity supply agreement within the required timeframe. 11. Conditions Precedent

Notwithstanding anything in this Agreement to the contrary, this Agreement is subject to the receipt by MPL of:

11.1 All certificates, approvals and authorizations of any Governmental Authority deemed necessary or desirable by MPL in connection with this Agreement and, in each case, in form and substance acceptable to MPL in its sole discretion.

11.2 Executed Transportation Service Agreements, in form and substance acceptable to MPL in its sole discretion, as MPL shall deem sufficient in its sole discretion to support the economic viability of the costs associated with the Project.

11.3 Executed Transportation Service Agreements, in form and substance acceptable to both MPL and Shipper.

If any terms of this Agreement are required to be modified in accordance with a decision, approval or authorization from FERC or any other governmental authority, the Parties agree to reasonably cooperate with one another in amending this Agreement to align with those decisions, approvals and authorizations from FERC or any other governmental agencies. If these conditions precedent are not satisfied for MPL after exercising commercially reasonable efforts to meet such condition precedent, MPL shall have the right to terminate this Agreement by written notice to Shipper. If this Agreement is terminated pursuant to this Section 11, MPL and Shipper shall be released from any and all obligations under this Agreement.

12. Offer

12.1 The submission of an unexecuted copy of this Agreement by MPL to Shipper shall not constitute an offer.

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12.2 Shipper acknowledges that, upon closing of the open season described in the notice of open season, MPL will undertake significant alterations and improvements and will incur significant expense in connection with the Project. In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Shipper, Shipper agrees that the submission of an executed Agreement to MPL shall constitute an offer by Shipper. Shipper further agrees that its offer shall remain irrevocable; provided, however, that if Shipper has not received an executed copy of this Agreement from MPL within sixty (60) days after the close of the Binding Open Season, Shipper may revoke its offer thereafter by written notice to MPL, and upon such revocation, this Agreement will become null and void.

13. Notices

13.1 Any notice, statement, or invoice provided for in this Agreement shall be in writing and shall be considered as having been given if hand carried, facsimiled, emailed, or if mailed by United States mail, postage prepaid, to the following address, respectively:

Shipper : Name: Marathon Petroleum Company LP Address: 539 South Main Street Findlay, OH 45840 Attention: Optimization LP Manager Fax: (419) 421-4232

MPL : Name: Craig O. Pierson Address: 539 South Main Street Findlay, OH 45840 Attention: President Fax: (419) 421-3125

or to such other address as such Party may indicate by a notice delivered in accordance with this Section 13.

14. Governing Law

This Agreement shall be construed and interpreted in accordance with the laws of the State of Ohio, without recourse to any principles of law governing conflicts of law, which might otherwise be applicable.

15. Severability

In the event any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, or by an empowered government agency, such findings shall not affect the remaining provisions of this Agreement, which are not found to be invalid, illegal or unenforceable, unless such construction would be unreasonable.

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16. Default

16.1 Either Party hereunder shall be in default if such Party: (a) materially breaches any provision of this Agreement and such breach is not cured within fifteen (15) Days after notice thereof (which notice shall describe such breach in reasonable detail) is received by such Party; (b) becomes insolvent, enters voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors; (c) fails to pay any undisputed sums due hereunder; or (d) fails to provide satisfactory financial assurance as provided for in Section 17.

16.2 If either Party is in default as described above, then the non-defaulting Party may: (a) terminate this Agreement upon notice to the defaulting Party; (b) withhold any payments due to the defaulting Party under this Agreement; and/or (c) pursue any other remedy at law or in equity if such breach is not remedied as provided for in Section 14.1.

17. Credit Requirements and Financial Assurances

17.1 Financial Information. Shipper shall provide to MPL, at any time: (i) upon MPL's request, information (Financial Information) that will allow MPL to assess (or reassess) and establish creditworthiness and Shipper's capacity to perform any financial obligations that could arise from the transportation of Shipper's Crude Petroleum on the Pipeline; and (ii) upon MPL's good faith determination (which shall be no less than industry standards) of non-creditworthiness, MPL may request, financial assurance in respect of transportation or other services (Financial Assurances). Financial Assurances shall be limited to a guarantee from the parent company of Shipper in a form and substance acceptable to MPL and sufficient in amount to cover 6-months of Shipper's obligations to MPL so long as the guarantor has sufficient creditworthiness as set forth in this Section; and if not, MPL may then request an irrevocable standby letter of credit in a form and from an issuer acceptable to MPL, and in an amount no greater than 6-months of tolls based on the Quarterly Volume Commitment, plus all applicable taxes.

17.2 As of the Project's in-service date, Shipper shall comply with the credit requirements and provide the financial assurances required in the Tariff so long as the Tariff is consistent with the terms of this Agreement. 17.3 Any failure of Shipper to comply with the provisions of this Section 17 will constitute an Event of Default under Section 16 of this Agreement.

18. Miscellaneous

18.1 Wherever possible, each provision hereof shall be interpreted in such a manner as to be effective and valid under Applicable Law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision or provisions shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof, unless such a construction would be unreasonable.

18.2 This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns; provided, however, that the rights and obligations of any Party under this Agreement shall not be assignable by such Party without the prior written consent of the

15





other Party pursuant to Section 8.1. A Party's successors and permitted assigns shall include any permitted assignee as well as the successors in interest to such permitted assignee whether by merger, liquidation (including successive mergers or liquidations) or otherwise.

18.3 No provision of this Agreement is intended to confer upon any third party any remedy, claim, liability, reimbursement or other right in excess of those existing without reference to this Agreement.

18.4 Neither Party shall, without the approval of the other Party, make any press release or other public announcement concerning the transactions contemplated by this Agreement, except as and to the extent that either Party shall be so obligated by Applicable Law or the rules of any regulatory body, stock exchange or quotation system.

18.5 EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY PERFORMANCE OR FAILURE TO PERFORM OF ANY OBLIGATION HEREUNDER.

16





IN WITNESS WHEREOF, MPL and Shipper have caused this Agreement to be duly executed, all as of the date set forth above.

MARATHON PIPE LINE LLC By: /s/ Craig Pierson 6/11/15 Name: Craig Pierson Title: President

MARATHON PETROLEUM COMPANY LP By: MPC Investment LLC, its General Partner By: /s/ C. M. Palmer 4/13/15 Name: C. Michael Palmer Title: Sr. Vice President, Supply Distribution & Planning

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EXHIBIT A Common Carrier Pipeline, including Origins and Destinations

Pipeline System New/Existing Pipeline Pipeline Owner Cornerstone Pipeline New MPL East Sparta to Lima Pipeline New MPL East Sparta to Heath Existing (Expansion) ORPL Heath to Findlay Existing (Expansion) ORPL RIO Existing (Reversal & Expansion) MPC Two Rivers Existing MPL Wabash Existing MPL

The MPC RIO system is an existing private pipeline owned by Marathon Petroleum Company, LP (MPC). MPL may purchase the RIO system, with the intent to reverse and repurpose the system from common carrier movements.

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EXHIBIT B

Tariff Rates

19





EXHIBIT C

Include copy of Shipper's submitted Capacity Request Form (CFR) indicating desired routes and destinations.

Capacity Request Forms follow this page

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Appendix 5 - Capacity Request Form (CRF) - Ratable Volume(1) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 15 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Condensate

Year Desired Volume Origination Location Delivery Location Rate 1 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 2 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 3 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 4 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 5 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 6 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 7 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 8 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 9 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 10 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 11 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 12 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 13 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 14 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 15 20,000 BPD Cadiz/Scio MPC Canton $ 2.26 (1) - Assumes shipper transports the same volume on a per day basis each month of the year Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY





Appendix 5 - Capacity Request Form (CRF) - Ratable Volume(1) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 5 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Natural Gasoline

Year Desired Volume Origination Location Delivery Location Rate 1 10 MBPD Cadiz/Scio Hammond $ 6.96 2 10 MBPD Cadiz/Scio Hammond $ 6.96 3 10 MBPD Cadiz/Scio Hammond $ 6.96 4 10 MBPD Cadiz/Scio Hammond $ 6.96 5 10 MBPD Cadiz/Scio Hammond $ 6.96 6 0 MBPD Cadiz/Scio Hammond $ 6.96 7 0 MBPD Cadiz/Scio Hammond $ 6.96 8 0 MBPD Cadiz/Scio Hammond $ 6.96 9 0 MBPD Cadiz/Scio Hammond $ 6.96 10 0 MBPD Cadiz/Scio Hammond $ 6.96 11 0 MBPD Cadiz/Scio Hammond $ 6.96 12 0 MBPD Cadiz/Scio Hammond $ 6.96 13 0 MBPD Cadiz/Scio Hammond $ 6.96 14 0 MBPD Cadiz/Scio Hammond $ 6.96 15 0 MBPD Cadiz/Scio Hammond $ 6.96 (1) - Assumes shipper transports the same volume on a per day basis each month of the year Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY





Appendix 5 - Capacity Request Form (CRF) - Non-Ratable Volume(2) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 5 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Normal Butane

(2) - Assumes shipper transports a different volume on a per day basis each month of the year Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY





Appendix 5 - Capacity Request Form (CRF) - Non-Ratable Volume(2) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 5 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Normal Butane

(2) - Assumes shipper transports a different volume on a per day basis each month of the year

Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY





Appendix 5 - Capacity Request Form (CRF) - Non-Ratable Volume(2) Please complete one form for each product type per delivery location

Name of Shipper: Marathon Petroleum Company LP

Term/Service [Priority, (5,10, 15 Year) Non-Priority] Priority 5 Year

Product Type [Condensate, Natural Gasoline, Diluent or Butane]: Normal Butane

(2) - Assumes shipper transports a different volume on a per day basis each month of the year Notes: Deliveries to Canton will begin in late 2016 and deliveries to other locations will begin in mid-2017 The tariff rate for the first year of movements can be found in Appendix 4 The tariff rate will be adjusted annually in accordance with the standard FERC annual oil pipeline indexing methodology

Marathon Pipe Line LLC & Ohio River Pipe Line LLC CONFIDENTIAL AND PROPRIETARY 
Question: Highlight the parts (if any) of this contract related to Liquidated Damages that should be reviewed by a lawyer. Details: Does the contract contain a clause that would award either party liquidated damages for breach or a fee upon the termination of a contract (termination fee)?
Example Output: The Parties agree that the Construction Cost Reimbursement shall be deemed liquidated damages and that such amount shall not be deemed a penalty, but rather represents a reasonable amount of liquidated damages in light of the anticipated or actual harm caused by Shipper's termination of this Agreement as stated, the difficulties of proof of loss, and the inconvenience or non- feasibility of otherwise obtaining an adequate remedy, and that the payment of such amount shall be MPL's sole and exclusive remedy for such termination by Shipper.

Example Input: EXHIBIT 10.43 Dated 29/3/18

Distributorship agreement

between

Signature Orthopaedics Pty Ltd

And

CPM Medical Consultants LLC

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





EXHIBIT 10.43 THIS AGREEMENT is dated

Parties

(1) Signature Orthopaedics Pty Ltd (ACN 106 702 416) , 7 Sirius Road, Lane Cove, NSW

(2) CPM Medical Consultants, LLC of 1565N. Central Expressway, Suite 200, Dallas, TX 75080.

Background

The Supplier wishes to appoint the Distributor as its non-exclusive distributor for the promotion and sale of the Products within the Territory (both as defined below), and the Distributor wishes to promote and sell the Products within the Territory on the terms of this agreement.

Agreed terms

1. Definitions and interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Business Day: a day (other than a Saturday, Sunday or public holiday in Australia) when banks in Sydney are open for business.

Commencement Date: means the date of this agreement.

Control: the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise.

Inactive Territories means a country in which the Distributor has not sold or supplied the Product during the Initial Term.

Initial Term has the meaning given to it in clause 12.1.

Products: As defined in Schedule 1 and includes any other products developed by the Supplier and which the Supplier may permit the Distributor, by express notice in writing, to distribute in the Territory.

Term: the term of this agreement, as determined in accordance with clause 11. Territory: means the territory specified in Schedule 2.

Trade Marks: the trade mark registrations listed in Schedule 3 and any further trade marks that the Supplier may permit, or procure permission for, the Distributor to use in the Territory in respect of the Products by express notice in writing.

GST: goods and services tax chargeable under the Goods and Services Tax Act and any similar replacement or additional tax or such other similar or analogous form of tax under the laws and regulations in the Territory.

1

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





Year: the period of 12 months from the Commencement Date and each consecutive period of 12 months thereafter during the Term.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Words in the singular shall include the plural and vice versa.

1.7 A reference to one gender shall include a reference to the other genders.

1.8 A reference to any party shall include that party's personal representatives, successors or permitted assigns.

1.9 A reference to a statute, statutory provision or any subordinated legislation made under a statute is a reference to such statute, provision or subordinated legislation as amended or re-enacted from time to time, whether before or after the date of this agreement and in the case of a reference to a statute is also to all subordinate legislation made under that statute whether before or after the date of this agreement.

1.10 A reference to writing or written includes faxes and e-mail.

1.11 Documents in agreed form are documents in the form agreed by the parties and initialled by or on behalf of them for identification.

1.12 Any reference to a legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than Australia, be deemed to include a reference to what most nearly approximates to the Australian legal term in that jurisdiction.

1.13 A reference to a document is a reference to that document as varied or novated (in each case, other than in breach of the provisions of this agreement) at any time.

1.14 References to clauses and schedules are to the clauses and schedules of this agreement.

2

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





1.15 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. Appointment

2.1 The Supplier appoints the Distributor as its non-exclusive distributor to distribute the Products in the Territory on the terms of this agreement.

2.2 Following the expiry of the Initial Term, the Supplier may amend the Territory to remove any Inactive Territories.

2.3 Notwithstanding 2.1 and 2.2, the Supplier may sell or supply the Products to end users within USA at anytime.

2.4 The Distributor shall not:

(a) represent itself as an agent of the Supplier for any purpose; or

(b) pledge the Supplier's credit; or

(c) give any condition or warranty on the Supplier's behalf except for any warranty or guarantee which cannot be excluded under law; or

(d) make any representation on the Supplier's behalf; or

(e) commit the Supplier to any contracts; or

(f) act as the agent or the buying agent, for any person for any goods which are competitive with the Product; or

(g) retain any monies of the Supplier except on a trustee or fiduciary basis; or

(h) knowingly make any false or misleading statement to any supplier or service provider, or to the Distributor or its business, about the Products or the liability of the Supplier for the cost of any goods or services supplied to the Distributor or its business; or

(i) incur any liability or assume any obligation on behalf of the Supplier; or

2.5 The Distributor shall not without the Supplier's prior written consent make any promises or guarantees about the Products beyond those:

(a) agreed between the Distributor and the Supplier; and

(b) contained in any promotional material supplied by the Supplier.

3

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





3. Distributor's undertakings

The Distributor undertakes and agrees with the Supplier that at all times during the Term it will:

(a) use all reasonable endeavours to promote the distribution and sale of the Products;

(b) not use any promotional or advertising material for the Products not approved by the Supplier, such approval not be unreasonably withheld;

(c) provide Yearly non-binding sales forecasts;

(d) establish and maintain documented procedures for identifying the Products with a control number for traceability and copies of those records and procedures must be made available to the Supplier within thirty (30) days of request;

(e) provide regular reports on the sales activities within the Territory;

(f) employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Distributor's obligations under this agreement;

(g) maintain, on its own account, an inventory of the Products at levels which are appropriate and adequate for the Distributor to meet all customer delivery requirements for the Products throughout the Territory;

(h) keep full and proper books of account and records clearly showing all enquiries, quotations, transactions and proceedings relating to the Products;

(i) allow the Supplier, on reasonable notice, access to its accounts and records relating to the sale or distribution of the Products for inspection but not more than once in each year. For clarity, the Supplier will not be permitted access to any accounts or records which do not directly relate to the sale or distribution of the Products;

(j) comply with any reasonable directives or instructions given by the Supplier for any promotional activities, at the suppliers cost, concerning the nature, type, quality, characteristics, fitness for purpose, suitability, use and description of the Products;

4. Supply of products

4.1 The parties acknowledge that:

(a) the Supplier is the manufacturer of the Products; and

4

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





(b) the Supplier will have no obligation to separately supply the Products, except as otherwise provided for in this Agreement.

4.2 Supplier's undertakings

The Supplier undertakes to:

(a) provide information and support that may reasonably be requested by the Distributor to enable it to discharge its duties under this agreement properly and efficiently; and

(b) approve or reject any promotional information or material submitted by the Distributor within 28 days of receipt.

5. Prices and payment

5.1 The prices to be paid by the Distributor to the Supplier for the Products are to be the Price, as set out in Schedule 4.

5.2 Any and all expenses, costs and charges incurred by the Distributor in the performance of its obligations under this agreement will be paid by the Distributor, unless the Supplier has expressly agreed in advance in writing to pay such expenses, costs and charges.

5.3 The Distributor must pay the full amount invoiced to it by the Supplier in USD$'s within thirty (45) days of the date of invoice.

5.4 Neither party may withhold payment of any amount due to the other because of any set-off, counter-claim, abatement, or other similar deduction.

6. GST and taxes (Only Applicable to Australian companies)

6.1 All sums payable under this agreement, or otherwise payable by any party to any other party under this agreement are exclusive of any GST chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for GST purposes.

6.2 Where, under this agreement, any party makes a supply to any other party (Recipient) for GST purposes and GST is or becomes chargeable on that supply for which the supplying party is required to account to the relevant tax authority, the Recipient shall, subject to the receipt of a valid GST invoice, pay the supplying party (in addition to, and at the same time as, any other consideration for that supply) the amount of such GST.

6.3 Where any party is required by this agreement to reimburse or indemnify any other party for any cost or expense, that first party shall reimburse or indemnify the other party for the full amount of the cost or expense, including any GST on that amount,

5

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





except to the extent that the other party is entitled to credit or repayment for that GST from any relevant tax authority.

6.4 All import taxes, charges, levies, assessments and other fees of any kind imposed on the purchase or import of the Products shall be the responsibility of, and for the account of, the Distributor.

7. Advertising and promotion

7.1 The Distributor shall:

(a) cooperate with the Supplier in relation to the promotion and advertisement of the Products;

(b) not make any written statement as to the quality or manufacture of the Products without the prior written approval of the Supplier; and

(c) pays its own costs of advertising the Product except where there is any separate advertising campaign which the Supplier and the Distributor have agreed to fund jointly in any agreed proportion.

8. Anti-bribery compliance

8.1 The Distributor shall:

(a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti- corruption; and

(b) not engage in any activity, practice or conduct which would constitute an offence.

9. Trade marks and intellectual property

9.1 The Supplier hereby grants to the Distributor the non-exclusive right, in the Territory, to use the Trade Marks in the promotion, advertisement and sale of the Products, subject to, and for the duration of, this agreement.

9.2 The Distributor may sell and/or distribute the Products using the Trade Marks in conjunction with any trade marks owned or licensed by the Distributor.

9.3 All representations of the Trade Marks that the Distributor intends to use shall be submitted to the Supplier for approval before use.

9.4 Within limiting this clause 12, the Distributor shall be entitled to add a label to the Products it purchases to show that the products purchased are being distributed by the Distributor.

9.5 The Supplier represents and warrants that:

6

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





(a) Trade Marks; and

(b) The Products, do not infringe any intellectual property rights of any third parties and the Supplier agrees to indemnify and hold harmless the Distributor against any clauses by a third party for infringement of intellectual property rights in relation to the Products or the Trade marks .

9.6 The Distributor shall not sub-license, transfer or otherwise deal with the rights of use of the Trade Marks granted under this agreement.

9.7 The Distributor shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity or the goodwill of the Supplier.

9.8 The Distributor shall immediately enter into any document necessary for the recording, registration or safeguarding of the Supplier's Trade Mark rights with the Supplier for the marketing of the Products under the Trade Marks in a form satisfactory to the Supplier, at the suppliers cost.

9.9 Each party shall promptly give notice in writing to the other if it becomes aware of:

(a) any infringement or suspected infringement of the Trade Marks or any other intellectual property rights relating to the Products within the Territory; or

(b) any claim that any Product or the manufacture, use, sale or other disposal of any Product within the Territory, whether or not under the Trade Marks, infringes the rights of any third party,

9.10 In respect of any matter that falls within clause 9.9(a):

(a) the Supplier shall in its absolute discretion, decide what action to take in respect of the matter (if any);

(b) the Supplier shall conduct and have sole control over any consequent action that it deems necessary; and

(c) the Supplier shall pay all costs in relation to that action and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action.

9.11 In respect of any matter that falls within clause 9.9(b):

(a) the Supplier and the Distributor shall agree:

(i) what steps to take to prevent or terminate the infringement; and

(ii) the proportions in which they shall share the cost of those steps and any damages and other sums which may be awarded to or against

7

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





them, being agreed between the parties that the Supplier shall hold Distributor harmless against any damages connected with any material or workmanship defect of the Products; and

(b) failing agreement between the parties, either party may take any action as it considers necessary or appropriate, at its own expense, to defend the claim and shall be entitled to and responsible for all damages and other sums that may be recovered or awarded against it as a result of that action.

9.12 Each party shall, at the request and expense of the other, provide any reasonable assistance to the other (including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the other party under this clause 9, provided that that party is given such indemnity as it may reasonably require against any losses, costs and expenses it may incur as a result of or in connection with providing such assistance.

10. Product liability and insurance

10.1 Subject to the Distributor fulfilling all the conditions in this clause 10, the Supplier shall indemnify the Distributor, defend and hold harmless against any liability incurred by the Distributor in respect of damage to property, death or personal injury arising from any fault or defect in the design of the Products and any reasonable costs, claims, demands and expenses, including reasonable attorneys' fees, arising out of or in connection with that liability (Relevant Claim), except to the extent the liability arises as a result of the wilful misconduct of the Distributor. The Supplier shall add the distributor to their current insurance certificate.

10.2 The Distributor shall, within five days of a matter which may result in a Relevant Claim:

(a) give the Supplier written notice of the details of the matter;

(b) give the Supplier access to and allow copies to be taken of any materials, records or documents as the Supplier may require to take action under clause 10.2(c);

(c) allow the Supplier the exclusive conduct of any proceedings and take any action that the Supplier requires to defend or resist the matter, including using professional advisers nominated by the Supplier; and

(d) not admit liability or settle the matter without the Supplier's written consent.

10.3 During the Term, the Supplier shall maintain product liability insurance with a reputable insurer of no less than AU$10 million for any one occurrence for any and all liability (however arising) for a claim that the Products are faulty or defective. The Supplier shall provide a copy of the insurance policy to the Distributor on request.

8

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





10.4 The Distributor undertakes to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any Products or batches of Products from the retail or wholesale markets. These records shall include records of deliveries to customers (including batch numbers, delivery date, name and address of customer, telephone number, fax number and e-mail address).

10.5 The Distributor shall, at the Supplier's cost, give any assistance that the Supplier shall reasonably require to recall, as a matter of urgency, Products from the retail or wholesale market.

11. Duration and termination

11.1 This agreement begins on the Commencement Date and, subject to clause 11.2, shall continue for an initial term of one (1) years (Initial Term) and indefinitely after that until terminated by either party giving at least twelve (12) months' prior written notice to expire on or after the expiry date of the initial term.

11.2 Without affecting any other rights that it may be entitled to, either party may give notice in writing to the other terminating this agreement immediately if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or

(b) the other party commits a material breach of any material term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days of being notified in writing to do so; or

(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or

(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of the Corporations Act 2001 (Cth) OR (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of the Corporations Act 2001 (Cth) OR (being a partnership) has any partner to whom any of the foregoing apply: or

(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or

9

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party: or

(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or

(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or

(i) the other party, being an individual, is the subject of a bankruptcy petition or order; or

(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or

(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(d) to clause 11.2(j) (inclusive); or

(l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

(m) the other party, being an individual, dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

(n) Without affecting any other rights that it may be entitled to, the Supplier may give notice in writing to the Distributor terminating this agreement immediately if the Distributor purports to assign its rights or obligations under this agreement to an entity that is not (1) affiliated with, (2) related to, or (3) sharing common ownership with the Distributor (a Permitted Assignee).

12. Effectsof termination

12.1 Termination of this agreement for any reason shall not affect any rights or liabilities accrued at the date of termination.

10

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





12.2 At the Supplier's option, on termination of this agreement:

(a) the Supplier may buy from the Distributor all or any stocks of Products for the current market value for those Products. The Distributor must deliver such Products to the Supplier within 14 days of receiving the Supplier's notice, and the Supplier must pay for the Products in full within 30 days of their delivery. The Supplier shall be responsible for the costs of packaging, insurance and carriage of the Products; or

(b) the Distributor may dispose of the balance of the Products in its possession and account to the Supplier for the Price for those Products; and

(c) subject to clause 12.2(b), the Distributor must cease using any intellectual property of the Supplier or of another person that relates to the distributorship and the Distributor must sign any instrument and do any other act that is necessary to achieve this purpose;

12.3 For the purposes of clause 12.2(a) the current market value in respect of Products shall be the price that the Products are ordinarily supplied as at the date of termination of this agreement.

12.4 Subject to clause 12.2, all other rights and licences of the Distributor under this agreement shall terminate on the termination date.

13. Confidentiality

13.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as provided by clause 13.2.

13.2 Each party may disclose the other party's confidential information:

(a) to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 13; and

(b) as may be required by law, court order or any governmental or regulatory authority; provided, however, that the other party reserves the right to challenge such disclosure under applicable law. If such party elects to challenge the disclosure, no confidential information shall be disclosed during the pendency of such challenge.

13.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.

11

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





14. Entire agreement

14.1 This agreement (and any document referred to in it) constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.

14.2 Each party acknowledges that, in entering into this agreement (and any document referred to in it), it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.

14.3 Nothing in this clause shall limit or exclude any liability for fraud.

15. Variation

No amendment or variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16. Assignment and other dealings prohibited

16.1 The Distributor shall not assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with this agreement or any of its rights and obligations under or arising out of this agreement, or purport to do any of the same; provided, however, the Distributor may assign or transfer this agreement to a Permitted Assignee without the consent of Supplier. The Distributor shall not sub-contract or delegate in any manner any or all of its obligations under this agreement to any third party or agent.

16.2 If the Distributor seeks the Supplier's consent to any proposed dealing under clause 16.1, the Distributor must: -

(a) disclose fully in writing all material facts relating to the dealing

(b) comply fully with any conditions or requirements set down by the Supplier which attach to any Suppliers consent that is given.

16.3 Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.

17. Freedom to contract

The parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver and to exercise their rights and perform their obligations under this agreement.

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Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





18. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

19. Severance

19.1 If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this agreement, and the validity and enforceability of the other provisions of this agreement shall not be affected.

19.2 If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

20. Notices

20.1 Any notice required to be given under this agreement, shall be in writing and shall be delivered personally, by email, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each party required to receive the notice at its address as set out at the beginning of this agreement or as otherwise specified by the relevant party by notice in writing to each other party.

20.2 Any notice shall be deemed to have been duly received:

(a) if delivered personally, when left at the address and for the contact referred to in this clause; or

(b) if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or

(c) if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or

(d) if delivered by email, on the date and at the time such email is received by the recipient whether such message is opened at that time.

Any notice given or received by a lawyer for a party to this agreement is deemed to be given or received with the actual or ostensible authority of the lawyer.

The Supplier may at times by notice nominate an address for service of legal proceeding, whether in Australia or in any other place. A nomination binds the

13

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





parties but nothing prevents the Supplier from making further nomination in place of any earlier nomination.

20.3 A notice given under this agreement shall not be validly given if sent by e-mail.

21. Third party rights

21.1 A person who is not a party to this agreement shall not have any rights under or in connection with it by virtue of the Contracts

21.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any person that is not a party to this agreement.

22. No partnership or agency

Except as expressly provided, nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, nor authorise a party to make or enter into any commitments for or on behalf of the other party.

23. Counterparts

This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement.

24. Governing law and jurisdiction

24.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Ohio law.

24.2 The parties irrevocably agree that the courts of Ohio shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non- contractual disputes or claims).

This agreement has been entered into on the date stated at the beginning of it.

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Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





Schedule 1

AriaTM Hip Stem System

RemedyTM Hip Stem system

LogicalTM Hip Cup system

Signature BiPolar Head

Genius Total knee system

15

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





Schedule 2 Territory

USA.

16

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





Schedule 3 The Trade Marks

OriginTM, LogicalTM, AriaTM, RemedyTM, GeniusTM

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Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





Schedule 4 Prices

Aria Stem $610

Origin Stem $610

Remedy Stem $610

Logical Cup $450

Logical Liner $210

Metal Head $240

Ceramic Head $340

BiPolar Head $250

PS / CR Femoral Component $550

Insert $340

Tibia Tray $440

Patella $70

18

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019





SIGNED by Signature Orthopaedics Pty Ltd (ACN 106 702 416) In accordance with section 127 of the Corporations Act:

) ) ) ) )

Director/Secretary

Name (please print)

Director

Name (please print)

SIGNED by

CPM Medical LLC

) ) ) ) )

Director/Secretary

Name (please print)

Director

Name (please print)

19

Source: FUSE MEDICAL, INC., 10-K, 3/21/2019 
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?
Example Output: The Distributor shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity or the goodwill of the Supplier.

Example Input: Exhibit 10.28 PRODUCT SALE AND MARKETING AGREEMENT THIS PRODUCT SALE AND MARKETING AGREEMENT (this Agreement) is made this 12th day of November, 2018 (the Effective Date), by and between Calm.com, Inc., a Delaware corporation, having offices at 140 2nd Street, 3rd Floor, San Francisco, California 94105 (Calm) and XpresSpa Group, Inc., a Delaware corporation, having offices at 780 Third Avenue, 12th Floor, New York, New York 10017 (XSPA). Each of Calm and XSPA may be referred to herein individually as a Party and collectively as the Parties. RECITALS WHEREAS, Calm is the manufacturer and distributor of Calm branded products and services, including those set forth on Exhibit A (the Products); WHEREAS, XSPA is the owner, operator and/or franchisor of XpresSpa branded stores (each a Store) throughout the United States of America (the Territory); WHEREAS, Calm desires to increase its brand exposure in the Territory by collaborating with XSPA for the display, marketing, promotion, offer for sale and sale of Products at each Store in the Territory; and WHEREAS, XSPA desires to collaborate with Calm in connection with the display, marketing, promotion, offer for sale and sale of Products at each Store in the Territory in accordance with the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Term. Unless this Agreement is terminated earlier in accordance with the terms of Section ​12, the term of this Agreement shall commence on the Effective Date and shall continue until July 31, 2019 (the Initial Term). Following the Initial Term, this Agreement shall automatically renew for successive terms of six (6) months (each a Renewal Term, and together with the Initial Term, the Term) unless written notice is given by either Party no later than thirty (30) days in advance of the expiration of the Initial Term or the applicable Renewal Term. 2. Sale of Products. 2.01. XSPA shall use its commercially reasonable efforts to display, market, promote, offer for sale and sell the Products set forth on Exhibit A in all Stores throughout the Territory. The Products shall only be sold by XSPA at the retail price of the applicable Product as set forth on Exhibit A (the Retail Price). For the avoidance of doubt, the Retail Price for the Products at the Stores in the Territory (i) may only be modified by mutual agreement of the Parties, and (ii) does not include any discounts, promotions or applicable sales taxes.

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





2.02. In addition to the Products, Calm shall have the right to identify up to five (5) additional products, with such products and the price thereof to be mutually agreed by the Parties, to be displayed, marketed, promoted, offered for sale and sold in the Stores in the Territory. Such products, once agreed on by both Parties and priced in accordance with the previous sentence, shall be deemed Products set forth on Exhibit A for the purposes of this Agreement. 3. Exclusivity and Right of First Refusal 3.01. Throughout the Term and for a period of six (6) months after the expiration or termination of this Agreement, neither XSPA nor any of its affiliates shall, directly or indirectly, sell, offer for sale, market or promote any digital meditation or digital sleep products (other than the Products), including online or in any Store in the Territory, without the express prior written consent of Calm. 3.02. Throughout the Term and for a period of six (6) months after the expiration or termination of this Agreement, neither Calm nor any of its affiliates shall, directly or indirectly, sell, offer for sale, market or promote any digital meditation or digital sleep products in any retail location located in an airport other than in collaboration with XSPA, without the express prior written consent of XSPA. 3.03. Throughout the Term and for a period of six (6) months after the expiration or termination of this Agreement, Calm shall have a right of first refusal to expand the rights and obligations described in this Agreement to any Stores outside the Territory (the ROFR). XSPA shall give prompt written notice to Calm each time it offers, proposes to offer, or has received an offer to enter into any agreement or arrangement under which XSPA or any of its affiliates would sell, offer for sale, market, promote or undertake any similar action with respect to any meditation or sleep digital products or similar products at any Store outside the Territory (each, a ROFR Notice). Calm shall have thirty (30) business days (the ROFR Period) from receipt of a ROFR Notice to exercise its ROFR with respect to the region and/or Stores described in the ROFR Notice. If Calm exercises its ROFR within the ROFR Period, the Parties shall enter into an amendment or addendum to this Agreement to include such additional region and/or Stores. If Calm does not exercise its ROFR within the ROFR Period, XSPA may enter into such agreement or arrangement with respect to the applicable region and/or Stores set forth in the ROFR Notice with any third party; provided that, such agreement or arrangement are on the same terms offered to Calm (it being understood that in the event XSPA modifies such terms, XSPA shall provide a new ROFR Notice to Calm in accordance with this Section ​3.02). 4. Marketing, Signage and Displays. 4.01. With respect to each Store in the Territory, XSPA shall use commercially reasonable efforts to: (a) promptly after the Effective Date, (i) prepare notices and consents and take all other actions reasonably necessary to obtain and maintain approval as necessary for bulkhead signage from airport regulatory authorities or other entities whose approval is required for such Store and install such bulkhead signage as soon as practicable thereafter, and (ii) once installed, maintain such bulkhead signage throughout the Term;

2

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





(b) allocate at least the retail space for the display of the Products in Stores as set forth on Exhibit B; (c) cause any and all XSPA employees working in such Store to wear uniforms co-branded with Calm's and XSPA's Marks (as defined herein), including shirts and lanyards (such uniform, which will be jointly designed by and mutually acceptable to the Parties, the Uniforms) during normal working hours; (d) display Calm branded marketing materials in such Store (which marketing materials shall be highly visible beyond the lease line as determined in Calm's sole discretion), including the items set forth on Exhibit C; (e) distribute free of charge as free gifts with purchase certain Calm branded gift products (the Gifts), as mutually selected by Calm and XSPA; (f) distribute free trial or discount inserts for Calm digital product subscriptions (the Inserts) to customers of such Store (it being understood that such Inserts shall contain a unique promotional code enabling Calm to attribute purchases to such Store); and (g) use and distribute to any purchaser of any Product sold at the Stores shopping bag(s) co-branded with Calm's and XSPA's Marks (the Shopping Bags). Calm will collaborate with XSPA on the design of Shopping Bags and such design shall be mutually agreed by the Parties. 4.02. Calm and XSPA shall jointly market their activities under this Agreement to their respective user bases, including by: (a) sending at least two (2) emails to each of their respective email marketing lists during the Initial Term that concern one or more of the Products, (b) making at least four (4) posts across each of their respective social media channels during the Initial Term that concern one or more of the Products and (c) marketing their activities concerning one or more of the Products under this Agreement on each of their respective websites throughout the Term. All such emails, co-branded communications and marketing materials are subject to the prior written approval of the Parties. 5. Store Operations. 5.01. With respect to any and all Stores owned or operated by XSPA, as between Calm and XSPA, XSPA shall be the sole owner and operator of any and all such Stores throughout the Territory and XSPA shall have sole management and operational control and liability with respect to such Stores and any and all costs and expense associated with the operation and maintenance thereof. XSPA shall operate and maintain the Stores with high standards of quality and service and shall at all times comply with any and all applicable laws in connection therewith.

3

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





5.02. With respect to any and all Stores owned or operated by any of XSPA's Airport Concession Disadvantaged Business Enterprise partners (ACDBE Partner(s)) in conjunction with XSPA, XSPA shall cause each of its ACDBE Partners to fulfill all of the obligations set forth herein with respect to the display, marketing, promotion, offer for sale and sale of Products at each Store in the Territory owned or operated by XSPA and such ACDBE Partner(s). As between Calm and XSPA, XSPA shall remain liable for the acts and omissions of each ACDBE Partner. As between Calm on the one hand and XSPA and its ACDBE Partner(s) on the other hand, XSPA and its ACDBE Partner(s) shall be the sole owners and operators of any and all such Stores throughout the Territory and XSPA and its ACDBE Partner(s) shall have sole management and operational control and liability with respect to such Stores and any and all costs and expense associated with the operation and maintenance thereof. XSPA and its ACDBE Partner(s) shall operate and maintain the Stores with high standards of quality and service and shall at all times comply with any and all applicable laws in connection therewith. 5.03. With respect to any and all Stores owned or operated by a third party who is not an ACDBE Partner (any such third party a Franchisee), where XSPA is a franchisor, XSPA shall cause each Franchisee to fulfill all of the obligations set forth herein with respect to the display, marketing, promotion, offer for sale and sale of Products at each Store in the Territory owned or operated by such Franchisee. Except as otherwise set forth in this Agreement, including Section 10.03, as between Calm and XSPA, XSPA shall remain liable for the acts and omissions of each Franchisee. 5.04. Calm shall have the right, but not the obligation, to hire personnel of its choosing to be present in any Store(s) to assist in the display, marketing, promotion, offer for sale and sale of Products, provided, however, that no more than one such person shall be present at any one time in any store without the prior written consent of XSPA. XSPA shall permit such personnel access to each Store and the ability to assist in the marketing, promotion and sale of the Products. For the avoidance of doubt, as between the Parties, Calm shall remain responsible for any and all employee compensation or other benefits with respect to any such personnel. 5.05. Calm or its authorized designees shall be the sole suppliers to XSPA of XSPA's requirements for Products, Gifts, Shopping Bags, Uniforms and Inserts (collectively, Product Collateral) for each Store throughout the Territory. Calm shall use reasonable efforts to fulfill all of XSPA's requirements for Product Collateral in accordance with the terms and conditions of this Agreement. In the event that inventory of any Product Collateral in any Store falls below fifty percent (50%) of the initial amount of such Product Collateral provided to such Store, XSPA shall use best efforts to advise Calm in sufficient detail to enable Calm to ship additional inventory of such Product Collateral to such Store. The Parties acknowledge and agree that, as between the Parties, Calm shall retain legal title to any and all Product Collateral (other than Uniforms) until sold in a Store in the Territory or otherwise disbursed in a Store in the Territory (in the case of Gifts, Inserts and Shopping Bags) in accordance with the terms and conditions of this Agreement. In the event Calm identifies any issue with any Product Collateral making it unsuitable for use as contemplated by this Agreement or issues a recall with respect to any Product, XSPA shall promptly return any and all affected Product Collateral to Calm or its authorized designees upon receiving notice of such issue or recall.

4

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





6. Training. XSPA shall provide training to any and all employees in each Store throughout the Territory regarding the display, marketing, promotion, offer for sale and sale of Products based on training materials (including PDF documents and/or instruction videos) provided by Calm. At XSPA's request, Calm shall provide training to XSPA area managers and select store managers at times and locations mutually agreed upon by the Parties regarding the display, marketing, promotion, offer for sale and sale of Products. 7. Collaborative Efforts. 7.01. XSPA and Calm shall jointly consult and work together in good faith throughout the Term to develop and execute a plan for the marketing, promotion and sale of Products in all Stores throughout the Territory, including with respect to Product layout and display, in-store marketing and promotional activities, the design of any co-branded Product Collateral or other marketing materials, and bulkhead signage at the Stores, in each case, taking into account any plan restrictions on the Store that may be imposed by an airport regulatory authority or other entity and all applicable laws. 7.02. Any Product Collateral item or other marketing material co-branded with Calm's and XSPA's Marks shall be subject to each Party's prior review and approval, which shall not be unreasonably withheld. 8. Payments. 8.01. XSPA shall pay to Calm on a monthly basis an amount equal to (i) fifty percent (50%) of the Retail Price for all Products sold in the Stores in the Territory during the applicable month minus (ii) fifty percent (50%) of any commission actually paid or payable to XSPA employee(s) or contractor(s) attributable to sales of such Products during such month; provided that in no event shall such commission be greater than fifteen percent (15%) of the Retail Price for the applicable Product. 8.02. Calm shall pay to XSPA on a monthly basis a retail commission of $20.00 for each sale of Calm digital product subscriptions (excluding, for the avoidance of doubt, any free trial subscriptions) that result from XSPA's distribution of Inserts and a customer's use of the unique promotional discount code set forth therein in accordance with the terms and conditions set forth herein (it being understood that XSPA shall ensure fifty percent (50%) of each such commission shall be distributed to the applicable Store's retail employees or contractors via a pool or other format as mutually agreed to by the Parties). Calm shall prepare and maintain complete and accurate books and records covering all transactions relating to this Agreement. XSPA's representatives may, from time to time during regular business hours on reasonable advance notice, during the Term of this Agreement and for a period of six (6) months thereafter, inspect and audit such books and records and examine and copy all other documents and material in the possession or under the control of Calm with respect to the subject matter and the terms of this Agreement.

5

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





After completion of any inspection or audit pursuant to this Section 8.02, XSPA shall notify Calm of the results of such inspection and audit (the Calm Audit Results). Upon receipt of such information, Calm shall have thirty (30) days (the Calm Review Period) to review the Calm Audit Results. On or prior to the last day of the Calm Review Period, Calm may object to the Calm Audit Results by delivering to XSPA a written statement setting forth its objections in reasonable detail, indicating each disputed item or amount and the basis for its disagreement therewith (the Calm Statement of Objections). If Calm fails to deliver the Calm Statement of Objections before the expiration of the Calm Review Period, the Calm Audit Results shall be deemed to have been accepted by Calm. If Calm delivers the Calm Statement of Objections before the expiration of the Calm Review Period, Calm and XSPA shall negotiate in good faith to resolve such objections within thirty (30) days after the delivery of the Calm Statement of Objections (the Calm Resolution Period), and, if the same are so resolved within the Calm Resolution Period, the Calm Audit Results with such changes as may have been previously agreed in writing by Calm and XSPA, shall be final and binding. If Calm and XSPA fail to reach an agreement with respect to all of the matters set forth in the Calm Statement of Objections before expiration of the Calm Resolution Period, then any amounts remaining in dispute (Calm Disputed Amounts and any amounts not so disputed, the Calm Undisputed Amounts) shall be submitted for resolution to the office of an impartial nationally recognized firm of independent certified public accountants mutually agreeable to Calm and XSPA (each acting reasonably and in good faith) (the Independent Accountant) who, acting as experts and not arbitrators, shall resolve the Calm Disputed Amounts only and make any adjustments to the Calm Audit Results. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountant shall only decide the specific items under dispute by the parties and their decision for each Calm Disputed Amount must be within the range of values assigned to each such item in the Calm Audit Results and the Calm Statement of Objections, respectively. The Independent Accountant shall make a determination as soon as practicable within thirty (30) days (or such other time as the parties hereto shall agree in writing) after their engagement, and their resolution of the Calm Disputed Amounts and their adjustments to the Calm Audit Results shall be conclusive and binding upon the parties hereto. If it is conclusively determined that any of Calm's payments due hereunder was less than the amount that should have been paid or any of XSPA's payments or reimbursements was more than the amount that should have been paid, all payments required to be made to eliminate the discrepancy, plus interest, shall be made promptly upon XSPA's demand, and, if the discrepancy in amounts due to XSPA is greater than ten percent (10%) or more of the amount due during the period in question, Calm promptly shall reimburse XSPA for the reasonable costs and expenses related to such inspection and audit not to exceed $5,000.00. In all other cases, XSPA shall be responsible for any and all costs and expenses related to such inspection and audit pursuant to this Section 8.02.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





If it is conclusively determined that any of Calm's payments due hereunder was more than the amount that should have been paid or any of XSPA's payments or reimbursements was less than the amount that should have been paid, all payments required to be made to eliminate the discrepancy, plus interest, shall be made promptly upon Calm's demand. 8.03. Subject to the terms and conditions set forth herein, and considering that Calm or its authorized designees shall be the sole supplier of Product Collateral under Section 5.04 of this Agreement, Calm shall pay (or reimburse XSPA upon receipt of payment to a third party) for all costs associated with (a) the design, manufacture, shipping, distribution and installation, as applicable, of Product Collateral and other marketing materials and bulkhead signage as set forth in Section ​4.01, (b) the creation of training materials and the costs associated with training (excluding cost of labor for any XSPA employee) pursuant to Section ​6, (c) obtaining and maintaining approval of, and the creation, installation, maintenance and removal of any bulkhead signage advertising pursuant to Section 4.01(a), and (d) the design, manufacture, shipping and installation of in-store marketing changes to any Store. Notwithstanding anything in this Agreement to the contrary, Calm shall not be obligated to reimburse XSPA for any such costs described in the previous sentence of this Section 8.03 incurred by XSPA above $500.00 unless Calm has provided prior written approval of such cost (including via email). 8.04. All payments required of XSPA hereunder shall be made to Calm in United States Dollars via wire transfers, or in such other manner as Calm shall designate, as follows: Account Name Calm.com, Inc. Account Address 140 2nd St. FL3 San Francisco, CA 94105 Account # 3302444451 Bank Name SIL VLY BK SJ Bank Address 3003 TASMAN DRIVE, SANTA CLARA, CA 95054 Fed ABA 121140399 8.05. All payments required of Calm hereunder shall be made to XSPA in United States Dollars via wire transfers, ACH payment, or in such other manner as XSPA shall designate, as follows: Account Name XpresSpa Group, Inc. Account # 483044863901 Bank Name Bank of America Bank Address One Bryant Park New York, NY 10036 Fed ABA 026009593

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





8.06. With respect to Products sold in Stores in the Territory, XSPA shall deliver to Calm within twenty (20) days after each calendar month, a statement (Monthly Statement) identifying (i) the total sales of each Product during said calendar month and (ii) the total commission paid to XSPA employees or contractors under Section ​8.02, which shall include a breakdown by each individual Product and Store. Each Monthly Statement shall be fully completed and signed and certified as accurate by one of XSPA's senior officers. 8.07. XSPA shall prepare and maintain complete and accurate books and records covering all transactions relating to this Agreement. Calm's representatives may, from time to time during regular business hours on reasonable advance notice, during the Term of this Agreement and for a period of six (6) months thereafter, inspect and audit such books and records and examine and copy all other documents and material in the possession or under the control of XSPA with respect to the subject matter and the terms of this Agreement. After completion of any inspection or audit pursuant to this Section 8.07, Calm shall notify XSPA of the results of such inspection and audit (the XSPA Audit Results). Upon receipt of such information, XSPA shall have thirty (30) days (the XSPA Review Period) to review the XSPA Audit Results. On or prior to the last day of the XSPA Review Period, XSPA may object to the XSPA Audit Results by delivering to Calm a written statement setting forth its objections in reasonable detail, indicating each disputed item or amount and the basis for its disagreement therewith (the XSPA Statement of Objections). If XSPA fails to deliver the XSPA Statement of Objections before the expiration of the XSPA Review Period, the XSPA Audit Results shall be deemed to have been accepted by XSPA. If XSPA delivers the XSPA Statement of Objections before the expiration of the XSPA Review Period, XSPA and Calm shall negotiate in good faith to resolve such objections within thirty (30) days after the delivery of the XSPA Statement of Objections (the XSPA Resolution Period), and, if the same are so resolved within the XSPA Resolution Period, the XSPA Audit Results with such changes as may have been previously agreed in writing by XSPA and Calm, shall be final and binding. If Calm and XSPA fail to reach an agreement with respect to all of the matters set forth in the XSPA Statement of Objections before expiration of the XSPA Resolution Period, then any amounts remaining in dispute (XSPA Disputed Amounts and any amounts not so disputed, the XSPA Undisputed Amounts) shall be submitted for resolution to the Independent Accountant who, acting as experts and not arbitrators, shall resolve the XSPA Disputed Amounts only and make any adjustments to the XSPA Audit Results. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountant shall only decide the specific items under dispute by the parties and their decision for each XSPA Disputed Amount must be within the range of values assigned to each such item in the XSPA Audit Results and the XSPA Statement of Objections, respectively.

8

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





The Independent Accountant shall make a determination as soon as practicable within thirty (30) days (or such other time as the parties hereto shall agree in writing) after their engagement, and their resolution of the XSPA Disputed Amounts and their adjustments to the XSPA Audit Results shall be conclusive and binding upon the parties hereto. If it is conclusively determined that any of XSPA's payments due hereunder was less than the amount that should have been paid or any of Calm's payments or reimbursements was more than the amount that should have been paid, all payments required to be made to eliminate the discrepancy, plus interest, shall be made promptly upon Calm's demand, and, if the discrepancy in amounts due to Calm is greater than ten percent (10%) or more of the amount due during the period in question, XSPA promptly shall reimburse Calm for the reasonable costs and expenses related to such inspection and audit not to exceed $5,000.00. In all other cases, Calm shall be responsible for any and all costs and expenses related to such inspection and audit pursuant to this Section 8.02. If it is conclusively determined that any of XSPA's payments due hereunder was more than the amount that should have been paid or any of Calm's payments or reimbursements was less than the amount that should have been paid, all payments required to be made to eliminate the discrepancy, plus interest, shall be made promptly upon XSPA's demand. 9. Intellectual Property Matters. 9.01. Subject to the terms and conditions of this Agreement, Calm hereby grants to XSPA, solely during the Term and in the Territory, a revocable (as set forth in ​Section ​​12.04), royalty-free, assignable (solely as set forth in Section ​16.05), non-sublicensable (except as set forth in Section ​9.03), non-exclusive license to use the marks set forth on Exhibit D (Calm's Marks), solely to the extent necessary for XSPA to exercise its rights or perform its obligations set forth in this Agreement. 9.02. Subject to the terms and conditions of this Agreement, XSPA hereby grants to Calm, solely during the Term and in the Territory, a revocable (as set forth in ​Section ​​12.04), royalty-free, assignable (solely as set forth in Section ​16.05), non-sublicensable (except as set forth in Section ​9.03), non-exclusive license to use the marks set forth on Exhibit E (XSPA's Marks, and together with Calm's Marks, the Marks), solely to the extent necessary for Calm to exercise its rights or perform its obligations set forth in this Agreement. 9.03. Each Party may sublicense the rights granted to such Party under Sections 9.01 and 9.02 of this Agreement to any third party vendor, supplier or manufacturer of Product Collateral solely to the extent necessary for such Party to exercise its rights or perform its obligations set forth in this Agreement.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





9.04. Neither Party shall use the other Party's Marks, in whole or in part, as a corporate name, trade name or domain name and shall not use the other Party's Marks in combination with any other mark, design or designation except pursuant to the terms of this Agreement. Each Party shall use the other Party's Marks in the Territory strictly in compliance with all applicable legal requirements of the Territory. Each Party acknowledges and agrees that, as between the Parties, the other Party is the sole and exclusive owner of the Marks licensed by such other Party pursuant to this Section ​9 and all goodwill associated therewith. Neither Party shall do or cause to be done any act or thing that may in any way adversely affect any rights of the other Party in and to such other Party's Marks or any registrations thereof or that, directly or indirectly, may reduce the value of such Marks or detract from any Mark's reputation, including challenging the ownership, validity or enforceability of such Marks. Each Party agrees that it will display the trademark registration symbol ® or the designations SM or TM adjacent to the Marks when directed to do so by the Party owning the relevant Mark and, when circumstances reasonably permit, it will cause a notice of ownership to appear on advertisements or in store displays bearing the Marks. Each Party will take care to display the other Party's Marks in a manner that does not bring the other Party's brand into disrepute. 9.05. All goodwill associated with the use of a Party's Marks by the other Party shall inure to the sole and exclusive benefit of the Party which owns such Mark. Each Party shall execute any documents and take any actions reasonably required by the other Party to confirm such Party's ownership of all rights in and to such Party's Marks in the Territory and the respective rights of the Parties pursuant to this Agreement. 9.06. In the event that either Party learns of any infringement, imitation or counterfeiting of the other Party's Marks or Products or of any use by any person of a trademark similar to such Marks, it shall promptly notify the other Party thereof. Thereupon, the Party owning the relevant Marks, or in the case of Products, Calm, shall take such action as it deems advisable for the protection of its rights in and to its Marks and Products and, if reasonably requested to do so by such Party, the other Party shall reasonably cooperate in all respects (at the sole costs and expense of the Party owning the relevant Marks, or in the case of Products, Calm), including by choosing to be a plaintiff or co-plaintiff and/or by causing its officers to execute pleadings and other necessary documents. Any action contemplated by this Section ​9.06 shall be controlled by the Party with ownership of the relevant Marks, or in the case of Products, Calm. 9.07. Any intellectual property or moral right in any Product Collateral or other marketing materials concerning Calm or one or more Products, including patterns, sketches, logos, designs, packaging, labels, tags, advertising materials or the like (Product Collateral IP) bearing Calm's Marks shall be, as between the Parties, the sole and exclusive property of Calm, it being understood that XSPA shall retain sole and exclusive ownership of its Marks, including with respect to co-branded Product Collateral and any other co-branded marketing materials concerning Calm or one or more Products. Any co-branded Product Collateral IP shall be used solely (i) in the Stores in the Territory or (ii) in connection with digital marketing activities by Calm with respect to Calm or one or more Products, in accordance with the terms and conditions set forth in this Agreement. If any Product Collateral IP (or any aspect thereof) are not designed and/or created by Calm, such Product Collateral IP (or aspect thereof) shall be deemed works made for hire for Calm within the meaning of the U.S. Copyright Law and/or other applicable comparable laws or, if they do not so qualify, all ownership rights thereto shall be, and are hereby, assigned to Calm. XSPA shall not, directly or indirectly, do or suffer to be done any act or thing which may affect adversely any of Calm's rights in the Product Collateral IP, including filing any application in its name to record any claims to Product Collateral IP (or any aspect thereof). XSPA shall execute any documents and take any actions reasonably required by Calm to confirm Calm's ownership of all rights in and to such Product Collateral IP.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





10. Agency, Indemnification and Insurance. 10.01. Calm and XSPA are each independent contractors. The Parties are not and shall not be considered as joint venturers, partners or agents of each other. Neither Party shall have the authority to bind or obligate the other Party. 10.02. XSPA hereby agrees to indemnify and hold harmless Calm and its affiliates and their respective directors, officers, employees and agents from and against any and all claims, suits, alleged regulatory violations, losses, damages and costs (including reasonable attorneys' fees) arising out of or relating to (i) any alleged action or failure to take action by XSPA in connection with the operation or maintenance of the Stores or provision of any product or service (other than the Products), including but not limited to: violations of applicable law, regulations or other rules; defects in XSPA sourced products or services provided or obtained therein; employment and labor issues with respect to XSPA employees; any product liability or personal injury claims with respect to XSPA's provision of any product or service (other than the Products); property damage; and collection, remittance or payment of any taxes, license fees or any other payment due to any party; (ii) the use of XSPA's Marks by Calm as authorized by this Agreement; and (iii) any breach of any covenant or agreement of XSPA contained in this Agreement. 10.03. Calm hereby agrees to indemnify and hold harmless XSPA and its affiliates and their respective directors, officers, employees and agents from and against any and all claims, suits, alleged regulatory violations, losses, damages and costs (including reasonable attorneys' fees) arising out of or relating to (i) any product liability or personal injury claims with respect to any Products or Product Collateral or any alleged defects in any Products or Product Collateral; (ii) any alleged action or failure to take action by Calm's employees; (iii) the use of Calm's Marks by XSPA as authorized by this Agreement; and (iv) any breach of any covenant or agreement of Calm contained in this Agreement. 10.04. In the event any claim, action, suit or proceeding (each, a Claim) is brought or made against an indemnified Party for which defense and indemnification by the indemnifying Party may be sought hereunder, the indemnified Party will promptly notify the indemnifying Party of the commencement thereof, and the indemnified Party will be entitled to reasonably participate in (but not assume) the defense thereof. Notwithstanding any other provision of this Agreement, the indemnifying Party shall not enter into any settlement of any Claim without the prior written consent of the indemnified Party, except as provided in this Section 10.04. If a firm offer is made to settle a Claim without leading to liability or the creation of a financial or other obligation on the part of the indemnified Party and provides, in customary form, for the unconditional release of each indemnified Party from all liabilities and obligations in connection with such Claim and the indemnifying Party desires to accept and agree to such offer, the indemnifying Party shall give written notice to that effect to the indemnified Party. If the indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such notice, the indemnified Party may continue to contest or defend such Claim and in such event, the maximum liability of the indemnifying Party as to such Claim shall not exceed the amount of such settlement offer. If the indemnified Party fails to consent to such firm offer and also fails to assume defense of such Claim, the indemnifying Party may settle the Claim upon the terms set forth in such firm offer to settle such Claim.

11

Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





10.05. XSPA shall obtain, and thereafter maintain during the Term, the following insurance: (a) Special form property policy covering all stock on premises of the Store, including with respect to all Product Collateral; (b) Workers' Compensation Insurance in the statutorily required amount (or XSPA shall participate in the appropriate state fund if such insurance is not available or allowed), together with Employer's Liability Insurance with a limit of $1,000,000 for each accident; and (c) Commercial General Liability insurance, (including fire liability, contractual liability, personal injury, product liability and completed operations coverage) in the amount of not less than $3,000,000 combined single limit with umbrella liability coverage with a limit of not less than $10,000,000; The foregoing insurance policies shall name XSPA as the insured and Calm as additional insured (except for Workers' Compensation Insurance). If any such insurance is on a claims made basis, XSPA shall maintain coverage thereunder for a period of at least two (2) years following the termination of this Agreement. With respect to the foregoing, XSPA shall provide to Calm certificate(s) evidencing such insurance prior to or upon execution of this Agreement. The certificates shall provide that Calm will be given at least thirty (30) days prior written notice of cancellation or any material change in these policies. Calm shall have no obligation to XSPA for the costs of insurance required, or for any other coverage that XSPA obtains, directly or indirectly for its own account. In no event shall any insurer have a Best's Insurance rating of less than (A-) of class size VII. 10.06. EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (A) UNDER NO CIRCUMSTANCE AND UNDER NO LEGAL THEORY (TORT, CONTRACT, OR OTHERWISE), SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF OPPORTUNITY OR OTHER SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY ARISING IN CONNECTION WITH THIS AGREEMENT; AND (B) THE MAXIMUM LIABILITY OF EACH PARTY IN ANY WAY RELATED TO THIS AGREEMENT SHALL NOT EXCEED $2,000,000.00 (EXCLUDING ANY AMOUNTS DUE AND PAYABLE PURSUANT TO SECTION ​8 HEREUNDER).

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





11. Representations and Warranties. 11.01. Calm represents and warrants that: (a) it has the legal power and authority to enter into this Agreement and to grant the rights to its Marks granted hereunder, and the execution and performance of this agreement does not violate or put Calm in default of any other agreement, order or judgment by which it is bound or to which it is subject; (b) Calm's Marks do not infringe any third parties' rights and that the Marks were not misappropriated from any third party; (c) it is aware of and will comply with all federal, state and local laws and regulations governing the Products and the Product Collateral in the Territory; and (d) it is the sole and exclusive owner of Calm's Marks. 11.02. XSPA represents and warrants that: (a) it has the legal power and authority to enter into this Agreement and to grant the rights to its Marks granted hereunder, and the execution and performance of this Agreement does not violate or put XSPA in default of any other agreement, order or judgment by which it is bound or to which it is subject: and (b) it is aware of and will comply with all federal, state and local laws and regulations governing its operation of the Stores in the Territory; (c) XSPA's Marks do not infringe any third parties' rights and that the Marks were not misappropriated from any third party, and (d) it is the sole and exclusive owner of XSPA's Marks. 12. Termination. 12.01. This Agreement may be terminated by either Party, prior to its expiration, by reason of a material breach of the terms and conditions hereof; provided that the Party alleged to be in material breach shall have failed to cure such alleged material breach within thirty (30) days following the receipt of a written notice from the Party alleging the material breach which notice shall describe in reasonable detail the nature of the alleged material breach.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





12.02. Calm may terminate this Agreement immediately, upon written notice, if XSPA experiences an insolvency event. 12.03. Beginning on February 28, 2019, XSPA may terminate this Agreement immediately, upon written notice, if Calm has not purchased and funded the purchase of the Second Closing Shares (as defined in the Series E Preferred Stock Purchase Agreement dated as of even date herewith by and between XSPA and Calm) by December 31, 2018. 12.04. Upon termination or expiration of this Agreement, Calm (at its sole expense) may engage a third party to audit XSPA's inventory of any and all Product Collateral then on hand at each Store and XSPA shall promptly return or dispose of such inventory as instructed by Calm at Calm's sole expense. In addition, if Calm does not provide XSPA with instructions within twenty (20) days of the termination or expiration of this Agreement, XSPA shall be permitted to dispose of any inventory of any and all Product Collateral then on hand at each Store. The Parties agree to promptly settle all accounting associated with such inventory of any and all Product Collateral then on hand at each Store upon termination or expiration of this Agreement. Except as expressly set forth herein, all of the rights granted hereunder shall automatically terminate and XSPA shall immediately cease the distribution, marketing and sale of Products and the Parties shall discontinue all use of the other Party's Marks. 12.05. The following provisions shall survive the expiration or termination of this Agreement: Sections ​ ​  ​3, ​9.07, 10, ​12 and any other provision hereunder which by its terms, may reasonably be expected to survive such expiration or termination. In addition to the foregoing, upon termination each Party shall pay to the other Party any and all amounts then owed to the other Party. 13. Arbitration. Without limiting Section ​16.08, any and all disputes or claims arising from either Party's rights or obligations under this Agreement shall be subject to arbitration. Any arbitration commenced with respect to a dispute or claim under this Agreement shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association and the Supplementary Procedures for Large, Complex Disputes then in effect (the Rules), except to the extent such rules conflict with this Section ​13. In any arbitration, New York law shall govern, except to the extent that such law conflicts with the Rules or this Section ​13. The Parties further agree that each issue submitted for arbitration be submitted to a panel of three (3) impartial arbitrators with each Party selecting one (1) arbitrator within fifteen (15) days after the commencement of the arbitration period and the two (2) selected arbitrators selecting a third arbitrator who is experienced in the commercial retail industry within thirty (30) days after the commencement of the arbitration period. Any arbitration hereunder shall commence within thirty (30) days after appointment of the third arbitrator and shall be held in New York, New York, USA. No discovery by either Party shall be permitted unless the arbitrators determine that the Party requesting such discovery has a substantial, demonstrable need. The arbitrators shall make final determinations as to any discovery disputes and all other procedural matters. If any Party fails to comply with the procedures in any arbitration in a manner deemed material by the arbitrators, then the arbitrators shall fix a reasonable time for compliance, and if the Party does not comply within such period, then a remedy deemed just by the arbitrators, including an award of default, may be imposed. The decision of the arbitrators shall be rendered no later than one hundred twenty (120) days after commencement of the arbitration period. The costs of arbitration shall be borne by the Party against whom the arbitral decision is made. Any judgment or decision rendered by the panel shall be binding upon the Parties and shall be enforceable by any court of competent jurisdiction.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





14. Notice. All notices required or permitted by this Agreement shall be in writing and may be delivered in person (by hand or by messenger or courier service) or may be sent by certified mail, return receipt requested, or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission during normal business hours, and shall be deemed sufficiently given if served in a manner specified in this Section ​14 to the addresses and facsimile numbers noted below. Either Party may, by notice to the other, specify a different address for notice purposes. Any notice sent by certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmarks thereon. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given twenty-four (24) hours after delivery of the same to the United States Postal Service or courier. If any notice is transmitted by facsimile transmission or similar means, the same shall be deemed served or delivered upon telephone or facsimile confirmation of receipt of the transmission thereof, provided a copy is also delivered via delivery or mail. If notice is received after 5:00 PM, local time of the recipient, or on a Saturday or a Sunday or a legal holiday, it shall be deemed received on the next business day. Notice addresses are as follows: If to XSPA: XpresSpa Group, Inc. 780 Third Avenue, 12th Floor New York, NY 10017 Attn: Edward Jankowski, CEO Email: notices@xpresspagroup.com If to Calm: Calm.com, Inc. 140 2nd St., 3rd Floor San Francisco, CA 94105 Attn: Dun Wang Email: legal@calm.com and dun@calm.com 15. Confidentiality. Neither Party shall, directly or indirectly, without the other Party's consent, disclose to any third party (other than their respective employees or representatives) any information designated in writing as confidential by other Party (including the terms and conditions of this Agreement); provided, that the foregoing restriction shall not (a) apply to any information (i) generally available to, or known by, the public (other than as a result of disclosure in violation of this ​Section ​15) or (ii) independently developed by the receiving Party, or (b) prohibit any disclosure (i) determined in good faith by any Party to be required by any listing agreement with any applicable national or regional securities exchange or market, securities laws or any other applicable law so long as the disclosing Party has made all reasonable efforts to obtain confidential treatment of the terms of the Agreement in connection with such disclosure and, to the extent practicable and legally permissible, the receiving Party provides the disclosing Party with reasonable prior notice of such disclosure or (ii) made in connection with the enforcement of any right or remedy relating to this Agreement.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





16. Miscellaneous Provisions. 16.01. This Agreement embodies and constitutes the entire understanding between the Parties with respect to subject matter hereof, and no prior agreements, understandings, representations and statements, oral or written, shall have any legal effect with respect to such subject matter. Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument signed by the Party against whom the enforcement of such waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in such instrument. 16.02. This Agreement shall be governed by, and construed in accordance with the law of the State of New York. In the event of any litigation, arbitration, or other proceeding by which one Party either seeks to enforce its rights under this Agreement or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be entitled to recover from the other Party, in addition to any other relief awarded, any and all costs and expenses incurred with respect to such litigation, arbitration or other proceeding, including without limitation, reasonable attorneys' fees, disbursements and costs, and experts' fees and costs. 16.03. The captions in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof. 16.04. In the event that any one or more of the provisions of this Agreement shall be determined to be void or unenforceable by a court of competent jurisdiction, such determination will not render this Agreement invalid or unenforceable and the remaining provisions hereof shall remain in full force and effect. 16.05. Neither Party shall assign or transfer this Agreement or its rights hereunder without first obtaining the consent of the other, in writing, which consent shall not unreasonably be withheld or delayed. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns; provided, however, Calm may, without the prior written consent of XSPA, assign or otherwise transfer its rights and obligations to an affiliate of Calm or the acquirer of all or substantially all of the assets of Calm; provided, however, that the prior written consent of XSPA shall be required in connection with the assignment to an acquirer of all or substantially all of the assets of Calm if such acquirer's primary business is an airport-based provider of spa services.

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





16.06. For the convenience of the Parties, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. 16.07. No waiver by either Party, whether express or implied, of any provision hereof, or of any breach or default thereof, shall constitute a continuing waiver of such provision or of any other provision of this Agreement. Acceptance of payments by Calm shall not be deemed a waiver by Calm of any violation of or default under any of the provisions of this Agreement by XSPA. Also, if for any reason any acts or omissions by XSPA hereunder not in conformance with any of the requirements hereof are not objected to by Calm from time to time, such a failure to object shall not be deemed a waiver by Calm of any such requirement and Calm may insist upon due performance thereof by XSPA at any time. 16.08. The Parties acknowledge that irreparable injury would be caused by any breach or threatened breach by the other Party of any of the provisions of this Agreement and both Parties shall have the right to enforce the specific performance of the Agreement and to apply for injunctive relief against any act which would violate any of its provisions. [signatures on following page]

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. XpresSpa Group, Inc. By: /s/Edward Jankowski Name: Edward Jankowski Title: Calm.com, Inc. By: /s/ Michael Acton Smith

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit A

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit B

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit C

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit D

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019





Exhibit E

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Source: XPRESSPA GROUP, INC., 10-K, 4/1/2019 
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?
Example Output:
Neither Party shall do or cause to be done any act or thing that may in any way adversely affect any rights of the other Party in and to such other Party's Marks or any registrations thereof or that, directly or indirectly, may reduce the value of such Marks or detract from any Mark's reputation, including challenging the ownership, validity or enforceability of such Marks.