In this task, you're given a passage that represents a legal contract or clause between multiple parties. Your job is to write questions that ask the basic details corresponding to the legal contracts or clauses. Avoid questions that can be answered correctly without actually understanding the paragraph, and which might have multiple answers. The answer to each question should be unambiguous.

[EX Q]: EXHIBIT 10.5 NON-EXCLUSIVE DISTRIBUTOR AGREEMENT This Non-Exclusive Distributor Agreement (the Agreement) is made and entered into as of this 19th day of July 2018, by and between iMine Corporation, (hereinafter referred to as JRVS) and SUNWAI Technology, a Taiwanese company, with its principal office at 6th Floor, No. 258, Section 3, Nanjing East Road, Songshan District, Taipei 10051 (hereinafter referred to as the Distributor). RECITAL WHEREAS, Distributor desires to be, a nonexclusive distributor of JRVS for certain cryptocurrency mining rig products; JRVS wishes to sell its products through Distributor on a continuing basis on the terms and conditions set forth below. AGREEMENT NOW, THEREFORE, in consideration of the mutual agreements and covenants, JRVS and the Distributor agree as follows: 1. DEFINITIONS 1.1 Confidential Information of a party shall mean any information disclosed by that party to the other party pursuant to this Agreement which is in written, graphic, machine readable or other tangible form. Confidential Information may also include oral information disclosed by one party to the other pursuant to this Agreement. 1.2 Customers shall mean the purchasers of the Products whose principal offices and operations are located in the Territory. 1.3 iMine Products shall mean those Products known as cryptocurrency mining rigs and its parts and components, as JRVS and the Distributor shall maintain and modify from time to time. 1.4 House Accounts shall mean those Customers in the Territory who purchase Products directly from JRVS. 1.5 Non-standard Products shall mean those Products that are not standard mining rigs that require special testing, packaging or otherwise to be modified as requested by the Distributor and approved by JRVS in writing. 1.6 Proprietary Rights shall mean all rights in the Products and JRVS's Confidential Information, including, but not limited to, patents, copyrights, trademarks, trade names, know-how, show-how, and trade secrets, irrespective of whether such rights arise under U.S. or international intellectual property, unfair competition or trade secret laws. 1.7 Products shall mean the products offered by JRVS for sale to the Distributor; the Products shall include iMine cryptocurrency mining rigs and its parts and components. 1.8 Territory shall mean the geographic area of Taiwan. 2. APPOINTMENT 2.1 Appointment of Nonexclusive Distributor. Subject to the terms and conditions of this Agreement, JRVS appoints the Distributor, and the Distributor hereby accepts such appointment, as JRVS'S non-exclusive authorized distributor for sale of the Products to the Customers (other than House Account) in the Territory (as these terms are defined in Section 1.8, above). Under no circumstances shall Distributor sell Products for use outside the Territory. 1

Source: IMINE CORP, S-1, 7/25/2018





2.2 Designation of House Account. In the event JRVS notifies the Distributor that JRVS has designated a Customer of the Distributor as a new House Account, such Customer will become a House Account effective Ninety (90) days following such notice. At JRVS's sole discretion, JRVS may compensate the Distributor for extraordinary sales and distribution efforts rendered prior to the designation of the new House Account. 3. DISTRIBUTOR RESPONSIBILITIES 3.1 Market Promotion. The Distributor shall use its best efforts, consistent with prudent business practice, and shall devote such time as may be commercially reasonably necessary, to conduct an aggressive marketing and selling program and to promote the sale of the Products. 3.2 No Product Change. The Distributor shall not modify or change the Products in any way without the express prior written consent of JRVS. 3.3 Conflict of Interest. The Distributor shall not, during the term of this Agreement, directly or indirectly market, sell, distribute, solicit orders within the Territory for any products which are competitive with the iMine Products unless JRVS consents thereto in writing in advance, based upon the Distributor's full disclosure of the material facts in seeking such consent. Any such marketing, sale, distribution or solicitation of the competitive products is considered to be a material breach of this Agreement. 3.4 Reports. Distributor shall submit periodical reports to iMine to include information on how many buyers or potential buyers were contacted. 3.5 Compliance with Laws. The Distributor shall comply at its own expense with all applicable laws and regulations currently existing in Taiwan relating to the sale, distribution and promotion of the Products. Distributor shall not export, directly or indirectly, any Products or related information outside of Taiwan. 3.6 Feedbacks. The Distributor shall provide JRVS with prompt written notification of any comments or complaints about the Products that are made by Customers, and of any problems with the Products or their use that the Distributor becomes aware of. Such written notification shall be the property of JRVS, and shall be considered to be part of JRVS's Confidential Information. 3.7 Referral. The Distributor agrees to refer all prospective customers to JRVS when the Distributor cannot aggressively pursue distribution to such customers because of geographic location or any other reason; provided, however, that if the Distributor cannot aggressively pursue distribution because of price and/or volume, the parties will negotiate a reasonable referral fee to be mutually agreed upon. The Distributor shall also refer directly to JRVS inquiries relating to bundling, partnership or other business opportunities with third party vendors, hardware and system manufacturers and software developers. 3.8 Inventory. The Distributor shall maintain an inventory of Products in reasonably sufficient quantities to provide adequate and timely delivery to the Customers. At a minimum, such inventory shall include not less than the quantity of Products necessary to meet Distributor's reasonably anticipated demands for a thirty (30) day period. 3.9 Audits. JRVS shall be entitled at any time to audit the Distributor's books and records upon reasonable notice in order to confirm the accuracy of the Reports set forth in Section 3.4; provided, that no more than one such audit may be conducted in any three-month period. Any JRVS-elected audit shall be performed at JRVS's own expense during normal business hours; Distributor shall provide reasonable assistance to JRVS for the audit. Additionally, the Distributor shall provide JRVS with its audited financial statements within three (3) months of the end of its fiscal year. 4. ORDERS AND ACCEPTANCE 4.1 Rolling Forecast. The Distributor shall provide JRVS at least one month in advance with a good faith rolling quarterly sales forecast for the units of the Products to be provided by JRVS to the Distributor hereunder during each month in such calendar quarter. Subject to Section 4.4, not later than the 15t h day of each month, Distributor will provide JRVS with a binding purchase order for the third month following the month in which the purchase order is placed and a non-finding forecast for the following three months (i.e., the fourth, fifth and sixth months following the month in which the forecast is given. 2

Source: IMINE CORP, S-1, 7/25/2018





4.2 Purchase Orders. The Distributor shall initiate purchases under this Agreement by submitting written purchase orders (each, an Order) to JRVS. Such orders shall state unit quantities, unit descriptions, requested delivery dates, and shipping instructions. No purchase order shall be binding upon JRVS until accepted by JRVS in writing. JRVS reserves the right to reject orders in whole or in part. Partial shipment of an order shall not constitute acceptance of the entire order. In the event that JRVS is unable to fill an accepted purchase order in accordance with the schedule set forth therein as long as the purchase order does not exceed 110% of the iMine Products set forth on the most recent forecast for such month, JRVS will use commercially reasonable efforts to fill such order on an allotment basis. This Agreement shall govern all orders placed by the Distributor for units of the Product. No terms on purchase orders, invoices or like documents produced by the Distributor shall alter or add to the terms of this Agreement. Any other terms and conditions of sale in conflict with or inconsistent with the terms and conditions of this Agreement, whether contained in the Distributor's preprinted forms or otherwise, notwithstanding JRVS's acceptance otherwise, shall have no force or effect to the extent of such conflict or inconsistency. 4.3 Order Requirements. The Distributor's single purchase order amount shall be a minimum of five units. Non-standard Products may have higher minimum purchase requirements and longer lead time as determined by JRVS. 4.4 Lead Time. The Distributor shall submit purchase orders to JRVS in accordance with a lead time of twenty-eight (28) to one hundred and twenty (120) days according to the schedule advised by JRVS. In no event shall the lead time for Non-standard Products be less than two (2) months. JRVS shall use commercially reasonable efforts to deliver units of Product at the times set forth in JRVS's written acceptances of the Distributor's purchase orders. 4.5 Demonstration Units. Orders by Distributor for samples and/or pilot run may be subject to smaller amount and shorter cycle time as shall be requested by Distributor and accepted by JRVS. In such cases, products may be ordered in multiples of smaller units (calculated in number of reels or tubes), and in no events shall exceed three such units. 4.6 Cancellations. Except as provided herein, all Orders for Products are non-cancelable, and Products are non-returnable (NC/NR). Subject to JRVS's written approval, orders for mining rigs may be rescheduled or cancelled subject to the cancellation fees, which are based on the number of days in advance of the scheduled shipment date that the Distributor notifies JRVS of cancellation and shall be set by JRVS from time to time. The Nonstandard Products are at all times non-cancelable. Distributor shall contact JRVS in advance for pricing and delivery information for orders of Non-standard Products. 5.1 JRVS Price. Subject to the terms and conditions of this Agreement, the Distributor shall pay for the Products at the then current price of JRVS (the JRVS Price) at the time of placement of the Order. 5.2 Price Change. JRVS shall have the right to revise JRVS Price at any time. Price changes shall apply to all purchase orders received after the effective date with the notice, except that any price increase shall be effective immediately upon notice to Distributor and apply to those accepted but undelivered orders. 5.3 Special Pricing. Notwithstanding the JRVS Price, special pricing on any one of the Products may be extended to the Distributor, in JRVS sole discretion, in situations where special pricing is necessary for the Distributor to obtain sale of the Products to a Customer. If JRVS elects to extend such special pricing, it will issue a confidential meet comp quote number documenting the special price quoted. Upon receipt of the meet comp quote number, the Distributor may ship the Products to the Customer from stock and debit JRVS for the difference between their invoiced amount, less any prior credits granted by JRVS, and the new special pricing. The meet comp quote number shall be included on all such debits. 5.4 Taxes. All JRVS Prices are exclusive of any export, withholding, federal, state and local taxes, duties or excises other than taxes based on JRVS's net income. If JRVS pays any taxes, duties or excises which are not included in the fees charged for the Product, JRVS shall itemize such taxes, duties or excises as a separate item on its invoices to the Distributor, and the Distributor shall reimburse JRVS for such taxes, duties or excises; provided, that the Distributor shall not be required to make any such reimbursement if it provides a valid tax exemption certificate to JRVS prior to shipment. 3

Source: IMINE CORP, S-1, 7/25/2018





6. TERMS OF PAYMENT 6.1 Payment Terms. JRVS shall submit an invoice to the Distributor upon shipment of Products to the Distributor. The invoice shall state the amount to be paid by the Distributor for all Products in such shipment, as well as any taxes, duties or excises paid by JRVS which shall be reimbursed by the Distributor in accordance with Section 5.4. Terms of payment shall be net thirty (30) days. All payments shall be in U.S. Dollars. 6.2 Late Payments. All amounts which are not timely paid by the Distributor as required by this Agreement shall be subject to a late charge equal to one and one-half percent (1.5%) per month (or, if less, the maximum allowed by applicable law). In the event that any payment due hereunder is overdue, JRVS reserves the right to suspend performance until such delinquency is corrected. 7. DELIVERY 7.1 Packing and Shipping. All Products to the Distributor shall be packaged in JRVS's standard containers, or, at the Distributor's expense, in accordance with instructions provided by the Distributor, and shall be shipped to the Distributor's address set forth above, or to an address specified in the purchase order. Unless otherwise agreed, shipment shall conform to JRVS's standard shipping procedures, or such terms as both shall agree. Title and risk of loss shall pass to the Distributor at the Delivery Point. All customs duties, freight, insurance and other shipping expenses from the Delivery Point, as well as any other special packing expenses requested by the Distributor, shall be borne by the Distributor. The Distributor agrees to satisfy all import formalities pertaining to shipment of units of the Product to destinations outside the United States. 7.2 Inspection and Acceptance. The Distributor shall have thirty (30) days (the Inspection Period) upon receipt of each shipment to inspect and test the Products. If the Distributor determines any unit of Products defective, the Distributor shall promptly notify JRVS of such defects. Defective Products may be returned for retest, evaluation and examination subject to JRVS Returned Material Authorization (RMA) procedure; provided, that such written notification and request for an RMA number must be received by JRVS during the Inspection Period. Returns must be prepaid by Distributor. When requesting a return authorization, Distributor must supply Distributor's purchase order number and JRVS's invoice number. Product description must include lot number and wafer numbers. 7.3 Exclusion. JRVS will inspect all Products returned pursuant to the foregoing RMA procedures, and JRVS will not replace products where the defect is due to misuse, neglect, alteration or improper storage by the Distributor. 8. PROPRIETY RIGHTS 8.1 Acknowledgement. The Distributor acknowledge and agree that JRVS owns all of the Proprietary Rights. The use by the Distributor of the Proprietary Rights is authorized only for the purposes herein set forth and upon termination of this Agreement for any reason, such authorization will cease. 8.2 No Other Rights. The Distributor may not, directly or through any person or entity, in any form or manner, copy, distribute, reproduce, incorporate, use or allow access to the Products or modify, prepare derivative works of, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or object code from the Products, except as explicitly permitted under this Agreement or otherwise agreed in writing. 8.3 Proprietary Notice. The Distributor will ensure that all copies of the Products will incorporate copyright and other proprietary notices in the same manner that JRVS incorporates such notices in the Products or in any manner reasonably requested by JRVS. The Distributor will not remove any copyright or other proprietary notices incorporated on or in the Products by JRVS. 8.4 Use of Trademarks. During the term of this Agreement, the Distributor may (i) announce to the public that it is an authorized non-exclusive the Distributor of the Products, and (ii) advertise the Products under the trademarks, service marks, marks, and trade names that JRVS may adopt from time to time (the JRVS Trademarks). JRVS shall provide the Distributor JRVS Trademarks on disk or camera-ready art for production. The Distributor understands that JRVS has applied for applicable federal and state registration of certain of its trademarks and agrees, upon JRVS's request, to so indicate on the box containing the Products and, in any advertisement,, promotional materials or other documents that contain the Products' names. Nothing herein will grant to the Distributor any right, title or interest in JRVS Trademarks. At no time during or after the term of this Agreement will the Distributor challenge or assist others to challenge JRVS Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of JRVS. The Distributor shall follow reasonable trademark usage guidelines communicated by JRVS. Distributor's use of JRVS's trademarks and trade names shall be subject to JRVS' prior approval and shall be used only in a manner consistent with JRVS' trademark use policy. 4

Source: IMINE CORP, S-1, 7/25/2018





8.5 Use of Trade Names. The Distributor will present and promote the sale of the Products fairly. The Distributor may use JRVS's product names in the Distributor's advertising and promotional media provided (i) that the Distributor conspicuously indicates in all such media that such names are trademarks of JRVS and (ii) that the Distributor submits all such media to JRVS for prior approval and complies with the requirements set forth in Section 8.4. Upon termination of this Agreement for any reason, the Distributor will immediately cease all use of Products' names and JRVS Trademarks and, at the Distributor's election, destroy or deliver to JRVS all materials in the Distributor's control or possession which bear such names and trademarks, including any sales literature. The Distributor will not challenge any intellectual property rights claimed by JRVS in such trademarks. 9. CONFIDENTIAL INFORMATION 9.1 Nondisclosure, Non Use. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall use reasonable efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information. 9.2 Exception. Notwithstanding the above, neither party shall have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (b) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed with the prior written approval of the disclosing party; (d) was independently developed by the receiving party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (e) becomes known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party's rights; (f) is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement; or (g) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. 9.3 Return of Confidential Information. Upon expiration or termination of this Agreement, each party shall return all Confidential Information received from the other party. 9.4 Remedies. Any breach of the restrictions contained in this Section 9 is a breach of this Agreement which may cause irreparable harm to the nonbreaching party. Any such breach shall entitle the nonbreaching party to injunctive relief in addition to all legal remedies. 5

Source: IMINE CORP, S-1, 7/25/2018





10. LIMITED WARRANTY 10.1 Sole Warranty. THE SOLE WARRANTY, IF ANY, PROVIDED IN CONNECTION WITH THE PRODUCT SHALL BE PROVIDED BY THE COMPONENT MANUFACTURER. JRVS MAKES NO WARRANTIES TO THE DISTRIBUTOR OR CUSTOMERS. 10.2 Warranty Period. JRVS shall NOT provide a warranty of any kind for each of the Products against defects in material and workmanship under normal use and service from the date of delivery to the Distributor. 10.3 No Other Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, JRVS PROVIDES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT AND DOCUMENTATION. 11. INDEMNIFICATION 11.1 Indemnification by the Distributor. The Distributor agrees to indemnify, defend and hold JRVS and its affiliated companies and their directors, officers, employees, and agents (collectively, Protected Parties) harmless from and against any and all claims (including those for personal injury or death) and liabilities (including attorneys' and other professional fees and other costs of litigation) by any other party arising out of or attributable to the Distributor's representation of the Products in a manner inconsistent with JRVS's Product descriptions and warranties or from the Distributor's marketing, distribution, use or sale of the Products. 12. TERM AND TERMINATION 12.1 Term. This Agreement shall become effective upon the date first written above and shall remain in full force and effect for a period of two years (2), unless earlier terminated pursuant to the provisions in this Agreement. This Agreement shall expire unless extended by both parties in writing prior to the termination. 12.2 Termination for Convenience. This Agreement may be terminated by either party for any reason or no reason, whether or not extended beyond the initial term, by giving the other party written notice ninety (90) days in advance. 12.3 Termination for Cause. Except as set forth in the last sentence of this Section 12.3, if either party defaults in the performance of any material provision of this Agreement, then the non-defaulting party may give written notice to the defaulting party that if the default is not cured within thirty (30) days the Agreement will be terminated. If the non-defaulting party gives such notice and the default is not cured during the thirty (30) day period, then the Agreement shall automatically terminate at the end of that period. Notwithstanding the foregoing, if the Distributor breaches the provisions of Section 9 hereof, then JRVS shall be entitled to terminate this Agreement effective immediately upon delivery of written notice to the Distributor. 12.4 Termination for Insolvency and Other Events. This Agreement shall terminate, without notice, (i) upon the institution by or against either party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such party's debts, (ii) upon either party's making an assignment for the benefit of creditors, or (iii) upon either party's dissolution or ceasing to do business. 12.5 Effect of Termination. Upon termination of this Agreement, the Distributor shall make such disposition of price lists, advertising materials and other materials furnished by JRVS as JRVS may direct. JRVS's name, JRVS's Trademarks, and similar identifying symbols shall not be displayed or used by the Distributor thereafter. 12.6 No Liability. In the event of termination by either party in accordance with any of the provisions of this Agreement, neither party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either party. Termination shall not, however, relieve either party of any obligations incurred prior to the termination, including, without limitation, the obligation of the Distributor to pay JRVS for Products purchased prior to such termination. 12.7 Survival of Certain Terms. The provisions of Sections 1, 3.9, 5, 6, 8, 9, 10, 11, 12, 13, 14, and 15 of this Agreement, and all payment obligations incurred during the term of this Agreement, shall survive the expiration or termination of this Agreement for any reason. The provisions of Section 9 shall survive the expiration or termination of this Agreement for five (5) years. All other rights and obligations of the parties shall cease upon termination of this Agreement. 6

Source: IMINE CORP, S-1, 7/25/2018





13. LIMITATION OF LIABILITIES 13.1 Limitation of Liabilities. IN NO EVENT SHALL JRVS'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT RECEIVED BY JRVS FROM THE DISTRIBUTOR HEREUNDER FOR THE PRODUCT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL JRVS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT. THE DISTRIBUTOR ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 13.2 Limitation on Actions. NO ACTIONS, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT, MAY BE BROUGHT BY DISTRIBUTOR MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. 14. NOTICES 14.1 All notices required or permitted hereunder shall be in writing and shall be delivered (a) by facsimile, (b) personally, or (c) mailed by certified or registered mail, return receipt requested and postage prepaid, addressed to the addressed below. Delivery by facsimile is effective upon receipt of successful fax transmission and shall be followed by delivery by mail as set forth above. Notice by personal delivery is effective upon receipt of the notice. Notice sent by mail shall for all purposes of this Agreement be treated as being effective or having been given ten days after mail. To JRVS: iMine Corporation 8520 Allison Point Blvd Ste. 223 #87928 Indianapolis, Indiana 46250 Attention: Mr. Daniel Tsai, Chief Executive Officer To DISTRIBUTOR: Sunwai Technology 6th Floor, No. 258, Section 3, Nanjing East Road, Songshan District, Taipei 10051 Attention: Mr. SEI-PENG TU, President 15. GENERAL 15.1 Authority. Both parties represent and warrant to each other that they have the right and lawful authority to enter into this Agreement. 15.2 Entire Agreement. This Agreement constitutes the entire agreement of the parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled. 15.3 No Conflict. In the event of a conflict or inconsistency between the terms of this Agreement and those of any order, quotation, solicitation or other communication from one party to the other, the terms of this Agreement shall be controlling. 7

Source: IMINE CORP, S-1, 7/25/2018





15.4 Amendments and Waivers. No modification, change or amendment to this Agreement, or any waiver of any rights in respect hereto, shall be effective unless in writing signed by both parties in the case of a modification, change or amendment or by the party granting the waiver in the case of a waiver. 15.5 Successors and Assigns. The Distributor shall not assign any of its rights, obligations or privileges (by operation of law or otherwise) hereunder without the prior written consent of JRVS. JRVS shall have the right to assign its rights, obligations and privileges hereunder to an assignee that agrees in writing to be bound by the terms and conditions of this Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 15.6 Independent Contractor. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. 15.7 Export Control. Distributor understands that JRVS may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of JRVS to provide Products, as well as any technical assistance, will be subject in all respects to such United States laws and regulations and will from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations issued by the Department of Commerce, International Trade Administration, or Office of Export Licensing. Distributor warrants that it will comply in all respects with the export and re-export restrictions for all Products shipped to Distributor. Distributor will take all actions which may be reasonably necessary to assure that no end-user contravenes such United States laws or regulations. 15.8 Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than a payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this section, and if such party shall have used its best efforts to mitigate its effects, such party shall give prompt written notice to the other party, its performance shall be excused, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. Notwithstanding the foregoing, if such party is not able to perform within thirty (30) days after the event giving rise to the excuse of force majeure, the other party may terminate this Agreement. 15.9 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. 15.10 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 15.11 Choice of Law; Dispute Resolution. This Agreement shall be governed by and construed pursuant to the laws of the State of Indiana, U.S.A., without reference to principals of conflicts of laws. All disputes arising out of this shall be settled by final binding arbitration in Hamilton County, Indiana, pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction in Hamilton County, Indiana, U.S.A., for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrators, and agree that such courts shall have exclusive jurisdiction of any such action. 15.12 Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof. 8

Source: IMINE CORP, S-1, 7/25/2018





IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE DATE FIRST WRITTEN ABOVE. Sunwai Technology iMine Corporation

/s/ Sei-Peng Tu /s/ Daniel Tsai By: Sei-Peng Tu By: Daniel Tsai Title: President Title: Chief Executive Officer 9

Source: IMINE CORP, S-1, 7/25/2018
[EX A]: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?

[EX Q]: Exhibit 10.12

[***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed.

Execution Version

COLLABORATION AGREEMENT

This COLLABORATION AGREEMENT (this Agreement), effective as of September 13th, 2019 (Effective Date), is between Ginkgo Bioworks, Inc., a Delaware corporation with offices located at 27 Drydock Avenue, 8th floor, Boston, Massachusetts 02210 (Ginkgo), and Berkeley Lights, Inc., a Delaware corporation with offices located at 5858 Horton Street, Suite 320, Emeryville, California 94608 (BLI). Ginkgo and BLI may each be referred to herein as a Party or, collectively, as the Parties.

WHEREAS, BLI and Ginkgo are committed to the goal of developing and deploying workflows on the Beacon Platform to accelerate the engineering of microbial organisms and mammalian cell lines, including by developing new Workflows (as defined below) for use on the Beacon Platform for the Parties' mutual benefit (the Purpose); and

WHEREAS, in furtherance of the Purpose, BLI and Ginkgo have decided to enter into this Agreement, including mutually agreed upon Workflow Development Plans, which establish the terms by which Ginkgo and BLI will work together to bring their unique resources and experiences to bear on the Purpose.

NOW THEREFORE, in consideration of the above premises and the mutual covenants contained herein, the Parties hereby agree as follows: 1. DEFINITIONS

1.1 Affected Party has the meaning set forth Section 14.8 (Force Majeure).

1.2 Affiliate means with respect to a Party, any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with that Party, for so long as such control exists. For purposes of this definition only, control and, with correlative meanings, the terms controlled by and under common control with means: (a) in the case of Persons that are corporate entities, direct or indirect ownership of more than fifty percent (50%) of the stock or shares (or such lesser percentage which is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) entitled to vote for the election of directors, or otherwise having the power to control or direct the affairs of such corporate entity; and (b) in the case of Persons that are non-corporate entities, direct or indirect ownership of at least fifty percent (50%) of the equity interest or the power to direct the management and policies of such non-corporate entity.

1.3 Agreement has the meaning set forth in the Preamble.

1.4 [***] means [***]. These include [***]. For clarity, [***] does not include [***].

1.5 Alliance Manager has the meaning set forth in Section 3.7 (Alliance Managers).





1.6 Antibody means a soluble protein derived exclusively from an immunoglobulin protein that includes at least one hyper-variable antigen- binding region, including any fragment [***] of such protein, but, for clarity, excluding (i) [***] and (ii) [***].

1.7 Applicable Law means federal, state, local, national and supra-national laws, statutes, rules and regulations, including any rules, regulations, regulatory guidelines or other requirements of Regulatory Authorities, major national securities exchanges or major securities listing organizations, that may be in effect from time to time during the Term and applicable to a particular activity or country hereunder.

1.8 Arbitration Notice has the meaning set forth in Section 14.5.2 (Dispute Resolution).

1.9 Beacon Optofluidic Machine Improvement means any improvement or modification to the Beacon Optofluidic Machine conceived, developed, generated or reduced to practice during the Term (a) solely by a Party, its Affiliates or Persons acting on behalf of such Party or (b) jointly by, on one hand, Ginkgo, its Affiliates or Persons acting on behalf of Ginkgo and, on the other hand, BLI, its Affiliates or Persons acting on behalf of BLI, in each case of clauses (a) and (b) of this Section 1.9 (Beacon Optofluidic Machine Improvement definition) through the conduct of activities under a Workflow Development Plan or otherwise arising out of the Parties' performance of activities under this Agreement.

1.10 Beacon Optofluidic Machine means (i) the machine with the Specifications set forth, as of the Effective Date, on Schedule 1.10 (Beacon Optofluidic Machine) and (ii) [***] and, with respect to (i)-(ii), any [***] of such machines, developed during the Term by BLI or its Affiliates that [***].

1.11 Beacon Platform means, collectively, (a) the Beacon Optofluidic Machine, (b) the OptoSelect Chips, (c) Consumables related to the Beacon Optofluidic Machine or the OptoSelect Chips and (d) any Software.

1.12 BLI has the meaning set forth in the Preamble.

1.13 BLI Background IP means any Intellectual Property (a) Controlled by BLI or its Affiliates as of the Effective Date, (b) that comes into the Control of BLI after the Effective Date other than by means of this Agreement or the activities performed hereunder or (c) developed during the Term by BLI outside and independently of this Agreement.

1.14 BLI Indemnitee has the meaning set forth in Section 12.2 (Indemnification by Ginkgo).

1.15 BLI Inventions has the meaning set forth in Section 8.2.2 (Ownership of Materials and Data - BLI Inventions).

1.16 BLI Proprietary Workflow means any workflow on the Beacon Platform that was developed by or on behalf of BLI prior to the Effective Date or is developed during the Term in the conduct of activities outside and independent of this Agreement (including, for clarity, outside of any Workflow Development Plan), in each case whether solely by BLI or jointly by BLI and a Third Party. Page 2 of 85





1.17 BLI Subcontractor means a Person to whom BLI has subcontracted any of its activities under this Agreement pursuant to Section 2.7 (Subcontracting).

1.18 BLI Terms and Conditions means those terms and conditions set forth in Schedule 1.18 (BLI Terms and Conditions) and the Product Warranty, as such may be amended from time to time by BLI, [***].

1.19 Budget means, with respect to a Workflow Development Plan, an itemized budget broken down on a [***] and high-level task-by-high-level task basis [***], that sets forth the following internal and out-of-pocket costs anticipated to be incurred in the conduct of activities under such Workflow Development Plan, to the extent applicable and mutually agreed upon by the Parties:

1.19.1 the FAS Support Costs for services provided by any FAS under such Workflow Development Plan;

1.19.2 other FTE Costs for BLI's personnel in the conduct of activities under, or [***] under, such Workflow Development Plan, including BLI personnel conducting development of Software for the Workflow under such Workflow Development Plan; provided that, with respect to the FTE Costs for BLI's personnel providing [***] under a Workflow Development Plan, such FTE Costs shall not exceed [***] percent ([***]%) of the total FTE Costs charged to Ginkgo with respect to any invoice;

1.19.3 the out-of-pocket development ([***]) costs paid by BLI to Third Parties to purchase finished Consumables that are developed and designated as a deliverable under a Workflow Development Plan or raw materials necessary to manufacture Consumables that are developed and designated as a deliverable under a Workflow Development Plan , in each case from such Third Parties for the Beacon Platform, subject to a [***] percent ([***]%) mark-up;

1.19.4 with respect to any then-existing Consumables (i.e. not Consumables for which development or manufacture is ongoing as described in Section 1.19.3), an amount equal to the number of units used in the performance of the Workflow Development Plan, multiplied by a price per unit of Consumables as set forth in Section 5.2.2(b) (Adjustments); and

1.19.5 other out-of-pocket costs paid by BLI to permitted Third Party subcontractors and vendors attributable to the development of the Workflow or Hardware under such Workflow Development Plan, [***].

1.20 Business Day means any day, other than a Saturday, Sunday or a day on which commercial banks located in Boston, Massachusetts or San Francisco, California are authorized or required by Applicable Law or regulation or otherwise to close. Page 3 of 85





1.21 Buy-Down Amount means, at any given time of a Buy-Down Election, an amount equal to:

1.21.1 if, at such time, [***], [***] ([***]%) of the difference between (a) the Full Purchase Target and (b) the sum of all the Development Purchases and Production Purchases made or incurred by Ginkgo;

1.21.2 if, at such time, [***], [***] percent ([***]%) of the difference between (a) the Full Purchase Target and (b) the sum of all the Development Purchases and Production Purchases made or incurred by Ginkgo as of such time;

1.21.3 if, at such time, [***], [***] percent ([***]%) of the difference between (a) the Full Purchase Target and (b) the sum of all the Development Purchases and Production Purchases made or incurred by Ginkgo as of such time; and

1.21.4 if, at such time, [***], [***].

For illustrative purposes only, Schedule 1.21 (Buy-Down Examples) sets forth a table showing the calculated Buy-Down Amounts assuming [***] and [***].

1.22 Buy-Down Election has the meaning set forth in Section 7.3 (Buy-Down Election).

1.23 Calendar Quarter means the respective periods of three (3) consecutive calendar months ending on March 31, June 30, September 30 and December 31; provided that the first Calendar Quarter of the Term shall begin on the Effective Date and end on the last day of the then current Calendar Quarter and the last Calendar Quarter of the Term shall begin on the first day of such Calendar Quarter and end on the last day of the Term.

1.24 [***] means [***] that [***], including [***], by [***], whose [***].

1.25 [***] means the offering or performance of any services using the Beacon Platform, [***], to [***]:

1.25.1 [***];

1.25.2 [***]; or

1.25.3 [***];

provided that in no event shall [***] include the use of the Beacon Platform to (i) [***] or (ii) [***] but, for clarity, are not in any manner or form used as described in Sections 1.25.1, 1.25.2 or 1.25.3 above.

1.26 Change in Control means, with respect to a Person, (a) the acquisition, directly or indirectly, by a Person or group (whether in a single transaction or multiple transactions) of fifty percent (50%) or more of the voting power of such Person or of beneficial ownership of (or the right to acquire such beneficial ownership) fifty percent (50%) or more of the outstanding Page 4 of 85





equity or convertible securities of such Person (including by tender offer or exchange offer); (b) any merger, consolidation, share exchange, business combination, recapitalization or similar corporate transaction involving such Person (whether or not including one or more wholly owned subsidiaries of such Person) or (c) such Person sells or transfers to any Third Party, in one or more related transactions, properties or assets representing all or substantially all of such Person's consolidated total assets to which this Agreement relates.

1.27 Claims is defined in Section 12.1 (Indemnification by BLI).

1.28 Clinical Trial means a human clinical study conducted on sufficient numbers of human subjects that is designed to (a) establish that a product is reasonably safe for continued testing, (b) investigate the safety and efficacy of the product for its intended use, and to define warnings, precautions and adverse reactions that may be associated with the product in the dosage range to be prescribed or (c) support Regulatory Approval of such product or label expansion of such product. Without limiting the foregoing, Clinical Trial includes any Phase II Clinical Trial or Phase III Clinical Trial conducted by or on behalf of one or both Parties in connection with this Agreement.

1.29 Collaboration Data has the meaning set forth in Section 8.5.1 (Disclosure).

1.30 Collaboration Intellectual Property means [***], that is conceived, developed, generated or reduced to practice during the Term (a) solely by a Party, its Affiliates or Persons acting on behalf of such Party or (b) jointly by, on one hand, Ginkgo, its Affiliates or Persons acting on behalf of Ginkgo and, on the other hand, BLI, its Affiliates or Persons acting on behalf of BLI, in each case of clauses (a) and (b) of this Section 1.30 (Collaboration Intellectual Property definition) through the conduct of activities under this Agreement.

1.31 Collaboration Workflow means any Workflow on the Beacon Platform that [***] and is (a) developed jointly by the Parties (or on their behalf) or (b) developed solely by BLI (or on behalf of BLI) for Ginkgo, in each case of clause (a) and (b) of this Section 1.31 (Collaboration Workflow definition), pursuant to a Workflow Development Plan. For the avoidance of doubt, Collaboration Workflows shall not include [***].

1.32 Commercial Services means any [***] activities conducted by Ginkgo or any sublicensee under the rights granted to Ginkgo by BLI in Section 9.1.1 (Scope of Grants) in the Licensed Field (a) under an agreement or arrangement of Ginkgo or any such sublicensee with a Third Party or (b) for [***] that [***] by Ginkgo, an Affiliate or a Third Party; provided that, notwithstanding the foregoing, with respect to Third Parties, Workflows may only be [***] by Ginkgo permitted (under Section 9.1 (Grants to Ginkgo)) sublicensees, but no other Third Parties.

1.33 Completed Workflow means any Key Collaboration Workflow that the JRC or the Expert Panel, as applicable, determines has been Substantially Completed.

1.34 Confidential Information has the meaning set forth in Section 10.1 (Confidential Information). Page 5 of 85





1.35 Conforming Product means, with respect to a Beacon Optofluidic Machine or Consumable delivered by BLI to Ginkgo under this Agreement, that such Beacon Optofluidic Machine or Consumable meets the Product Warranty at the time of delivery.

1.36 Consumables means those certain OptoSelect Chips and reagents set forth on Schedule 1.36 (Consumables) or that, during the Term, [***] for the use of the Beacon Platform and are sold by BLI.

1.37 Contract Year means (a) with respect to the first Contract Year, the period of time commencing on the Effective Date and ending on September 30, 2020 and (b) with respect to each subsequent Contract Year, commencing on October 1 of such Contract Year and continuing for a period of twelve (12) consecutive calendar months; provided that the last Contract Year of the Term shall end on the last day of the Term.

1.38 Control means, with respect to any item of Intellectual Property or material, the possession (whether by ownership or license, other than by a license granted pursuant to this Agreement) by a Party or its Affiliates of the ability to grant to the other Party access, ownership, a license or a sublicense as required herein to such item, without: (a) violating the terms of any agreement or other arrangement with any Third Party in existence as of the time such Party or its Affiliates would be required hereunder to grant the other Party such access, ownership, license or sublicense; (b) violating any Applicable Law, or (c) incurring payment obligations by reason of providing access, ownership, a license or a sublicense to the other Party with respect thereto (unless such other Party agrees in writing to bear such payment obligations [***] to providing access, ownership, a license or a sublicense to such item by such other Party).

1.39 Development Purchase Commitment means, for a given Contract Year, the amount in the column named Development Purchase Commitment in Table 7.2.2 for such Contract Year, as may be amended from time to time under this Agreement.

1.40 Development Purchases means, during any period of time, the aggregate amount paid by Ginkgo to BLI for the conduct of activities under any Workflow Development Plan or otherwise under Section 2.4.2 (Costs under Workflow Development Plan - Payment) during such period of time.

1.41 Disclosing Party is defined in Section 10.1 (Confidential Information).

1.42 Discovered Antibody has the meaning set forth in Section 7.4.2 (Milestone Events).

1.43 Dollars means United States dollars ($).

1.44 Drug Approval Application means any New Drug Application (NDA), as defined in the FFDCA, or any corresponding foreign applications in the Territory, including (a) with respect to the European Union, a Marketing Authorization Application (a MAA) filed with the EMA pursuant to the Centralized Approval Procedure or with the applicable Regulatory Authority of a country in Europe with respect to the mutual recognition or any other regional or national approval procedure or (b) with respect to Japan, an MAA filed with the PMDA. Page 6 of 85





1.45 Effective Date has the meaning set forth in the Preamble.

1.46 EMA means the European Medicines Agency and any successor agency(ies) or authority having substantially the same function.

1.47 European Union or E.U. means the economic, scientific and political organization of member states known as the European Union, as its membership may be altered from time to time, and any successor thereto, except that, for purposes of this Agreement, the E.U. will be deemed to include [***] the United Kingdom, irrespective of whether any such country leaves the European Union.

1.48 Excluded Fields means the use of the Beacon Platform for:

1.48.1 [***];

1.48.2 [***];

1.48.3 [***];

1.48.4 [***];

1.48.5 [***]; and

1.48.6 [***].

1.49 Expert Panel has the meaning set forth in Section 3.5.3 (Decision-Making).

1.50 Expiration has the meaning set forth in Section 13.3.1 (General).

1.51 Extended Force Majeure Event has the meaning set forth Section 14.8 (Force Majeure).

1.52 Failure to Supply has the meaning set forth in Section 5.4.3(a) (Remedial Efforts).

1.53 FAS means a BLI Field Application Scientist providing [***] to Ginkgo related to a Workflow Development Plan or a Workflow either (a) at Ginkgo's facilities or (b) [***]; provided that, in the case of clause (b) of this Section 1.50 (FAS definition), such BLI Field Application Scientist must be specifically dedicated to development of Workflows on at least a part-time basis and identified as such in the Workflow Development Plan under this Agreement (such identification to include, in the case of part-time FAS, a specified percentage of dedication to Ginkgo [***]).

1.54 FAS Support Cost shall mean, with respect to any services provided by one or more FAS(s) to Ginkgo over a specified period of time, the amount equal to the aggregate of the applicable FAS Support Rates for such services during such period of time.

1.55 FAS Support Rate means, with respect to any services provided by a FAS pursuant to this Agreement to Ginkgo, the applicable rate (dependent on the length of support) for such services set forth in Schedule 5.2.1 (Pricing Schedule), subject to adjustment as set forth in Section 5.2.2(c) (Adjustments). Page 7 of 85





1.56 FDA means the United States Food and Drug Administration and any successor agency(ies) or authority having substantially the same function.

1.57 FFDCA means the United States Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., as amended from time to time, together with any rules, regulations and requirements promulgated thereunder (including all additions, supplements, extensions, and modifications thereto).

1.58 Force Majeure Event has the meaning set forth in Section 14.8 (Force Majeure).

1.59 FOU License Fee has the meaning set forth in Section 7.4.1 (License Fees).

1.60 FTE means (a) with respect to any full-time employee of BLI, [***], who is [***] dedicated to the development of Workflows under this Agreement, a total of twelve (12) months of [***] work conducted by such employee or (b) with respect to any full-time employee of BLI that is not [***] dedicated to the development of Workflows under this Agreement, a full time equivalent effort consisting of a minimum of a total of [***] ([***]) hours per year of work [***] a Workflow Development Plan by such employee of a Party. In no event shall the work of one (1) employee exceed 1 full FTE.

1.61 FTE Costs means, with respect to any given activity or activities over any specified period of time, the number of FTEs conducting such activity or activities multiplied by the FTE Rate.

1.62 FTE Rate means the rates per annum, listed in Schedule 1.62 (FTE Rate), which rate includes certain allowable allocations and subject to increase on an annual basis as of January 1 of each year, beginning in 2020, by a factor which reflects the increase, if any, in the Consumer Price Index for [***], as reported by the U.S. Bureau of Labor Statistics, for January 1 of such year when compared to the comparable statistic for January 1 of the preceding year. For clarity, if there is no such increase in the CPI-[***], the FTE Rate shall remain the same and shall not decrease.

1.63 Full Purchase Target has the meaning set forth in Section 7.2.1 (Purchase Commitments - Generally).

1.64 Generalized Workflow means any Collaboration Workflow or component thereof that is designated as a Generalized Workflow by the Parties in a Workflow Development Plan or, if the Parties have made no designation, is not a Specific Implementation. By way of non-limiting example, Generalized Workflows would encompass Workflows or components thereof that are not Specific Implementations and are generally directed to and required to enable:

1.64.1 [***],

1.64.2 [***]; Page 8 of 85





1.64.3 [***];

1.64.4 [***];

1.64.5 [***]; or

1.64.6 [***].

For the purposes of Section 1.64.3 and Section 1.128, the following examples serve to illustrate the concept of a [***] (a) [***] (b) [***] and (c) [***]

1.65 Ginkgo has the meaning set forth in the Preamble.

1.66 Ginkgo Background IP means any Intellectual Property provided or otherwise disclosed to BLI under this Agreement or otherwise [***] for the performance of any activities allocated to BLI under a Workflow Development Plan that is (a) Controlled by Ginkgo or its Affiliates as of the Effective Date, (b) that comes into the Control of Ginkgo after the Effective Date other than by means of this Agreement or the activities performed hereunder, or (c) developed during the Term by Ginkgo [***].

1.67 Ginkgo Excluded Use has the meaning set forth in Section 9.1.6 (Use in Excluded Fields).

1.68 Ginkgo Indemnitee has the meaning set forth in Section 12.1 (Indemnification by BLI).

1.69 Ginkgo Inventions has the meaning set forth in Section 8.2 (Ownership of Ginkgo Inventions and BLI Inventions).

1.70 Ginkgo Licensed IP has the meaning set forth in Section 9.2 (Grants to BLI).

1.71 Ginkgo Materials has the meaning set forth in Section 8.2.1(d) (Ownership of Ginkgo Inventions and BLI Inventions).

1.72 Ginkgo Subcontractor means a Person to whom Ginkgo has subcontracted any of its activities under this Agreement pursuant to Section 2.7 (Subcontracting).

1.73 Ginkgo Workflows means Workflows on the Beacon Platform that are developed by [***]. For clarity, [***].

1.74 Go/No-Go Criteria has the meaning set forth in Section 2.2.1(g) (Workflow Development Plans - Generally).

1.75 Hardware means any and all hardware, equipment, devices, tools, apparatus, machinery, and electronics including, but not limited to, the Beacon Optofluidic Machine, computer and computer-related hardware, servers, networking equipment, interfaces, databases, support equipment, power supplies, wiring and associated equipment. Page 9 of 85





1.76 Headstart Invention means any (a) specific part or component of a [***] (other than any [***], including any [***]) or (b) [***] in its entirety, including [***], in each case, either (i) designated as a Headstart Invention in the applicable Workflow Development Plan or (ii) for which Ginkgo has provided, or is slated to provide, by reference to the applicable category of the Workflow Development Plan(s) as further described in Section 2.2.1(f) and Section 2.2.1(h), Development Purchase funding of greater than [***] percent ([***]%) of the Budget set forth in the applicable Workflow Development Plan(s). For clarity, in no event shall any improvements, modifications or other changes to the [***], whether [***] based, [***] or [***], deemed to be a Headstart Invention or be subject to a Headstart Period.

1.77 [***] means, [***] and [***] that [***] and (b) [***].

1.78 Headstart Period has the meaning set forth in Section 6.1.1 (BLI Standstill).

1.79 [***] means the offering or performance of any [***] services using the Beacon Platform, for commercial sale or otherwise, to [***]; provided that in no event shall [***] include (a) use of the Beacon Platform to [***] if the same does not [***] or (b) the [***] outside of the Beacon Platform.

1.80 [***] means the offering or performance of any [***] services using the Beacon Platform, for commercial sale or otherwise, for [***] applications to the extent specifically related to [***]; provided that in no event shall [***] include using the Beacon Platform to [***] if the same does not [***].

1.81 Incremental Withholding Taxes has the meaning set forth in Section 7.6 (Taxes).

1.82 IND means an application filed with a Regulatory Authority for authorization to commence Clinical Trials, including: (a) an Investigational New Drug Application as defined in the FFDCA or any successor application or procedure filed with the FDA; (b) any equivalent of a United States IND in other countries or regulatory jurisdictions (i.e., clinical trial application); and (c) all supplements, amendments, variations, extensions and renewals thereof that may be filed with respect to any of the foregoing.

1.83 Independent Development has the meaning set forth in Section 8.9 (Specific Implementation Restrictions).

1.84 Initial Workflows has the meaning set forth in Section 2.2.2 (Committed Workflows).

1.85 Initiation or Initiate means, with respect to a Clinical Trial, the first dosing of the first human subject or patient in such Clinical Trial.

1.86 Intellectual Property means all intellectual and industrial property, and all rights therein and thereto, including registration rights thereto, of any kind throughout the world, including Patent Rights, Software, ideas, data, inventions, discoveries, algorithms, formulas, compositions, configurations, specifications, sequences, product applications, formulations, assays, techniques, sketches, drawings, models, works of authorship, copyrights, recordings, moral Page 10 of 85





rights, mask works, design rights, trademarks, trade names, trade dress, service marks, logos, trade secrets, methods, processes, techniques, developments, know-how, and all other similar rights, whether or not registered or capable of being registered in any jurisdiction.

1.87 Intended End of Term means the later of (a) the seventh (7th) anniversary of the Effective Date and (b) the date determined to be the Intended End of Term under Section 7.2.2(d) (Effects of Tolling).

1.88 [***] has the meaning set forth in Section 14.5.2 (Dispute Resolution).

1.89 JRC or Joint Review Committee is defined in Section 3.1 (Joint Review Committee).

1.90 Key Collaboration Workflow means a Collaboration Workflow designated as a Key Collaboration Workflow by the JRC pursuant to Section 3.2.11 (JRC Responsibilities).

1.91 Key Person has the meaning set forth in Section 5.4.1(b) (Dedicated FTEs; Key Persons).

1.92 Lead Time means, with respect to a Beacon Optofluidic Machine (including related Hardware and Software), Consumable or Service, the Lead Time for such Beacon Optofluidic Machine, Consumable or Service as set forth in Schedule 1.92 (Lead Time) or as otherwise mutually agreed upon by the Parties in writing.

1.93 Licensed Field means any and all organisms, products, fields and uses other than the Excluded Fields.

1.94 Licensed Product means a [***] product within the Licensed Field, including (a) [***] or (b) [***] by such [***] described in clause (a) of this Section 1.94, in each case of ((a)-(b)), initially produced on the Beacon Platform or, if not initially produced on the Beacon Platform, is later [***] through use of the Beacon Platform, with respect to each, in the conduct of activities [***] to produce such a product.

1.95 List Price means, at any given time and for any Beacon Optofluidic Machine, Consumable or Service, the price for such Optofluidic Machine, Consumable or Service [***] at such time.

1.96 Losses has the meaning set forth in Section 12.1 (Indemnification by BLI).

1.97 MAA has the meaning set forth in Section 1.44 (Drug Approval Application).

1.98 [***] means [***].

1.99 Maximum Amount has the meaning set forth in Section 5.3.1 (Issuance).

1.100 Milestone Event has the meaning set forth in Section 7.4.2 (Milestone Payments). Page 11 of 85





1.101 Milestone Payment has the meaning set forth in Section 7.4.2 (Milestone Payments).

1.102 Minimum Cumulative Purchase Commitment means, with respect to a Contract Year, the amount set forth in the column Minimum Cumulative Purchase Commitment in Table 7.2.2 for such Contract Year, as such Minimum Cumulative Purchase Commitment may be amended from time to time under this Agreement.

1.103 NDA has the meaning set forth in Section 1.44 (Drug Approval Application).

1.104 OptoSelect Chips means those BLI microfluidic chips described in Schedule 1.104 (OptoSelect Chips) and any other BLI chip used on the Beacon Optofluidic Machine that is developed to execute Workflows.

1.105 Party and Parties has the meaning set forth in the Preamble.

1.106 Patent Rights means any and all (a) issued patents, (b) pending patent applications, including all provisional applications, substitutions, continuations, continuations-in-part, divisions and renewals, and all patents granted thereon, (c) patents-of-addition, reissues, reexaminations and extensions or restorations by existing or future extension or restoration mechanisms, including patent term adjustments, patent term extensions, supplementary protection certificates or the equivalent thereof, (d) inventor's certificates, (e) other forms of government-issued rights substantially similar to any of the foregoing and (f) United States and foreign counterparts of any of the foregoing.

1.107 Performance Service Plan shall mean the plan set forth in Schedule 1.107 (Performance Service Plan).

1.108 Permitted Subcontractor(s) means, individually or collectively, BLI Subcontractor(s) and Ginkgo Subcontractor(s).

1.109 Person means any natural person, corporation, unincorporated organization, partnership, association, joint stock company, joint venture, limited liability company, trust or government or any agency or administrative or political subdivision of any government, or any other entity.

1.110 Phase II Clinical Trial means a Clinical Trial, the principal purpose of which is to make a preliminary determination as to whether a pharmaceutical product is safe for it intended use and to obtain sufficient information about such product's efficacy, in a manner that is generally consistent with 21 CFR § 312.21(b), as amended (or its successor regulation), to permit the design of further Clinical Trials. For clarity, A Phase II Clinical Trial shall include any clinical trial that would or does satisfy the requirements of 21 C.F.R. § 312.21(b) or any comparable regulation outside the United States whether or not it is designated a Phase II Clinical Trial.

1.111 Phase III Clinical Trial means a pivotal Clinical Trial with a defined dose or a set of defined doses of a pharmaceutical product designed to ascertain efficacy and safety of such product, in a manner that is generally consistent with 21 CFR § 312.21(c), as amended (or its successor regulation), for the purpose of enabling the preparation and submission of a Drug Page 12 of 85





Approval Application. A Phase III Clinical Trial shall include any clinical trial that would or does satisfy requirements of 21 C.F.R. § 312.21(c) or any comparable regulation outside the United States., whether or not it is designated a Phase III Clinical Trial.

1.112 PMDA means Japan's Pharmaceuticals and Medical Devices Agency and any successor agency(ies) or authority having substantially the same function.

1.113 Preamble means the first, unnumbered paragraph of this Agreement.

1.114 Product Warranty means, with respect to any Beacon Optofluidic Machine or Consumable, that (a) the representations, warranties and covenants of BLI set forth in the applicable BLI Terms and Conditions (including the product warranties therein) are true with respect to such Beacon Optofluidic Machine or Consumable, (b) with respect to a Beacon Optofluidic Machine, installation and qualification of such Beacon Optofluidic Machines are in accordance with, and meet the standards of, BLI's then-existing [***], such standards to be at least as stringent as those set forth in [***] and (c) BLI does not have knowledge of any defect that would result in a [***] other than those defects [***] or the [***] or any reason that such Beacon Optofluidic Machine or each Consumable is [***].

1.115 Production Purchases means the sum of payments made by Ginkgo to BLI for:

1.115.1 purchases of Beacon Optofluidic Machines together with any associated freight, insurance, customs charges, tariffs or other transportation charges;

1.115.2 purchases of OptoSelect Chips and other Consumables used by the Beacon Platform outside of a Workflow Development Plan together with any associated freight, insurance, customs charges, tariffs or other transportation charges;

1.115.3 FAS or other BLI [***] personnel, as requested by Ginkgo, for general support services (including all payments for a Performance Service Plan), including [***] with respect to activities performed outside of a Workflow Development Plan;

1.115.4 [***];

1.115.5 [***]; and

1.115.6 any other amounts, including for [***] (including for Beacon Optofluidic Machines or any Consumable as applicable, properly charged and invoiced to Ginkgo and paid by Ginkgo under this Agreement in connection with the supply or provision of goods and services by BLI, which are not Development Purchases.

1.116 Purchase Order has the meaning set forth in Section 5.3.1 (Issuance).

1.117 Purpose shall have the meaning set forth in the first WHEREAS clause of this Agreement.

1.118 Receiving Party has the meaning set forth in Section 10.1 (Confidential Information). Page 13 of 85





1.119 Regulatory Approval means, with respect to a country in the Territory, any and all approvals (including Drug Approval Applications that have been approved by a Regulatory Authority), licenses, registrations or authorizations of any Regulatory Authority necessary to commercialize a product in such country[***].

1.120 Regulatory Authority means any applicable supra-national, federal, national, regional, state, provincial or local governmental or regulatory authority, agency, department, bureau, commission, council or other entities (e.g., the FDA, EMA and PMDA) regulating or otherwise exercising authority with respect to activities contemplated in this Agreement.

1.121 Remedial Plan has the meaning set forth in Section 5.4.3(a) (Remedial Efforts).

1.122 Responsible Tax Party has the meaning set forth in Section 7.6 (Taxes).

1.123 Rolling Forecast has the meaning set forth in Section 5.1 (Forecasts).

1.124 Senior Officers means, (a) with respect to Ginkgo, [***] and (b) with respect to BLI, [***].

1.125 Services means services to be provided by or on behalf of BLI to Ginkgo under this Agreement, including with respect to Beacon Platform Software development services, installation services, support services and general training services, but excluding those services provided under a Workflow Development Plan.

1.126 Service Level Standards means, with respect to any service at any given time, the standards for the performance of such service most recently agreed upon by the Parties at such time or if no such standards have been previously agreed upon by the Parties, the standards for the performance of such service then in effect for BLI's other [***] customers.

1.127 Software means full applications or programs as well as partial applications, programs or sections of software code, whether source code, object code or other form, in each case incorporated in or otherwise used by the Beacon Optofluidic Machine.

1.128 Specific Implementation means any individual component of any Collaboration Workflow that is designated as a Specific Implementation by the Parties in a Workflow Development Plan or, if the Parties have made no designation, (a) is [***] for a particular [***] pursuant to a Workflow Development Plan or [***]; or (b) incorporates [***] proprietary to Ginkgo that [***], provided that, to the extent such [***] provided by Ginkgo [***].

1.129 Specifications means, (a) with respect to any Beacon Optofluidic Machine (including related Hardware and Software), BLI's specifications set forth in Schedule 1.10 (Beacon Optofluidic Machine), along with any other specifications mutually agreed upon by the Parties in writing, in each case for such Beacon Optofluidic Machine (including related Hardware and Software) or (b) with respect to any Consumable, the specifications set forth in Schedule 1.36 (Consumables), along with any other specifications mutually agreed upon by the Parties in writing, in each case for such Consumable. Page 14 of 85





1.130 Substantially Completed means, with respect to a Workflow, that such Workflow (a) [***] and (b) is judged by the JRC (or Expert Panel, if applicable) to be substantially complete based upon [***]. For clarity, [***] will be considered by the JRC (or Expert Panel, if applicable) to be [***] of substantial completion.

1.131 Term has the meaning set forth in Section 13.1 (Term).

1.132 Territory means worldwide except for any and all embargoed and sanctioned countries as identified by the U.S. government.

1.133 Third Party means any Person other than Ginkgo and its Affiliates and BLI and its Affiliates.

1.134 United States or U.S. means the United States of America, including its territories and possessions.

1.135 Upfront Payment has the meaning set forth in Section 7.1 (Upfront Payment).

1.136 VAT has the meaning set forth in Section 7.6 (Taxes).

1.137 Workflow means a defined set of tasks performed using the Beacon Platform in a certain order utilizing specific Consumables to [***], including to load, culture, assay and export cells.

1.138 Workflow Development Plan(s) has the meaning set forth in Section 2.2 (Workflow Development Plans).

1.139 Working Group has the meaning set forth in Section 3.8 (Working Groups). 2. DEVELOPMENT

2.1 Collaboration in General. The Parties will undertake this Agreement in furtherance of the Purpose and under the guidance of the JRC pursuant to Article 3 (Joint Review Committee). During the Term, each Party will use diligent efforts to implement and perform (itself or through its Permitted Subcontractors) its respective obligations under and in accordance with (a) this Agreement and (b) each Workflow Development Plan in accordance with the timelines set forth in such Workflow Development Plan. Each Party will reasonably cooperate with each other in the performance of their responsibilities under this Agreement and each Workflow Development Plan, including (i) responding to reasonable requests by the other Party submitted in accordance with this Agreement to provide information reasonably necessary for the performance of such requesting Party's obligations under this Agreement (including any Workflow Development Plan) and (ii) causing its personnel, agents and representatives, while at the other Party's facility, to abide by the written work rules and facility regulations applicable to such facility as provided in advance by such other Party. Page 15 of 85





2.2 Workflow Development Plans.

2.2.1 Generally. Subject to the requirements of Section 2.2.2 (Committed Workflows), from time to time during the Term, the Parties shall discuss in good faith entering into work plans setting forth the activities to be undertaken by the Parties to develop a specific Collaboration Workflow in furtherance of the Purpose (each such work plan that is consistent with the terms of this Agreement and approved by the JRC, and as may be amended from time to time in accordance with this Agreement, a Workflow Development Plan); provided that the Parties and the JRC will manage the pipeline of Collaboration Workflows such that [***]. If the Parties mutually agree that a new Workflow Development Plan should be undertaken by the Parties in order to further the Purpose, then the Parties shall work together in good faith to prepare an initial draft of the proposed Workflow Development Plan on commercially reasonable terms. Once the proposed Workflow Development Plan has been drafted, such proposed Workflow Development Plan will be submitted to the JRC and the JRC shall review such proposed Workflow Development Plan and either (a) reject the proposed Workflow Development Plan, (b) accept the proposed Workflow Development Plan or (c) amend the proposed Workflow Development Plan prior to approving such plan. If the JRC approves a proposed Workflow Development Plan, such proposed plan shall be deemed a Workflow Development Plan under this Agreement and attached to this Agreement as an Exhibit (the first approved Workflow Development Plan to be attached as Exhibit A-1 and subsequently approved Workflow Development Plans to be sequentially numbered as Exhibit A-2, Exhibit A-3, etc.) and, through such attachment, made a part of this Agreement. BLI hereby acknowledges and agrees that in no event will BLI perform any work for Ginkgo in connection with this Agreement other than pursuant to a JRC-approved Workflow Development Plan, other than with respect to BLI providing Ginkgo with any FAS support or other standard service and support pursuant to the terms of this Agreement. At a minimum, each Workflow Development Plan will include the following information:

(a) defined objective and scope of the relevant Collaboration Workflow;

(b) a detailed description of the work to be performed under such Workflow Development Plan and which components of the Collaboration Workflow shall be deemed a Generalized Workflow or a Specific Implementation;

(c) a detailed description of each Party's roles and responsibilities with respect to the work to be performed under such Workflow Development Plan;

(d) the Budget[***] and the allocation of responsibility between the Parties for the funding of such Budget;

(e) timelines for performing and completing work under such Workflow Development Plan; Page 16 of 85





(f) identification of deliverables to be created by a Party in connection with the work to be performed, including (i) any operating protocol, Software, Hardware, consumable, Beacon Optofluidic Machine Improvement or Workflow to be created and (ii) categories (e.g., [***]) of Headstart Inventions (and specific Headstart Inventions) that the JRC reasonably believes, during the drafting of the Workflow Development Plan, will result from the work to be performed by the Parties under the Workflow Development Plan;

(g) (i) [***] descriptions of one or more go/no-go criteria, if any, at which time the JRC shall specifically determine whether to continue work under such Workflow Development Plan (each such criteria, a Go/No-Go Criteria); (ii) [***] metrics associated with such Collaboration Workflow being Substantially Completed; (iii) additional [***] criteria for the work to be performed and (iv) [***] criteria for any deliverables to be created, including any Workflows (such criteria with respect to Collaboration Workflows to include any additional criteria to be used when determining if a Collaboration Workflow has been Substantially Completed); and

(h) (i) the anticipated Development Purchase amounts associated with any Collaboration Workflow that is the subject of such Workflow Development Plan and (ii) with respect to any Headstart Invention, the anticipated Development Purchase amounts (based on the Budget) to be paid by Ginkgo for [***] a Headstart Invention and each category of Headstart Inventions set forth in the applicable Workflow Development Plan.

2.2.2 Committed Workflows. With respect to the Workflow Development Plans to be proposed to the JRC for approval and conducted by the Parties during the [***] Contract Years, subject to the requirement set forth in Section 7.2.2(b)(i) (Development Purchase Commitments) that not less than [***] ([***]%) of the Development Purchases made in the [***] Contract Years be for the development of Workflows for [***], the Parties agree that such Workflow Development Plans shall focus on yeast and mammalian cells and the [***] ([***]) initial Workflow Development Plans shall be directed toward the categories of Workflows set forth in Schedule 2.2.2 (Initial Workflow Development Plans) hereto (collectively, the Initial Workflows). At least [***] ([***]) of the Initial Workflows shall also be deemed to be Key Collaboration Workflows by the JRC (including as indicated on Schedule 2.2.2 (Initial Workflow Development Plans)). A draft outline of the first [***] ([***]) Workflow Development Plans for Initial Workflows are attached hereto as Exhibit B. Promptly following the Effective Date and in no event later than [***] ([***]) days after the Effective Date, the Parties shall finalize the Workflow Development Plans for such first [***] ([***]) Initial Workflows and begin implementation of such Initial Workflows. Promptly thereafter, the Parties shall develop a Workflow Development Plan for each such Initial Workflow to be submitted to the JRC for rejection or approval pursuant to Section 2.2.1 (Workflow Development Plans - Generally). Page 17 of 85





2.2.3 Retooling and Development Costs. If, pursuant to Section 3.2.6, the JRC determines that Hardware or Consumables will need to be developed, retooled or modified in order to create Collaboration Workflows, then Ginkgo and BLI shall discuss and negotiate in good faith the sharing of the costs associated therewith, which, once mutually agreed by the Parties, will be proposed to the JRC in the form of an amendment to the applicable Workflow Development Plan pursuant to Section 2.3.2 (Amendments by the Parties); provided that in all events the Intellectual Property in such developed, retooled or modified Hardware or Consumables will be [***].

2.3 Amendments to Workflow Development Plans.

2.3.1 Amendments Raised by the JRC. The JRC will periodically review (at least once per [***]) each approved Workflow Development Plan and each Party's performance thereunder to determine whether amendments are needed with respect to such Workflow Development Plan in order to more efficiently develop the relevant Workflow, which review will include [***]. If the JRC determines that an amendment is needed with respect to any approved Workflow Development Plan, then the JRC shall amend and restate the applicable Workflow Development Plan to reflect such amendment with such amended and restated Workflow Development Plan to replace the previously attached Workflow Development Plan and, through such attachment and, after signature by each of the Parties, made a part of this Agreement.

2.3.2 Amendments Raised by the Parties. Notwithstanding anything in Section 2.3.1 (Amendments by the JRC) to the contrary, either Party may, at any time, propose amendments to a Workflow Development Plan for the JRC's consideration and such Party shall submit the proposed amendment to the JRC for consideration. Following submission of a proposed amendment to the JRC, the JRC shall review such proposed amendment and either (a) reject the proposed amendment to such Workflow Development Plan, (b) accept the proposed amendment to such Workflow Development Plan or (c) further amend the proposed amendment to such Workflow Development Plan for approval by the JRC. If the JRC approves a proposed amendment to a Workflow Development Plan, then the JRC shall amend and restate the applicable Workflow Development Plan to reflect such amendment with such amended and restated Workflow Development Plan to replace the previously attached Workflow Development Plan and, after signature by each of the Parties, be made a part of this Agreement.

2.4 Costs under Workflow Development Plans.

2.4.1 Reporting. Within [***] ([***]) days following the end of each [***], [***], BLI shall provide a detailed report to Ginkgo setting forth the activities conducted by BLI [***] during such [***] and the costs for such activities [***]. If Ginkgo disputes any costs set forth in BLI's report, it shall so notify BLI in writing within [***] ([***]) days of receiving such report and provide the specific reasons for the dispute and the Parties will attempt to resolve such dispute in good faith for [***] ([***]) days following such notice. In the event the Parties are unable to resolve such dispute in such [***] ([***]) day period, then either Party may initiate dispute resolution in accordance with Section 14.5.2 (Dispute Resolution) and [***]; provided that, during the pendency of any such dispute, if Page 18 of 85





[***], [***] and, if any such disputed costs paid by Ginkgo are finally determined, pursuant to Section 14.5.2 (Dispute Resolution) or by mutual agreement of the Parties, to not have been owed to BLI at the time of payment, BLI will provide a credit against future purchases made by Ginkgo in the amount of the overpayment; provided further that, in the event that there are not sufficient future purchases made by Ginkgo during the Term to fully so credit, BLI will promptly refund any remaining amount of the overpayment to Ginkgo.

2.4.2 Payment. [***], after generating and delivering a report as set forth in Section 2.4.1 (Reporting) or at such other time as may be specified [***], BLI shall issue an invoice to Ginkgo within [***] ([***]) days of Ginkgo receiving such report or, if any costs under BLI's report are disputed pursuant to Section 2.4.1 (Reporting), within [***] ([***]) days of resolution of such dispute, such invoice to be for the amount of costs owed by Ginkgo, if any, to effect the appropriate cost allocation [***] in such [***]. Notwithstanding anything to the contrary in this Agreement, in no event shall BLI provide an invoice (a) requesting payment, nor shall Ginkgo be responsible, in any given [***], for any costs incurred by BLI for any activity in excess of [***] percent ([***]%) of the costs of such activity as set forth in the applicable Workflow Development Plan's Budget for such [***] or (b) for any Development work performed outside the Workflow Development Plan. Ginkgo shall pay all undisputed amounts under an invoice received from BLI under this Section 2.4.2 (Payment) within [***] ([***]) days after receipt of such BLI invoice, and any overdue payments on undisputed amounts shall be subject to payment of interest pursuant to Section 7.10 (Late Payment). All amounts received by BLI in connection with the performance of each Workflow Development Plan shall be non-refundable except as otherwise set forth in Section 7.8 (Audits) and Section 6.1 (Headstart Period).

2.5 Termination of Workflow Development Plans. A Workflow Development Plan, once approved by the JRC, may be terminated by the JRC, including, by way of example, if: (a) both Parties provide notice to the JRC requesting such termination or (b) the JRC finds that (i) termination is [***] or (ii) that [***]. In the event of termination of a Workflow Development Plan under this Section 2.5 (Termination of Workflow Development Plans), BLI will cease working on the Workflow Development Plan and [***] cancel orders or stop the work of a Permitted Subcontractor or any other supplier. Notwithstanding termination of a Workflow Development Plan, Ginkgo shall pay BLI for Ginkgo's share, if any, of the reasonable costs associated with [***] incurred in accordance with this Agreement prior to the decision to terminate such Workflow Development Plan to the extent that BLI could not, after using [***], (A) stop or cancel such or (B) relocate or reassign to any work to be performed for another Person.

2.6 Limitations. Notwithstanding anything to the contrary in this Agreement, neither Party will be required to conduct any activity to develop a Workflow other than those activities allocated to it in a Workflow Development Plan and no proposed Workflow Development Plan (or, subject to Section 2.3 (Amendments to Workflow Development Plans), any amendment thereto) shall become binding on the Parties until approved by the JRC.

2.7 Subcontracting. Each Party may only subcontract its activities under this Agreement (including under a Workflow Development Plan) with the other Party's consent; provided that such consent shall not be necessary if (a) such subcontracting of activities is [***] Page 19 of 85





of such subcontracting Party (e.g. [***]) or (b) [***] (e.g. [***]) in order for a Party to [***]. In any event, prior to any subcontracting by a Party to a Permitted Subcontractor, the subcontracting Party shall obtain a written undertaking from the Permitted Subcontractor that it will be subject to the applicable terms and conditions of this Agreement, including the confidentiality provisions of Article 10 (Confidentiality). Subcontracting will not relieve a Party of its obligations under this Agreement and each Party will remain directly liable for the acts and omissions of its Permitted Subcontractors. Any breach of this Agreement by a Permitted Subcontractor will be deemed to be a breach by the Party that subcontracted its activities to such breaching Permitted Subcontractor.

2.8 Records. Each Party shall, and shall cause its Affiliates and Permitted Subcontractors to, maintain records in sufficient detail for the other Party to confirm compliance with this Agreement and in good scientific manner appropriate for patent and regulatory purposes under Applicable Law, which shall [***] properly reflect all activities conducted and results achieved by such Party under this Agreement. Such records shall be retained by such Party, its Affiliates or Permitted Subcontractors until [***] ([***]) years after the end of the period to which such books and records pertain or for such longer period as may be required by Applicable Law. Each Party shall have the right, during normal business hours and upon reasonable notice, to inspect all such records of the other Party, its Affiliates or Permitted Subcontractors. The reviewing Party shall be responsible for all costs of the inspection but shall have no right to copy or retain records. All disclosed records and the information disclosed therein shall be treated as Confidential Information in accordance with Article 10 (Confidentiality). 3. JOINT REVIEW COMMITTEE

3.1 Formation; Chairperson. Within [***] ([***]) days of the Effective Date (or such other date as may be mutually agreed to by the Parties), the Parties will establish a Joint Review Committee (JRC) comprised of two (2) representatives of Ginkgo and two (2) representatives of BLI, each of whom must have the requisite experience and seniority to enable such Person to make decisions on behalf of the Party it represents with respect to the issues falling within the jurisdiction of the JRC. Each Party may replace its representatives to the JRC at any time upon prior written notice to the other Party; provided that such replacement representatives must have the experience and seniority required under this Section 3.1 (Formation; Chairperson). [***] will select from its representatives the chairperson for the JRC, whose role shall be to call the periodic meetings, and publish meeting minutes. From time to time during the Term, [***] may change the representative who will serve as chairperson upon written notice to [***].

3.2 JRC Responsibilities. The JRC will have that specific decision-making authority expressly enumerated in this Agreement and will provide oversight and a forum for discussing all matters arising in connection with this Agreement, including with respect to planning, reviewing and coordinating the various activities to be undertaken by the Parties pursuant to a Workflow Development Plan. In particular, the JRC will be responsible for:

3.2.1 rejecting or approving proposed Workflow Development Plans submitted to it by a Party or as amended by the JRC pursuant to Section 2.2.1 (Workflow Development Plans - Generally); Page 20 of 85





3.2.2 pursuant to Section 2.2.1 (Workflow Development Plans - Generally), managing the pipeline of anticipated Collaboration Workflows so that [***] including in the event a Workflow Development Plan is terminated early by the JRC;

3.2.3 pursuant to Section 2.3.1 (Amendments by the JRC), periodically reviewing (at least once per [***]) each Workflow Development Plan and each Party's performance thereunder in order to determine whether amendments are needed with respect to such Workflow Development Plan and, if amendments are needed, revising the Workflow Development Plan as necessary;

3.2.4 rejecting, prioritizing, approving or amending proposed amendments to Workflow Development Plans submitted to it by a Party pursuant to Section 2.3.2 (Amendments by the Parties);

3.2.5 deciding whether [***] are at issue and whether to terminate a Workflow Development Plan as further described in Section 2.5 (Termination of Workflow Development Plans);

3.2.6 in connection with each Workflow Development Plan, determining whether Hardware or Consumables will need to be developed or retooled in order to create Collaboration Workflows such that the Parties should discuss sharing of the costs associated therewith pursuant to Section 2.2.3 (Retooling and Development Costs);

3.2.7 in connection with each Workflow Development Plan, designating (a) which components of Workflows are BLI Proprietary Workflows, which are Generalized Workflows, and which are Specific Implementations and (b) (i) which categories (e.g., [***]) of Headstart Inventions (and specific Headstart Inventions within such categories) that the JRC reasonably believes, during the drafting of the Workflow Development Plan, will result from the work to be performed by the Parties under the Workflow Development Plan and (ii) a reasonable estimation of the Development Purchase funding to be paid by Ginkgo with respect to the development of such categories of Headstart Inventions, which estimation will be set forth in the Budget for the applicable Workflow Development Plan; provided that, in no event will failure by the JRC to list (A) specific parts or components of Generalized Workflows or Collaboration Workflows or (B) Consumables, including OptoSelect Chips, with respect to (A)-(B), as Headstart Inventions in a Workflow Development Plan be given any significance in determining whether such invention constitutes a Headstart Invention;

3.2.8 determining whether or not a Collaboration Workflow has been Substantially Completed based on the metrics for such Collaboration Workflow as set forth in the applicable Workflow Development Plan;

3.2.9 pursuant to Section 7.2.1 (Purchase Commitments - Generally), determining whether additional development work is necessary in order to enable Ginkgo to deploy the Beacon Platform as specified in a Workflow Development Plan and if so, then determining how to adjust the Development Purchase Commitments and Production Purchase Targets for the then-current and future Contract Years (with the understanding the JRC has no power to modify the Maximum Amount or the Term); Page 21 of 85





3.2.10 upon determination by the JRC or the Expert Panel that a Collaboration Workflow has not been Substantially Completed, discussing if and how to address the Production Purchase amounts that would have been relevant to such Collaboration Workflow;

3.2.11 designating at least [***] ([***]) Collaboration Workflows as Key Collaboration Workflows within [***] ([***]) years of the Effective Date and at least [***] ([***]) Collaboration Workflows as Key Collaboration Workflows within [***] ([***]) years of the Effective Date; and

3.2.12 performing such other functions as expressly set forth in this Agreement as being under the purview of the JRC or as the Parties may mutually agree in writing, except where in conflict with any provision of this Agreement.

3.3 Meetings and Minutes. Unless otherwise mutually agreed to by the Parties, the JRC will meet each [***] by audio or video teleconference and, at a minimum, [***] each Contract Year in person, with the location for such meetings alternating between Ginkgo and BLI facilities (or such other locations as are mutually agreed by the Parties). Meetings of the JRC will be effective only if a quorum of the JRC (as defined in Section 3.4 (Procedural Rules)) is present or participating by videoconferencing. The chairperson of the JRC will be responsible for calling meetings on no less than [***] ([***]) Business Days' notice, unless exigent circumstances require shorter notice. Each Party will make all proposals for agenda items and will provide all appropriate information with respect to such proposed items at least [***] ([***]) Business Days in advance of the applicable meeting; provided that under exigent circumstances requiring input by the JRC, a Party may provide its agenda items to the other Party within a shorter period of time in advance of the meeting, or may propose that there not be a specific agenda for a particular meeting, so long as the other Party consents to such later addition of such agenda items or the absence of a specific agenda for such meeting, such consent not to be unreasonably withheld, conditioned or delayed. The JRC will designate an individual to prepare and circulate for review and approval of the Parties minutes of each meeting [***] ([***]) Business Days after the meeting. The Parties will agree on the minutes of each meeting promptly, but in no event later than the next meeting of the JRC.

3.4 Procedural Rules. The JRC will have the right to adopt such standing rules as will be necessary for its work, to the extent that such rules are not inconsistent with this Agreement. A quorum of the JRC will exist whenever there is present at a meeting at least one (1) representative appointed by each Party. The JRC will take action by consensus of the representatives present at a meeting at which a quorum exists, with each Party having a single vote irrespective of the number of representatives of such Party in attendance, or by a written resolution signed by at least one representative appointed by each Party. From time to time during the Term, a Party may invite non-voting employees (including its Alliance Manager), consultants and other advisors, experts and specialists to attend meetings of the JRC; provided that such attendees (a) will not vote in the decision-making process of the JRC, (b) are bound by obligations of confidentiality and non-use that are at least as protective of the Parties as set forth in this Agreement and that restrict use and disclosure of information learned while attending JRC meetings and (c) can be required to depart the meeting upon the request of the other (non-inviting) Party, in its sole discretion, due to confidentiality or business reasons. Page 22 of 85





3.5 Decision-Making. If the JRC cannot, or does not, reach consensus on an issue at any JRC meeting or within a period of [***] ([***]) Business Days thereafter (or such other period of time as mutually agreed by the Parties or by consensus of the JRC), then upon the request of either Party, the disagreement will first be referred to the Senior Officers of the Parties, who will confer in good faith on the resolution of the issue. Any final decision mutually agreed to by the Senior Officers will be conclusive and binding on the Parties. If the Senior Officers are not able to agree on the resolution of any such issue within [***] ([***]) days after such issue was first referred to them, then, if such decision is [***], [***] and, for all other decisions, shall be resolved consistent with the provisions of this Section 3.5 (Decision-Making):

3.5.1 subject to Section 3.5.3, if the matter concerns (a) [***], including any [***] or (b) the [***], the final decision shall be made by the Senior Officer of Ginkgo; provided that, in no event may Ginkgo exercise its final-decision making authority, including in connection with amending an approved Workflow Development Plan, in any manner that would (i) [***] BLI's obligations under such Workflow Development Plan, (ii) obligate or require BLI to increase its spending under such Workflow Development Plan by more than [***] percent ([***]%) of BLI's spending obligation under such Workflow Development Plan or (iii) modify the Minimum Cumulative Purchase Commitment or the Full Purchase Target;

3.5.2 subject to Section 3.5.3, if the matter concerns [***], including any [***] (provided that any [***] shall not affect decision-making authority under this Section 3.5 (Decision-Making)), the final decision shall be made by the Senior Officer of BLI; provided that, in no event may BLI exercise its final-decision making authority, including in connection with amending an approved Workflow Development Plan, in any manner that would (a) [***] Ginkgo's obligations under such Workflow Development Plan [***] or (b) obligate or require Ginkgo to increase its spending under such Workflow Development Plan by more than [***] percent ([***]%) of Ginkgo's spending obligation under such Workflow Development Plan, or (c) modify the Minimum Cumulative Purchase Commitment or the Full Purchase Target;

3.5.3 if the matter is determining (a) whether [***] or (b) whether [***] (including with respect to [***]), with respect to each, at either Party's request, the dispute shall be resolved in an accelerated manner by a panel of three (3) independent Third Parties, each having expertise with respect to the subject matter of the applicable Workflow Development Plan (such panel, an Expert Panel), subject to the following process: (i) each Party will engage one independent Third Party expert for the Expert Panel [***] after [***] to serve on the Expert Panel, (ii) within [***] ([***]) days of any request to refer the matter to an Expert Panel or, if earlier, as promptly as reasonably practicable after each Party's engagement of its Third Party Expert, the Parties' two (2) Third Party experts shall mutually agree on a third (3rd) independent Third Party expert who will serve on such panel and as chairperson of the panel, (iii) the Expert Panel will reach a decision as to such matter (including whether [***]) as promptly as practicable, which may include having the JRC or Parties submit information in support of the Expert Panel making a determination, Page 23 of 85





but within no greater than [***] ([***]) days of the third (3rd) expert being chosen and (iv) [***] the Parties will be bound by the determination of the Expert Panel. Each Party shall bear its own costs of participating in the proceeding, including the costs incurred by its Third Party expert, and shall equally share the costs incurred by the third (3rd) Third Party expert selected jointly by the Parties' two (2) Third Party Experts, except that, with respect to [***]. The Expert Panel shall be and is empowered to request additional information or materials from one or both Parties as reasonably necessary for the Expert Panel to investigate and render a decision, [***]. The Parties shall [***] with all such requests and decisions.

3.6 Limitations on Authority. Each Party will retain the rights, powers and discretion granted to it under this Agreement and, unless expressly provided in this Agreement, no rights, powers or discretion will be delegated to or vested in the JRC. The JRC will not have the power to accept, amend, modify, waive or determine compliance with this Agreement; provided that, for clarity, the JRC may reject, accept or amend proposed Workflow Development Plans pursuant to Section 2.2.1 (Workflow Development Plans - Generally) or review, amend or restate an approved Workflow Development Plan pursuant to Section 2.3 (Amendments to Workflow Development Plans) or terminate an approved Workflow Development Plan but, for clarity, in no event may the JRC amend or restate any Workflow Development Plan so it includes work in any Excluded Field. Notwithstanding anything to the contrary, no decision by the JRC or by a Party within the JRC will: (a) require the other Party to breach any obligation or agreement that such other Party may have with or to a Third Party [***] or (b) amend, modify, or waive a Party's compliance with, this Agreement (by way of example, a decision to [***]), any of which shall require mutual written agreement of the Parties.

3.7 Alliance Managers. Each Party will appoint one employee of such Party who will oversee contact between the Parties for all matters between meetings of each JRC and will have such other responsibilities as the Parties may agree in writing after the Effective Date (each, an Alliance Manager). Each Party may replace its Alliance Manager at any time by notice in writing to the other Party. The Alliance Managers will work together to manage and facilitate the communication between the Parties under this Agreement, including the resolution (in accordance with the terms of this Agreement) of issues between the Parties that arise in connection with this Agreement.

3.8 Working Groups. From time to time, the JRC may establish and delegate duties to sub-committees or directed teams (each, a Working Group) on an as-needed basis to oversee particular projects or activities. Each such Working Group will be constituted and will operate as the JRC determines; provided that each Working Group will have equal representation from each Party, unless otherwise mutually agreed. Working Groups may be established on an ad hoc basis for purposes of a specific project or on such other basis as the JRC may determine. Each Working Group and its activities will be subject to the oversight, review and approval of, and will report to, the JRC. In no event will the authority of the Working Group exceed that specified by the JRC for such Working Group. All decisions of a Working Group will be by consensus. Any disagreement between the designees of Ginkgo and BLI with respect to a Working Group will be referred to the JRC for resolution. Page 24 of 85





3.9 Expenses. Each Party will be responsible for all travel and related costs and expenses for its members and other representatives to attend meetings of, and otherwise participate in, the JRC or other Working Group. 4. APPLICABILITY OF BLI TERMS AND CONDITIONS.

With respect to Beacon Optofluidic Machines (including related Hardware and Software), Consumables and Services for which Ginkgo has placed a Purchase Order pursuant to this Agreement, the Parties agree to the BLI Terms and Conditions that apply with respect to Beacon Optofluidic Machines (including related Hardware and Software), Consumables and Services, unless, notwithstanding anything to the contrary set forth in the BLI Terms and Conditions (including any language regarding the treatment of additional or different terms set forth therein), a term in such BLI Terms and Conditions is inconsistent with a term in this Agreement, in which case this Agreement shall control, including as follows:

4.1.1 this Agreement, and not the BLI Terms and Conditions, shall solely set forth the fields in which Ginkgo has and does not have the ability to use the Beacon Optofluidic Machines (including related Hardware and Software), Consumables and Services for certain purposes (e.g., the Excluded Field);

4.1.2 BLI's liability with respect to any Failure to Supply, penalties for late delivery and obligations with respect to short supply shall be as set forth in this Agreement, including Section 5.4.3 (Failure to Supply) of this Agreement;

4.1.3 any right of BLI to use Ginkgo's data, including Collaboration Data, is solely set forth in this Agreement, including Section 8.5 (Use of Collaboration Data) and the BLI Terms and Conditions shall give BLI no right to use any data of Ginkgo or its Affiliates, including Collaboration Data;

4.1.4 each Party's indemnification obligations and matters relating to the extent of its liability (e.g. consequential damages waiver) shall solely be determined under the terms of this Agreement (including Section 11.6 (No Consequential Damages) and Section 12 (Indemnification; Insurance));

4.1.5 any disputes between the Parties related to Beacon Optofluidic Machines (including related Hardware and Software), Consumables, Services or the activities under this Agreement (including the performance of the Workflow Development Plans) shall be governed by Section 14.5 (Governing Law; Dispute Resolution; Equitable Remedies) of this Agreement, including disputes as to whether (a) [***], (b) [***] or (c) (i) [***], (ii) [***] or (iii) [***], and, with respect to each of (a), (b) and (c), which Ginkgo shall be entitled to dispute in writing in good faith irrespective of whether BLI is given sole or final decision-making authority with respect thereto under the applicable BLI Terms and Conditions;

4.1.6 all payment provisions between the Parties related to the subject matter hereunder shall solely be under this Agreement and not any of the BLI Terms and Conditions; Page 25 of 85





4.1.7 each of the BLI Terms and Conditions shall be freely assignable solely to the applicable assignee in connection with any assignment permitted under the terms of Section 14.4 (Assignment) of this Agreement;

4.1.8 no activities by BLI under this Agreement may be terminated or suspended under any of the BLI Terms and Conditions if such termination or suspension is not permitted under the terms of this Agreement;

4.1.9 Ginkgo may elect, at any time in its sole discretion, to terminate the Software License Agreement that comprises part of the BLI Terms and Conditions and, upon such termination, Ginkgo's right to use such underlying Software shall terminate; and

4.1.10 the BLI Terms and Conditions that apply with respect to any Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services for which Ginkgo has placed a Purchase Order pursuant to this Agreement shall not terminate absent mutual written consent of the Parties, unless this Agreement has been terminated early (e.g. prior to its Expiration) in which case such BLI Terms and Conditions shall survive only for so long and to the extent as Ginkgo continues to have the right to use Beacon Optofluidic Machines or Consumables or receive Services pursuant to Section 13.3 (Effects of Termination). 5. FORECASTS; ORDERS; SERVICE STANDARDS AND RELATED OBLIGATIONS

5.1 Forecasts of Production Purchases. Within [***] ([***]) days following the Effective Date and on or before the first Business Day of each [***] thereafter, Ginkgo shall furnish BLI with a rolling forecast of the quantities of Beacon Optofluidic Machines (including related Hardware and Software) and Consumables (on a Consumable-by-Consumable basis) that Ginkgo expects to require from BLI under this Agreement during the ensuing [***] ([***]) month period on a [***] basis (each such forecast, a Rolling Forecast). Subject to the limitations set forth in this Agreement, Ginkgo may, in its sole discretion, update its estimated requirements of Beacon Optofluidic Machines (including related Hardware and Software) and Consumables in the next Rolling Forecast delivered; provided that (a) the [***] of each Rolling Forecast shall be binding upon the Parties with respect to Beacon Optofluidic Machines and with respect to Consumables, Ginkgo's Purchase Orders for Consumables during the [***] may fluctuate by +/- [***] percent ([***]%) of the amount of Consumables set forth in the Rolling Forecast for the [***]; (b) the [***] of each Rolling Forecast shall include binding amounts forecasted for Beacon Optofluidic Machines and Consumables within (i) [***] percent ([***]%) of the number of units of Beacon Optofluidic Machines or (ii) [***] percent ([***]%) of the number of units of any Consumable; and (c) the [***] of each Rolling Forecast shall be non-binding, good faith estimates of Ginkgo's demand for Beacon Optofluidic Machines and Consumables. The foregoing, along with any other relevant provisions in this Agreement, shall be the sole forecasting mechanics for Ginkgo's requirements of Beacon Optofluidic Machines (including related Hardware and Software) or Consumables expressly notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to forecasting. Page 26 of 85





5.2 Pricing. Notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to pricing for Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services, the following shall apply:

5.2.1 General. The pricing as of the Effective Date for Beacon Optofluidic Machines, Consumables and certain services (including Services) are set forth in Schedule 5.2.1 (Pricing Schedule). Such pricing shall be adjusted pursuant to this Section 5.2 (Pricing). For any Consumable or service not listed in Schedule 5.2.1 (Pricing Schedule), BLI shall provide the price for such to Ginkgo upon Ginkgo's request during the Term, such price to be consistent with this Section 5.2 (Pricing). BLI represents and warrants that the pricing set forth in Schedule 5.2.1 (Pricing Schedule) are BLI's List Prices for the described Beacon Optofluidic Machines, Consumables and services (including Services) as of the Effective Date. BLI shall discount List Prices for Ginkgo by [***] percent ([***]%) or such higher amount as agreed by the Parties, and subject to pricing adjustments as set forth in Section 5.2.2 (Adjustments). For clarity, with respect to Consumables to be purchased under a Workflow Development Plan, Ginkgo will be responsible for costs for such Consumables as set forth in the Budget for such Workflow Development Plan.

5.2.2 Adjustments. Notwithstanding anything else to the contrary in this Agreement, and [***], with respect to the prices charged by BLI to Ginkgo under Section 5.3.2 (Purchase Orders - Acceptance and Rejection):

(a) With respect to any [***], (i) there will be no increases from the per unit pricing set forth in Schedule 5.2.1 (Pricing Schedule) for at least the first [***] and (ii) the per unit pricing charged by BLI to Ginkgo at any time shall be no greater than the lowest of the (A) lowest price per unit charged by BLI or its Affiliates to any similarly situated Third Party customer (i.e. taking into account [***]) for such unit at any time in the [***] ([***]) months prior to the delivery of the applicable Purchase Order by Ginkgo or (B) the then- current List Price; provided, however, that in no event shall BLI be required to charge a price less than the cost of goods sold for such unit, as determined in accordance with United States generally accepted accounting principles, consistently applied.

(b) With respect to any [***], (i) there will be no increases from the per unit pricing set forth in Schedule 5.2.1 (Pricing Schedule) for at least the first [***], (ii) subject to subclause (iii), the per unit pricing charged by BLI to Ginkgo shall be no greater than [***] percent ([***]%) of the lowest List Price for such unit at any time between the delivery of the applicable Purchase Order by Ginkgo and delivery of such OptoSelect Chip or Consumable and (iii) the per unit pricing charged by BLI to Ginkgo for such unit that is [***] shall be no greater than [***] percent ([***]%) of the lowest List Price for such unit. Page 27 of 85





(c) With respect to any [***], there will be no increases from the per unit [***] set forth in Schedule 5.2.1 (Pricing Schedule) for at least the [***] and after such [***], BLI may adjust pricing for [***] for a Contract Year within the first [***] ([***]) days of such Contract Year by written notice to Ginkgo; provided that such adjustment [***] for such [***] and in no event will the [***] charged to Ginkgo for any [***] under this Agreement be higher than the then-current List Price for the applicable [***].

(d) With respect to any [***], there will be no increases from the rates set forth in Schedule 5.2.1 (Pricing Schedule), except that, on an annual basis, upon written notice to Ginkgo, BLI may increase the rates set forth in Schedule 5.2.1 (Pricing Schedule) by a percentage [***], not to exceed [***] percent ([***]%) per calendar year.

(e) With respect to any other Beacon Optofluidic Machines, Consumables and services (including Services) not listed on Schedule 5.2.1 (Pricing Schedule), the per unit pricing charged by BLI to Ginkgo shall be no greater than the then-current List Price, [***].

5.3 Purchase Orders; Delivery and Payment.

5.3.1 Issuance. Ginkgo shall submit orders for Beacon Optofluidic Machines (including related Hardware and Software), Consumables (on a Consumable-by-Consumable basis) and Services pursuant to written purchase orders (each, a Purchase Order) issued to BLI in a form consistent with this Agreement. Purchase Orders shall be provided by Ginkgo, shall specify (a) the quantity of Beacon Optofluidic Machines (including related Hardware and Software), Consumables (on a Consumable-by-Consumable basis) or Services ordered and (b) the requested delivery date or service date and location. The requested delivery dates or service dates set forth in a Purchase Order shall be no earlier than the Lead Time for such delivery or service. BLI shall not be obligated to supply in any [***] (i) a quantity of the [***] in excess of the amount designated in such [***] in the binding portion of the Rolling Forecast or (ii) a quantity of [***] that is greater than [***] percent ([***]%) of the amount designated for such item or service in such [***] in the binding portion of the Rolling Forecast (such amount, the Maximum Amount); provided that notwithstanding the provisions set forth in this Section 5.3.1 (Issuance) or Section 5.3.2 (Acceptance and Rejection) to the contrary, BLI shall use [***] to accept and fulfill Purchase Orders for quantities of [***] in excess of the Maximum Amount in any [***]. The foregoing shall apply and, along with any applicable provisions of the Agreement, be the exclusive terms and conditions for Ginkgo's Purchase Orders under this Agreement, notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to Ginkgo's orders for or ability to order (and have orders fulfilled for) [***].

5.3.2 Acceptance and Rejection. BLI shall, by written notice to Ginkgo, accept or, subject to the terms of this Agreement, reject, each Purchase Order (a) with respect to orders for [***], within [***] ([***]) days of receipt and (b) with respect to Page 28 of 85





orders for [***], within [***] ([***]) days of receipt, with respect to each, by written notice to Ginkgo. Any failure of BLI to accept or reject a Purchase Order within such [***] day period shall be deemed an acceptance by BLI of such Purchase Order. Any express acceptance of a Purchase Order by BLI shall confirm the quantity of Beacon Optofluidic Machines (including related Hardware and Software), Consumables (on a Consumable-by-Consumable basis) and Services requested to be supplied or performed, the prices, pursuant to Section 5.2 (Pricing), associated with such Beacon Optofluidic Machines (including related Hardware and Software), Consumables (on a Consumable-by-Consumable basis) and Services and that delivery or performance of such Optofluidic Machines (including related Hardware and Software), Consumables and Services shall occur [***]; provided that (i) BLI shall not have the right to reject, and shall be deemed to have accepted, any Purchase Order meeting the requirements of this Section 5.3 (Purchase Orders; Delivery and Payment) and (ii) if any Purchase Order contains quantities in excess of the Maximum Amount for such month and otherwise meets the requirements of this Section 5.3 (Purchase Orders; Delivery and Payment), then such Purchase Order shall be deemed accepted except with respect to such excess quantities and, subject to Section 5.3.1 (Issuance), BLI shall confirm to Ginkgo within [***] ([***]) days of receipt of such Purchase Order if BLI can supply such excess and if so, such Purchase Order shall be deemed accepted with respect to such excess quantities as well. The foregoing shall apply notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to BLI's ability to accept or reject Ginkgo's orders for Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services.

5.3.3 Delivery and Payment. Notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to the delivery of Beacon Optofluidic Machines (including related Hardware and Software) or Consumables, the performance of Services and rights and responsibilities arising in connection with such delivery or performance, the following shall apply:

(a) Machines and Consumables. With respect to Beacon Optofluidic Machines and Consumables for which Ginkgo has placed a Purchase Order under this Agreement:

(i) such items shall be shipped by BLI (A) [***] or (B) [***], with respect to (A)-(B), to the delivery point set forth on the Purchase Order; [***];

(ii) a BLI employee will install the Beacon Optofluidic Machines at such delivery point and, within [***] ([***]) Business Days of installation, will deliver to Ginkgo a completed BLI field service report confirming installation and qualification of the relevant Beacon Optofluidic Machines in accordance with Schedule 5.3.3 (Qualification Standards);

(iii) title and risk of loss to (A) [***] or (B) [***]; Page 29 of 85





(iv) BLI shall invoice Ginkgo for any Beacon Optofluidic Machine or Consumable at a price calculated in accordance with Section 5.2 (Pricing) [***];

(v) Ginkgo shall be deemed to have accepted delivery of any Beacon Optofluidic Platform upon [***] unless Ginkgo delivers, within [***] ([***]) Business Days a written statement detailing the reasons why the item delivered is not a Conforming Product and, if BLI disputes Ginkgo's allegation of non-conformance, the matter shall be resolved pursuant to Section 14.5.2 (Dispute Resolution); and

(vi) Ginkgo shall pay BLI for all delivered quantities of Conforming Product within [***] ([***]) days from Ginkgo's [***] under this Agreement[***].

(b) Services. With respect to Services for which Ginkgo has placed a Purchase Order under this Agreement:

(i) such Services shall be provided at the time and location set forth on an accepted Purchase Order, unless otherwise mutually agreed by the Parties in writing;

(ii) BLI shall invoice Ginkgo for any Services at a price calculated in accordance with Section 5.2 (Pricing) [***] except [***], which shall be paid [***] and the Terms and Conditions except to the extent such conflicts with the terms of this Agreement, in which case this Agreement shall supersede with respect to the conflicting terms; and

(iii) Ginkgo shall pay BLI for all performed Services that meet the applicable Service Standards within [***] ([***]) days from receipt of invoice[***].

(c) Payments. All Production Purchase amounts paid by Ginkgo to BLI for Beacon Optofluidic Machines, for Consumables and for Services are non-creditable and non-refundable except as set forth in expressly set forth in this Agreement (including Section 7.8 (Audits)) and the BLI Terms and Conditions.

5.4 Capacity; Failure to Supply.

5.4.1 Personnel. Notwithstanding anything to the contrary in the BLI Terms and Conditions for Services:

(a) Generally. With respect to any [***] in the Term, to [***] continuity of supply with respect to services (including Services) rendered under this Agreement (including Workflow Development Page 30 of 85





Plans) to Ginkgo, BLI shall [***] employs a sufficient number of personnel so that it [***] satisfy, with respect to the then-current [***], Ginkgo's requirements for Services during such [***], as specified in the then-applicable Rolling Forecast. BLI shall (a) use qualified personnel in connection with performing Services for Ginkgo and perform such Services in a competent and workmanlike manner consistent with prevailing industry standards and in material conformance with Applicable Laws, the terms of this Agreement (which shall include the terms of any Workflow Development Plans) and (b) obtain and maintain all material licenses, permits or approvals required by Applicable Laws, the terms of this Agreement (which shall include the terms of any approved Workflow Development Plans) in connection with performing Services for Ginkgo.

(b) Dedicated FTEs; Key Persons. In addition to its obligations set forth in Section 5.4.1(a) (Personnel - Generally), during the period beginning [***] ([***]) Business Days after the Effective Date and ending on the [***] ([***]) anniversary of the Effective Date, BLI shall [***] provide Ginkgo with [***] ([***]) FTEs to work on-site at Ginkgo to aid in [***]. Following the [***] ([***]) anniversary of the Effective Date, unless otherwise agreed by the Parties, BLI shall provide Ginkgo with [***] to work on-site at Ginkgo to aid in [***]. [***] shall designate up to [***] ([***]) BLI employees or personnel as key persons (individually, a Key Person and collectively, Key Persons). [***] to the percentage of any such Key Person's time that shall be dedicated to activities performed under this Agreement. No Key Person shall be reassigned, nor shall the time dedicated to activities under this Agreement be reduced, without [***], but if such Key Person (i) is no longer employed by BLI, (ii) [***] or (iii) [***], with respect to (i)-(iii), then the Parties shall work together to mutually identify in writing a new employee as a replacement for such Key Person and, upon such mutual identification, such employee shall be deemed a Key Person for all purposes of this Agreement. For clarity, [***] shall be [***] if [***], that [***] and [***] or [***]. In the event of a termination of employment at BLI of any Key Person, BLI shall notify Ginkgo of such circumstance as promptly as practicable. Ginkgo shall have the right, but not the obligation, at any time, to request that BLI replace such Key Person with another BLI employee reasonably acceptable to Ginkgo. In such event, BLI shall replace such person [***]. Ginkgo will provide each BLI FTE that is on-site at Ginkgo with (I) access to Ginkgo's facility to the extent required to perform each FTE's obligations as set forth in each approved Workflow Development Plan and (II) [***].

(c) Conduct on Site. BLI acknowledges and agrees that BLI FTEs (including Key Persons) are not employees or agents of Ginkgo, that Ginkgo has no responsibility to provide worker's compensation or other Page 31 of 85





liability coverage, insurance, benefits or, other than as expressly provided in this Agreement, compensation for BLI FTEs. BLI further acknowledges and agrees that BLI FTEs are acting solely as representatives of BLI during any work performed at Ginkgo's facilities. BLI shall (a) comply, and shall cause each BLI FTE to comply, with all Applicable Laws; (b) abide, and shall cause each on-site BLI FTE to abide, by [***] guidelines and procedures related to Ginkgo's facilities and use of its foundries that are [***] (e.g., [***]) made available to BLI or BLI's FTEs; and (c) cause on-site BLI FTEs to execute a confidentiality agreement with Ginkgo in the form attached hereto as Exhibit C. Each BLI FTE will be required to complete training offered by Ginkgo regarding the guidelines and procedures referred to in Section 5.4.1(b) (Dedicated FTEs; Key Persons). Without limitation of the foregoing, each BLI FTE shall be responsible for performing work in such a manner as to [***].

5.4.2 Safety Stock Inventory. At any given time during the Term, to ensure continuity of supply with respect to [***], BLI shall maintain an inventory of [***] sufficient to fulfill orders by Ginkgo for [***] for the next [***], such amount of [***] to be based on the then-applicable Rolling Forecast.

5.4.3 Failure to Supply.

(a) Remedial Efforts. If, for any reason, including [***], BLI [***] fails to provide Conforming Product or Service that conforms with this Agreement and the Service Level Standards for such Service, in each case in accordance with one or more accepted Purchase Orders for a period of [***] ([***]) consecutive days or more (each, a Failure to Supply), BLI shall notify Ginkgo promptly, including details of the reasons for the Failure to Supply and BLI's estimate of when the Failure to Supply shall be corrected. BLI shall [***] minimize any shortage or delay in delivery of Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services to Ginkgo as a result of a Failure to Supply. Within [***] ([***]) days of written notification by BLI to Ginkgo under this Section 5.4.3(a) (Remedial Efforts) of a Failure to Supply, the Parties shall hold a JRC meeting at which BLI's representatives will explain [***] the cause of such Failure to Supply and present BLI's remedial plan to [***] Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services to be supplied to Ginkgo in accordance with this Agreement and the accepted Purchase Orders, which plan [***] (the Remedial Plan). BLI shall consider [***] in good faith any reasonable changes proposed by Ginkgo to the Remedial Plan. If the JRC approves the Remedial Plan, BLI will execute such Remedial Plan [***].

(b) Fees for Late Delivery. [***], the following discounts on the amounts owed by Ginkgo to BLI under an accepted Purchase Order Page 32 of 85





shall be in effect for any [***] not delivered in accordance with this Agreement until after the applicable delivery date set forth in such Purchase Order: (a) for deliveries made more than [***] ([***]) days and less than [***] ([***]) days after such delivery date, a [***] percent ([***]%) discount; and (b) for deliveries made after [***] ([***]) days after such delivery date, a [***] percent ([***]%) discount, in each case of clauses (a) through (b), from the price for the Consumable delivered late; provided that, any discount shall only apply if the Purchase Order at issue was for a quantity of [***] at or below the binding forecasted quantity ([***]) provided pursuant to Section 5.1 (Forecasts of Production Purchases). Any discount in effect under this Section 5.4.3(b) (Fees for Late Delivery) shall be incorporated under any invoice presented by BLI to Ginkgo; provided that [***]. For purposes of counting towards Ginkgo's Production Purchases and Minimum Cumulative Purchase Commitments under this Agreement, Ginkgo shall be deemed to have paid any invoice as if no discount for delayed delivery was in effect.

(c) Short Supply. Without limiting anything to the contrary in this Agreement, in the event that any Beacon Optofluidic Machines (including related Hardware and Software), Consumables or the Services are in short supply, i.e., [***], BLI shall notify Ginkgo in writing of such circumstances as soon as possible, including the underlying reasons for such shortage, the date such inability is expected to end and the amount of Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services to be allocated to Ginkgo. BLI shall allocate Beacon Optofluidic Machines (including related Hardware and Software), Consumables and Services in short supply to Ginkgo [***], with such [***] allocation applicable only up to the number of units of such item set forth in the binding portions of the then-current Rolling Forecast.

(d) Tolling. Without limiting Ginkgo's rights under this Agreement or under Applicable Law, in the event of a Failure to Supply, [***] obligations of Ginkgo that are [***] by such Failure to Supply, including [***], shall be excused by an amount [***] to the Failure to Supply, which excused amount, in ensuring that such amount is [***] to the Failure to Supply, will include amounts [***] to such Failure to Supply. In addition, Ginkgo will submit to BLI a good faith proposal with respect to [***], taking into consideration the [***] that are attributable to such Failure to Supply. BLI shall promptly review such proposal and send written confirmation to Ginkgo of its [***] or, alternatively, inform Ginkgo in writing of and discuss with Ginkgo [***]. If [***], BLI will [***].

(e) Material Failure to Supply. If for reasons [***], over the course of any consecutive [***] period during the Term, BLI fails to provide Page 33 of 85





Ginkgo with at least [***] percent ([***]%) of (a) a given [***] or (b) the cumulative total of [***], with respect to each of clauses (a) and (b), in accordance with accepted Purchase Orders and this Agreement (including, with respect to [***]) over such [***] period, then, such Failure to Supply shall be deemed a material breach of this Agreement and Ginkgo shall have the right to terminate this Agreement pursuant to Section 13.2.1 (Material Breach), subject to BLI's right to cure such material breach. 6. RESTRICTIONS

6.1 Headstart Period.

6.1.1 BLI Standstill. Unless otherwise expressly agreed to in writing by the Parties, on a Headstart Invention-by-Headstart Invention basis, beginning on the date that a Workflow Development Plan is commenced and ending on the earlier of (a) the [***] anniversary of the date on which [***] under this Agreement or (b) subject to the last sentence of this Section 6.1.1 (BLI Standstill), if [***], then the [***] anniversary of the date on which [***] under this Agreement (for each such Headstart Invention, with respect to (a)-(b), the Headstart Period): (i) as between the Parties, Ginkgo will have the sole right to use, practice and exploit such Headstart Invention, and (ii) BLI shall not, and shall cause its Affiliates to not, directly or indirectly, itself or with or through a Third Party, use, practice or otherwise exploit such Headstart Invention in any way or grant any right, title or license to any Third Party to use, practice or otherwise exploit such Headstart Invention; provided that, for clarity, BLI shall retain the right to use, practice and otherwise exploit such Headstart Invention in accordance with the terms of this Agreement to perform BLI's obligations under this Agreement. For further clarity, nothing in this Section 6.1.1 (BLI Standstill) is intended to prevent a Third Party BLI customer or partner from using, practicing or otherwise exploiting any independently developed improvement, invention, process or workflow even if similar to a Headstart Invention as long as BLI and its Affiliates are in compliance with this Section 6.1.1 (BLI Standstill) [***]. If a Workflow Development Plan is cancelled under the terms of this Agreement, then the Headstart Period with respect to Headstart Inventions under such Workflow Development Plan shall be deemed to have immediately accelerated to conclusion, unless Ginkgo (x) identifies in writing one or more Headstart Inventions under the Workflow Development Plan within [***] ([***]) Business Days of cancellation of the Workflow Development Plan and (y) [***], in which case such Headstart Invention(s) shall be subject to the applicable Headstart Period under this Section 6.1.1 (BLI Standstill); provided that, Ginkgo's right to identify [***] under clauses (x) and (y) shall not exist if the cancellation of a Workflow Development Plan is [***].

6.1.2 [***]. Notwithstanding anything to the contrary in Section 6.1.1 (BLI Standstill), on a Headstart Invention-by-Headstart Invention basis, BLI may provide written notice to Ginkgo [***] (i.e. [***]), with respect to a Headstart Invention, such notice to specify (a) the applicable Headstart Invention [***], (b) the [***] and (c) whether BLI would prefer to [***] or, to the extent [***], [***] (which may, [***]); provided that to the extent the [***], BLI may only submit such a notice (and [***]) for [***]. Ginkgo Page 34 of 85





shall have [***] ([***]) Business Days following delivery of notice to Ginkgo to [***] by written notice to BLI. If the Parties [***] within [***] ([***]) Business Days of such written notice by Ginkgo, [***]. Following BLI's delivery of notice to Ginkgo [***], BLI shall [***] (i) if Ginkgo does not [***] within the [***] ([***]) Business Day period after notice delivery, within [***] ([***]) Business Days following the expiration of such [***] ([***]) Business Day period and (ii) if Ginkgo does [***] within the [***] ([***]) Business Day period after notice delivery, within [***] ([***]) Business Days following the [***]. Immediately upon [***] for a Headstart Invention, [***]. For clarity, [***]. For the avoidance of doubt, following the end of the Headstart Period for a Headstart Invention, Ginkgo shall still have the right to use, practice and exploit such Headstart Invention under this Agreement.

6.2 Restrictions on the Parties.

6.2.1 Restrictions on BLI. During the Term and for a period of [***] ([***]) months following the Term of this Agreement, other than pursuant to Sections 13.3.2 (Effects of Termination Based Upon Ginkgo's Buy-Down Election) or 13.3.3 (Effects of Termination Based Upon an Uncured Ginkgo Breach, Insolvency or Force Majeure Event), BLI shall not, and shall cause its Affiliates not to, directly or indirectly, itself or with or through a Third Party, develop, configure, customize, license, sell, provide or otherwise give access to the Beacon Platform or any [***] to, [***] or its Affiliates for any use; provided that this restriction shall terminate as set forth in Section 13.3 (Effects of Expiration or Termination) or if Ginkgo has not satisfied its Minimum Cumulative Purchase Commitments (as such may be adjusted under this Agreement) for a full Contract Year, including [***] as permitted under Section 7.2.2(a) (Minimum Cumulative Purchase Commitments) or Section 7.2.2(b)(iii) (Development Purchase Commitments); provided that BLI will provide written notice to Ginkgo within [***] ([***]) days of the end of any Contract Year with respect to which BLI believes that Ginkgo has not satisfied its Minimum Cumulative Purchase Commitment. Notwithstanding the foregoing, in the event that a Change in Control of an existing (as of the Effective Date or at any time during the Term) Third Party BLI customer results in such customer being controlled [***] following the date such Third Party became a BLI customer, BLI shall promptly notify Ginkgo in writing of such Change in Control (in no event later than [***] ([***]) days after BLI first learns of such Change in Control, [***] (in which case such notice will be provided by BLI no later than [***] ([***]) days after the earlier of [***] or [***]) and, in such written notice, provide Ginkgo with information regarding [***] and, if BLI does [***], the [***]. Within [***] ([***]) days of Ginkgo's receipt of such written notice, Ginkgo will have the option, at its sole discretion, (a) if [***], to [***] and to [***] and, if Ginkgo makes such election, BLI shall promptly [***] and (i) Ginkgo will [***] (but in no event [***]) and (ii) in the event [***], Ginkgo and BLI will [***] and (b) if [***], then [***], to (i) [***], (ii) [***] and (iii) [***]. In the event BLI notifies Ginkgo as aforesaid and Ginkgo fails to make such election within the [***] ([***]) day period, then, in the case of (A) or (B), BLI will not be deemed to be in breach of this Section 6.2.1 (Restrictions on BLI) solely on account of a Third Party customer [***]. Nothing in this Section 6.2.1 (Restrictions on BLI) will require or oblige BLI [***], then [***]. In the event [***], [***] in a manner that (x) [***], (y) [***] or (z) [***]. For clarity, the foregoing sentence shall not [***]. Except as provided in this Section 6.2.1 (Restrictions on BLI) and the scope of rights granted to Page 35 of 85





Ginkgo under this Agreement (including under Section 6.1 (Headstart Period) and Section 9.1 (Licenses to Ginkgo)), nothing in this Agreement shall otherwise limit, prohibit or preclude BLI from developing, configuring, customizing, licensing, selling or providing the Beacon Platform or Collaboration Workflows for itself or to a Third Party for any uses or otherwise entering into a business or advisory arrangement with any Third Party. As used in this Section 6.2.1 (Restrictions on BLI), control has the meaning set forth in Section 1.2 (Affiliate definition). For clarity, [***].

6.2.2 No Further Restrictions by Ginkgo. During the Term, Ginkgo shall not [***] prohibit (i.e. by [***]), as part of any [***] arrangement with a Third Party, a Third Party from purchasing a Beacon Platform or other BLI products or services, or otherwise using or utilizing such Beacon Platforms for [***], including [***]. For clarity, such obligation shall not prohibit or limit Ginkgo from entering into generally exclusive relationships with Third Parties (e.g., [***]). 7. ECONOMICS

7.1 Upfront Payment. No later than [***] ([***]) days following the Effective Date, Ginkgo will pay to BLI a non-refundable upfront amount equal to Ten Million Dollars ($10,000,000) (the Upfront Payment). Such amount will be fully creditable against all Development Purchases and Production Purchases owed by Ginkgo to BLI [***] and will be fully creditable against the Full Purchase Target and, [***], the Minimum Purchase Commitment, Development Purchase Commitment and Production Purchase Target [***]. [***].

7.2 Purchase Commitments.

7.2.1 Generally. Subject to the terms of this Agreement, during the Term, the Parties' target is for Ginkgo to make a total of One Hundred Fifty Million Dollars ($150,000,000) in Development Purchases and Production Purchases from BLI (as amended from time to time under this Agreement and as more fully set forth in this Section 7.2 (Purchase Commitments), the Full Purchase Target), which Full Purchase Target is divided into Contract Year purchase commitment targets with respect to Development Purchase Commitment and Production Purchase Targets, as more fully set forth in Section 7.2.2 (Contract Year Purchase Targets and Commitments).

7.2.2 Contract Year Purchase Targets and Commitments. Subject to the terms of this Agreement (including the remainder of this Section 7.2.2 (Contract Year Purchase Targets and Commitments)), for each Contract Year, Ginkgo shall [***] make Development Purchases and Production Purchases from BLI in the amounts set forth in the Page 36 of 85





Development Purchase Commitment and Production Purchase Target columns respectively in Table 7.2.2 with respect to such Contract Year:

Table 7.2.2

Development Purchase Commitment

Production Purchase Target

Total Targeted Purchase

Minimum Cumulative Purchase Commitment Contract Year 1 $ [***] $ [***] $ [***] $ [***] Contract Year 2 $ [***] $ [***] $ [***] $ [***] Contract Year 3 $ [***] $ [***] $ [***] $ [***] Contract Year 4 $ [***] $ [***] $ [***] $ [***] Contract Year 5 $ [***] $ [***] $ [***] $ [***] Contract Year 6 $ [***] $ [***] $ [***] $ [***] Contract Year 7 [***] $ [***] $ [***] $ 109,000,000 Total $ [***] $ [***] $150,000,000 N/A

(a) Minimum Cumulative Purchase Commitments. With respect to each Contract Year, by no later than [***], Ginkgo shall have incurred (including all credits and offsets permitted under this Agreement) at least, in the aggregate since the beginning of the Term, the Minimum Cumulative Purchase Commitment amount for such Contract Year. The Minimum Cumulative Purchase Commitments for each of Contract Years [***] are binding commitments. Any amounts paid by Ginkgo to BLI in excess of the Minimum Cumulative Purchase Commitment amount for a given Contract Year in Contract Years [***], regardless of whether such excess constitutes a Development Purchase or Production Purchase, will be creditable towards the Minimum Cumulative Purchase Commitment in subsequent Contract Year(s) until such excess amount has been fully credited. Ginkgo covenants to pay the Minimum Cumulative Purchase Commitments for each Contract Year by the [***] Business Day after the end of the [***]. If BLI has Substantially Completed at least [***] ([***]) [***] Workflows within the first [***] ([***]) Contract Years, then the Minimum Cumulative Purchase Commitment as of the Contract Year (which may include a portion of a full Contract Year) that is the last Contract Year during the Term pursuant to the terms of this Agreement shall change from $109 million (as currently reflected in Table 7.2.2) to $150 million.

(b) Development Purchase Commitments.

(i) Subject to Section 7.2.2(a) (Minimum Cumulative Purchase Commitments), unless the Parties otherwise mutually agree in writing, the Development Purchase Commitment for the [***] Contract Years shall constitute a binding obligation on Ginkgo, and, subject to Ginkgo exercising its Buy-Down Option pursuant to Section 7.3 (Buy-Down Election), the Development Purchase Commitment for the [***] Contract Years shall also constitute binding obligations on Ginkgo. No less than [***] percent ([***]%) of the Development Purchases made in the [***] Contract Years will be used by the Parties to develop Workflows for [***]. Page 37 of 85





(ii) At any time during a Contract Year, upon written notice to the JRC, Ginkgo may accelerate its Development Purchases in such Contract Year to include Development Purchases anticipated to be made in upcoming Contract Year(s). Such additional Development Purchases in excess of the Development Purchase Commitment for such Contract Year will be creditable towards Ginkgo's Development Purchases in subsequent Contract Year(s) until such excess amount has been exhausted and will count towards the Minimum Cumulative Purchase Commitment for the Contract Year in which it is paid, subject to allocation to subsequent Contract Year(s) as set forth in Section 7.2.2(a) (Minimum Cumulative Purchase Commitments).

(iii) Notwithstanding anything to the contrary in this Agreement, in the event that Ginkgo's Development Purchases in a given Contract Year after [***] are less than the Development Purchase Commitment for such Contract Year, respectively, Ginkgo shall be able to apply the Development Purchases made in the first [***] of the next Contract Year to satisfy the previous Contract Year's Development Purchase Commitment; provided that (i) Ginkgo may only be able to satisfy [***] percent ([***]%) of the relevant Development Purchase Commitment for the previous Contract Year pursuant to this Section 7.2.2(b)(iii) (Development Purchase Commitments) and (ii) any amount of Development Purchases credited towards satisfying the previous Contract Year's Development Purchase Commitment shall not count towards satisfying such targets for the then-current Contract Year.

(iv) Notwithstanding anything to the contrary in this Agreement, in the event that a Workflow Development Plan is terminated prior to completion by the JRC, including (A) [***], (B) [***], (C) [***] or (D) [***], then, subject to Section 3.5.1 (Decision-Making), the JRC shall, in good faith, discuss and approve [***]; provided, however, that such [***] (Term).

(c) Production Purchase Commitments.

(i) Subject to this Section 6.2.2(c) (Production Purchase Commitments), unless the Parties otherwise mutually agree in writing, the Production Purchase Target for the [***] shall constitute a binding obligation on Ginkgo and, in partial satisfaction of its Production Purchase commitment for the Page 38 of 85





[***], Ginkgo shall purchase [***] ([***]) [***] within [***] ([***]) days of the Effective Date, the cost of which, for clarity, shall be offset by the upfront payment paid by Ginkgo pursuant to Section 7.1 (Upfront Payment). Subject to Ginkgo's obligation to satisfy the Minimum Cumulative Purchase Commitment for a Contract Year, with respect to the second [***] Contract Years), Ginkgo's Production Purchase Targets for the [***] Contract Years as set forth in Table 7.2.2 are [***], and the Parties expressly acknowledge and agree that [***].

(ii) At any time during a Contract Year, upon written notice to the JRC, Ginkgo may accelerate its Production Purchases in such Contract Year to include Production Purchases anticipated to be made in upcoming Contract Year(s). Such additional Production Purchases in excess of the Production Purchase Target for such Contract Year will be creditable towards Ginkgo's Production Purchases in subsequent Contract Year(s) until such excess amount has been exhausted and will count towards the Minimum Cumulative Purchase Commitment.

(d) Effects of Tolling. Notwithstanding anything to the contrary in this Agreement, Ginkgo's obligations to satisfy Development Purchase Commitments and Production Purchase Commitments at all times during the Term (including any Intended End of Term) are subject to Section 5.4.3(d) (Tolling) and this Section 7.2.2(d) (Effects of Tolling). In the event that, at any time during the Term, there is a Failure to Supply, then the duration of this Agreement will automatically be extended for additional calendar months (rounded to the nearest whole calendar month) equal to [***] (the seventh (7t h) anniversary of the Effective Date plus such additional calendar months, the Intended End of Term).

7.3 Buy-Down Election. During the Term following the end of the second (2nd) Contract Year, Ginkgo may elect, upon written notice to BLI, to buy- down its remaining financial obligations under the Full Purchase Target (the Buy-Down Election) by making a one-time payment to BLI in the amount of the Buy-Down Amount. In the event Ginkgo notifies BLI of its Buy-Down Election as set forth in this Section 7.3 (Buy-Down Election), then, upon Ginkgo's payment of the Buy-Down Amount to BLI within [***] ([***]) days of Ginkgo's Buy-Down Election, this Agreement shall automatically terminate, with the applicable effects of termination set forth in Section 13.3.2 (Effects of Termination Based Upon Ginkgo's Buy-Down Election).

7.4 Additional Payments.

7.4.1 License Fees. During the Term, and in consideration for the rights granted herein, Ginkgo shall pay field of use license fees (FOU License Fees) as follows: (a) with respect to any calendar year, no FOU License Fees will be due until [***] and (b) [***] ($[***]) per calendar year per Beacon Optofluidic Machine [***] up to a Page 39 of 85





maximum of [***] ($[***]) per calendar year per Beacon Optofluidic Machine; provided that, in no event will the FOU License Fees paid by Ginkgo for use of a Beacon Optofluidic Machine [***]. FOU License Fees shall be applied to Ginkgo's use of all Beacon Optofluidic Machines, [***]. Notwithstanding anything to the contrary in this Agreement and without limiting any of Ginkgo's rights and remedies under Applicable Law and this Agreement, [***],

7.4.2 Milestone Payments. In the event that Ginkgo uses any of the BLI Proprietary Workflows identified in Exhibit D to conduct Commercial Services for a Third Party customer and such Commercial Services [***] result in the discovery of an Antibody to be used as the active ingredient in a therapeutic product for which a Third Party [***] (each such Antibody subject to this Section 7.4.2 (Milestone Payments), a Discovered Antibody), then, on a Discovered Antibody-by-Discovered Antibody basis, in the event such Third Party (a) achieves any of the milestone events noted below in Table 7.4.2 (each, a Milestone Event) with respect to a Discovered Antibody and (b) makes a payment to Ginkgo in connection with such Milestone Event, then Ginkgo will pay BLI [***] percent ([***]%) of such payment received by Ginkgo from such Third Party up to the amount of the corresponding Maximum Milestone Payment for such milestone event set forth below in Table 7.4.2 (each, a Milestone Payment. Notwithstanding anything to the contrary in this Agreement, in no event shall a Discovered Antibody include (x) an Antibody [***] (e.g. [***]) through the conduct of Commercial Services by Ginkgo or (y) an Antibody [***]. Table 7.4.2

Milestone Event

Maximum Milestone Payment [***] $ [***] [***] $ [***] [***] $ [***] [***] $ [***]

Each Milestone Payment shall be payable only once for each and every Discovered Antibody. If any Milestone Event is achieved for any Discovered Antibody before any of the preceding Milestone Events are achieved for such Discovered Antibody, then all the Milestone Payments for such unachieved preceding Milestone Events will be due and payable with the Milestone Payment for the Milestone Event that was achieved. For example, [***].

7.5 Manner of Payments. Each payment under this Agreement to a Party will be made in Dollars and by electronic transfer in immediately available funds via either a bank wire transfer, an ACH (automated clearing house) mechanism, or any other means of electronic funds transfer, at such receiving Party's election, to such bank account as the receiving Party will designate in writing to the other Party at least [***] ([***]) Business Days before the payment is due.

7.6 Taxes. It is understood and agreed between the Parties that any payments made by a Party to the other Party under this Agreement are exclusive of any sales tax, value added tax (if any) or similar tax (VAT) upon such payments. Where VAT is properly added to a payment made under this Agreement, the Party making the payment will pay the amount of VAT only on Page 40 of 85





receipt of a valid tax invoice issued in accordance with the laws and regulations of the country in which the VAT is chargeable. If a Party is required to deduct or withhold from any payment due hereunder any taxes in the nature of a tax upon or measured by income, then the Parties shall work together to ensure, subject to this Section 7.6 (Taxes), that the withholding Party is able to comply with its obligations under Applicable Law and that the non- withholding Party still receives the net amount due to it following payment of such tax by the withholding Party. [***]. The Parties will reasonably cooperate to provide sufficient documentation to receive any credits available under Applicable Law. Notwithstanding the foregoing, to the extent that, due to (a) [***], (b) [***], (c) [***], (d) [***] or (e) [***], with respect to each, VAT or other taxes are imposed on payments made by Ginkgo or BLI, as applicable, to the other Party that were not otherwise applicable (Incremental Withholding Taxes), the Party that took such action resulting in Incremental Withholding Taxes (together with any subsequent successor or assign, Responsible Tax Party) shall be solely responsible for and shall solely bear the amount of such Incremental Withholding Taxes. If the other Party receives a refund or tax credit in connection with the Incremental Withholding Taxes, then such other Party shall promptly pay the Responsible Tax Party an amount equal to the amount of such refund or tax credit.

7.7 Financial and Other Records. Each Party shall, and shall cause its Affiliates to, keep complete and accurate books and records pertaining to its activities conducted and costs incurred under this Agreement (including each approved Workflow Development Plan), including with respect to Budget spending, Development Purchases, Production Purchases, FOU License Fees and Milestone Payments, in sufficient detail to calculate all amounts payable hereunder and to verify compliance with its obligations under this Agreement. Such books and records shall be retained by such Party and its Affiliates until [***] ([***]) years after the end of the period to which such books and records pertain or for such longer period as may be required by Applicable Law.

7.8 Audits. At the request of the other Party, each Party will, and will cause its Affiliates to, permit an independent public accounting firm of nationally recognized standing designated by the other Party and reasonably acceptable to the audited Party, at reasonable times during normal business hours and upon reasonable notice, to audit the books and records maintained pursuant to Section 7.7 (Financial and Other Records) solely to confirm the accuracy of all financial reports, invoices and payments made hereunder or Budget spending under an approved Workflow Development Plan. Such examinations may not (a) be conducted more than once in any [***] month period (unless a previous audit during such [***] month period revealed an overpayment (or an underpayment of a Milestone Payment, FOU License Fees, or royalty for Licensed Products) of at least [***] percent ([***]%) of the amount actually due with respect to such period) or (b) [***]. The accounting firm will execute a reasonable written confidentiality agreement with the audited Party and will disclose to the auditing Party only such information as is reasonably necessary to provide the auditing Party with information regarding any actual or potential discrepancies between the amounts actually paid and the amounts payable under this Agreement. The accounting firm's report will [***] be delivered to each Party at the same time and will be deemed final [***] ([***]) business days after it is received by both Parties. The auditing Party shall bear the full cost of any such audit, unless the accounting firm's report discloses an overpayment (or underpayment) by the auditing Party of more than [***] percent ([***]%) of the amount due for any Calendar Quarter, in which case the audited Party shall bear the full cost of such audit. The audited Party shall pay the amount of any overpayment (or underpayment) disclosed in the accounting firm's report, together with interest thereon from the date such payment was originally due, within [***] ([***]) days after delivery to the Parties of the accounting firm's report. Page 41 of 85





7.9 Confidentiality. All books and records audited by a Party pursuant to Section 7.8 (Audits) will be maintained in confidence by such auditing Party in accordance with Article 10 (Confidentiality).

7.10 Late Payment. If any payment due is not paid by the due date, BLI may (a) charge interest on any outstanding amount of such payment, accruing as of the original due date, at an annual rate equal to the rate of prime (as reported in The Wall Street Journal, Eastern U.S. Edition) plus [***] percentage points or the maximum rate allowable by Applicable Law, whichever is less. 8. INTELLECTUAL PROPERTY OWNERSHIP; USE OF DATA

8.1 Ownership of Background IP; Efforts to Control. As between the Parties, and subject to the licenses granted under this Agreement, Ginkgo shall own and retain all rights, title, and interests in, to and under Ginkgo Background IP, and BLI shall own and retain all rights, title, and interests in, to and under BLI Background IP. With respect to any Intellectual Property developed by BLI or its Affiliates in collaboration or on behalf of a Third Party during the Term of this Agreement that is [***] for (a) [***] or (b) [***], with respect to each, BLI and its Affiliates shall [***] to [***] that BLI or its Affiliates Control such Intellectual Property so that BLI may grant a license to Ginkgo with respect to such Intellectual Property as set forth in Section 9.1 (Grants to Ginkgo).

8.2 Ownership of Ginkgo Inventions and BLI Inventions.

8.2.1 Ginkgo Inventions. Unless otherwise agreed to in writing by the Parties, as between the Parties, Ginkgo shall own:

(a) all biological entities, including all organisms, cells, strains, enzymes and other proteins, nucleic acids and other biomaterials (that are not BLI-provided biological entities listed in Section 8.2.2(f) (BLI Inventions)) [***], in each case that Ginkgo loads onto the Beacon Platform or provides to BLI [***];

(b) all [***];

(c) any assays [***];

(d) all chemical entities other than [***], developed, generated, created, used or otherwise exploited in connection with the use of the Beacon Platform (clauses (a) through (d) of this Section 8.2.1 (Ginkgo Inventions) collectively, with the exception of [***], the Ginkgo Materials);

(e) all [***]; Page 42 of 85





(f) the [***];

(g) the Ginkgo Workflows, with the exception of any BLI Inventions; and

(h) all rights to the Intellectual Property contained or otherwise embodied in the inventions, discoveries, improvements, materials, chemical entities, Ginkgo Materials, [***], [***], or Ginkgo Workflows, described in clauses (a) through (g) of this Section 8.2.1 (Ginkgo Inventions) (clauses (a) through (g) collectively, the Ginkgo Inventions).

For clarity, Ginkgo's ability to use Ginkgo Inventions are subject to the limitations set forth in Section 9.1 (Grants to Ginkgo).

8.2.2 BLI Inventions. Unless otherwise agreed to in writing by the Parties, as between the Parties, BLI shall own:

(a) all inventions or discoveries [***]related to, or improvements or modifications to, the Beacon Platform that are developed, generated, created, used or otherwise exploited in connection with the use of the Beacon Platform under a Workflow Development Plan;

(b) any materials or chemical entities that are not Ginkgo Materials that are developed, generated, created, used or otherwise exploited in connection with the use of the Beacon Platform under a Workflow Development Plan, with the exception of any materials that are publicly available for purchase or are otherwise rightfully in the public domain;

(c) all BLI Proprietary Workflows;

(d) Generalized Workflows, with the exception of any Ginkgo Inventions;

(e) all Consumables provided by BLI related to the Beacon Platform and [***], in each case (i) developed, generated, created, used or otherwise exploited in connection with the use of the Beacon Platform under a Workflow Development Plan and (ii) [***];

(f) although generally not expected during the Term, any [***]; and

(g) all rights to the Intellectual Property contained or otherwise embodied in the inventions, discoveries, improvements, materials, chemical entities, Beacon Platform or Consumables described in clauses (a) through (f) of this Section 8.2.2 (BLI Inventions) (collectively, clauses (a) through (f) of this Section 8.2.2 (BLI Inventions), the BLI Inventions). Page 43 of 85





8.3 Ownership of Remaining Collaboration Intellectual Property. Subject to Section 8.2 (Ownership of Ginkgo Inventions and BLI Inventions), as between the Parties, BLI shall solely own all right, title and interest to all Collaboration Intellectual Property [***].

8.4 Prosecution and Enforcement Rights. Ginkgo shall have the sole and exclusive right, but not the obligation, to protect, seek registration for, defend and enforce, in its sole and entire discretion, the Ginkgo Inventions. BLI shall have the sole and exclusive right, but not the obligation, to protect, seek registration for, defend and enforce in its sole and entire discretion, the BLI Inventions and Collaboration Intellectual Property (other than the Ginkgo Inventions). In no event shall Ginkgo, and Ginkgo shall cause its Affiliates to not, file any patent applications covering (or support existing patent applications covering) the [***] and, in the event Ginkgo (or its Affiliates) do file one or more of such patent applications, Ginkgo will and hereby does assign, and shall cause its employees, agents and contractors to assign, to BLI all rights, title and interests in, to and under such patent applications. Other than as permitted under Section 8.5.2 (Use of Collaboration Data), in no event shall BLI, and BLI shall cause its Affiliates to not, file any patent applications covering (or support existing patent applications covering) [***] and, in the event that BLI (or its Affiliates) do file one or more of such patent applications, BLI will and hereby does assign, and shall cause its employees, agents and contractors to assign, to Ginkgo all rights, title and interests in, to and under such patent applications.

8.5 Use of Collaboration Data.

8.5.1 Disclosure. With respect to any data or results that are generated in connection with activities under a Workflow Development Plan (such data and results (but not Collaboration Workflows), Collaboration Data), each Party shall provide the other Party any Collaboration Data in its possession; provided that [***] shall provide any such Collaboration Data in its possession to [***] to the extent permitted under obligations of confidentiality owed by [***] to Third Parties with respect to such Collaboration Data. Notwithstanding the foregoing, [***] shall have the right to anonymize any Collaboration Data for disclosure to [***] or use by [***] under Section 8.5.2 (Use of Collaboration Data) and shall be permitted to remove from such Collaboration Data (a) any Third Party confidential information, (b) the identity of any [***] and (c) proprietary information regarding [***] Inventions or Intellectual Property Controlled, possessed or owned by [***] or its Affiliates.

8.5.2 Use of Collaboration Data. BLI will have the right to use any Collaboration Data provided to it for disclosure pursuant to Section 8.5.1 (Disclosure) solely for the purposes of (a) [***], (b) [***], (c) [***], and (d) [***]. For clarity, with respect to clause (d) of this Section 8.5.2 (Use of Collaboration Data), [***].

8.6 Notification of New Products; [***].

8.6.1 Access to New Products. During the Term, BLI shall promptly notify Ginkgo of any upcoming or then-current commercial availability of any new Beacon Optofluidic Machine or Consumable that, at that time, is not listed in Schedule 1.10 (Beacon Optofluidic Machine) or Schedule 1.36 (Consumables) and the Parties shall[***]. Page 44 of 85





8.6.2 [***]. During the Term, BLI shall provide Ginkgo with [***] (a) [***], (b) [***] and (c) BLI [***], with respect to each, [***] and [***]. As used in this Section, [***] means [***].

8.7 Inventor's Remuneration. Each Party will be solely responsible for any remuneration that may be due to such Party's inventors under any applicable inventor remuneration laws.

8.8 [***]. If, at any time during the Term, Ginkgo has purchased from BLI, in the aggregate, [***] ([***]) or more Beacon Optofluidic Machines, then:

8.8.1 Non-Exclusive [***] License. To ensure that, [***], BLI shall, and hereby does, automatically grant to Ginkgo, as of the date Ginkgo purchases an aggregate of [***] ([***]) Beacon Optofluidic Machine from BLI, a non-exclusive, non-royalty bearing and sublicensable (through multiple tiers) worldwide license in any Intellectual Property Controlled by BLI that is necessary to [***], solely for Ginkgo's [***] own internal use so that Ginkgo (or its Affiliates or permitted sublicensees) may [***]. Notwithstanding the foregoing, Ginkgo hereby represents, warrants and covenants to BLI that, as of the date BLI grants such license to Ginkgo and throughout the Term and thereafter, it shall not, directly or indirectly, conduct any activities under the rights granted to it in this Section 8.8.1 ([***]) unless and until (a) (i) [***] or (ii) [***], with respect to (i)-(ii), and such [***] or (b) [***]; provided that, after the event(s) sufficient to trigger sub-sections (i) or (ii) of this sentence occur, Ginkgo must provide BLI with written notice of its intent to conduct activities under rights granted pursuant to this Section 8.8.1 [***]. In the event Ginkgo has the right to conduct activities under the rights granted to it in this Section 8.8.1 ([***]), Ginkgo shall [***]. BLI shall [***].

8.8.2 [***]. Upon Ginkgo's written request at any time after [***], BLI shall [***] and will [***] so that [***]. Notwithstanding the foregoing, Ginkgo hereby represents, warrants and covenants to BLI as of the Effective Date, throughout the Term that it shall not, directly or indirectly, [***] unless and until (a) (i) [***] or (ii) [***] or (b) [***]; provided that, after the event(s) sufficient to trigger sub-sections (i) or (ii) of this sentence occur, Ginkgo must provide BLI with written notice of its intent to conduct activities under rights granted pursuant to this Section 8.8.2 [***]. In the event Ginkgo has the right to so [***], Ginkgo shall [***].

8.8.3 [***]. Upon Ginkgo's written request to BLI at any time if (a) there is (i) [***] or (ii) [***], or (b) [***], BLI shall [***] and [***] and shall [***], including by [***]; provided further that, if [***] either (A) [***] or (B) [***], then [***]. In the event Ginkgo [***], Ginkgo hereby represents, warrants and covenants to BLI as of the Effective Date, throughout the Term and thereafter that it shall [***]. BLI shall [***].

8.8.4 Any obligation of Ginkgo to [***] shall be [***].

8.9 Specific Implementation Restrictions. For clarity, this Agreement does not prohibit BLI or its Affiliates, alone or in combination with a Third Party, from independently developing a Workflow or a part or component thereof; or a derivative, modification, replication or progeny of Page 45 of 85





a biological entity; that is the [***] to a Specific Implementation (each such independently developed item, an Independent Development); provided that the Independent Development does not use any [***]; and further provided that BLI and its Affiliates do not [***] any [***] to [***] any Independent Development. Without limiting any other provision of this Agreement or Ginkgo's rights or remedies under this Agreement or Applicable Law, any use of [***] by BLI or its Affiliates, alone or in combination with a Third Party to develop a Workflow or a part or component thereof; or a derivative, modification, replication or progeny of a biological entity that is [***] a Specific Implementation shall be deemed a material breach of this Agreement by BLI and shall give rise to Ginkgo's right to terminate this Agreement pursuant to Section 13.2.1 (Material Breach). 9. LICENSE GRANTS

9.1 Grants to Ginkgo.

9.1.1 Scope of Grants. Subject to the terms and conditions of this Agreement, and in consideration for the payments to BLI under this Agreement, during the Term, BLI, on behalf of itself and its Affiliates, hereby grants and shall grant to Ginkgo a non-exclusive, sublicensable (solely in accordance with Section 9.1.4 (Consent to Sublicense)), non-transferable, non-royalty-bearing (subject to Section 13.3.2 (Effects of Termination Based Upon Ginkgo Buy-Down Election)) worldwide license in, to and under (i) BLI Background IP, and (ii) other Intellectual Property that is Controlled by BLI and that is [***] BLI Inventions, with both of (i) and (ii) being limited to what is necessary for Ginkgo to [***] and (iii) the Collaboration Intellectual Property solely to:

(a) perform research [***] on biological entities, including organisms, cells and strains (and sub-components thereof);

(b) (i) design and develop (A) Collaboration Workflows as generally contemplated under a Workflow Development Plan and (B) Ginkgo Workflows as permitted under this Agreement and (ii) use [***] Workflows to conduct the activities set forth in clause (a) and clause (c) of this Section 9.1.1 (Scope of Grants);

(c) perform commercial research [***] and other Commercial Services for Third Parties; and

(d) in each case of clauses (a) through (c) of this Section 9.1.1 (Scope of Grants), the license granted is for activities solely within the Licensed Field.

9.1.2 License Grant to Exploit [***]. Subject to the terms and conditions of this Agreement, during the Term BLI, on behalf of itself and its Affiliates, hereby grants and shall grant to Ginkgo a [***] license within the Licensed Field in, to and under any Intellectual Property Controlled by BLI that is necessary to make, have made, sell, have sold, import or use any [***] to make, have made, sell, have sold, import or use such [***]. Page 46 of 85





9.1.3 No Consumable License. For clarity and without limiting Section 8.8.1 (Non-Exclusive Manufacturing License; Covenant), the licenses granted to Ginkgo in Section 9.1.1 (Scope of Grants) and Section 9.1.2 (License Grant to Exploit [***]) do not include the right to make, have made, offer to sell or sell Consumables, [***], to or for Third Parties or any Ginkgo Affiliate or Ginkgo Subcontractor that are [***] on the Beacon Platform [***].

9.1.4 Consent to Sublicense. Ginkgo may grant sublicenses of the license granted to Ginkgo under Section 9.1.1 (Scope of Grants) and Section 9.1.2 (License Grant to Exploit [***]) with the prior written consent of BLI[***]; provided that such prior written consent of BLI shall not be needed for any sublicense granted by Ginkgo to (a) a Permitted Subcontractor of Ginkgo under Section 2.7 (Subcontracting) to the extent such sublicense relates to the subcontracted activities, (b) any wholly-owned subsidiary of Ginkgo existing as of the Effective Date or (c) any other Person, including other Affiliates and any Third Party, under Section 9.1.2 (License Grant to Exploit [***]) so long as, in the case of this clause (c), the sublicense [***]. Each sublicense of the license granted to Ginkgo under Section 9.1.1 will (i) be in writing, (ii) be consistent with the terms and conditions of this Agreement and (iii) require each sublicensee thereunder to comply with all terms of this Agreement applicable to a sublicensee. Notwithstanding the grant of any sublicense, Ginkgo shall remain [***] liable to BLI for the performance of all of Ginkgo's obligations under, and Ginkgo's compliance with all provisions of, this Agreement.

9.1.5 Responsibility. Ginkgo shall not (and Ginkgo shall ensure that its Affiliates and [***] sublicensees do not) use any Intellectual Property of BLI's that is licensed under Section 9.1 (Grants to Ginkgo), any BLI Confidential Information or any Beacon Platforms that may be transferred to Ginkgo by BLI under this Agreement, in each case for a purpose other than as expressly permitted under this Agreement.

9.1.6 Use in Excluded Fields. In the event BLI [***] that Ginkgo is using [***] in the Excluded Fields (Ginkgo Excluded Use), BLI shall send Ginkgo a written notice indicating that it believes Ginkgo is using [***] in an Excluded Field and, within [***] ([***]) Business Days after Ginkgo's receipt of BLI's written notice, Ginkgo shall investigate such claim internally and shall either (a) [***], or (b) [***], and the Parties will resolve such dispute pursuant to Section 14.5.2 (Dispute Resolution). If, following the dispute resolution process set forth in Section 14.5.2 (Dispute Resolution), it is determined that Ginkgo is using [***] in an Excluded Field, then BLI may either (i) [***], (ii) [***] or (iii) [***]; provided that, following determination that Ginkgo is using [***] in an Excluded Field pursuant to Section 14.5.2 (Dispute Resolution), if BLI wishes to make any election under clause (i), (ii) or (iii), it must notify Ginkgo within [***] ([***]) Business Days of such determination. [***].

9.2 Grants to BLI. Subject to the terms and conditions of this Agreement, during the Term, Ginkgo hereby grants and shall grant to BLI:

9.2.1 a [***] and this Section 9.2 (Grants to BLI)), [***] license in, to and under any Intellectual Property (a) Controlled by Ginkgo, (b) used by Ginkgo in the conduct of a Workflow Development Plan and (c) necessary for BLI to perform its obligations under this Agreement ((a)-(c) collectively, Ginkgo Licensed IP), solely to perform BLI's obligations under such Workflow Development Plan; and Page 47 of 85





9.2.2 after any applicable Headstart Period, with respect to any [***], a [***] license in, to and under any Ginkgo Licensed IP [***] necessary for the performance of, such [***], to make, have made, offer to sell, sell, have sold, import, use, commercialize or perform such [***] to or for Third Parties and to license such Third Parties to do the same.

Except as permitted under Sections 9.2.1 and 9.2.2, BLI may not sublicense, assign or otherwise transfer the rights granted to it in this Section 9.2 (Grants to BLI) without first obtaining the prior written consent of Ginkgo[***]. Each sublicense of any license granted to BLI under this Section 9.2 (Grants to BLI) will (i) be in writing, (ii) be consistent with the terms and conditions of this Agreement and (iii) require each sublicensee thereunder to comply with all terms of this Agreement applicable to a sublicensee; provided that, subject to Section 6.2.1, such prior written consent of Ginkgo shall not be needed for any sublicense granted by BLI (a) under Section 9.2.1, to a Permitted Subcontractor of BLI under Section 2.7 (Subcontracting) to the extent such sublicense relates to the subcontracted activities, (b) any wholly-owned subsidiary of BLI existing as of the Effective Date, or (c) any other Person, including other Affiliates and any Third Party, under Section 9.2.2. Notwithstanding the grant of any sublicense, BLI shall remain liable to Ginkgo for the performance of all of BLI's obligations under, and BLI's compliance with, all provisions of, this Agreement. BLI shall not (and BLI shall ensure that any of its Affiliates and sublicensees do not) use any Intellectual Property or Confidential Information of Ginkgo that is licensed under this Section 9.2 or otherwise disclosed to BLI under this Agreement for any purpose not expressly permitted under this Agreement. [***].

9.3 No Implied Rights. Except as expressly provided in this Agreement, neither Party will be deemed to have granted the other Party (by implication, estoppel or otherwise) any right, title, license or other interest in or with respect to any Intellectual Property or information Controlled by such Party. 10. CONFIDENTIALITY

10.1 Confidential Information. Each Party may disclose (Disclosing Party) to the other Party (Receiving Party), and Receiving Party may acquire during the course and conduct of activities under the Agreement, certain non-public or confidential information of Disclosing Party in connection with this Agreement. The term Confidential Information means all non-public or confidential information or material in tangible form that one Party discloses to the other Party hereunder, or proprietary or confidential information disclosed in non-tangible form that a Disclosing Party identifies to the Receiving Party as confidential information or that, from the nature of such information, the Receiving Party should reasonably know is the Confidential Information of the Disclosing Party, including all technical and non-technical information conveyed from one Party to the other or otherwise accessed or observed by a Party in any form, electronic data and other proprietary information, data, samples, products, materials, compounds, sequences, compositions, configurations, methods, formulas, formulations, processes, protocols, specifications, designs, recordings, drawings, sketches, models, technologies, equipment, information relating to quality assurance or control, laboratory notebooks, techniques, inventions, Page 48 of 85





know-how, apparatuses, formulae, customer lists, pricing information, strategies, business or marketing plans and other information related to the Disclosing Party's current, future and proposed products, business, customers, Software or technology. The Parties agree that the terms of this Agreement will be treated as Confidential Information of each Party. Without limitation of the foregoing, (i) Ginkgo Background IP, Ginkgo Inventions, Collaboration Data, Specific Implementations, and Ginkgo Workflows will be treated as the Confidential Information of Ginkgo and (ii) BLI Background IP, BLI Inventions, Generalized Workflows and BLI Proprietary Workflows will be treated as the Confidential Information of BLI. Notwithstanding any other provisions herein, Confidential Information does not include information that:

10.1.1 was known to Receiving Party or any of its Affiliates prior to the time of disclosure other than under an obligation of confidentiality with respect to such information;

10.1.2 is at the time of disclosure hereunder or later becomes public knowledge through no fault or omission of Receiving Party or any of its Affiliates;

10.1.3 is obtained by Receiving Party or any of its Affiliates from a Third Party having the right to disclose such information (e.g. not under an obligation of confidentiality to the Disclosing Party or its Affiliates) to such Receiving Party or its Affiliates;

10.1.4 has been independently developed by employees, Permitted Subcontractors, consultants or agents of Receiving Party or any of its Affiliates without the aid, application, or use of or reliance upon Disclosing Party's Confidential Information, as evidenced by contemporaneous written records; or

10.1.5 Receiving Party obtains written consent from Disclosing Party to disclose.

Specific aspects or details of Confidential Information will not be deemed to be within the public domain or in the possession of Receiving Party merely because the Confidential Information is embraced by more general information in the public domain or in the possession of Receiving Party. Further, any combination of Confidential Information will not be considered in the public domain or in the possession of Receiving Party merely because individual elements of such Confidential Information are in the public domain or in the possession of Receiving Party unless the combination and its principles are in the public domain or in the possession of Receiving Party.

10.2 Confidential Treatment. At all times during the Term and for a period of [***] ([***]) years following the end of the Term, or with respect to trade secrets (with such trade secrets either (i) having been specifically identified in writing to the Receiving Party by the Disclosing Party claiming ownership of the same or (ii) reasonably distinguishable by its nature or content as a trade secret of the Disclosing Party), until such time that such information is no longer a trade secret (including pursuant to Sections 10.1.1 - 10.1.5), Receiving Party will, and will cause its Affiliates and its and their respective officers, directors, employees, Permitted Subcontractors, permitted sublicensees and agents to, keep confidential and not publish or otherwise disclose to a Third Party and not use for any purpose, any Confidential Information furnished or otherwise made known to it by the Disclosing Party, except to the extent such disclosure or use is expressly Page 49 of 85





permitted by the terms of this Agreement or is reasonably necessary for the performance of, or the exercise of such Party's rights under, this Agreement; provided that such parties to which the Confidential Information is disclosed are bound by written obligations of confidentiality at least as stringent as those set forth in this Agreement. Notwithstanding the foregoing, a Receiving Party will remain liable for any breach of this Article 10 (Confidentiality) by any party to whom the Receiving Party has disclosed the Disclosing Party's Confidential Information under this Section 10.2 (Confidential Treatment).

10.3 Permitted Disclosures. Receiving Party may disclose the Confidential Information of the Disclosing Party in the following instances:

10.3.1 in order to comply with Applicable Law (including any securities law or regulation or the rules of a securities exchange) or with a legal or administrative proceeding; provided that (a) to the extent legally permitted, Receiving Party gives written notice of such required disclosure to Disclosing Party prior to disclosing such Confidential Information and (b) Disclosing Party shall have the opportunity to take appropriate measures to assure confidential treatment of such Confidential Information to the extent practicable and consistent with Applicable Law and Receiving Party agrees to reasonably cooperate with the Disclosing Party in connection with such measures at Disclosing Party's expense;

10.3.2 in connection with (a) prosecuting or defending litigation or (b) obtaining Regulatory Approval, making other regulatory filings and communications, and filing, prosecuting, enforcing, and defending patent rights, in each case, in connection with Receiving Party's rights and obligations pursuant to this Agreement; provided, however, that, where reasonably possible, Receiving Party will notify Disclosing Party of Receiving Party's intent to make any such disclosure sufficiently prior to making such disclosure so as to allow Disclosing Party adequate time to take whatever action it may deem appropriate to protect the confidentiality of the information to be disclosed; and

10.3.3 with respect to the terms of this Agreement, after having been reasonably redacted by the Receiving Party, to the extent such disclosure is reasonably required, to a bona fide potential licensee, investor, investment banker, acquirer, merger partner or other potential financial partner, and their respective attorneys, professional advisors and agents; provided that each such Person to whom such information is to be disclosed is informed of the confidential nature of such information and has entered into a written agreement with the Party requiring such Person to keep such information confidential.

10.4 Use of Names. Except as expressly provided herein, neither Party will mention or otherwise use the name, logo or trademark of the other Party or any of its Affiliates (or any abbreviation or adaptation thereof) in any publication, press release, website or marketing and promotional materials, or other form of publicity, without the prior written approval of such other Party in each instance; [***]. The restrictions imposed by this Section 10.4 (Use of Name) will not prohibit either Party from making any disclosure identifying the other Party that, in the reasonable opinion of the disclosing Party's counsel, is required by Applicable Law; provided that such Party will submit the proposed disclosure identifying the other Party in writing to the other Party as far in advance as reasonably practicable (and in no event less than [***] ([***]) Business Days prior to the anticipated date of disclosure) so as to provide a reasonable opportunity to comment thereon. Page 50 of 85





10.5 Publicity. Within [***] ([***]) days of the Effective Date (or such other period as mutually agreed to by the Parties), the Parties shall issue a press release in the form set forth in Schedule 10.5 (Press Release). After such initial press release, neither Party shall issue a press release or public announcement relating to this Agreement without the prior written approval of the other Party, which approval shall not be unreasonably withheld, conditioned or delayed, except that a Party may (a) once a press release or other public statement is approved in writing by both Parties, make subsequent public disclosure of the information contained in such press release or other written statement without the further approval of the other Party and (b) issue a press release or public announcement, including without limitation, the disclosure of this Agreement (or a summary thereof) in filings, as required, in the reasonable opinion of the publishing Party's counsel, by Applicable Law (including by the rules or regulations of the United States Securities and Exchange Commission or any stock exchange on which the equity interests of such Party or its Affiliates (or any successor entity) are listed), provided, however, that such Party seeking disclosure will prepare such summary and a proposed redacted version of this Agreement as far in advance as reasonably practicable (and in no event less than [***] ([***]) Business Days prior to the anticipated date of disclosure) so as to provide a reasonable opportunity to comment thereon, and the other Party shall within such [***] ([***]) Business Day period, provide its comments, if any, which may be incorporated, in the reasonable discretion of the Party seeking disclosure.

10.6 Destruction or Return of Confidential Information. Upon the end of the Term, whether in its entirety or with respect to a specific Workflow Development Plan, Disclosing Party may request in writing to Receiving Party, and Receiving Party will, as requested by Disclosing Party except as and if necessary for such Receiving Party to exercise surviving rights under this Agreement following such expiration or termination, (a) at the Disclosing Party's request, destroy, as soon as reasonably practicable, specific Confidential Information identified by the Disclosing Party in writing to the Receiving Party that are in Receiving Party's possession and confirm such destruction in writing to Disclosing Party or (b) deliver to Disclosing Party, as soon as reasonably practicable, at Disclosing Party's expense, all copies of such Confidential Information in the possession of Receiving Party; provided that the Receiving Party will be permitted to retain one copy of such Confidential Information for the sole purpose of performing any continuing obligations hereunder, as required by Applicable Law or for archival purposes. Notwithstanding the foregoing, Receiving Party also will be permitted to retain such additional copies of or any computer records or files containing such Confidential Information that have been created solely by Receiving Party's automatic archiving and back-up procedures, to the extent created and retained in a manner consistent with Receiving Party's standard archiving and back-up procedures, but not for any other use or purpose. 11. WARRANTIES AND DISCLAIMER; LIMITATION OF LIABILITY

11.1 Mutual Representations. Each Party hereby represents and warrants to the other Party, as of the Effective Date, as follows:

11.1.1 such Party is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the state in which it is incorporated; Page 51 of 85





11.1.2 such Party (a) has the corporate power and authority and legal right to enter into this Agreement, to perform its obligations and to grant the licenses hereunder and (b) has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;

11.1.3 this Agreement has been duly executed and delivered on behalf of such Party and constitutes a legal and valid obligation binding upon such Party and enforceable against it in accordance with its terms;

11.1.4 such Party has the right to grant the rights and licenses granted to the other Party pursuant to this Agreement; and

11.1.5 it has not entered into an agreement with a Third Party, or granted any right or license to any Third Party that conflicts with any of the rights, obligations or licenses granted to the other Party hereunder.

11.2 Mutual Covenants. Each Party hereby covenants to the other Party, as of the Effective Date, that:

11.2.1 all of its and its Affiliates' employees who conduct any work under this Agreement will be, during the conduct of all such work, bound to a written agreement with such Party or its Affiliate to automatically assign all right, title and interest in and to their inventions and discoveries, whether or not patentable, to such Party as the sole owner thereof;

11.2.2 to the best of its knowledge, without further duty of inquiry, such Party will not

(a) employ or use any contractor or consultant that employs any Person debarred by the FDA (or subject to similar sanction of the EMA or other Regulatory Authority) or (b) employ any Person that is the subject of an FDA debarment investigation or proceeding (or similar proceeding of the EMA or other Regulatory Authority), in each of (a)-(b), in the conduct of its activities under this Agreement;

11.2.3 it will perform or cause to be performed the obligations assigned to it under this Agreement in good scientific manner and in compliance with all Applicable Laws; and

11.2.4 it shall not, during the Term, enter into an agreement with a Third Party, or grant any right or license to any Third Party relating to any of the intellectual property rights it Controls, or otherwise encumber such intellectual property rights it Controls, that would conflict with any of the rights, obligations or licenses granted to the other Party hereunder. Page 52 of 85





11.3 Additional Representations, Warranties and Covenants of BLI. As of the Effective Date, BLI further represents, warrants and, as applicable, covenants to Ginkgo that:

11.3.1 BLI has, as of the Effective Date, and to its current knowledge will have during the Term, the full right, power and authority to (a) grant all of the right, title and interest in the licenses and other rights granted or to be granted to Ginkgo under this Agreement and (b) perform its obligations under this Agreement; 11.3.2 neither BLI nor its Affiliates have granted, and BLI and its Affiliates will not grant, any liens or security interest on any assets, including Intellectual Property, that would limit the scope of any rights or licenses granted to Ginkgo hereunder;

11.3.3 neither BLI nor its Affiliates have knowledge of or have received any written notice of any claim that any Intellectual Property Controlled by a Third Party would be infringed or misappropriated by the activities contemplated under this Agreement, including Ginkgo's use of the Beacon Platform to perform a general Workflow under this Agreement;

11.3.4 the Beacon Optofluidic Machines (including related Hardware and Software) and Consumables, at the time of delivery to Ginkgo, (a) shall have been manufactured, stored, shipped and delivered in accordance with Applicable Law and this Agreement; (b) to BLI's knowledge, [***] and (c) shall be free from all liens, charges, encumbrances and security interests;

11.3.5 all services, including Services, shall be performed by or on behalf of BLI with requisite care, skill and diligence, by individuals who are appropriately trained and qualified, and in accordance with Applicable Law and industry standards;

11.3.6 to BLI's knowledge [***], the use of the Beacon Platform as contemplated under this Agreement, but without any representation or warranty regarding [***] (a) [***] or (b) [***];

11.3.7 to BLI's knowledge [***], (a) the use of the Beacon Platform as contemplated under this Agreement and (b) the performance of the activities Ginkgo is granted the right to conduct under Section 9.1 (Grants to Ginkgo) (but for both (a) and (b) no representation, warranty or covenant is given by BLI for Ginkgo Materials, Ginkgo Workflows or for Collaboration Workflows) [***]; and

11.3.8 BLI has independently developed all BLI Background IP or otherwise has a valid right to use and, as applicable, to permit Ginkgo and its permitted sublicensees to use, the BLI Background IP for all permitted purposes under this Agreement.

11.4 Additional Representations, Warranties and Covenants of Ginkgo. As of the Effective Date, Ginkgo further represents, warrants and, as applicable, covenants to BLI that:

11.4.1 Ginkgo has, as of the Effective Date, and will have during the Term, the full right, power and authority to (a) grant all of the right, title and interest in the licenses and other rights granted or to be granted to BLI under this Agreement and (b) perform its obligations under this Agreement; Page 53 of 85





11.4.2 Ginkgo has independently developed all Ginkgo Background IP or otherwise has a valid right to use, and, as applicable, to permit BLI and its permitted sublicensees to use, the Ginkgo Background IP for all permitted purposes under this Agreement; and

11.4.3 neither Ginkgo nor its Affiliates have granted, and Ginkgo and its Affiliates will not grant, any liens or security interest on any assets, including Intellectual Property, that would limit the scope of any rights or licenses granted to BLI hereunder.

11.5 DISCLAIMERS.

11.5.1 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ITS ACTIVITIES UNDER THIS AGREEMENT OR RESULTS OF ANY WORK PLAN AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ITSELF OR THIRD PARTIES, VALIDITY, ENFORCEABILITY AND SCOPE OF PATENT RIGHTS, VALIDITY OF PATENT RIGHTS CLAIMS, WHETHER ISSUED OR PENDING, AND THE ABSENCE OF LATENT OR OTHER DEFECTS WHETHER OR NOT DISCOVERABLE.

11.5.2 BEACON PLATFORMS ARE SOLD FOR RESEARCH USE ONLY. NOT FOR USE IN DIAGNOSTIC PROCEDURES. GINKGO ACKNOWLEDGES THAT (I) BEACON PLATFORMS HAVE NOT BEEN APPROVED, CLEARED OR LICENSED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION OR ANY OTHER REGULATORY ENTITY WHETHER FOREIGN OR DOMESTIC FOR ANY SPECIFIC INTENDED USE, WHETHER RESEARCH, COMMERCIAL, DIAGNOSTIC OR OTHERWISE AND (II) GINKGO MUST ENSURE IT HAS ANY REGULATORY APPROVALS THAT ARE NECESSARY FOR GINKGO'S INTENDED USES OF BEACON PLATFORMS. GINKGO FURTHER AGREES TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS WHEN USING, MAINTAINING AND DISPOSING OF BEACON PLATFORMS.

11.6 No Consequential Damages. EXCEPT TO THE EXTENT ARISING (A) FROM A PARTY'S BREACH OF ARTICLE 10 (CONFIDENTIALITY), (B) [***] (E) FROM A PARTY'S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR (F) IN CONNECTION WITH A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 12 (INDEMNIFICATION; INSURANCE), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND ON Page 54 of 85





ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE). THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11.7 Liability Limit. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL A PARTY'S AGGREGATE LIABILITY (ABOVE AMOUNTS ACTUALLY PAID OR REIMBURSED BY SUCH PARTY'S INSURER (TO THE EXTENT NOT SELF-INSURED)) FOR A CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED [***], EXCEPT THAT (A) SUCH LIMITATION SHALL NOT APPLY TO (I) A PARTY'S BREACH OF ARTICLE 10 (CONFIDENTIALITY), [***], (V) A PARTY'S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR (VI) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 12 (INDEMNIFICATION; INSURANCE) AND (B) SUCH LIMITATION ON LIABILITY SHALL NOT INCLUDE ANY AMOUNTS ACCRUED AND ACTUALLY OWED PURSUANT TO THE TERMS OF THIS AGREEMENT. 12. INDEMNIFICATION; INSURANCE

12.1 Indemnification by BLI. BLI will indemnify, defend and hold Ginkgo and its Affiliates, and its and their officers, directors, employees, licensees, sublicensees, Permitted Subcontractors and agents (each, a Ginkgo Indemnitee) harmless from and against any and all suits, claims, proceedings and causes of action brought by a Third Party (collectively, Claims) and all associated damages, liabilities, expenses and losses, including reasonable legal expenses and reasonable attorneys' fees (collectively, Losses), to the extent caused by or arising as a result of (a) the breach by BLI of this Agreement or material inaccuracy in any representation or warranty made by BLI under this Agreement, (b) the negligence, gross negligence, fraud or willful misconduct by a BLI Indemnitee in connection with this Agreement, (c) [***], and (d) any Claims by BLI's employees, Permitted Subcontractors or agents for worker's compensation or other liability coverage, insurance, benefits, and other employee-related claims, in each case of clauses (a)-(d) of this Section 12.1 (Indemnification by BLI), except to the extent Ginkgo has an obligation to indemnify an BLI Indemnitee in connection with such Claims and Losses pursuant to Section 12.2 (Indemnification by Ginkgo).

12.2 Indemnification by Ginkgo. Ginkgo will indemnify, defend and hold BLI and its Affiliates, and its and their officers, directors, employees, Permitted Subcontractors and agents (each, an BLI Indemnitee) harmless from and against any and all Claims and Losses, to the extent caused by or arising as a result of (a) the breach by Ginkgo of this Agreement or material inaccuracy in any representation or warranty made by Ginkgo under this Agreement, (b) the negligence, gross negligence, fraud or willful misconduct by a Ginkgo Indemnitee in connection with this Agreement, (c) [***] and (d) any Claims by Ginkgo's employees, Permitted Subcontractors or agents for worker's compensation or other liability coverage, insurance, benefits, and other employee-related claims, and (e) the development, manufacture, use, handling, storage, importation, distribution, sale or other commercialization of Ginkgo Inventions by Ginkgo Page 55 of 85





or its Affiliates, agents, licensees, sublicensees or customers, in each case of clauses (a)-(e) of this Section 12.2 (Indemnification by Ginkgo) except to the extent BLI has an obligation to indemnify a Ginkgo Indemnitee in connection with such Claims and Losses pursuant to Section 12.1 (Indemnification by BLI).

12.3 Procedure. Any Party seeking indemnification under this Article 12 (Indemnification; Insurance) will promptly notify the indemnifying Party in writing after the Party seeking indemnification has received notice of any Claim. The Party seeking indemnification will reasonably cooperate with the indemnifying Party in the defense of any such Claim at the cost of the indemnifying Party. An indemnifying Party will not be obligated to defend, indemnify and hold harmless the Party seeking indemnification if, and only to the extent, the Party seeking indemnification delays providing notice of a Claim to the indemnifying Party and the delay in notice substantively prejudices the ability of the indemnifying Party to successfully defend the Claim. The indemnifying Party may not make any admission on behalf of the Party seeking indemnification [***]. Notwithstanding the foregoing, the Party seeking indemnification may at any time choose to be represented by its own counsel at its expense (or at the indemnifying Party's expense if the indemnifying Party's defense is inadequate as determined by a reasonableness standard).

12.4 Insurance. Each Party will obtain and carry in full force and effect the minimum insurance requirements set forth below. Such insurance (i) will be primary insurance with respect to each Party's own participation under this Agreement and (ii) will be issued by a recognized insurer rated by A.M. Best A-VII (or its equivalent) or better, or an insurer pre-approved in writing by the other Party.

12.4.1 Types and Minimum Limits. The types of insurance, and minimum limits will be: (i) any insurance policy that is required by any Applicable Law, including [***] and [***] policies where applicable; and (ii) [***] insurance with a minimum limit of [***] Dollars ($[***]) per occurrence and [***] Dollars ($[***]) in the aggregate. For clarity, [***].

12.4.2 Certificates of Insurance. Upon request by a Party, the other Party will provide Certificates of Insurance evidencing compliance with this Section 12.4 (Insurance). The insurance policies will be under an occurrence form, but if only a claims-made form is available to a Party, then such Party will continue to maintain such insurance after Expiration or the termination of this Agreement for a period of [***] ([***]) years following the end of the Term. 13. TERM AND TERMINATION

13.1 Term.

13.1.1 General. This Agreement shall commence on the Effective Date and, unless sooner terminated in accordance with its terms, including by Ginkgo pursuant to Section 7.3 (Buy-Down Election) or extended by the mutual written agreement of the Parties, shall continue until the Intended End of Term (such time period, as may be extended pursuant to this Section 13.3.1 (Term - General), the Term); provided that, if, Page 56 of 85





at the expiration of the Intended End of Term, Ginkgo has paid the Minimum Cumulative Purchase Commitment, but will not have paid to BLI the Full Purchase Target, then the Term of this Agreement shall automatically extend for an additional [***] ([***]) year period from the date of the expiration of the then-Intended End of Term so that, among other things, BLI may potentially receive the benefit of the Full Purchase Target and Ginkgo may receive the continuing benefit of royalty-free licenses.

13.1.2 Effects of Expiration. Upon Expiration of this Agreement: (i) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) and the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive and become perpetual, irrevocable, and royalty-free, (ii) no royalties shall be payable by Ginkgo on the sale or transfer of a Licensed Product, (iii) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) set forth in Section 5.2.2 (Pricing - Adjustments) shall [***], (iv) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall survive to the extent set forth therein and (v) [***].

13.2 Termination With Cause.

13.2.1 Material Breach. If either Party commits a material breach of any of its obligations under this Agreement, then the other Party may give the breaching Party written notice of such material breach. If the breaching Party fails to cure such breach within sixty (60) days after such notice, then the non-breaching Party may terminate this Agreement upon written notice to the breaching Party in its entirety. Notwithstanding the foregoing, if the breaching Party has a bona fide dispute as to whether such breach has occurred or has been cured, it will so notify the non- breaching Party in writing and the cure period will be tolled until such dispute is resolved pursuant to Section 14.5.2 (Dispute Resolution). Upon a final determination of breach or failure to cure, the breaching Party will have the remainder of the cure period to cure such breach. [***].

13.2.2 Bankruptcy. Each Party will have the right to terminate this Agreement immediately in its entirety by giving written notice of termination to the other Party, if the other Party files a voluntary petition, or if an involuntary petition is granted in respect of the other Party and appeal proceedings are not commenced within [***] ([***]) Business Days from the date of such petition under the bankruptcy provisions of Applicable Law, or the other Party is declared insolvent, undergoes voluntary or involuntary dissolution, or makes an assignment for the benefit of its creditors, or suffers the appointment of a receiver or trustee over all, or substantially all, of its assets or properties. All rights and licenses under or to Intellectual Property granted under or pursuant to this Agreement by one Party to the other are, and will otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to intellectual property as defined under Article 101 (52) of the U.S. Bankruptcy Code. The Parties agree that each Party will retain and may fully exercise all of its rights and elections under the U.S. Bankruptcy Code or such similar laws in a jurisdiction outside the United States. Page 57 of 85





13.3 Effects Termination.

13.3.1 General. As of the effective date of any early termination of this Agreement, (a) neither Party shall be relieved of any obligation that accrued prior to such effective date of termination; (b) except as otherwise expressly provided herein, all rights and obligations of each Party hereunder will cease and (c) each Party shall return or destroy all Confidential Information of the other Party that is in its possession, subject to and as more fully set forth in Section 10.6 (Destruction or Return of Confidential Information). BLI shall fulfill any Production Purchase orders placed by Ginkgo prior to the effective date of termination and Ginkgo shall pay for such orders pursuant to Section 5.3.3 (Delivery and Payment). For all Development Purchases, BLI shall deliver to Ginkgo all works-in-progress and any report or analysis prepared prior to the effective date of termination within [***] ([***]) days after the effective date of termination. Expiration of this Agreement occurs only when[***].

13.3.2 Effects of Termination Based Upon Ginkgo's Buy-Down Election. In the event that termination is the result of Ginkgo exercising the Buy-Down Election (including payment of the Buy-Down Amount), then, as of the effective date of termination: (a) any and all existing Headstart Periods shall immediately be deemed to have accelerated to conclusion, (b) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall terminate; (c) the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive and become perpetual and irrevocable; (d) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) shall survive; (e) any Licensed Products arising from Collaboration Workflows or Ginkgo Workflows developed and used by Ginkgo to good effect prior to the effective date of termination shall be [***] on any sale or transfer of such Licensed Product, (f) (i) for any Licensed Products arising from Workflows other than those set forth in subclause (e) of this Section 13.3.2 (Effects of Termination Based on Ginkgo's Buy-Down Election), Ginkgo shall pay [***] and (ii) Ginkgo shall pay [***] for as long as one or more Beacon Optofluidic Machines are in operation at Ginkgo, (g) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) shall be consistent with then-current BLI List Prices, and (h) Ginkgo shall pay BLI for any amounts due for work performed by BLI under and in accordance with this Agreement prior to the effective date of termination to the extent that BLI cannot reasonably cancel or reallocate such work.

13.3.3 Effects of Termination Based Upon an Uncured Ginkgo Breach, Insolvency or Extended Force Majeure Event affecting Ginkgo. In the event that termination is the result of an uncured, material Ginkgo breach of the Agreement under Section 13.2.1 (Material Breach), for Ginkgo's insolvency pursuant to Section 13.2.2 (Bankruptcy) or for an Extended Force Majeure Event with respect to Ginkgo pursuant to Section 14.8 (Force Majeure), then, as of the effective date of termination: (a) any and all existing Headstart Periods shall immediately be deemed to have accelerated to conclusion, (b) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall immediately deemed to have terminated; (c) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) shall survive, (d) the licenses granted to Ginkgo under Sections 9.1.1(c) (Grants to Ginkgo - Commercial License) and 9.1.2 (License Grant to Page 58 of 85





Exploit [***]) shall survive, but shall convert immediately into royalty-bearing licenses as set forth in subclause (e) hereof, (e) Ginkgo shall to pay to BLI [***]; provided that in the event such uncured material breach is [***], Ginkgo, at its election to be made on or before the [***] ([***]t h) day following the effective date of termination (or, if later, within [***] ([***]) days of learning of the relevant royalties for Licensed Products), may elect, in lieu of royalties, to pay to BLI [***]; (f) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) shall be consistent with then-current BLI List Prices; and (g) Ginkgo shall pay BLI for any amounts due for work performed by BLI under and in accordance with this Agreement prior to the effective date of termination or materials ordered prior to the effective date of termination to the extent that BLI cannot reasonably cancel or reallocate such work or materials.

13.3.4 Effects of Termination Based Upon an Uncured BLI Breach or Insolvency. In the event that termination is the result of an uncured material BLI breach of the Agreement under Section 13.2.1 (Material Breach) or for BLI's insolvency pursuant to Section 13.2.2 (Bankruptcy), then: (a) Ginkgo's obligations to pay to BLI the Minimum Cumulative Purchase Commitment under Section 7.2.2(a) (Contract Year Purchase Targets and Commitments) shall terminate, (b) BLI shall grant royalty-free status on all Licensed Products developed using the Beacon Platform and no royalties shall be payable by Ginkgo on any sale or transfer of such Licensed Products, (c) Ginkgo's obligations to pay to BLI the FOU License Fees pursuant to Section 7.4.1 (License Fees) shall terminate, (d) the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive [***], (e) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) shall terminate, except with respect to any sublicenses granted by BLI under Section 9.2.2 for products and processes that were sold, commercialized or performed by BLI or to or for Third Parties prior to termination, which shall survive and such termination, but only if such sublicenses were granted in accordance with this Agreement, (f) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) set forth in Section 5.2.2 (Pricing - Adjustments) shall survive for a period of [***] from the effective date of termination, (g) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall survive to the extent set forth therein and (h) any and all existing Headstart Periods shall survive for their duration. If any such uncured, material BLI breach is solely due to BLI's material failure to perform its supply-related obligations under this Agreement, Section 13.4 (Rights in Lieu of Termination for BLI's Material Breach of Supply Obligations) may apply in Ginkgo's sole discretion.

13.3.5 Effects of Termination Based Upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event. In the event that termination is elected by Ginkgo based upon an Extended Force Majeure Event with respect to BLI pursuant to Section 13.2.1 (Force Majeure), then, as of the effective date of termination: (a) any and all existing Headstart Periods shall survive for their duration as if this Agreement had not been terminated, (b) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall survive to the extent set forth therein as if this Agreement had not been terminated; (c) the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive and become perpetual, irrevocable and, subject to clause (f) of this Section 13.3.2, royalty-free; (d) the licenses granted to BLI Page 59 of 85





from Ginkgo pursuant to Section 9.2 (Grants to BLI) shall survive; (e) any Licensed Products arising from Collaboration Workflows or Ginkgo Workflows developed or used by Ginkgo to good effect prior to the effective date of termination shall be royalty-free and no royalties shall be payable by Ginkgo on any sale or transfer of such Licensed Product; provided that, if [***], if [***], then, in order for the sale or transfer of Licensed Products arising from Collaboration Workflows or Ginkgo Workflows developed or used by Ginkgo to good effect prior to the effective date of termination to be royalty-free, Ginkgo must pay to BLI [***], but Ginkgo will have [***] ([***]) days following the effective date of termination to decide whether to make such payment to BLI or to pay royalties for such Licensed Products under subclause (f) of this Section 13.3.5 (Effects of Termination Based Upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event), (f) (i) for any Licensed Products arising from Workflows other than as set forth in subclause (e) of this Section 13.3.5 (Effects of Termination Based Upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event), Ginkgo shall pay [***] and (ii) Ginkgo shall pay [***]; provided that, if [***], then [***], (g) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) shall be consistent with then-current BLI List Prices and (h) Ginkgo shall pay BLI for any amounts due for work performed by BLI under and in accordance with this Agreement prior to the effective date of termination to the extent that BLI cannot reasonably cancel or reallocate such work.

13.3.6 Non-Limitation of Remedies. Nothing in this Section 13.3 (Effects of Expiration and Termination) limits or precludes any other remedies available to a Party, including for example, the seeking and obtaining of injunctive relief.

13.3.7 Annual Royalty Update. The Parties hereby acknowledge that, if this Agreement is terminated, then, depending on the manner of termination, Ginkgo may, as more fully set forth in Section 13.3 (Effects of Termination), be required to pay royalties to BLI with respect to Licensed Product, which royalties will be in line with BLI's then-standard commercial terms. In order for Ginkgo to more fully understand the royalty that may be owed to BLI in the event this Agreement is terminated, on an annual basis, starting at the end of the [***] Contract Year, BLI will provide Ginkgo, in writing, its then-current commercial terms with respect to royalties for the Licensed Products.

13.4 Rights in Lieu of Termination for BLI's Material Breach of Supply Obligations. In the event that Ginkgo has the right to terminate this Agreement under Section 13.2.1 (Material Breach) due to a material breach of BLI to perform its supply-related obligations under this Agreement (for clarity, this shall not include (a) [***] or (b) [***], Ginkgo may elect by written notice to BLI to, instead of terminating this Agreement, keep this Agreement and, without limiting any other right or remedy under Applicable Law or this Agreement, to decrease the amount of the Minimum Cumulative Purchase Commitment for the current and future Contract Years, as well as the Full Purchase Target, in each case in amounts reasonably mutually agreed upon by the Parties in good faith in accordance with this Section 13.4 (Rights in Lieu of Termination for BLI's Material Breach of Supply Obligations). Following any notice by Ginkgo to BLI under this Section 13.4 (Rights in Lieu of Termination for BLI's Material Breach of Supply Obligations), the Parties shall (i) discuss and implement in good faith a plan to address the supply breach by BLI and shall discuss in good faith potential approaches to prevent such breach from reoccurring, including a Page 60 of 85





modification to Ginkgo's forecasts and BLI's obligation to meet a certain percentage of such forecasts and (ii) discuss and implement reductions to the Minimum Cumulative Purchase Commitment for the current and future Contract Years, as well as reductions to the Full Purchase Target, which reductions will be made based on [***].

13.5 Determination of Use of Workflow to Good Effect. In the event the Parties disagree as to whether a Collaboration Workflow or Ginkgo Workflow has been developed and used by Ginkgo to good effect prior to termination pursuant to Section 13.3.2 (Effects of Termination Based Upon Ginkgo's Buy-Down Election) or Section 13.3.5 (Effects of Termination Based upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event), with respect to each, at either Party's request, the dispute shall be resolved in an accelerated manner by an Expert Panel subject to the process and cost allocation set forth in Section 3.5.3.

13.6 Surviving Provisions. In addition to this Section 13.6 (Surviving Provisions), the following Sections and Articles will survive Expiration and any termination of this Agreement: Article 1 (Definitions), Section 2.2.3 (Retooling and Development Costs) (solely with respect to (i) [***] and (ii) [***]), Section 2.4 (Costs Under Workflow Development Plans) (solely with respect to costs incurred prior to the end of the Term), Section 2.5 (Termination of Workflow Development Plans) (solely with respect to the effects of termination of a Workflow Development Plan as set forth therein), Section 2.8 (Records) (solely for [***] ([***]) years following the end of the Term or for such longer period as required by Applicable Law), Section 3.9 (Expenses) (solely with respect to expenses incurred prior to the end of the Term), Section 4.1.10 (solely to the extent the BLI Terms and Conditions need to survive in order to give effect to the surviving terms of this Agreement), Section 6.1 (Headstart Period) solely to the extent any Headstart Periods extend beyond the Term) and further subject to each of Section 13.3.2 (Effects of Termination Based Upon Ginkgo's Buy-Down Election), Section 13.3.3 (Effects of Termination Based Upon an Uncured Ginkgo Breach, Insolvency or Extended Force Majeure Event affecting Ginkgo) or Section 13.3.5 (Effects of Termination Based upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event), as applicable), Section 6.2.1 (Restrictions on BLI) (solely for the [***] ([***]) month period following the end of the Term), Section 7.5 (Manner of Payments) through Section 7.10 (Late Payments) (solely with respect to any unpaid amounts that accrued prior to the end of the Term or that accrue at any time under Section 7.4.2 (Milestone Payments)), Article 8 (Intellectual Property Ownership; Use of Data), but excluding Section 8.4 (Prosecution and Enforcement Rights), Section 8.5.1 (Disclosure), and Section 8.6 (Notification of New Products; Early Access), Article 10 (Confidentiality), Section 11.5 (Disclaimers), Section 11.6 (No Consequential Damages), Section 11.7 (Liability Limit, Section 12.1 (Indemnification by BLI) through Section 12.3 (Procedure), Section 13.1.2 (Effects of Expiration) (solely for Expiration of this Agreement and only for [***] ([***]) years for under clause (iii) thereof), Section 13.3 (Effects of Termination) (solely for termination of this Agreement), Section 13.5 (Determination of Use of Workflow to Good Effect), Section 14.5 (Governing Law; Dispute Resolution; Equitable Remedies), Section 14.9 (Further Assurances) and Section 14.15 (Interpretation). 14. MISCELLANEOUS

14.1 Notice. Any notice given under this Agreement must be in writing and delivered either to the addresses set forth below in person or via overnight courier (or to such other addresses Page 61 of 85





of which the Parties may from time to time be notified in writing) and each such notice will be effective upon actual receipt:

If to Ginkgo:

Ginkgo Bioworks, Inc. 27 Drydock Avenue, 8th Floor Boston, MA 02210 Attn: [***]

With a copy to:

Ginkgo Bioworks, Inc. 27 Drydock Avenue, 8th Floor Boston, MA 02210 Attn: [***]

with an electronic copy to [***]

With a copy to:

[***]

If to BLI:

Berkeley Lights, Inc. 5858 Horton Street, Suite 320 Emeryville, CA 94608 Attn: [***]

With a copy to:

Berkeley Lights, Inc. 5858 Horton Street, Suite 320 Emeryville, CA 94608 Attn: [***]

With an electronic copy to: [***]

With a copy to:

[***]

Such notice will be deemed to have been given as of the date delivered by hand or on the second business day (at the place of delivery) after deposit with an internationally recognized overnight delivery service.

14.2 Independent Contractors. It is understood that both Parties hereto are independent contractors and are engaged in the operation of their own respective businesses, and neither Party is to be considered the agent of the other. Neither Party has any authority to enter into any contracts or assume any obligations for the other. Page 62 of 85





14.3 Severability. If any provision of this Agreement is held illegal, invalid or unenforceable by a court of competent jurisdiction, such decision will in no way affect the validity or enforceability of any other provisions, which will remain in full force and effect, and the Agreement will be interpreted as if such provision were not included in this Agreement; provided that the Parties will negotiate in good faith an amendment to this Agreement that replaces the unenforceable provision with an enforceable provision (to the extent possible) that reflects their initial intent.

14.4 Assignment.

14.4.1 Permitted Assignments. Neither Party may assign or otherwise transfer this Agreement or any rights hereunder, without the prior written consent of the other Party; provided that either Party may assign or otherwise transfer this Agreement or any rights hereunder (a) to a wholly-owned subsidiary of such Party or (b) in connection with the transfer or sale of all or substantially all of the business or assets of such Party related to the subject matter of this Agreement, whether by merger, consolidation, divestiture, restructure, sale of stock sale of assets or otherwise its successor, whether in a merger, sale of stock or sale of assets or any other transaction, in each case (a)-(b), without first obtaining the prior written consent of the other Party, so long as the non-assigning Party is notified in writing of such assignment within [***] ([***]) days following such assignment; provided further that, in no event may BLI assign this Agreement, in whole or in part, to any Person [***] without first obtaining Ginkgo's prior written consent. Any purported assignment of this Agreement by a Party in contradiction to this Section 14.4 (Assignment) will be void and of no effect.

14.4.2 Transferee. Notwithstanding anything to the contrary set forth herein, if a Party (the Assigning Party) assigns or transfers this Agreement to a permitted Third Party pursuant to Section 14.4.1 (Permitted Assignments) (any such Third Party, a Transferee), then the Intellectual Property that was held or developed by such Transferee prior to or after such assignment or transfer (other than Intellectual Property developed by such Transferee in the course of conducting the Assigning Party's activities under this Agreement to the extent such Intellectual Property would have been so included had it been discovered, created, made, developed, conceived or reduced to practice by such Assigning Party) shall not be deemed to be Intellectual Property Controlled by such Assigning Party, and shall also not be affected or otherwise encumbered in any manner, including without limitation, by being subject to any rights of or licenses under this Agreement. Furthermore, such Transferee (and Affiliates of such Transferee: (i) existing immediately prior to such merger, acquisition, assignment or transfer; or (ii) formed on or after such merger, acquisition, assignment or transfer, which are not controlled by (as defined under the Affiliate definition in Section 1.2 (Affiliate definition)) the Assigning Party) shall be excluded from the Affiliate definition for purposes of determining Intellectual Property that is subject to this Agreement. Page 63 of 85





14.5 Governing Law; Dispute Resolution; Equitable Remedies.

14.5.1 Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of Delaware, without regard to any choice of law provision.

14.5.2 Dispute Resolution. Except with respect to those disputes in which a Party seeks equitable relief pursuant to Section 14.5.3 (Equitable Remedies) or for which a Party or Person is expressly given final decision-making authority as set forth in Section 3.5 (Decision-Making), the Parties, through their Senior Officers, will make a good faith effort to settle any disputes that may arise between them with respect to this Agreement. If the Parties do not settle the matter within [***] ([***]) days after the delivery by one Party of written notice (the Arbitration Notice) to the other Party involved, then the Parties will submit the matter to binding arbitration in Wilmington, Delaware. All matters so submitted to arbitration will be settled by three (3) arbitrators in accordance with the [***], or its successor (the [***] Rules). In the event of a conflict between [***] Rules and this Agreement, this Agreement shall govern. Each Party will designate an arbitrator and the Parties will cause the designated arbitrators to mutually agree upon and to designate a third arbitrator who will serve as chairperson; provided, however, that failing such agreement within [***] ([***]) days of delivery of the Arbitration Notice, the third (3rd) arbitrator will be appointed in accordance with [***] Rules within an additional [***] ([***]) days. The Parties shall arrange for a hearing to occur and be completed within [***] ([***]) days after the appointment of the third (3rd) arbitrator, which hearing shall last no longer than [***], unless the arbitral panel believes a longer period is required, in which case the hearing may last [***]. The Parties will cause the arbitrators to decide the matter to be arbitrated within [***] ([***]) days after the close of evidence unless the chairperson arbitrator determines, at the request of any Party or on his or her own initiative, that such time period should be extended, in which case such time period may not be extended beyond an additional [***] ([***]) day period. Each of Ginkgo and BLI will be permitted to serve one set of document production requests with no more than [***] ([***]) requests; no more than [***] ([***]) interrogatories, including subparts, no more than [***] ([***]) requests for admissions; no more than [***] ([***]) subpoenas to Third Parties; and no more than [***] ([***]) notices of deposition per side, in each case, unless the arbitral panel directs otherwise. Any documents not in English that are produced by a Party will be accompanied by a translation into English, which translation will not be binding upon the other Party or the arbitrators. Each Party covenants and agrees that (a) it will produce documents as required by this Section 14.5.2 (Dispute Resolution), and (b) it will make its employees, and will use commercially reasonable efforts to make its former employees, available for depositions and hearing testimony as requested by the other Party. The final decision of the majority of the arbitrators shall be in writing, in all events follow governing law and will be furnished to all the Parties in such dispute. Judgment on such decision may be entered in any court having jurisdiction. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrators' award. Except as required by Applicable Law or to enforce an arbitrators' award, neither Party may disclose the existence, contents or results of an arbitration brought in accordance with this Agreement, or the evidence produced by its opposing Parties, or any analysis or summaries derived from such evidence. The Parties agree that all applicable statutes of limitation and Page 64 of 85





time-based defenses (such as estoppel and laches) will be tolled while the procedures set forth in this Section 14.5.2 (Dispute Resolution) are pending. The Parties will cooperate in taking any actions necessary to achieve this result. Except as may be determined by the arbitrators, neither Party shall be penalized for delays resulting from dispute resolution conducted pursuant to this Section 14.5.2 (Dispute Resolution).

14.5.3 Equitable Remedies; Single Forum. Notwithstanding any other terms of this Agreement, either Party may seek a preliminary injunction or other provisional equitable relief in any court of competent jurisdiction as permitted by Applicable Law. At all times while any claim, action, suit or other proceeding between the Parties and/or any of their Affiliates (or among the Parties and/or any of their Affiliates and one or more Third Parties) arising out of or relating to this Agreement is pending in any court of competent jurisdiction, no dispute that is justiciable and can be joined to such pending claim, action, suit or other proceeding shall be submitted to arbitration pursuant to Section 14.5.2 (Dispute Resolution) without both Parties' mutual consent and, instead, either Party may join such dispute to the pending claim, action, suit or other proceeding by including such dispute in its pleadings or amending its pleadings. In the event that a motion to amend is required to achieve such joinder, the non- moving Party shall consent to such motion.

14.6 Entire Agreement; Amendment and Waiver. This Agreement, together with the Exhibits and Schedules attached hereto, sets forth and constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and all prior agreements, understandings, promises and representations, whether written or oral, with respect thereto are superseded hereby. This Agreement may not be amended except by a writing signed by authorized representatives of both Parties. The failure of a Party at any time or times to require performance of any provision hereof will in no manner affect its rights at a later time to enforce the same. To be valid, a waiver must be in writing and signed by an authorized representative of the Party having the right that is waived or to whom the obligation to be waived is owed.

14.7 English Language. This Agreement will be written and executed in, and all other communications under or in connection with this Agreement will be in, the English language. Any translation into any other language will not be an official version thereof, and in the event of any conflict in interpretation between the English version and such translation, the English version will control.

14.8 Force Majeure. Any delay in the performance of any of the duties or obligations (other than payment obligations) of either Party hereto caused by a Force Majeure Event (defined below) shall not be considered a breach of this Agreement and the time required for performance shall be extended for a period equal to the period of such delay. Force Majeure Event shall mean acts of God, acts of the public enemy, war, terrorism, insurrections, riots, injunctions, embargoes, fires, explosions, floods, or other unforeseeable causes beyond the reasonable control and without the fault or negligence of the Party who is so prevented or delayed from fulfilling its obligations under this Agreement by such Force Majeure Event (the Affected Party). The Affected Party shall give prompt written notice to the other Party of such cause and shall take whatever reasonable steps are appropriate in the other Party's discretion to relieve the effect of such cause as rapidly as possible. The Party not directly affected by the Force Majeure Event shall have the right to terminate this Agreement with written notice effective upon receipt if Force Page 65 of 85





Majeure Event continues to prevent performance or compliance in any material respect by the other Party for a period of more than [***] ([***]) days or should [***] ([***]) Force Majeure Events apply to the performance of such other Party during any [***] (each a Extended Force Majeure Event).

14.9 Further Assurances. Each Party will duly execute and deliver, or cause to be duly executed and delivered, such further instruments and do and cause to be done such further acts and things, including the filing of such assignments, agreements, documents, and instruments, as may be necessary or as the other Party may reasonably request in connection with this Agreement or to carry out more effectively the provisions and purposes hereof, or to better assure and confirm unto such other Party its rights and remedies under this Agreement.

14.10 Third Party Beneficiaries. There are no Third Party beneficiaries under this Agreement, except to the extent a Third Party is indemnified pursuant to Article 12 (Indemnification; Insurance); provided that, in no event will any Third Party entitled to indemnification pursuant to Article 12 (Indemnification; Insurance) be allowed to enforce the terms thereof against a Party.

14.11 Export Control. This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries which may be imposed upon the Parties from time to time. Each Party agrees that it will not export, directly or indirectly, any technical information acquired from the other Party under this Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the applicable license, approval, or written consent to do so from the appropriate agency or other governmental entity.

14.12 References. Unless otherwise specified, (a) references in this Agreement to any Article, Section, Exhibit or Schedule will mean references to such Article, Section, Exhibit or Schedule of this Agreement, (b) references in any Section to any clause are references to such clause of such Section and (c) references to any agreement, instrument or other document in this Agreement refer to such agreement, instrument or other document as originally executed or, if subsequently amended, replaced or supplemented from time to time, as so amended, replaced or supplemented and in effect at the relevant time of reference thereto.

14.13 Attachments. In the event of any inconsistencies between this Agreement and any Exhibits, Schedules or other attachments hereto, the terms of this Agreement will control, unless the relevant Exhibit, Schedule or other attachment explicitly references its inconsistency with this Agreement and states that it shall control.

14.14 Non-Solicit. Neither Party will, [***], directly or indirectly with or through any Person, solicit for employment any Person who is an employee of the other Party; provided, however, that general solicitation of the public for employment shall not constitute a solicitation hereunder so long as such general solicitation is not designed to target any such Person. In the event that a Party solicits and then hires an employee of the other Party in violation of this Section 14.4 (Non-Solicit), the hiring Party shall, [***], within [***] ([***]) days of such hire, pay the other Party an amount equal to the [***] cash compensation actually paid to the individual Page 66 of 85





([***]) by the non-hiring Party in the immediately prior calendar year and, further, if the individual solicited and then hired in violation of this is a Key Person under Section 5.4.1(b) (Dedicated FTEs; Key Persons), then BLI shall have [***] ([***]) months to identify an employee as the individual to replace such Key Person and any (a) [***] or (b) [***], in each case (a)-(b), to the extent due to the absence of such Key Person performing a Workflow Development Plan upon which the Key Person was engaged, shall be deemed waived for that [***] month period.

14.15 Interpretation. All headings are for convenience only and will not affect the meaning of any provision of this Agreement. The Parties acknowledge that each Party has read and negotiated the language used in this Agreement. Because both Parties participated in negotiating and drafting this Agreement, no rule of construction will apply to this Agreement which construes ambiguous language in favor of or against either Party by reason of that Party's role in drafting this Agreement. Except where the context expressly requires otherwise, (a) the use of any gender herein will be deemed to encompass references to either or both genders, and the use of the singular will be deemed to include the plural (and vice versa), (b) the words include, includes and including will be deemed to be followed by the phrase without limitation, whether or not so appearing herein, (c) the word will will be construed to have the same meaning and effect as the word shall, (d) any reference herein to any Person will be construed to include the Person's successors and permitted assigns, (e) the words herein, hereof and hereunder, and words of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (f) references to any Applicable Law, rule or regulation, or article, section or other division thereof, will be deemed to include the then-current amendments thereto or any replacement or successor Applicable Law, rule or regulation thereof and (g) the term or will be interpreted in the inclusive sense commonly associated with the term and/or.

14.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which, when executed and delivered by facsimile, electronic transmission or by mail delivery, will be deemed an original and all of which will constitute one and the same instrument.

[Signature Page Directly Follows] Page 67 of 85





IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized representatives. GINKGO BIOWORKS, INC. BERKELEY LIGHTS, INC.

By: /s/ Barry Canton By: /s/ Keith Breinlinger Name: Barry Canton Name: Keith Breinlinger Title: CTO Title: CTO





SCHEDULE 1.10

Beacon Optofluidic Machine Specifications

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 1.18

BLI Terms and Conditions

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 1.21

Buy-Down Examples

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 1.36

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 1.62

FTE Rate

$[***] USD per year* * All FTEs (Hardware, Software, Program Manager, FAS, etc.) will be billed to Ginkgo at this rate. For periods of less than 1 year, billing will be pro-rated based on time. [***]





SCHEDULE 1.92

Lead Time

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 1.104

OptoSelect Chips

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 1.107

Performance Service Plan

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 2.2.2

Initial Workflow Development Plans

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 5.2.1

Pricing Schedule

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE 5.3.3

Qualification Standards

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





SCHEDULE [***] 1. [***]





SCHEDULE 10.5

Draft Press Release - Subject to further changes by Both Parties

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





EXHIBIT A

Workflow Development Plans

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





EXHIBIT B

Outline of First Two (2) Initial Workflow Development Plans

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





EXHIBIT C

GINKGO BIOWORKS, INC. AGREEMENT CONCERNING RECEIPT OF AND ACCESS TO GINKGO PROPERTY AND CONFIDENTIAL INFORMATION

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)





EXHIBIT D

BLI Proprietary Workflows for Section 7.4.2

Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
[EX A]: Highlight the parts (if any) of this contract related to Third Party Beneficiary that should be reviewed by a lawyer. Details: Is there a non-contracting party who is a beneficiary to some or all of the clauses in the contract and therefore can enforce its rights against a contracting party?

[EX Q]: EXHIBIT 4.5

                       MANUFACTURING OUTSOURCING AGREEMENT

This Manufacturing Outsourcing Agreement (The AGREEMENT) is entered into on January 21st, 2002, by and between Nice Systems Ltd., an Israeli registered corporation no. 52-0036872 having its place of business at 8 Hapnina Street, P.O.B 690, Ra'anana 43107, Israel, (NICE) and Flextronics Israel Ltd., an Israeli registered corporation no. 51-2933045, having its place of business at 1 Hatasiya Str., Ramat Gabriel Industrial Zone, Migdal Haemek 23108, P.O.Box 867, Israel (the CONTRACTOR). NICE and Contractor are collectively referred to as the Parties.

RECITALS

WHEREAS NICE issued a request for information (RFI) version A.2 dated June 17th, 2001 to a number of manufacturers seeking to provide NICE with certain local Manufacturing Outsourcing Services (as defined hereinafter) for the production, testing and delivery in world class quality and capability of NICE' Products, on a turnkey basis, to acquire from NICE inventory related to the operations to be outsourced, and to contract with certain of the contractors performing portions of the remainder of work or to accept assignment of such contracts, all as detailed herein;

WHEREAS the RFI was followed by a request for proposal including a detailed Statement of Work including Exhibits dated 13.8.01 (the RFP);

WHEREAS the Contractor submitted a proposal in response to the RFI and RFP (together the PROPOSAL or the CONTRACTOR'S PROPOSAL);

WHEREAS the bidding process resulted in the selection of Contractor, which represented that it possessed the necessary skills, staffing, experience, resources, and capabilities to provide those certain Manufacturing Outsourcing Services detailed herein in world class quality, capability and manner as set forth herein;

WHEREAS the Parties have completed the pre-contract due diligence, and now wish to contract for the provision of the Manufacturing Outsourcing Services;

NOW THEREFORE, FOR AND IN CONSIDERATION OF THE AGREEMENTS OF THE PARTIES SET FORTH BELOW, NICE AND CONTRACTOR AGREE AS FOLLOWS:

A.   DEFINITIONS. The following terms shall have the meanings set forth below:

     (i)  RFI - shall have the meaning ascribed in the preamble above.

     (ii) RFP - shall have the meaning ascribed in the preamble above.

     (iii) SOW - Statement of Work document attached to the RFP and forming an            integral part thereof including its Exhibits.

     (iv) CONTRACTOR'S PROPOSAL or PROPOSAL - shall have the meaning           ascribed in the preamble above. It is clarified that for the purpose           of Contractor's Proposal in response to the RFI, Contractor hereby           declares that such Proposal was valid and correct at the date           submitted in all material aspects which are relevant to NICE' decision           to choose Contractor as the Manufacturing Outsourcing Services           supplier.

     (v)  PRODUCTS - Digital recording products as defined in APPENDIX A and           further detailed in the PDM System, and as shall be amended from time           to time by NICE and manufactured by Contractor in accordance herewith.

     (vi) MANUFACTURING OUTSOURCING SERVICES - Certain turnkey based           purchasing, manufacturing, testing, configuration and delivery           services for the Products all as detailed in the Agreement and its           Appendices and Exhibits, including but not limited to: purchase of the           Product's components which are not supplied by NICE, assembly and           production of the Products subject to supervision, control and           planning by NICE, execution of Measurements and Procedures, response           times, providing infrastructure and resources, allocation of the           required manpower, use of the Non Generic Equipment, execution of           engineering and integration process, Engineering Changes, integration           of NICE Software, implementation of Control and Planning, Engineering           Changes and Change Order procedures, packaging requirements,           dismantling and disassembly of Products procedure, spare part           mechanism, quality control requirements, logistics management           including inventory management, adjusting and meeting forecasts,           components purchasing procedure, supplies and shipment schedules,           issuing orders procedure, preparing export shipments, all of world           class quality and capability and as provided herein, on a turnkey           basis, and acquisition from NICE of certain inventory related to the           operations to be outsourced, and to contract with certain of the           contractors supplying components and/or performing portions of the           remainder of work or to accept assignment of such contracts, all as           detailed herein.

     (vii) NICE SOFTWARE - Dedicated software developed by NICE and/or for           NICE, in which all Intellectual Property (as defined below) is owned





          by NICE.

     (viii) PERSONNEL - Contractors' employees, subcontractors,           subcontractor's employees and any other person acting on behalf of           Contractor.

     (ix) AFFILIATE - A corporation, partnership or other business entity           which controls, is controlled by, or is under common control of a           Party. For the purposes hereof, CONTROL shall mean the holding of           more than 50% of the voting rights in the entity in question.

                                       2

     (x)  CUSTOMER/S - NICE distributors, resellers, VAR's (value added           resellers), OEM's and similar business partners and/or end-users,           which purchase the Products.

     (xi) NICE PROPRIETARY INFORMATION - Any and all data and information           disclosed by NICE to the Contractor during the term of this Agreement           in any form, whether verbally, in writing or in machine readable form           or in magnetic media, relating to the business, manufacturing,           know-how, Products, NICE Software, any other products, items,           components and affairs of NICE including its Affiliates, and including           without limitation - documents, prototypes, samples and the NICE'           plants and equipment, Products, certain proprietary and confidential           information concerning NICE' past, present and future research,           development and business activities and the results therefrom,           including but not limited to digital recording solutions, applications           and services technology. Proprietary Information may also include           information disclosed to NICE by third parties. Proprietary           Information shall not include data and information which: (i) was or           will be, independently of this Agreement, lawfully in the possession           of the Contractor without breach of obligation of secrecy of           Contractor to NICE, and/or (ii) was or will be, independently of this           Agreement, lawfully in the possession of the Contractor without breach           of obligation of secrecy of a third party to NICE, or (iii) was in the           public domain or was common knowledge at the time of receipt by the           Contractor; or (iv) following its disclosure to the Contractor as the           receiving Party, has, through no fault on the part of the Contractor,           subsequently become part of the public domain or is common knowledge;           or (v) is required to be disclosed by the Contractor to comply with           applicable laws or governmental regulations, provided that the           Contractor provides prior written notice of such disclosure to NICE           and takes reasonable and lawful actions, at NICE' expense, to avoid           and/or minimize the extent of such disclosure.

          CONTRACTOR'S PROPRIETARY INFORMATION - data and information           disclosed by Contractor to NICE during the term of this Agreement in           any form, whether verbally, in writing or in machine readable form or           in magnetic media, relating to the business, manufacturing methods,           know-how, systems, price lists, suppliers lists and terms of           engagement with suppliers, of Contractor including its Affiliates, and           including without limitation documents, and the Contractor's plants           and equipment, all information disclosed under audits under this           Agreement. Contractor's Proprietary Information may also include           information disclosed to Contractor by third parties. Contractor's           Proprietary Information shall not include data and information which:           (i) was or will be, independently of this Agreement, lawfully in the           possession of NICE

                                       3

          without breach of obligation of secrecy to Contractor, and/or (ii) was           or will be, independently of this Agreement, lawfully in the           possession of NICE without breach of obligation of secrecy of a third           party to Contractor, or (iii) was in the public domain or was common           knowledge at the time of receipt by NICE; or (iv) following its           disclosure to NICE as the receiving Party, has, through no fault on           the part of NICE, subsequently become part of the public domain or is           common knowledge; or (v) is required to be disclosed by NICE to comply           with applicable laws or governmental regulations, provided that NICE           provides prior written notice of such disclosure to Contractor and           takes reasonable and lawful actions, at Contractor's expense, to avoid           and/or minimize the extent of such disclosure.

     (xii) INTELLECTUAL PROPERTY - Trademarks, trade names, logos, domain           names, designs, patents, copyrights, inventions, discoveries,           technology, know-how, trade secrets, confidential and proprietary           information and mask works, all registrations and applications for any           and all renewals, reissuances and extensions of, and all goodwill in,           the foregoing.

     (xiii) PURCHASE ORDER/S or PO/'S- A NICE purchase order ordering           manufacture and supply of the Products, issued in accordance herewith.

     (xiv) TOTAL LEAD TIME - The Purchase Lead Time, Sub Assembly Lead Time           and Production Lead Time together.

     (xv) PURCHASE LEAD TIME - The maximum agreed time for purchase of           components by Contractor in order to enable production and completion           of a Product until the Due Date, being the total of the time required           for ordering and delivering all relevant components to Contractor from           Contractor's suppliers, subject to the Liability. The initial Purchase           Lead Time for each component (including sub-assembly purchased from





          suppliers) will be as detailed in APPENDIX C and shall be reviewed and           updated as necessary by the parties each Quarter during the duration           of this Agreement according to the procedure detailed in this           Agreement. The new Purchase Lead Time shall need to be agreed to by           both parties, and, once agreed, shall be the binding Purchase Lead           Time for the relevant components. The parties will also agree on the           Purchase Lead Time regarding each new component to be included in a           Product.

     (xvi) SUB ASSEMBLY LEAD TIME - The maximum agreed time for completion of           sub-assemblies in order to enable production and completion of a           Product until the Due Date, beginning at the end of the Purchase Lead           Time for all relevant components and ending on successful completion           of testing of the relevant sub-assemblies. The initial Sub Assembly           Lead Time for each sub-assembly will be as detailed in APPENDIX C and           shall be reviewed and updated as necessary by the parties each Quarter           during the duration of this Agreement according to the procedure           detailed in this Agreement. The new Sub Assembly Lead Time shall need           to be agreed to by both parties, and, once agreed, shall be the           binding Sub Assembly Lead Time for the relevant Sub Assemblies. The           parties will also agree on the Sub Assembly Lead Time regarding each           new Sub Assembly to be included in a Product.

                                       4

     (xvii) PRODUCTION LEAD TIME - The agreed time for completion of a Product           until its Due Date, meaning from commencement of assembly (from           sub-assemblies if applicable) until successful completion of testing,           which shall always be fourteen (14) Days from receipt of the PO.

     (xviii) ENGINEERING CHANGES - Engineering change in the Product as           detailed in Sections 3.10 and 3.11 to this Agreement.

     (xix) ECR - Engineering Change Request issued by NICE or by Contractor.

     (xx) ECO - Engineering Change Order issued by NICE at its discretion           after an ECR, in accordance with Section 3.11 below.

     (xxi) CHANGE ORDERS - Change or changes or amendments in a specific order           excluding rescheduling of an order/prices and excluding ECO's, as           further detailed in Section 3.5.

     (xxii) WARRANTY PERIOD - Thirteen (13) months from the Shipment Date of           the Product subject matter of the warranty, unless agreed otherwise by           the parties in writing.

     (xxiii) BACKUP SITE - Contractor's backup site and/or the third party           site, as detailed in APPENDIX G and in Section 2.9 below, designed to           be operated in the event of force majeure or other event preventing           the performance of the Manufacturing Outsourcing Services at           Contractor's plant and to ensure an alternate facility with equivalent           standards and availability.

     (xxiv) DUE DATE - The date of completion of the Product after completion           of all quality and integration tests as detailed for each Product           including in APPENDIX J and its classification as finished goods           according to the date detailed in the relevant NICE Purchase Order,           issued in accordance with this Agreement.

     (xxv) SHIPMENT DATE - the date of delivery of Products, properly packed           (i.e. in accordance with this Agreement), including all documents           required for the export of Products, to the NICE designated freight           forwarder at Contractor's Location, which may be any time after the           Due Date as determined by NICE, but not to exceed sixty (60) Days from           the Due Date.

     (xxvi) DAY or DAYS - Calendar days unless specific reference is made to           Business Days.

                                       5

     (xxvii) BUSINESS DAYS - Sunday to Thursday, excluding holidays. Holiday           eves shall be regarded as half a business day.

     (xxviii) QUARTER - a calendar quarter.

     (xxix) EFFECTIVE DATE - January 21st, 2002

     (xxx) LIABILITY  - components and sub-assemblies for which Contractor has           an option of cancellation and/or rescheduling without liability, as           detailed in APPENDIX C regarding each component and sub assembly. The           cancellation window for VMI (Vendor Management Inventory) Components           varies between 0 to 35 Days from ordering by Contractor.

     (xxxi) NON GENERIC EQUIPMENT - functional testing equipment and any           equipment related thereto.

     (xxxii) PDM SYSTEM - NICE' engineering system (PDM) to which Contractor           shall be granted access for the purpose of performance of this           Agreement and whose contents shall be binding and constitute an           integral part of this Agreement, subject to Section 17.1. The contents           of the PDM System as at the date hereof which are not governed by           Section 17.1 may only be changed further to an ECO issued in           accordance herewith.





B.   INTERPRETATIONS

     As used in this Agreement:

     (i)  The terms and expressions set out in Section A shall have the           meanings ascribed therein.

     (ii) The preamble and Appendices and Schedules form an integral part of           this Agreement.

     (iii) The masculine includes the neuter and the feminine; and the singular           includes and plural and vice versa.

     (iv) A reference to any statute, enactment, order, regulation or other           similar instrument shall be construed as a reference to the statute,           enactment, order, regulation or instrument as amended by any           subsequent statute, enactment, order, regulation or instrument or as           contained in any subsequent re-enactment thereof.

     (v)  Headings are included in this Agreement for ease of reference only and           shall not affect the interpretation or construction of this Agreement.

                                       6

     (vi) References to Sections, Schedules, Appendices and Exhibits are, unless           otherwise provided, references to sections, schedules, appendices and           exhibits to this Agreement.

     (vii) In the event certain provisions incorporated in the Agreement are           contradictory VIS-A-VIS other provisions incorporated in the           Appendices and Schedules, the Agreement shall prevail.

     (viii) In the event certain provisions incorporated in the Appendices and           Schedules are contradictory VIS-A-VIS other provisions incorporated           therein, the specific provisions shall take precedence over the           general provisions.

C.   APPENDICES AND SCHEDULES

     (i)  Appendix A - Products;

     (ii) Appendix B - The Proposal;

     (iii) Appendix C - Prices, Purchase and Sub-Assembly Lead Time,           cancellation windows, rescheduling period, minimum order, package           quantity, labor costs, disassembly fees, Product prices, cancellation           fees, ECR and ECO administrative costs [a new version to be completed           within a month of signature of the Agreement and thereafter updated in           accordance with this Agreement];

     (iv) Appendix D - Insurance Certificate;

     (v)  Appendix E - Non Disclosure Undertaking;

     (vi) Appendix F - NICE Inventory purchased by Contractor for the first           Quarter (NICE Inventory purchased by Contractor for the second Quarter           will be added as an addition to Appendix F at a later date);

     (vii) Appendix G - Back Up Site;

     (viii) Appendix H - Safety, Security & IT Requirements;

     (ix) Appendix I - Spare Parts / Upgrade;

     (x)  Appendix J - Quality Assurance Requirements;

     (xi) Appendix K - NICE Products release policy;

     (xiv) Appendix N - RMA Process.

                                       7

1.   MANUFACTURING OUTSOURCING SERVICES

     1.1. SCOPE OF WORK. During the term of and subject to this Agreement,           Contractor shall perform the Manufacturing Outsourcing Services           including purchase, assemble, manufacture, configure, test and deliver           to NICE' freight forwarder in Contractor's facility, under the terms           set forth below, and NICE shall purchase from Contractor, and           Contractor shall sell to NICE, such quantities of units of the           Products according to NICE' Purchase Orders, from time-to-time as           detailed below, at the quoted prices set forth in Appendix C. This           Agreement or any provision thereof shall not be interpreted as           granting Contractor any exclusive rights in respect of the           Manufacturing Outsourcing Services or any similar services outsourced           by NICE, and shall not prevent NICE, at its sole discretion, from           contracting with any third party for such services, subject to the           provisions of this Agreement. Notwithstanding anything to the contrary           in the Agreement or elsewhere, including NICE' confidentiality           obligations towards Contractor, but without derogating from NICE'           obligations hereunder, this Agreement shall in no way be construed as           preventing NICE from performing the Manufacturing Outsourcing Services           or part thereof by itself and/or through others, whether during the





          term of this Agreement or thereafter.

     1.2. Contractor's obligations to execute the Manufacturing Outsourcing           Services pursuant to this Agreement shall commence on the Effective           Date, subject to the following provisions:

     1.2.1. OUTSOURCING TRANSITION - NICE intends to outsource part of its           manufacturing activities to the Contractor, in 3 phases: (1) Training           and Authorization, (2) Relocation and (3) Manufacturing Outsourcing           Services, as described in this Agreement.

               1.2.2. INFRASTRUCTURE. For the execution of this Agreement and                     the Manufacturing Outsourcing Services, Contractor will set                     up and establish specific infrastructure including an                     exclusive area in its production facility as detailed                     herein. Contractor shall assemble its own workstations using                     its generic equipment and the Non Generic Equipment to be                     provided by NICE in good working order. The maintenance of                     the Non Generic Equipment and keeping it in good working                     order, except normal wear and tear, shall be Contractor's                     responsibility, at Contractor's expense. NICE shall have the                     right to object on reasonable grounds to any material change                     of the manufacturing facility for any Product.

               1.2.3. RELOCATION- Contractor will complete the Relocation                     process including preparation of production lines

                                       8

                    that will be able to ensure the production capacity                     according to NICE' forecasts as detailed herein. The                     completion of the Relocation stage shall be on time in order                     to enable compliance with the Forecast submitted to                     Contractor prior to signature of this Agreement and shall be                     subject to the Control of NICE, without relieving Contractor                     from its responsibilities hereunder. Upon NICE' approval                     that the Relocation stage has been completed to its                     satisfaction, which approval shall not be unreasonably                     withheld, the Contractor shall commence the Manufacturing                     Outsourcing Services.

               1.2.4. RESOURCES, PERSONNEL, PROJECT MANAGER. Contractor will be                     responsible for the required resources in order to comply                     with its undertakings hereunder and to deliver the                     Manufacturing Outsourcing Services as detailed hereunder.                     Contractor will perform the Manufacturing Outsourcing                     Services using only skilled, qualified and experienced                     personnel to the extent required for the purpose of                     performing its undertakings pursuant to this Agreement, to                     be trained and authorized, according to NICE' requirements.                     Contractor shall not replace at its initiative key Personnel                     during the duration of this Agreement, to the extent such                     replacement shall materially impair its ability to perform                     in compliance herewith and any such replacement shall take                     place only after consultation with NICE. It is agreed for                     the purpose hereof, that frequent replacement of key                     personnel shall be deemed as materially impairing                     Contractor's ability to perform hereunder. NICE may reject                     on reasonable grounds any such key personnel employed by                     Contractor in the performance of its obligations hereunder,                     and they shall be replaced by Contractor promptly following                     NICE' first reasoned request. Such personnel shall abide by                     all of NICE' security, data protection and safety                     requirements and policies as indicated from time to time by                     NICE in writing according to Section 17.1.

                    TheContractor will appoint a dedicated Project Manager who                     will coordinate with NICE' representative and serve as a                     single point of contact for NICE in all aspects pertaining                     to this Agreement. The project manager will not be replaced                     at Contractor's initiative during the duration of this                     Agreement to the extent such replacement shall

                                       9

                    materially impair Contractors ability to perform in                     compliance herewith and any such replacement shall take                     place only after consultation with NICE. It is agreed for                     the purpose hereof, that frequent replacement of                     Contractor's Project Manager shall be deemed as materially                     impairing Contractor's ability to perform hereunder. The                     project manager will meet with NICE' representative on a                     regular basis.

               1.2.5. CONTROL AND PLANNING. Without derogating from the                     aforesaid, Contractor will provide NICE with control                     capability of the production. NICE shall be entitled to be                     involved in the planning and establishment of the working                     environment for all Product lines at the Contractor's                     premises. Contractor will provide NICE with reports on a                     daily/ weekly/ monthly basis, as follows: the reports will                     present all relevant details regarding the production                     orders, time between phases, disassembled Products,                     schedules, logistics reports, etc. The reports provided will





                    present all said data in a clear manner and will include                     graphic presentations. The reports will enable NICE to                     verify that all systems are matched and to verify the                     improvement that is achieved by Contractor. All said reports                     shall need to be agreed in advance by both Parties.

               1.2.6. SUPERVISION AND MONITORING. NICE shall be entitled but not                     obligated, to supervise and monitor the execution of this                     Agreement from time to time as set forth herein. NICE shall                     be entitled, upon prior coordination, to visit any place                     where the Manufacturing Outsourcing Services are being                     performed including Contractor's plant/s and to review                     samples of components and Products. As a result of such                     supervision, NICE may propose improvements and increase in                     efficiency in the Manufacturing Outsourcing Services and the                     Parties will discuss such proposals and their affect on this                     Agreement. Without derogating from the generality of the                     aforementioned, any supervision and monitoring rights                     granted to NICE hereunder are merely intended to secure                     performance of this Agreement according to its terms and                     shall not relieve Contractor from its responsibilities                     hereunder according to this Agreement or impose any                     responsibility or liability upon NICE which is not                     explicitly detailed in this Agreement.

                                       10

               1.2.7. MEASUREMENTS AND PROCEDURES. Contractor will execute all                     the production stages required for a Product according to                     NICE' Production File for the particular Product, included                     in the PDM System.

               1.2.8. QUALITY ASSURANCE REQUIREMENTS. The Manufacturing                     Outsourcing Services performed by Contractor shall be                     executed according to and comply with all quality control                     requirements and specifications described in APPENDIX J.                     Without derogating from Contractor's responsibility as                     aforementioned, NICE reserves the right to execute quality                     assurance inspection on Contractor's premises, all as                     described in APPENDIX J and according to the terms hereof.

               1.2.9. BACK-UP SITE. Contractor will ensure the availability of                     the Back-up Site according to the terms of this Agreement.                     Attached as APPENDIX G to this Agreement is the undertaking                     of Flextronics, Inc., North Carolina for a Back Up Site in                     North Carolina, USA and a transition plan for its operation.

               1.2.10. STEERING COMMITTEE. The Parties will appoint a steering                     committee which shall monitor the execution of this                     Agreement, comprised of Contractor's project manager, NICE'                     representative, and relevant personnel of the Parties.

     2.   COMPONENTS PURCHASING, NICE COMPONENTS AND INVENTORY.

          2.1. COMPONENTS PURCHASING. Upon transition to the third phase -                Production, the Contractor will be responsible for all purchasing                of components and getting equipped with all the materials                necessary for the assembly of the Products (except the Non                Generic Equipment). At NICE' request, and without derogating from                any other provisions of this Agreement, Contractor shall promptly                notify NICE, in writing, who are the suppliers of any specific                components and under what agreements purchase is effected.

          2.2. CONTRACTOR PURCHASE AGREEMENTS. Without derogating from the                aforementioned, NICE may, at its sole discretion, decide to be                involved and to actively or inactively, participate in                negotiations and purchasing agreements of Contractor for                components designated for production hereunder. In such event,                Contractor will comply with NICE' requirements and instructions                and contract accordingly, without imposing any liability on NICE,                provided such instructions

                                       11

               are in accordance with common purchasing practice and in                accordance with this Agreement. NICE may, at its election,                instruct Contractor not to purchase a relevant component from a                specific supplier, provided an alternative supplier exists.                APPENDIX C shall be updated accordingly. At NICE' request,                Contractor shall notify any relevant supplier that it is                purchasing components for NICE Products and shall further furnish                the supplier with information requested by such supplier. In any                event, Contractor shall report to NICE on its purchasing                negotiations and achievements and shall supply NICE, at NICE'                request, with a copy of all relevant existing documentation.

          2.3. FLEXTRONICS, INC. GLOBAL PURCHASE AGREEMENTS. Nevertheless, in                the event that the purchase agreement is signed by Flextronics,                Inc. as a global purchase agreement for the Flextronics group,                and not as a local agreement of Contractor or as an agreement                applying to NICE required components only, then NICE will not                participate in the negotiations and will not be entitled to                receive copies of such agreement/s. The details relevant to the                components purchased under an agreement as above will be included





               in APPENDIX C and Contractor hereby declares and undertakes that                the details included in APPENDIX C (as amended from time to time                according to the provisions of this Agreement) shall be the                accurate details from the Flextronics, Inc. global purchase                agreements and components and sub assembly prices in APPENDIX C                shall be net purchase prices of Contractor without any overhead                or uplift. NICE shall be entitled, at its sole discretion, to                object in advance to Contractor using any Flextronics, Inc.                global purchase agreement and in such event, Contractor shall                purchase the components separately, the provisions of Section                2.2. shall apply and APPENDIX C shall be updated accordingly.                Contractor undertakes to comply with NICE' instructions and the                manufacturer license terms regarding the use and duplication of                Microsoft and other third party software supplied by NICE and not                to use such software products for any purpose other than in the                assembly of the Products. Contractor will copy from the master CD                of those software products only the exact number of licenses                designated by NICE in writing and for which a license has been                issued by NICE.

          2.4. NICE DESIGNATED COMPONENTS. NICE may request Contractor to                purchase specific components from specific suppliers, provided                that the terms of such suppliers are in accordance with common                purchasing practices and APPENDIX C shall be updated accordingly.

               When purchasing components for Contractor's other customers,                Contractor may not represent itself to the suppliers as a NICE                outsourcer for the purposes of such purchase.

          2.5. NICE SUPPLIED COMPONENTS. NICE may, at its election, supply to                Contractor software licenses and software or the like for which                NICE has an existing royalty agreement with a third party (except                electrical and mechanical components unless agreed otherwise), in                lieu of Contractor purchasing same (NICE COMPONENTS). All

                                       12

               such components will be delivered to Contractor in a mutually                agreed package type, and in an agreed upon time and in agreed                upon quantities. The parties will agree on the inventory level                required by Contractor for each NICE Component and NICE' sole                responsibility shall be to renew the inventory upon request.                Contractor shall be responsible for ordering additional NICE                Components if required above the inventory level and for ensuring                that appropriate physical controls of such components are in                place and properly administered. Contractor will not charge NICE                any charges or overhead for such NICE Components. In the event                Contractor has difficulty in purchasing any components which NICE                can obtain and NICE has granted its consent to supply such                component to Contractor in lieu of Contractor purchasing same,                Contractor will not charge NICE any charges or overhead for such                Components.

          2.6. INVENTORY MANAGEMENT AND USE OF EXISTING INVENTORY. All                purchasing of inventory, use of inventory, and management of                inventory shall be performed by Contractor according to this                Agreement, and APPENDIX C.

          2.7. EXISTING NICE INVENTORY. Furthermore, Contractor will purchase                from NICE its existing inventory of components available for use                in Products for up to six (6) months on a rolling basis, as                detailed in APPENDIX F, all of which will be transferred to                Contractor's facility on the purchase date, all as detailed                hereunder: On the Effective Date Contractor will purchase the                inventory included in part I of APPENDIX F. Regarding the                remainder of the inventory included in part II of APPENDIX F the                following will apply: at the beginning of the first production                Quarter hereunder Contractor will purchase the components                required under the Forecast issued by NICE for that Quarter                regardless of the Total Lead Time for such components; at the                beginning of the second production Quarter hereunder Contractor                will purchase the components required under the Forecast issued                by NICE for that Quarter regardless of the Total Lead Time for                such components; Contractor will purchase any components                remaining in APPENDIX F after two Quarters as aforementioned, on                a current basis as required under the Forecast issued by NICE for                the following Quarters but in compliance with the Total Lead Time                for such components. Contractor will use said NICE' inventory for                the production of the Products rather than purchase such                components from third parties, until full use of all NICE                inventory. Contractor shall pay NICE the purchase price of such                components, as set forth in APPENDIX C hereto, and under payment                terms as set forth in Section 8.4. When sold to NICE as part of                aProduct, the component prices paid by NICE to Contractor                hereunder will be calculated with a reduced overhead of 2%. NICE                will and does hereby provide Contractor with all such warranties                with respect to the components sold thereby as is required from                Contractor under this Agreement with respect to the same                components. Furthermore, without derogating from NICE'                undertakings hereunder, Contractor will use its international                supply chain in order to assist NICE in selling its dead                inventory, which is not included in APPENDIX F, and the proceeds                from such sales will be shared as follows: 10% Contractor, 90%                NICE. Contractor will report to NICE regularly, on such sales.





                                       13

          2.8. COMPONENT END OF LIFE. Contractor shall take all necessary                measures in order to receive immediate updates from its suppliers                regarding end of life of any component (i.e types of components                which shall no longer be manufactured). Contractor shall notify                NICE immediately upon becoming aware of the event of end of life                of a component. In such event, NICE shall designate and approve                the replacement components to be used instead and the Parties                will mutually agree on the required changes in APPENDIX C.

          2.9. COMPONENTS FOR NICE INTERNAL REQUIREMENTS. Contractor will                occasionally provide services in order to help NICE to obtain                components for NICE' internal requirements. Contractor will allow                NICE to purchase reasonable quantities from its available                inventory at a price agreed in advance, and will help NICE to                obtain components from manufacturers/suppliers at the lowest                available price (in the case where the components in question are                not in the Contractor's inventory).

          2.10. It is clarified that nothing in this Agreement shall prevent                NICE from contracting directly with Contractor's suppliers and                vendors in any agreement, or from purchasing identical                components, whether during this Agreement or following its                termination or expiration.

     3.   ORDERING AND OTHER MATTERS

          3.1. FORECASTS. NICE shall give Contractor a written forecast of the                Products, by type, quantity and expected Due Date (the                FORECAST) as follows: A Forecast shall be a rolling forecast                for the current Quarter and the two (2) consecutive Quarters,                detailed by week. Upon the Effective Date, NICE shall deliver a                Forecast for the period commencing on the expected completion of                the Relocation Phase for the first Product, for the current                Quarter and for the next coming two Quarters and so on thereafter                during the term of this Agreement. The Forecast may be updated by                NICE on a weekly basis, or more frequently (at NICE' discretion).

               A Forecast will not be deemed to constitute a binding purchase                order with respect to Products (as opposed to components and                sub-assemblies, as set forth in Sections 3.4, 16 and 17.5 of this                Agreement). Contractor will manufacture the quantities of                Products only according to specific orders and the Production                Lead Time. The

                                       14

               Parties' responsibilities and undertakings arising from NICE'                Forecast shall be according to APPENDIX C as amended from time to                time according to the provisions of this Agreement. Liability                reports will be submitted by Contractor on the 1st of each                calendar month and will need to be approved by NICE. It is                clarified for the avoidance of doubt, that in any event, any and                all purchase obligations of NICE with respect to Products (as                opposed to components and sub-assemblies) are limited in any                given time during the term of this Agreement, to the PO's only.

               Contractor (with NICE' participation) will implement, at its own                expense, a full process of Demand Flow Technology, including: (I)                Product Synchronization; (II) Sequence of Events; (III) Mix                Model; (IV) Demand of Capacity & Take Time; (V) Operations                grouping; (VI) Line Design & Balancing. This process will help to                determine the Sub Assembly Lead Time and the Production Lead                Time. It is clarified that any change in the Production Lead Time                detailed in this Agreement shall require NICE' prior written                approval; any change in the Sub Assembly Lead Time detailed in                this Agreement as a result of which the maximum Sub Assembly Lead                Time for the relevant sub-assembly exceeds 30 Days, shall require                NICE' prior written approval.

          3.2. PURCHASE ORDERS AND ISSUING ORDERS. NICE shall, from                time-to-time, issue to Contractor a Purchase Order, according to                the Forecast, for Products, by type, quantity and Due Date, as                and when it desires to order Products. PO's will be issued at                least two (2) weeks prior to the designated Due Date. Each and                every order will be entered in NICE' logistic system as a Sales                Order. Every Product shall be manufactured according to the                Production Lead Time. Commencement of assembly shall be based on                Production Lead Times (as per Section A (xvii)) and calculated to                meet NICE' delivery requirements. It is clarified that delivery                and shipment of Products and NICE' obligation to pay for Products                shall only be according to a PO.

               Purchase Orders for Products (and Forecasts for Products) may be                delivered to Contractor by any reasonable means, including but                not limited to e-mail, computerized systems, etc., postal                delivery, courier delivery, facsimile transmission, as shall be                notified by NICE in writing and in advance of any relevant PO.                For the removal of doubt, a PO shall not be binding upon                Contractor until Contractor has confirmed in writing receipt of                the PO. Contractor shall, within two Business Days of its receipt                of a Purchase Order, accept or reject such Purchase Order in                writing; provided, however, that Contractor shall be obligated to





               accept all Purchase Orders issued in accordance with the terms                hereof for Products with respect to which a price per the                quantity ordered has been mutually agreed by the parties.                Contractor undertakes that in the event of increase in Product                requirements VIS-A-VIS the Forecast (i.e. issuance of PO's                exceeding

                                       15

               the relevant Forecast), Contractor's manufacturing capacity can                be increased, at any time, by thirty percent (30%) beyond the                then current Forecast. In addition, in as much as purchase of                components and purchase of sub assemblies are concerned, NICE may                order Products, which are not included in the Forecast, and                Contractor will make its best reasonable commercial efforts to                accommodate such order in accordance with NICE' request. It is                clarified that in any event Contractor will accept all PO's                exceeding the Forecast, subject to updating the Due Date based                upon the Total Lead Time for obtaining the required components,                which are not available in Contractor's inventory. The Due Date                for such PO's will be determined according to the time of                obtaining the components. For components/Products the prices for                which are not previously agreed under APPENDIX C, the price will                be agreed in writing prior to acceptance of the PO.

          3.3. FORECAST REVIEW. The parties shall hold weekly meetings, in                person, at NICE' facility or by conference phone call, for the                purpose of discussing NICE' existing and contemplated Forecasts                and order requirements and updating the Forecast; provided,                however, only written Forecasts and Purchase Orders, or written                modifications thereto, shall bind NICE and Contractor pursuant to                the terms of this Agreement or otherwise. The parties, as                business requirements dictate, may mutually agree upon the use of                blanket purchase orders for specific sub-assemblies or components                (exceeding the requirements under Forecasts), subject to the                terms of this Agreement and such sub-assemblies or components                purchased shall be deemed Permitted Components.

          3.4. PERMITTED COMPONENTS. Contractor may make purchase commitments to                suppliers and assemble components to sub-assemblies based upon                the Forecasts received from NICE but subject always to the Total                Lead Time, Liability and ABC policies of Contractor (which NICE                will be entitled to review and comment on in advance of the                relevant purchase). Contractor shall maintain inventory of                Permitted Components (as defined below) for use during the                Production Lead Time. NICE shall only be obligated to Contractor                for components and sub-assemblies ordered and assembled by                Contractor, in accordance with the Forecast and in compliance                always with the Total Lead Time as detailed in APPENDIX C (as                amended from time to time according to this Agreement) or                otherwise for inventory of components purchased from NICE under                Sections 2.7 or 3.4(A), or purchased in accordance with POs,                ECO's or Change Orders (PERMITTED Components), as detailed                hereunder. It is clarified that any Forecast updated following                the purchase of Permitted Components will not affect their                definition as Permitted Components, and NICE' obligations with                respect thereto, subject to the Liability.

               3.4(A) PURCHASE OF INVENTORY BY NICE.

                                       16

                    NICE will purchase from Contractor inventory of Permitted                     Components not required (in whole or in part) according to                     the Forecast for the Quarter immediately following the time                     at which such inventory is reviewed as detailed below                     (hereinafter: the FIRST QUARTER) as detailed below. The                     following terms shall have the definitions ascribed thereto:

                    (i)  DEAD INVENTORY - Permitted Components, the entire                          quantity of which is not required for assembly of                          Products in accordance with the Forecast.

                    (ii) SLOW MOVING INVENTORY - Permitted Components, which are                          required for assembly of Products for the two                          consecutive Quarters commencing immediately after the                          First Quarter, in accordance with the Forecast.

                    (iii) EXCESS INVENTORY - Permitted Components, which are                          required for assembly of Products only during the third                          Quarter after the First Quarter or thereafter, in                          accordance with the Forecast.

                    Three (3) days before the beginning of every Quarter,                     Contractor will issue a report of Dead, Slow Moving and                     Excess Inventory, and shall detail the price of each                     Permitted Component included in the report as specified in                     APPENDIX C, which report will need to be verified by NICE                     within 2-3 days. Inthe event that in any Quarter, the Dead                     Inventory, Excess Inventory and Slow Moving Inventory                     together exceed 15% of the Monthly Consideration (as defined                     below), NICE will purchase such inventory exceeding 15% from                     Contractor one day before the beginning of the First                     Quarter, by payment of the price detailed in APPENDIX C





                    including a surcharge of 4%. In calculating and determining                     the inventory falling within the said 15% (which shall not                     be purchased by NICE) the following priority shall apply:                     first - all Slow Moving Inventory, second (if not all 15%                     were covered) - all Excess Inventory, third (if not all 15%                     were covered) - Dead Inventory. The MONTHLY CONSIDERATION                     for the purpose hereof shall mean the total actual price due                     to Contractor from NICE hereunder for all Products during                     the preceding Quarter, divided by three (3).

                    The foregoing shall apply only as of Q3 2002 - July 1st 2002                     (the first report of inventory as above shall be issued at                     the end of June 2002), and thereafter on a regular basis.

                    In the event NICE has purchased any Permitted Component from                     Contractor as detailed above, Contractor is obligated to                     repurchase such Permitted Component for production of the                     next Forecast which requires such Permitted Component in                     accordance with the relevant procedure of Section 2.7 above                     (Nice Existing Inventory), at the price sold to NICE by                     Contractor excluding the surcharge of 4%.

               No other compensation or components protection will be provided                by NICE except as explicitly detailed above or in Sections 16.7,                16.8 and 17.5 of this Agreement. Upon

                                       17

               payment of the aforementioned compensation for Permitted                Components, such items shall become the property of NICE, and                will be promptly delivered to NICE' facility in Israel, and, at                NICE' election and expense, shall be delivered to another                location in Israel identified to Contractor by NICE or, at NICE'                direction, disposed of by Contractor (in any manner selected by                Contractor). In any event, Contractor will make best reasonable                commercial efforts to decrease levels of inventory of Permitted                Components, by agreeing with its suppliers to decrease Purchase                Lead Times to 1 - 2 weeks at the most.

          3.5. CHANGE ORDERS. Throughout all the assembly phases of a Product                during the Production Lead Time and any time before the Due Date,                NICE may issue Contractor with a Change Order. The issuance of                such Change Order and the execution by Contractor of such Change                Order, shall be in accordance with the provisions hereunder. Upon                issuance of a Change Order, Contractor will immediately execute                it and the Product price shall change in accordance with APPENDIX                C. The sole implication of a Change Order will be payment for                additional direct labor costs as detailed in APPENDIX C. Replaced                components and sub-assemblies will be returned to Contractor's                inventory at no charge to NICE (without derogating from the                specific provisions of this Agreement under which NICE is                obligated to purchase Permitted Components). The Product price                will be as after the implementation of the Change Order. For                Change Orders issued prior to commencement of the Production Lead                Time for any Product no charge will be incurred by NICE. Without                derogating from the aforementioned, Contractor will not charge                NICE for Change Orders during the first three (3) months of                production.

          3.6. RESCHEDULING OF RELEASED ORDERS. NICE may, at its discretion,                reschedule delivery of units of Products for which a PO has                already been issued, by shortening the Due Date, without any                implication. In this respect, Contractor is aware that by the                last three weeks of every calendar Quarter, a high level of                flexibility is required to meet NICE' end of Quarter                requirements. Contractor will perform its best reasonable                commercial efforts to complete such rescheduled Products at the                new requested Due Date. All such rescheduling shall be performed                by sending Contractor a written request for rescheduling.

          3.7. ORDERS ON HOLD. Prior to the Due Date, NICE may, at its                discretion, place Products manufactured according to PO's on hold                for a period not to exceed thirty (30) Days from the Due Date,                without any implications, by giving a written notice to                Contractor. Upon termination of such 30 Day period or earlier if                requested by NICE in writing, the Products on hold will be deemed                as cancelled and the provisions of Section 3.8 below shall apply.

          3.8. CANCELLATION OF PURCHASE ORDERS. NICE may at its discretion, at                any time, cancel, in whole or in part, PO's of Products issued

                                       18

               pursuant to this Agreement subject to the delivery of prior                written notice, before the respective Due Date. Contractor, upon                receipt of such written notice of cancellation, shall stop work                on such units of Products if work has already commenced. Without                derogating from any liability to pay for Permitted Components as                set forth elsewhere in specific provisions this Agreement, NICE                shall have no liability for cancellation of a PO prior to the                Production Lead Time of the Product. For cancellation of a PO                during the Production Lead Time and until the Due Date, NICE'                liability for cancellation shall be limited to the following:





               3.8.1. Payment of a fixed cancellation charge for all cancelled                     units of Products as specified in APPENDIX C. The fixed                     cancellation charge will be recalculated at the end of the                     first Quarter, based on the actual average time to                     disassemble a Product, as determined by Contractor and                     agreed to by NICE;

               3.8.2. All the components/sub-assemblies will be returned to                     Contractor's inventory at no charge to NICE subject to and                     in accordance with the terms of this Agreement.

               3.8.3. NICE shall not be responsible and shall not pay, in whole                     or in part, for Products manufactured outside the agreed                     Production Lead Time and/or without a written NICE Purchase                     Order.

          3.9. Contractor shall use its best reasonable commercial efforts to                minimize Change Order charges and cancellation charges by                returning components for credit (with NICE' approval), canceling                components on order and applying components to other Contractor                projects (when possible, at the sole discretion of Contractor)                and minimizing all work-in-process.

          3.10. ENGINEERING CHANGE REQUESTS (ECR'S). NICE shall be entitled, at                its sole discretion, from time to time to request any Engineering                Change Requests for any Product and Contractor is obligated to                propose ECR's to NICE when applicable at Contractor's opinion.                Contractor will respond to all Engineering Change Requests                initiated by NICE, according to the terms hereof. Contractor will                give NICE written notice, within three (3) Business Days of                receiving written notice of such ECR, of the date by which, and                at what cost, such ECR could be implemented based on the pricing                formula in APPENDIX C, and how the ECR effects existing PO's.                Contractor will charge NICE for ECR's in accordance with APPENDIX                C (an administrative cost of $25 per ECR of whatever size).

          3.11. ENGINEERING CHANGE ORDERS (ECO'S). NICE may, at its discretion,                issue ECO's based on Contractor's response to the ECR's or based                on negotiated changes to Contractor's response. The                administrative cost for an ECO shall be $50 per ECO. Engineering                Change Orders effective dates (the date for completion of                implementation

                                       19

               of the ECO) shall be as agreed to by the parties and shall effect                the relevant Lead Times and dates accordingly, as detailed in the                ECO. Contractor shall approve every ECO issued as above within 2                Business Days. An ECO shall become binding on Contractor upon                written confirmation of receipt thereby. Contractor shall not                make any design changes or any other changes in the Products                without the prior written consent of NICE as reflected in an ECO.                The new Product price due to an Engineering Change Order, shall                be determined in accordance with APPENDIX C. Contractor shall                make all reasonable commercial efforts to minimize costs due to                ECO's. Notwithstanding the aforementioned in Sections 3.10. and                3.11., NICE shall not be charged for the first $1,000 due to                Contractor in any one month for ECR's and ECO's.

          3.12. DISASSEMBLY OF PRODUCTS. From time to time, NICE may order                Contractor to disassemble Products after the Due Date. Upon such                request issued to Contractor, it shall promptly comply with the                request. Dismantled components will be consigned to Contractor's                inventory and stored in a special warehouse at Contractor's                facility, at no charge to NICE (the RETURNED COMPONENTS). NICE                will pay Contractor the original Product price and also a fixed                fee for dismantling as detailed in APPENDIX C. Thereafter,                Contractor will use the Returned Components first in the assembly                of any Products until no inventory of Returned Components                remains. Contractor will not charge NICE for any surcharge or                overhead for use of Returned Components in a Product.

          3.13. SPARE PART MECHANISM. In addition to producing Products                hereunder, and in addition to Contractor's responsibilities under                its warranty obligation hereunder which are included in the                Product price as provided herein, Contractor will supply Spare                Parts to Customers upon request, as detailed in APPENDIX I                according to the applicable Production Lead Time. The price for                spare parts shall be in accordance with APPENDIX C and shall be                paid by NICE in accordance herewith.

     4.   SCOPE; NEW PRODUCTS

          4.1. The scope of this Agreement refers to the Products currently                detailed in APPENDIX A subject to the provisions of APPENDIX K.                The Manufacturing Outsourcing Services will be performed by                Contractor on a gradual basis as detailed hereinabove, and until                full performance of the Manufacturing Outsourcing Services by                Contractor for all Products.

          4.2. Quotations by Contractor for new Products will be developed by                NICE in coordination with Contractor subject to the mutually                agreed upon pricing model set forth in APPENDIX C hereto. Other                terms applicable to new Products shall be identical to those                applicable to the current Products. Each such quotation requested





               by NICE shall be provided to NICE on an expeditious basis.                Contractor shall develop a mutually agreeable quality program for                each new Product. The provisions of APPENDIX K - NICE Systems                Products Release Policy will apply to such new Products subject                to the terms hereof.

5.   DUE DATE

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          5.1. Contractor shall target 100% on time delivery in compliance with                the Due Date. Contractor's performance regarding the Due Date                shall constitute a material obligation, and is an essential                element in this Agreement.

          5.2. DELAYS. Immediately upon learning of any possible delays,                Contractor will notify NICE as to the cause and extent of such                delay. Contractor shall at once, exercise its best reasonable                commercial measures to minimize the possible delay, at no                additional cost to NICE. Such measures may include, inter alia,                acceleration of payments to Contractor's vendors if necessary.

          5.3. LIQUIDATED DAMAGES. Any delay from the Due Date of a certain                Product in a certain Quarter, not due to a specific written                request by NICE or otherwise deriving from a breach of NICE'                undertakings hereunder and only to the extent deriving from such                breach by NICE, or caused by an event of Force Majeure, and                subject to the terms hereof, shall be considered a material                breach of Contractor's obligations under this Agreement and shall                entitle NICE to the following liquidated damages in addition to                any remedy available to NICE under this Agreement or by law:

               5.3.1. One percent (1%) of the Product Price for a delay of 3 to                     5 Days.

               5.3.2. Three percent (3%) of the Product Price for a delay of up                     to 10 Days.

               5.3.3. Five percent (5%) of the Product Price for a delay of 11                     Days or more.

               5.3.4. For the removal of doubt, when determining the liquidated                     damages due, the applicable sub-section 5.3.1, 5.3.2 OR                     5.3.3 will apply. In any event, the total liquidated damages                     as per this Section shall not exceed 5% of the Product                     Price.

               5.3.5 The PRODUCT PRICE for the purpose of this Section 5.3.                     shall mean the total consideration which is due to                     Contractor for the Products being delayed at the relevant                     time.

               5.3.6. In the event that following the delay, Contractor is in                     compliance with the Due Dates for two immediately                     consecutive Quarters and there is no delay whatsoever,                     Contractor will be reimbursed by NICE for liquidated damages                     already paid for delay in the previous Quarter (before the                     said 2 Quarters), if paid, without derogating from the                     previous delay being regarded as a breach hereunder.

               5.3.7 NO RESPONSIBILITY FOR DUE DATE. Notwithstanding the                     aforementioned, Contractor shall be relived from its                     responsibility for the Due Date of any specific Product if                     all the following terms are met:

                    (1)  Contractor notifies Nice promptly in writing of the                          delay and the detailed reasons for the delay;

                    (2)  Contractor proves that such delay was caused by a                          worldwide event of component allocation or a worldwide                          event of Force Majeure (as defined in this Agreement)                          applying to a manufacturer of necessary components                          required for assembly of the Product and such                          components can not be purchased from another                          manufacturer, since the manufacturer with which                          Contractor has contracted (directly or through                          suppliers) is a single source manufacturer worldwide                          or, if there is more than one source - the above                          applies to all of them;

                                       21

                    (3)  Contractor proves, that it has employed all necessary                          measures, both upon contracting with the supplier                          (including but not limited to - contracting other                          suppliers) and after becoming aware of the delay, in                          order to ensure proper timely delivery by such supplier                          and in accordance with the agreed Purchase Lead Time in                          this Agreement;

                    (4)  Contractor takes all required actions in order to                          minimize the effects of such occurrence and solve it.

6.   SHIPMENT DATE, PACKING AND SHIPPING





          6.1. PACKING. Contractor shall package each unit of Product according                to the standard NICE packing procedure and specifications in                accordance with the PDM System, or, if not specified by NICE,                according to good commercial standards. Every shipment to a NICE                Customer must include a Packing List issued by the Contractor,                attached to the packed Product. The Packing List is derived from                the Purchase Order and includes all the packed items in the                carton and all software licenses associated with the Product.

          6.2. PREPARATION OF EXPORT SHIPMENTS. Contractor will be responsible                for preparing the shipment of the final Product to the Customer                by arranging the pallets and packing them according to NICE'                instructions as set forth in the PDM System.

          6.3. DELIVERY. Unless agreed otherwise in the future, Contractor will                deliver finished Products to NICE' designated freight forwarder,                at Contractor's premises.

          6.4. SHIPMENT DATES. The following Shipment dates shall apply:                Shipment plans that Contractor receives until 13:00, will be                ready until the end of the same Day (except that on weekend days                prior coordination will be required); Shipment plans that                Contractor receives after 13:00, will be ready until the end of                the next Day (except that on weekend days prior coordination will                be required).

               Contractor's performance regarding the Shipment Date shall                constitute a material obligation, and is an essential element in                this Agreement.

          6.5. INSPECTION. Products will be subject to inspection by NICE, or by                certified NICE' distributors according to the following                provisions, both prior to the Shipment Date while they are in the                finished goods warehouse and after the Shipment Date. During the                inspection, NICE may open cartons and boxes and unpack the                contents for inspection. An inspection will be coordinated if                possible. NICE may inform the Contractor if there is any mismatch                in Product quantities or if any damage was caused to the shipment                prior to delivery to NICE' freight forwarder in Contractor's                facility. In case of a quantity mismatch between the quantity                recorded on the packing documents and the actual quantity                received, NICE will notify Contractor

                                       22

               of the mismatch, and, subject to verification by Contractor,                Contractor will complete the missing quantity. In case where a                shipment is found damaged prior to delivery to NICE' freight                forwarder at Contractor's facility, the Contractor will replace                or repair the Product and deliver it back to such NICE' freight                forwarder at Contractor's facility, at Contractor's expense. If                there was no mismatch in quantities or no damage to the shipment                (as applicable), NICE will bear all risk and costs associated                with the delivery of shipment to Contractor and back.

7.   [DELETED]

8.   PAYMENTS

          8.1. Initial prices as proposed in the Proposal are set out in                APPENDIX C. Within one month from signature of this Agreement,                the parties will amend the initial APPENDIX C according to                components purchase prices and supplier agreements obtained by                Contractor, but in no event will the relevant data exceed the                data included in the initial APPENDIX C, except with respect to                components sold to Contractor by NICE according to APPENDIX F and                Section 2.7, or further to changes in APPENDIX C made pursuant to                NICE' instructions under Sections 2.2, 2.3 or 2.4 of this                Agreement. Contractor will use reasonable commercial efforts to                improve the particulars in APPENDIX C and, amongst others,                shorten Liability. In the event of lack of agreement on the                amended APPENDIX C within one month from the signature date, the                initial Appendix C shall continue to apply until agreed                otherwise. It is clarified that labor prices in APPENDIX C will                not be amended as aforementioned regarding components. Contractor                hereby declares and undertakes that the details included in                APPENDIX C(as amended from time to time according to the                provisions of this Agreement) shall be the accurate details from                all of the relevant purchase agreements of Contractor with its                suppliers and components and sub assembly prices in APPENDIX C                shall be net purchase prices by Contractor without any overhead                or uplift. Thereafter, prices may be decreased or increased                according to the formula and at the timetables detailed herein                below.

          8.2. COST ADJUSTMENTS. Product pricing shall remain firm for Products                for each Quarter, except as follows or as set forth in Sections,                2.2, 2.3, 2.4, 3.5, 3.8, 3.11, 8.1, 8.3, and hereunder in the                various subsections of Section 8.2:

               8.2.1. The quoted cost of all components and sub-assemblies in                     each Product subject to this Agreement is or will be set                     forth in APPENDIX C or an agreed written amendment thereto.

               8.2.2. NICE and Contractor shall continually work to introduce





                    new cost reduction methods.

                                       23

                    Contractor shall make its best reasonable commercial efforts                     to reduce the cost of manufacturing Products, by methods                     such as elimination of components, obtaining alternate                     sources of materials, redefinition of specifications, and                     improved assembly or test methods, subject to NICE' written                     approval. Upon implementation of such methods initiated by                     Contractor, Contractor will enjoy one hundred percent (100%)                     of the cost reduction during the first Quarter and                     thereafter will reduce the price accordingly so that NICE                     will enjoy one hundred percent (100%) of the cost reduction.                     NICE will immediately enjoy one hundred percent (100%) of                     the cost reduction upon implementation of such methods                     initiated by NICE.

               8.2.3. In the event there is a decrease in the cost of a                     component or sub-assembly purchased by Contractor for the                     purposes hereof, which affects the purchase price of such                     Product, Contractor shall document such decrease in costs                     and provide such information to NICE in writing, in                     reasonable detail, within three (3) Business Days of                     Contractor becoming aware of such decrease.

               8.2.4. In case of a decrease as aforementioned, the purchase                     prices in APPENDIX C for units of the affected Product shall                     be adjusted accordingly.

               8.2.5. In the event there is an increase in the cost of a                     Permitted Component purchased/to be purchased by Contractor                     for the purposes hereof, which affects the purchase price of                     such Product, Contractor shall provide NICE with copies of                     letters as elaborated below, together with a request for a                     price increase within one (1) Business Days of Contractor                     becoming aware of such increase. Contractor shall not                     purchase any such component until NICE approves it in                     writing. NICE shall approve/disapprove on the same Business                     Day it was notified by Contractor provided notice was                     received by 12:00. However, NICE may only reject a price                     increase if it can show that the Permitted Component is                     available at the a lower price. There are two permitted                     types of price increases:

                    (i)  TEMPORARY PRICE INCREASE designated to meet the                          requested Due Date, in the event of receiving a                          Purchase Order/Forecast for which the Purchase Lead                          Time is shorter than the normal Purchase Lead Time of                          the relevant components detailed in APPENDIX C or due                          to an Engineering Change Order which affects the Due                          Date. Contractor shall provide NICE with copies of                          letters of approach to at least 3 suppliers that are                          known in the market and accepted commonly (if 3                          suppliers exist for such component) and their response.                          In such event, NICE will pay Contractor the difference                          between the original price and the actual price for                          those components purchased after the increase.

                                       24

                    (ii) CONSTANT PRICE INCREASE caused by a change in the                          market trend. Market trend increase requests will be                          explained by providing NICE with copies of letters of                          approach to at least 3 suppliers that are known in the                          market and accepted commonly (if 3 suppliers exist),                          and their response. NICE will pay Contractor the                          difference between the original price and the actual                          price for those components purchased after the increase                          within the Quarter, and thereafter APPENDIX C shall be                          updated accordingly.

          8.3. COST REVIEW. During each calendar Quarter, no later than the                third week of the Quarter, the parties will jointly review the                costs, costs reduction, volume performance of Contractor and                NICE, respectively, and other performance parameters to be                mutually agreed upon by the parties. The pricing and other                details referenced in APPENDIX C shall be jointly reviewed by the                parties at an agreed upon frequency and may be modified with the                mutual written agreement of the parties.

          8.4. PAYMENT TERMS.

               8.4.1. Payment by NICE is due current thirty (30) Days from the                     date of receipt of the invoice, on the 2nd or 16th of the                     month, whichever is following the invoice date and may be                     made by check or wire transfer. Purchase Orders, invoices                     and payments will be presented and effected in US dollars.

               8.4.2. Dates of issuance of invoices by Contractor: 1. for                     Products - upon the actual Due Date of Products. 2. for                     inventory of Permitted Components - one day before the                     beginning of the First Quarter as defined in Section 3.4(A).                     3. for amounts outstanding upon termination according to the





                    relevant provisions of this Agreement - upon termination. 4.                     for other amounts - upon the date on which the payment                     becomes due under this Agreement.

               8.4.3. Payment by Contractor is due current thirty (30) Days from                     the date of receipt of the invoice, except as set forth in                     Section 8.4.4(2) below, and may be made by check or wire                     transfer. Invoices and payments will be presented and                     effected in US dollars.

                                       25

               8.4.4. Dates of issuance of invoices by NICE: 1. for inventory of                     Permitted Components repurchased - at the end of the month                     in which such components were repurchased by Contractor. 2.                     for NICE existing inventory purchased by Contractor                     according to Section 2.7 - upon commencement of the first                     production Quarter with respect to inventory to be purchased                     on such date, upon the commencement of the second production                     Quarter with respect to inventory to be purchased on such                     date, and the remainder upon the relevant Purchase Lead                     Times for each component. The payment of said invoices will                     be made on a current thirty basis from the date of use of                     such inventory by Contractor based on the most updated                     Forecast. 3. For Permitted Components purchased from                     Contractor according to Section 3.4.(A) - upon the relevant                     Purchase Lead Times for each component. 4. For other amounts                     - upon the date on which the payment becomes due under this                     Agreement.

          8.5. TAXES. Each party shall deduct such taxes from the payments due                to the other party hereunder as required by law including                withholding taxes (unless an exemption is provided), and shall                promptly furnish such other party with appropriate tax receipts.                Each party will be solely responsible for any and all taxes                imposed thereon, including, without limitation, all income taxes,                sales taxes, goods and services taxes. Israel value added tax                shall be added, if applicable, to all amounts payable hereunder                and will be paid against submission of appropriate tax invoices.

          8.6. The consideration detailed in the Agreement is the full and                entire consideration due to Contractor for the services                stipulated hereunder and Contractor shall not be entitled to any                other payment or reimbursement of expenses of any kind with                respect thereto.

9.   REPRESENTATIONS AND WARRANTIES

          9.1. Contractor hereby warrants to NICE that it has the full corporate                power and authority to enter into this Agreement and to perform                its obligations hereunder; that no impediment exists to                Contractor entering into this Agreement, and no other agreement                has been or will be made with any third party which will have a                detrimental effect on Contractor's ability to fulfill its                obligations under this Agreement.

          9.2. Contractor hereby warrants to NICE that it has ascertained the                nature of the Manufacturing Outsourcing Services and its own                ability to perform such Manufacturing Outsourcing Services, and                that all Manufacturing Outsourcing Services provided by                Contractor hereunder will be performed in a professional and                workmanlike manner by a sufficient number of individuals with                appropriate skills and training for the applicable task using                systems and processes which are sufficient to accomplish the                Contractor performance

                                       26

               obligations under this Agreement. In addition, without derogating                from any undertaking, warranty or representation of NICE included                in the Agreement, Contractor acknowledges and agrees that prior                to the entering into this Agreement it has had the ability to                perform a due diligence investigation into the manufacturing,                production, testing and delivery as performed by NICE up to and                including the date hereof, that it has in fact performed such an                investigation and that based upon the outcome thereof, it                believes that it has the professional and other capabilities to                perform the Manufacturing Outsourcing Services as set forth                herein in a professional and workmanlike manner.

          9.3. Contractor further warrants that it is duly licensed, authorized,                or qualified to do business and in good standing in every                jurisdiction in which a license, authorization, or qualification                is required for the ownership or leasing of its assets, of the                transactions of business of the character transacted by it except                where the failure to be so licensed, authorized, or qualified                would not have a material adverse effect on Contractor's ability                to fulfill is obligations under this Agreement.

          9.4. PRODUCT WARRANTY. Contractor warrants to NICE that each of the                Products manufactured, configured or tested by Contractor will                have been manufactured, configured and tested in conformance with                the Specifications therefor as provided by NICE and be free from                defects in workmanship or material for the Warranty Period. It is





               clarified for the avoidance of doubt, that the aforesaid warranty                of Contractor for the Products applies to the entire Product,                including components and workmanship, except when the defect or                malfunction results from the design, NICE Software or the Nice                Components supplied by NICE under this Agreement if Contractor                cannot obtain warranty service for same from the supplier (and                Contractor shall notify NICE accordingly), for which NICE shall                be responsible.

          9.5. Contractor shall be responsible for procurement of components as                set forth herein, inspection of components, and safe handling of                the components while in-house at Contractor's premises.

          9.6. RMA. Should a Product fail to be in conformity with the above                warranties during the Warranty Period, NICE shall deliver the                Product to Contractor at its expense, Contractor shall repair or                replace the Product at no charge (as set forth in Section 9.7                below), and will cover all shipment and delivery costs of                therepaired or replaced Product from Contractor's facility to                NICE' Customer location (whether in Israel or abroad). In the                case that the determination according to Section 9.9 below, is                that Contractor's warranty hereunder does not apply, NICE will                bare all shipment and delivery costs of the Product/s and their                return, and of any repair/replacement costs if requested by NICE,                according to APPENDIX C. Detailed procedures to be executed by                Contractor concerning the repair of defective/malfunctioning                Products subject to the warranty hereunder are included in                APPENDIX N - Return Material Authorization (RMA).

                                       27

          9.7. WARRANTY SERVICE. Contractor shall replace any such Product with                a new Product except when the defect is in the NICE proprietary                boards, in which case Contractor may repair the Product.                Contractor will deliver the repaired or replacement unit to NICE,                within seven (7) Days of Contractor's receipt of such Product or                parts thereof. NICE may require a shorter repair and replacement                time for up to ten percent (10%) of the returned Products for                warranty service, and Contractor shall use its best reasonable                commercial efforts to accommodate same.

               NICE shall provide Contractor a spares forecast for warranty                requirements for the period up and until July 1, 2002. If during                such period, the spare parts required for warranty service alone                exceed the spares forecast provided by NICE, NICE shall sell                Contractor the missing spares at the prices specified in APPENDIX                C. Nevertheless, NICE shall have no liability in the event the                spares forecast exceeds the actual spares used during that                period. As of July 1, 2002 purchasing of spares in order to                comply with the warranty obligations shall be the sole                responsibility of Contractor and no forecast shall be provided.

               On or about July 1, 2002 the parties will review the said 7 days                timetable, and any changes in such timetable shall need to be                agreed in advance in writing, both Parties acting reasonably and                in good faith. Nothing contained in the foregoing shall obligate                NICE to change such warranty timetable since its Customer                obligations are dependent on it.

               The units of Products for which action may be required under this                warranty shall be returned to Contractor's manufacturing                facility, at NICE' expense, with an accompanying Contractor                supplied RMA and correction / replacement time shall commence                upon return of the defective Product to Contractor's facility.                The RMA will include a packing slip only and will not include an                invoice.

          9.8. ADVANCED RMA. From time to time, NICE may request that the                Contractor supply RMA to NICE Customers prior to receipt by                Contractor of the failed Products. In such event, replacement                time shall be 7 Days of receipt of the RMA and NICE will be                responsible for the return of the failed Product or parts                thereof, respectively, to the Contractor within sixty (60) Days                from the delivery of the said RMA. If the failed Product is not                returned within same period, Contractor shall invoice NICE for                the replaced Product supplied.

          9.9. DETERMINING DEFECT SOURCE. NICE and Contractor will use their                best commercial efforts to determine whether a defect in a unit                of Product exists and the reason for such defect. In the event of                dispute

                                       28

               whether the source of a defect is subject to Contractor's                warranty as detailed in Section 9.4, the parties will assign a                joint MRB (Material Review Board) team to determine the source of                defect, whose decisions must be mutually agreed to by both                parties. NICE shall perform any investigation/examination                reasonably requested by Contractor. In the event that the joint                MRB team can not reach a mutually agreed decision, Contractor                shall be deemed responsible for the warranty repair or                replacement, unless Contractor proves otherwise, and NICE shall                supply Contractor with all necessary information to assist in





               such determination. It is clarified that in the event of a                dispute as aforementioned regarding the source of a defect,                Contractor shall, nevertheless, continue its warranty obligations                in a timely manner and will not withhold delivery of repaired and                replaced Products, but may demand further investigation by the                MRB team as above.

          9.10. WARRANTIES PROVIDED BY THIRD PARTIES. If and to the extent                warranties provided by third parties for components or                sub-assemblies (forming an integral part of the defective Product                sold to NICE hereunder) that Contractor/anyone on its behalf                purchases under this Agreement, exceed the Warranty Period                hereunder, Contractor shall ensure that NICE will benefit from                such warranties included in agreements with suppliers as detailed                in Section 2.2 above and use its best reasonable commercial                efforts so that NICE may benefit from such warranties included in                agreements with suppliers as detailed in Section 2 above, at                Contractors' expense. Contractor will cooperate with NICE in its                efforts to exercise its rights under such warranties for their                entire duration. The aforementioned shall apply both during and                after the term of this Agreement.

          9.11 POST-WARRANTY RMA. Contractor shall provide post-Warranty RMA                services to NICE in accordance with the procedures in APPENDIX N                and the prices in APPENDIX C.

9A.  NICE REPRESENTATIONS AND WARRANTIES

     9A.1. NICE hereby warrants to Contractor that it has the full corporate           power and authority to enter into this Agreement and to perform its           obligations hereunder; that no impediment exists to NICE entering into           this Agreement, and no other agreement has been or will be made with           any third party which will have a detrimental effect on NICE' ability           to fulfill its obligations under this Agreement.

     9A.2 NICE hereby warrants to Contractor that it has the financial ability           to perform its obligations under this Agreement.

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10.  AUDIT AND ACCESS

     10.1. REPORTS. Contractor shall provide to NICE periodical reports in the           format acceptable by NICE and agreed by Contractor, which shall be           submitted each week, unless agreed otherwise in writing. In addition,           NICE may request other reports pertaining to the Outsourcing           Manufacturing Services and Contractor will promptly comply with such           requests, to the extent reasonable.

     10.2. GENERAL. NICE shall have the rights to conduct audits of the           Manufacturing Outsourcing Services and related facilities, systems,           and records as set forth in this Section 10 for the purpose of           auditing Contractor's compliance with the provisions of this           Agreement, all subject to the limitations below. The audits shall           include the physical equipment designated for the Manufacturing           Outsourcing Services provided hereunder, the facility at Contractors'           premises designated for the Manufacturing Outsourcing Services           including the finished goods warehouse, the inventory designated for           the Manufacturing Outsourcing Services provided hereunder and any           records, supporting documentation, equipment and information           pertaining solely to NICE and this Agreement, provided that with           regard to records pertaining to inventory/components, in addition to           the particulars detailed in Sections 2.2 and 2.3, NICE will have           access to the ERP system at Contractor's facility only (including for           the avoidance of doubt, the modules of the ERP system dealing with           invoices and invoicing). No documents or data of any kind, or any           copies, may be removed from Contractor's facility and all audits shall           be performed within such facility only.

     10.3. Such audits are expected to occur frequently given the significant           security and business practices concerns inherent in the Manufacturing           Outsourcing Services and NICE shall have the sole discretion, not to           be unreasonably applied, to determine the frequency. NICE agrees to           conduct the audits in a reasonable manner so as not to cause undue           disruption to Contractor's provision of the Manufacturing Outsourcing           Services and such audits shall be conducted during business hours, and           shall be coordinated with Contractor. In the course of such audits           Contractor shall provide, and shall cause its Permitted Subcontractors           to provide, such auditors any reasonable assistance that they may           require. Such reasonable assistance shall be provided as part of the           Manufacturing Outsourcing Services.

     10.4. If any audit by an auditor designated by NICE results in Contractor           being notified that it or its Permitted Subcontractors are not in           compliance with any law or regulation, Contractor shall, and shall           cause its Permitted Subcontractors to, take actions to comply with           such law or regulation, at Contractor's or its Permitted           Subcontractor's expense.

                                       30

     10.5. RESULTS OF AUDITS. If, as a result of an audit, NICE determines that           Contractor has undercharged or overcharged NICE, NICE shall notify           Contractor in writing of the amount of such undercharge or overcharge,





          and shall specify the relevant data and the reasoning for its           determination. If Contractor agrees in writing, an appropriate           adjustment shall promptly be paid to NICE or Contractor. In the event           Contractor believes that it has complied with the relevant law,           regulation or this Agreement, and has not overcharged or undercharged           NICE, it shall so notify NICE in writing upon receipt of NICE' audit           results shall specify the relevant data and the reasoning for its           determination and the parties will attempt to determine the issue in           mutual consent.

     10.6. CONTRACTOR RECORD RETENTION AND ACCESS. As part of the Manufacturing           Outsourcing Services, Contractor shall (1) retain records and           supporting documentation detailed in Section 10.2 above if and to the           extent such record retention is required by tax or similar           authorities, and/or exists in the ERP system, and/or is common           practice in the industry, including but not limited to - production           files for the following periods: 7 years for records required by tax           or similar authorities and ERP data, 3 years for production files,           otherwise as required by law or as is the common practice, and (2)           upon notice of no less than five (5) Days from NICE, provide NICE and           its designees with reasonable access to such records and documentation           for the purpose of conducting NICE' business and reporting. Such           access shall only be provided to audit personnel who have signed           towards Contractor a non-disclosure undertaking incorporating terms           which are substantially the same as those in APPENDIX E.

     10.7 All audits of all kind by NICE shall be subject to the confidentiality           obligations of NICE to Contractor detailed in this Agreement.

11.  SAFETY AND SECURITY, FACILITIES, NON-GENERIC EQUIPMENT

     11.1. SAFETY AND SECURITY. Contractor shall maintain and observe, at its           premises, all the safety and security requirements detailed in           APPENDIX H and ascribed by law.

     11.2. SECURITY SERVICES. Contractor shall institute, maintain, and monitor           security services for all Manufacturing Outsourcing Services in           accordance with APPENDIX H.

          Contractor's security procedures shall be subject to audit as set           forth in Section 10.

     11.3. FACILITY. Contractor's facility at which the Manufacturing           Outsourcing Services will be performed shall comply, at a minimum,           with the requirements set forth in APPENDIX H.

                                       31

     11.4. APPROVAL OF LOCATION. NICE shall have the right to approve or           disqualify each location at which Contractor is providing any of its           services hereunder. Contractor agrees that the Manufacturing           Outsourcing Services will be performed in a dedicated space in           Contractor's facility in which no production of competing products           will be conducted. Access to the NICE production lines will be limited           only to Contractor's employees performing the Manufacturing           Outsourcing Services and NICE representatives.

     11.5. NON GENERIC EQUIPMENT. During the term of this Agreement, the Non           Generic Equipment shall be furnished to Contractor (without charge)           and used in Contractor's premises for purposes of performing its           various obligations under this Agreement, according to the terms           hereof. Such Non Generic Equipment shall:

          (1)  Be clearly marked and identified as NICE' property.

          (2)  Be safely stored, adequately maintained and insured against loss                or damage under Contractor's existing policies detailed in                APPENDIX D. In the event such Non Generic Equipment is damaged,                lost or destroyed, Contractor shall be liable towards NICE to                repair or replace such equipment (at Contractor's choice).

          (3)  Remain the sole property of NICE, and therefore shall be kept                free of liens and encumbrances imposed on Contractor's property.

          (4)  Be returned to NICE upon request, or upon termination of this                Agreement, at the same condition as originally furnished to                Contractor except for normal wear and tear. Notwithstanding                anything to contrary, if NICE requests to have the Non Generic                Equipment returned thereto prior to the termination of the                relevant services hereunder, Contractor shall have no liability                or obligation for the performance of any obligations hereunder                for which such Non Generic Equipment is reasonably required.                Contractor shall notify NICE in writing in detail of the                aforementioned, promptly upon NICE' request to receive the Non                Generic Equipment.

          (5)  Be used according to NICE' written instructions and information                concerning such Non Generic Equipment.

          (6)  Shall not be used by Contractor for any other purpose except for                NICE' needs and shall be dedicated for performance of this                Agreement.

          (7)  Nevertheless, NICE may request Contractor to purchase some Non                Generic Equipment by itself and in such event Contractor shall





               invoice NICE for the purchase price. Such equipment shall be                deemed for all purposes as part of the Non Generic Equipment                and shall be sold to NICE upon termination of this Agreement for                any reason, at a total sale price of 1$.

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12.  CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY AND INTELLECTUAL PROPERTY      INDEMNIFICATION, PUBLICITY

     12.1 OWNERSHIP AND LICENSE RIGHTS. NICE or its customers, partners,           suppliers, and contractors shall be the sole owner of all NICE           Proprietary Information and NICEIntellectual Property (as defined           below) to which Contractor has access in the performance of the           Manufacturing Outsourcing Services including but not limited to - in           connection with the Products. Except for the licenses granted herein,           Contractor or anyone on its behalf shall not acquire any right, title,           or interest to the NICE Proprietary Information and/or NICE           Intellectual Property. Especially, but without limitation, NICE shall           remain the owner of all NICE Proprietary Information and NICE           Intellectual Property in connection with the design of the Products           and the NICE Software. For the purposes hereof, NICE INTELLECTUAL           PROPERTY shall mean Intellectual Property conceived, created, reduced           to practice or developed by NICE and/or for NICE by a third party,           and/or for NICE by Contractor (including anyone on its behalf) in           accordance with this Agreement, for the purpose of performing the           Manufacturing Outsourcing Services.

     12.2. CONFIDENTIALITY BY CONTRACTOR. Contractor will provide the           Manufacturing Outsourcing Services in a manner that complies with the           Confidentiality requirements of APPENDIX E. Contractor shall not:           transfer to others, copy or duplicate, sub-license, sell, publish,           display or otherwise make available in any form or disclose, the NICE           Proprietary Information and/or the NICE Software and/or the NICE           Intellectual Property, to any third party, except to           suppliers/manufacturers of components and/or sub assemblies that           require specifications for their supply, in which case they shall be           required by Contractor to execute a Confidentiality Agreement in the           form of APPENDIX E VIS-A-VIS NICE. Contractor shall use the same           degree of care with respect to NICE Proprietary Information as it uses           in protecting its own proprietary information and trade secrets.

          Without derogating from the aforementioned, Contractor shall not, in           any way or manner, directly or indirectly, engineer, reverse engineer,           compile, decompile or reverse assemble the NICE Software, or analyze           or otherwise examine the NICE Software for the purpose of reverse           engineering.

     12.3. In addition, Contractor shall not disclose the NICE Proprietary           Information to any Personnel, except on a need to know basis as           required in order to implement this Agreement. Contractor undertakes           to procure that its Personnel and Permitted Subcontractors engaged in           performance of this Agreement (except subcontractor's employees who do           not have access to the NICE production lines at Contractor's           premises), and reasonably designated by NICE in advance in writing,           have signed a non-disclosure agreement in the form of APPENDIX E,           prior to receipt of any NICE Proprietary Information.

                                       33

          12.3A Notwithstanding anything to the contrary, Contractor shall have                no liability with respect to disclosure of NICE Proprietary                Information if such information came into the possession of the                Contractor independently of this Agreement, through a breach of                obligation of secrecy of a third party to NICE, of which                Contractor was not aware and should not have been aware if                Contractor had exercised due care.

     12.4. CONFIDENTIALITY BY NICE. NICE shall not: transfer to others, copy or           duplicate, sub-license sell, publish, display or otherwise make           available in any form or disclose, the Contractor's Proprietary           Information, to any third party, except for the purpose of performing           this Agreement. NICE shall use the same degree of care with respect to           such Contractor's Proprietary Information as it uses in protecting its           own proprietary information and trade secrets. All rights in           Contractor's Proprietary Information, shall remain solely with           Contractor. Notwithstanding the aforesaid, it is agreed that any           manufacturing methods applied by Contractor, which are Contractor's           Proprietary Information, may be used by NICE itself (including its           Affiliates) (but may not be transferred/disclosed to any third party)           and by signing this Agreement Contractor hereby grants NICE a           personal, non exclusive, non transferable, perpetual license to use           such manufacturing methods.

          12.4A Notwithstanding anything to the contrary, NICE shall have no                liability with respect to disclosure of Contractor Proprietary                Information if such information came into the possession of NICE                independently of this Agreement, through a breach of obligation                of secrecy of a third party to Contractor, of which NICE was not                aware and should not have been aware if NICE had exercised due                care.

     12.5. LEGAL OBLIGATION TO DISCLOSE. In the event a party is required to           disclose Proprietary Information of the other party, by applicable law





          or by any government in the exercise of its lawful authority, the           party so required shall (i) promptly notify the other party in           writing, and, at the other party's expense: (ii) use reasonable and           lawful efforts to resist making any disclosure of Proprietary           Information not approved by the other party, (iii) use reasonable and           lawful efforts to limit the amount of Proprietary Information to be           disclosed pursuant to any such disclosure, and (iv) cooperate with the           other party to obtain a protective order or other appropriate relief           to minimize the further dissemination of any Proprietary Information           to be disclosed pursuant to any such disclosure.

     12.6. INTELLECTUAL PROPERTY INDEMNIFICATION BY CONTRACTOR. Contractor shall           indemnify, hold harmless and defend NICE from and against any and all           damages (including all damages awarded to a third party and payable by           NICE), costs, losses, and expenses (including settlement awards and           reasonable attorney's fees) arising from any claim or suit made           against NICE or a third party which NICE is obligated to indemnify, by           a third party based on the allegation that the Products infringe or           violate any Intellectual Property right due to the components and/or           sub assemblies supplied by Contractor hereunder and/or the           manufacturing processes and methods as performed by Contractor           hereunder. Contractor shall include in all its agreements with           suppliers/ manufacturers provisions regarding Intellectual Property           indemnification substantially similar to those included in this           Agreement, providing inter alia that they are freely assignable to           NICE without any modification or consent.

                                       34

          Nevertheless, in the event NICE designates specific components to be           purchased by Contractor hereunder and the manufacturer/supplier of           such NICE designated components refuses to grant Contractor           indemnification for infringement of Intellectual Property rights,           despite Contractor performing its best reasonable commercial efforts           to obtain such indemnification (which Contractor shall prove to NICE           by submission of copies of its correspondence with the manufacturer           including the manufacturer's response), then if NICE approves purchase           of such components, Contractor shall not be responsible for           Intellectual Property indemnification due to those specific           components.

          For the removal of doubt, Contractor shall not be liable for any           infringement of an Intellectual Property right due to any NICE           Proprietary Information, NICE Intellectual Property, NICE Software,           Non Generic Equipment (if used in accordance with the instructions           provided by NICE), and due to performance as is of NICE written           instructions including specifications and design.

               Contractor's indemnification as provided under this Section shall                apply only if: Contractor is notified promptly in writing of any                notice of a claim or of a threatened or actual suit; and is given                control of the defense thereof and all related settlement                negotiations; and, NICE provides, at Contractor's request and                expense, all reasonable cooperation and assistance for the                defense and negotiations of the claim. Nevertheless, in the event                the claim or suit is based on the allegation that the Products                infringe or violate any Intellectual Property right due to the                components and/or sub assemblies supplied by Contractor hereunder                which were designated by Nice as aforementioned, and the supplier                / manufacturer of the infringing component has an indemnity                undertaking as above towards Contractor; (i) which is assignable                to NICE and Contractor promptly assigns to NICE such                indemnification undertaking from its supplier / manufacturer;                (ii) which is unassignable to NICE but Contractor notifies NICE                promptly in writing of any notice of the claim or of a threatened                or actual suit; and gives NICE on behalf of Contractor and NICE'                chosen counsel control of the defense thereof and all related                settlement negotiations; then in both such instances Contractor                shall not be responsible for Intellectual Property                indemnification with respect thereto. In all other events,                Contractor shall conduct the litigation as aforementioned.

     12.7. Following establishment of infringement of Intellectual Property by a           competent authority including at interlocutory proceedings, whether           Contractor is responsible therefor or not, NICE may issue an ECR and           Contractor will handle such ECR and the corresponding ECO promptly in           accordance with Sections 3.10, 3.11.

     12.8. INTELLECTUAL PROPERTY INDEMNIFICATION BY NICE. NICE shall indemnify,

                                       35

          hold harmless and defend Contractor from and against any and all           damages (including all damages awarded to a third party and payable by           Contractor), costs, losses, and expenses (including settlement awards           and reasonable attorney's fees) arising from or in connection with any           claim or suit made against Contractor or a third party which           Contractor is obligated to indemnify, by a third party based on an           allegation that the Products and/or the NICE Software infringe or           violate any Intellectual Property right, including due to the use of           any NICE Proprietary Information, NICE Intellectual Property, NICE           Software, Non Generic Equipment (if used in accordance with the           instructions provided by NICE), or due to performance as is of any           NICE written instructions including specifications and design, but





          excluding any allegation that the Products infringe or violate any           Intellectual Property right due to the components and/or sub           assemblies supplied by Contractor hereunder and/or the manufacturing           processes and methods as performed by Contractor hereunder for which           Contractor is liable as per Section 12.6. above.

          NICE' indemnification as provided under this Agreement shall apply           only if: NICE is notified promptly in writing of any notice of a claim           or of a threatened or actual suit; and is given control of the defense           thereof and all related settlement negotiations; and, Contractor           provides, at NICE' request and expense, all reasonable cooperation and           assistance for the defense and negotiations of the claim.

     12.9. EMPLOYEE AND CONTRACTOR INDEMNIFICATION. Each of the parties agrees           that it will indemnify the other party against any and all claims           hereafter brought or asserted by any person against the other party           relating to any alleged or actual action or omission to act by the           indemnifying party arising from, or in connection with, such person's           status as an employee or independent Contractor of the indemnifying           person or the termination of such status.

     12.10. PUBLICITY. Except with the express written consent of NICE,           Contractor shall not make any press announcement or publicize this           Agreement or any matters relating to any of the transactions           contemplated hereby or use NICE' name or trademark in any way           whatsoever, except to the extent required to comply with applicable           laws or governmental regulations, provided that Contractor acts           according to Section 12.5.

13.  INSURANCE

     13.1. Contractor shall be liable for the total or partial loss of or damage           to the components and/or the Products in so far as such loss or damage           has occurred while in Contractor's possession and until delivery of           the Products to NICE' freight forwarder at Contractor's facility.

                                       36

     13.2. Without limiting any of the obligations or liabilities of Contractor,           whether under this Agreement or by law, subject to any limitations           hereunder, Contractor shall maintain, and shall cause any           subcontractors engaged by Contractor to provide services under this           Agreement to maintain, at Contractor's own expense, as long as this           Agreement is in effect, insurance policies of the kind and limits as           set forth in APPENDIX D to this Agreement. The expense of such           insurance shall be borne by Contractor. The Contractor shall keep in           force the policies specified in sections 1 and 3 to the Insurance           Certificate valid as long as Contractor's legal liability EXISTS IN           CONNECTION WITH OPERATIONS ACCORDING TO THE AGREEMENT.

          It is Contractor's responsibility to ensure that the insurance           requirements set forth in APPENDIX D to this Agreement remain in           effect for the term of this Agreement.

     13.3. Within ten (10) Days of the execution of this Agreement, Contractor           shall furnish to NICE certificates of insurance evidencing full           compliance with the insurance requirements as set forth in APPENDIX D           to this Agreement. Certificates of Insurance shall be kept current           throughout the entire term of this Agreement.

     13.4. The carrying of any insurance required hereunder shall not be           interpreted as relieving Contractor of any responsibility and/or           undertaking to NICE according to the provisions of this Agreement or           by law. Contractor shall give prompt notice of all losses or claims of           which Contractor has knowledge which may be in any way related to this           Agreement and Contractor shall assist and cooperate with any insurance           company in the adjustment or litigation of all claims arising under           this Agreement or by law and indemnifiable by Contractor under this           Agreement or by law.

     13.5. NICE shall include in its property policies a waiver of subrogation           clause against the Contractor, its directors and any one on its           behalf, provided that such waiver will not be valid towards a person           which caused malicious damage.

14.  [Deleted]

15.  FUNDAMENTAL BREACH AND REMEDIES

     15.1. Except as provided in Sections 15.2 and 15.3, any breach by any Party           of this Agreement which was not remedied within forty-five (45) Days           from the date of notice, shall be regarded as a fundamental breach.

     15.2. Notwithstanding the aforementioned in Section 15.1, any delay in the           Due Date and/or Shipment Date, which was not remedied within thirty           (30) Days from the date of notice for the first delay, and any           subsequent delay upon notice (i.e. any second delay, even if the first           one was less then 30 days) shall be regarded as a fundamental breach.

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     15.3. Notwithstanding the aforementioned in Section 15.1, unjust delay in           payment by NICE exceeding sixty (60) Days from the date of notice for           the first delay, exceeding seven (7) Days from the date of notice for





          the second delay (i.e. any second delay, even if the first one was           less then 60 days) and exceeding the date of notice for any subsequent           delay (i.e. any subsequent delay, even if the second one was less then           7 days) , shall be regarded as a fundamental breach. Notwithstanding,           any delay in any payment by NICE shall bear a default interest, as of           the first Day of delay, to be compounded daily, at the rate applicable           at Bank Hapoalim B.M. at the relevant time for unauthorized overdrawn           current accounts.

     15.4. Notwithstanding anything to the contrary contained herein or           otherwise, Contractor's liability to NICE for any indirect, special,           incidental, exemplary or consequential damages as a result of any           claim arising under this Agreement or in connection therewith,           regardless of whether Contractor has been advised of the possibility           of such damages, shall not exceed five million US dollars ($5,000,000)           in the aggregate for all claims, except for infringement of           Intellectual Property rights for which Contractor is liable under           Section 12.6. This Section shall not be construed or used in the           construction of this Agreement as imposing on Contractor any liability           for which it is not otherwise liable. Further, this Section shall not           be construed as derogating from any applicable law which cannot be           changed or waived by contract.

     15.5. Notwithstanding anything to the contrary contained herein, NICE'           liability to Contractor for any indirect, special, incidental,           exemplary or consequential damages as a result of any claim arising           under this Agreement or in connection therewith, regardless of whether           NICE has been advised of the possibility of such damages, shall not           exceed five million US dollars ($5,000,000) in the aggregate for all           claims, except for infringement of Intellectual Property rights for           which NICE is liable under Section 12.8. This Section shall not be           construed or used in the construction of this Agreement as imposing on           NICE any liability for which it is not otherwise liable. Further, this           Section shall not be construed as derogating from any applicable law           which cannot be changed or waived by contract.

16.  TERM AND TERMINATION

     16.1. TERM AND TERMINATION. The initial term of this Agreement shall           commence on the Effective Date and extend for three (3) years           thereafter (INITIAL TERM), with an automatic renewal for an           indefinite period of time (EXTENDED TERM), unless terminated by the           parties according to Sections 16.2. or 16.3. herein.

     16.2. Notwithstanding the aforesaid in Section 16.1. and any possible           implication to the contrary herein or as a result of the course of           conduct of the parties, NICEshall be entitled, at its sole discretion,           to terminate this Agreement, in whole or in part, at any time during           the Initial Term or the Extended Term, with or without cause, upon a           prior written notice of termination to Contractor of not less than           forty-five (45) Days.

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     16.3. Notwithstanding the aforesaid in Section 16.1. and any possible           implication to the contrary herein or as a result of the course of           conduct of the parties, Contractor shall be entitled, at its sole           discretion, to terminate this Agreement only during the Extended Term,           with or without cause, upon a prior written notice of termination to           NICE of not less than six (6) months.

     16.4. Either party shall be entitled to terminate this Agreement, following           a fundamental breach of this Agreement by the other party.

     16.5. Either party shall be entitled to terminate this Agreement upon the           other party seeking an order for relief under the bankruptcy laws of           the State of Israel or similar laws of any other jurisdiction, a           composition with or assignment for the benefit of creditors, or           dissolution or liquidation. NICE shall be entitled to terminate this           Agreement upon the merger or acquisition of all or substantially all           the business or assets of Contractor (except if within the           Flextronix's group and provided Contractor remains an Israeli entity).

     16.6. EFFECT OF TERMINATION.

          16.6.1. Upon notice of termination of this Agreement for any reason                whatsoever, the parties shall execute rapidly and efficiently the                procedure for termination of the Manufacturing Outsourcing                Services by Contractor and the transfer of production to NICE as                set forth hereunder and agreed between the parties, provided that                Contractor will not be required to incur additional costs for the                purpose of assisting NICE in the case of termination. During the                notice period, Contractor will continue performance of the                Manufacturing Outsourcing Services regarding all PO's received                according to the Forecast and will, simultaneously, assist NICE                and cooperate with it in the transfer of the Manufacturing                Outsourcing Services to NICE or anyone designated by NICE and                NICE will continue in performing all its obligations hereunder.

          16.6.2. Upon termination of this Agreement for any reason whatsoever,                without derogating from the generality of the aforesaid, NICE                shall be entitled to receive from Contractor, at no charge,                subject to the confidentiality obligations hereunder and                Contractor's Proprietary Information, all information, know-how,                samples, documentation and data, in any form or medium, in





               connection with the Manufacturing Outsourcing Services, whether                prepared by NICE or by Contractor, and all NICE Proprietary                Information which is in the possession of Contractor or anyone on                its behalf, including its Permitted Subcontractors. Upon                termination of this Agreement, Contractor shall return any such                information to NICE notwithstanding the provisions of Section                10.6. above.

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          16.6.3. Upon termination of this Agreement for any reason whatsoever,                all Non Generic Equipment and NICE Returned Components as                detailed in Section 3.12. above, will be immediately returned to                NICE.

          16.6.4. It is clarified that upon termination, for any reason                whatsoever, Contractor shall still be obligated to supply                warranty services according to this Agreement to all Products                supplied, this for the duration of the Warranty Period for each                Product and the relevant provisions of this Agreement applying to                warranty shall survive termination.

     16.7. EFFECT OF TERMINATION. Upon termination of this Agreement, except in           the event of termination by NICE due to breach by Contractor, NICE           shall pay Contractor as follows: (i) 100% of the contract price for           all finished Products in Contractor's possession or which have been           delivered/being delivered to NICE, which are subject to a Purchase           Order in accordance with the terms of this Agreement; (ii) 104% of the           cost in APPENDIX C of all inventory of Permitted Components in           Contractor's possession, which are not returnable to the vendor /           supplier according to APPENDIX C or usable for other customers (as           determined by Contractor in its sole discretion), whether in raw form           or work in process; (iii) 104% of the cost in APPENDIX C of all           inventory and inventory on order of Permitted Components which is not           cancelable according to APPENDIX C; (iv) any vendor cancellation           charges incurred with respect to inventory of Permitted Components           accepted for cancellation or return by the vendor, and (v) disassembly           charges and payments as per Section 3.8 (Cancellation of PO) resulting           from the cancellation of PO's due to termination, and (vi) 100% of any           other costs and payments payable by NICE hereunder at the time of           termination under the specific provisions of this Agreement.           Contractor will use reasonable commercial efforts to return unused           inventory and to cancel pending orders for such inventory, and to           otherwise mitigate the amounts payable by NICE hereunder.

     16.8. Upon termination of this Agreement by NICE due to breach by           Contractor, NICE shall be obligated to pay Contractor as follows: (i)           100% of the contract price for all finished Products in Contractor's           possession for which the Due Date has occurred and which have been           supplied to NICE' freight forwarder, which are subject to a Purchase           Order in accordance with the terms of this Agreement; (ii) 100% of the           cost in APPENDIX C of all inventory of Permitted Components in           Contractor's possession, which are not returnable to the vendor /           supplier according to APPENDIX C or usable for other customers (as           determined by Contractor in its sole discretion); provided however           that in the event Contractor fails to supply the Products and/or           Permitted Components to NICE, for any reason whatsoever, within 14           days after receipt of NICE' request, NICE shall be released from the           obligation to pay for the Products and /or Permitted Components as           provided for above. (iii) 100% of the cost in Appendix C of all           inventory and inventory on order of Permitted Components, which is not           cancelable according to Appendix C. Contractor will use reasonable           commercial efforts to return unused inventory and to cancel pending           orders for such inventory, and to otherwise mitigate the amounts           payable by NICE hereunder.

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     16.9. Neither party shall have any other liability, including payment           obligations, resulting from the termination for convenience of this           Agreement.

17.  MISCELLANEOUS.

     17.1. ENTIRE AGREEMENT. This Agreement, Schedules, Exhibits and Appendices           constitute the entire agreement between the parties in connection with           its subject matter and supersede all prior communications and           agreements between the parties relating to its subject matter.           Notwithstanding anything to the contrary, no documents, procedures,           methods or policies shall bind the Parties unless they are in writing           and signed by both parties, except that all the technical           documentation included in the PDM System may be changed as provided in           Section A (xxxii). Any change in NICE' procedures or policies, shall           bind Contractor after it is notified of same, unless the change is           material, in which case Contractor can object to the change on           reasonable grounds detailed in writing.

     17.2. AMENDMENT. This Agreement may only be amended, varied or modified by           the prior agreement in writing of NICE and Contractor. Any such           amendment, variation or modification shall be binding upon the parties           and upon their successors and assigns. Work procedures and technical           documents may be signed by any representative on behalf of each of the           parties and need not be signed by authorized signatories of the           parties.





     17.3. ASSIGNMENT. This Agreement shall be binding upon and inure to the           benefit of the parties and their respective successors and permitted           assigns. Neither party shall in any way sell, transfer, assign,           sub-contract or otherwise dispose of any of the rights, privileges,           duties and obligations granted or imposed upon it under this           Agreement. However, NICE may, at its discretion, transfer and/or           assign any of its rights, privileges, duties and obligations granted           or imposed upon it under this Agreement to any NICE Affiliate,           provided that NICE remains responsible towards Contractor, jointly and           severally with the Affiliate, for all of its obligations hereunder so           assigned, and provided further that the assignee signs this Agreement.

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          It is further clarified that NICE may choose, by written notice to           Contractor, to enable any NICE Affiliate to act on NICE' behalf and in           its name under this Agreement directly VIS-A-VIS Contractor, without           relieving NICE as the sole contractual party from responsibility for           performance of the Agreement. Notwithstanding the foregoing, Upon           NICE' prior written approval and upon the terms and limitations of           such approval, Contractor may sub-contract some of its obligations           (PERMITTED SUBCONTRACTORS), provided, however, that Contractor shall           remain obligated under this Agreement. Contractor shall provide to           NICE material qualifications and identification details of such           Permitted Subcontractors. Contractor shall at all times remain fully           responsible for the performance of all obligations of Contractor           hereunder, jointly and severally with the Permitted Subcontractors. In           selecting subcontractors to assist Contractor in the performance of           this Agreement, Contractor shall comply with all reasonable NICE           vendor screening requirements which are provided to it, and Contractor           shall also comply with its own vendor screening requirements.

     17.4. SEVERABILITY. If any provision of this Agreement is held invalid,           illegal or unenforceable for any reason by any court of competent           jurisdiction, such provision shall be separable from the remainder of           the provisions hereof which shall continue in full force and effect as           if this Agreement had been executed with the invalid provisions           eliminated.

     17.5. FORCE MAJEURE.

          17.5.1. Neither party shall be liable to the other for any delay in                performance or failure to perform, in whole or in part, due to                war or act of war (whether an actual declaration is made or not),                riot, civil commotion, act of public enemy, fire, flood, or other                act of God, act of any governmental authority, or similar causes                beyond the reasonable control of such party which could not have                been foreseen or prevented. If any event of force majeure occurs,                the Party affected by such event shall promptly notify the other                Party of such event in writing and take all reasonable actions to                avoid the effect of such event.

          17.5.2. Nevertheless, if any event of force majeure occurs for a                consecutive period of fourteen (14) Days preventing Contractor                from performing the Manufacturing Outsourcing Services, and                Contractor has not managed to set up the Manufacturing                Outsourcing Services at the Backup Site, NICE may, at its                discretion, elect to perform the Manufacturing Outsourcing                Services or any part thereof by itself and/or through others,                without derogating from its other rights and remedies, if                applicable. In such event: (a) Contractor shall assist NICE by                putting at its use, at NICE' request, Contractor Personnel who                are involved in the performance of this Agreement, to the extent                possible, at a charge to be agreed based on the labor rates in                APPENDIX C; (b) without derogating from any other obligations of                NICE hereunder as at such date to purchase Permitted Components,                NICE shall purchase from Contractor the additional Permitted                Components in Contractor's inventory, which are required, at                NICE' discretion, for manufacturing during the force majeure                period. The price and payment terms for purchase of such                Permitted Components shall be according to the provisions of                Section 3.4(A) above, which shall apply mutatis mutandis.

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          17.5.3. If the event of force majeure exists for more than 90 days,                each party shall have the right to terminate this Agreement and                the provisions of Sections 16.2. and 16.3. regarding the notice                period required shall apply mutatis mutandis, and thereafter                Section 16 regarding effects of termination shall apply.

     17.6. RELATIONSHIP. NICE and Contractor acknowledge and agree that this           Agreement shall not constitute, create or give effect to a joint           venture, pooling arrangement, principal/agency relationship,           partnership relationship or formal business organization of any kind           and neither Contractor and/or NICE shall have the right to bind the           other without the other's express prior written consent. Contractor           will render the Manufacturing Outsourcing Services as an independent           contractor and no employee - employer relationship shall exist between           Contractor and/or the Personnel and/or anyone on its behalf and NICE.

     17.7. MANAGEMENT CHANGES. Contractor shall notify NICE immediately upon the           occurrence of any material change in the conduct of business of           Contractor or in the composition of its management, which has a





          material adverse affect on Contractor's ability to perform this           Agreement.

     17.8. WAIVER. The failure of either party to insist upon strict performance           of any provision of this Agreement, or the failure of either party to           exercise any right or remedy to which it is entitled hereunder, shall           not constitute a waiver thereof and shall not cause a diminution of           the obligations established by this Agreement. A waiver of any default           shall not constitute a waiver of any subsequent default. No waiver of           any of the provisions of this Agreement shall be effective unless it           is expressly stated to be a waiver and communicated to the other party           in writing in accordance with the provisions of this Agreement.

     17.9. DISPUTE RESOLUTION. Any dispute arising out of or relating to this           Agreement or the breach, termination or validity thereof shall be           settled in accordance with one of the following procedures. Contractor           and NICE shall use the procedures in the following order of priority.

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          17.9.1. In the event of any dispute, controversy or claim of any kind                or nature arising under or in connection with this Agreement                (including but not limited to disputes as to the creation,                validity, interpretation, breach or termination of this                Agreement) (a DISPUTE), then upon the written notice of either                Party, the Dispute will be submitted to the project manager on                behalf of each party to be escalated, in case the parties are                unable to resolve such Dispute, to the parties C.E.O.'s

          17.9.2. Any dispute that the parties are unable to resolve pursuant to                Section 17.9.1. within 30 Days, will be submitted exclusively to                the competent courts in the Tel-Aviv-Jaffa District in Israel.

          17.9.3. Without derogating from rights of termination as detailed in                this Agreement, it is clarified that Contractor will continue to                provide the Manufacturing Outsourcing Services and NICE shall                continue to perform its obligations hereunder during any                litigation, mediation or legal proceedings commenced pursuant to                this Section 17.9. above and the existence of a Dispute shall not                enable Contractor to stop work or services or otherwise not                timely perform its obligations or enable NICE to stop payments or                otherwise not timely perform its obligations.

          17.9.4. The foregoing shall not affect the right of the parties to                seek injunctions before the competent Court.

     17.10. Wherever in this Agreement it is provided that the Parties agree to           negotiate/review/change any term hereof (including prices), the           parties will usetheir best commercial efforts and negotiate in good           faith in order to reach such agreement. If the parties fail to agree,           no change will be made to the last agreed terms and they shall           continue to apply, except as otherwise specifically and explicitly           provided herein, and except that the provisions of Section 8.2. and           all its subsections will apply with regard to details included in           APPENDIX C.

     17.11. LAW AND JURISDICTION. This Agreement shall be governed by and           construed in accordance with the laws of the state of Israel, without           giving effect to choice of law rules.

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     17.12. SCHEDULES AND APPENDICES. Each Schedule and Appendix hereto is           incorporated herein by this reference. The parties may amend any           Schedule and Appendix from time-to-time by entering into a separate           written agreement, referencing such Schedule and Appendix and           specifying the amendment thereto, signed by an authorized           representative of each of the parties.

     17.13. SET-OFF. NICE shall only be entitled to setoff any amount due to           Contractor against any amount due from Contractor to NICE, if the           setoff amount is: (i) due according to this Agreement and is subject           to an invoice lawfully issued hereunder; or (ii) liquidated damages           according to this Agreement. In the event of setoff, Contractor shall           receive, at the same time, a written notice signed by vice president           operations of NICE detailing the setoff. Contractor shall not be           entitled to setoff any amount due to NICE from Contractor hereunder           against any amount due from NICE to Contractor according to this           Agreement. The setoff provisions in this Agreement are in lieu of any           setoff rights under any applicable law but shall not be construed as           derogating from any other right or remedy.

     17.14. LIEN. Each party hereby waives any right of lien it may have under           applicable law.

     17.15. COMMUNICATION AND NOTICES. Except as otherwise expressly provided in           this Agreement, no communication from one party to the other shall           have any validity under this Agreement unless made in writing by or on           behalf of an authorized official of Contractor or, as the case may be,           by or on behalf of an authorized official of NICE. Each party shall,           from time to time, provide the other with a list of personnel           designated as authorized officials for the purposes of this Section           17.15. Any notice or other communication which either party hereto is           required or authorized by this Agreement to give or make to the other





          shall be given or made either by registered mail, or by courier or by           facsimile transmission confirmed by electronic confirmation, addressed           to the other party to the address referred to in the preamble. Notices           shall be deemed delivered within seven (7) Days of dispatch of the           notice by registered mail, or upon delivery by courier, or one           Business Day after sent if sent by facsimile transmission.

IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written:

          /s/                                              /s/ ------------------------                        ------------------------     NICE SYSTEMS LTD.                           FLEXTRONICS ISRAEL LTD.

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    NICE SYSTEMS LTD.                           FLEXTRONICS ISRAEL LTD.

(Nice-Nice Flex Master Manufacturing Outsourcing Agreement Final)

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[EX A]:
Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?