MANUFACTURING SERVICES AGREEMENT by and between STARRY, INC. and BENCHMARK ELECTRONICS, INC.

Exhibit 10.18

Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. Information that was omitted has been noted in this document with a placeholder identified by the ▇▇▇▇ “[***]”.

MANUFACTURING SERVICES AGREEMENT

by and between

STARRY, INC.

and

BENCHMARK ELECTRONICS, INC.

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TABLE OF CONTENTS

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MANUFACTURING SERVICES AGREEMENT

This MANUFACTURING SERVICES AGREEMENT (the “Agreement”) is effective as of March 01, 2020 (the “Effective Date”), by and between STARRY, INC., a Delaware corporation having its principal place of business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Customer”) and BENCHMARK ELECTRONICS, INC., a Texas corporation with offices located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, on behalf of itself and its Affiliates (“Benchmark”).

Customer desires to engage Benchmark to perform certain manufacturing services as set forth in this Agreement. The Parties agree as follows:

“Acceptance Period” has the meaning assigned in Section 5.2.

“Affiliate” means, with respect to a Party, any entity or person that controls, is controlled by, or is under common control with that Party. For the purpose of this definition, “control” or “controlled” means, direct or indirect, ownership of more than fifty percent (50%) of the shares of stock entitled to vote for the election of directors in the case of a corporation or more than fifty percent (50%) of the equity interest in the case of any other type of legal entity; status as a general partner in any partnership; or any other arrangement whereby the entity or person controls or has the right to control the board of directors or equivalent governing body of a corporation or other entity or the ability to cause the direction of the management or policies of a corporation or other entity. The Parties acknowledge that in the case of entities organized under the laws of certain countries where the maximum percentage ownership permitted by law for a foreign investor is less than fifty percent (50%), such lower percentage will be substituted in the preceding sentence, provided that such foreign investor has the power to direct the management and policies of such entity.

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“AML” means the approved manufacturer list.

“Assumptions” has the meaning assigned in Section 3.1(a).

“Authorized Purchase” has the meaning assigned in Section 7.2.

“AVL” means the approved vendor list.

“Background IP” means any Technology developed, conceived, obtained, licensed, or acquired by a Party prior to the Effective Date of this Agreement or that a Party develops, conceives, obtains, licenses, or acquires independently of this Agreement. For clarity, Background IP does not include any Foreground IP.

“Benchmark Indemnified Claims” has the meaning assigned in Section 13.1.

“Benchmark Indemnitees” has the meaning assigned in Section 13.2.

“BIS” has the meaning assigned in Section 18.1(c).

“BOM” means the relevant ▇▇▇▇ of materials.

“Claim” means demands, actions, causes of action, proceedings, lawsuits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses (including fees and disbursements of counsel) of every kind brought by any person, corporation, governmental entity or other entity that are not a party to this Agreement.

“CMTS” has the meaning assigned in Section 10.4.

“Component” means any raw materials, parts, assemblies, or other constituent part listed in the Specifications, BOM, AML, AVL, or other written requirements for any Product.

“Confidential Information” shall mean information (in any form or media) provided by a Party (“Discloser”) to another Party (“Recipient”) regarding Discloser’s customers, prospective customers, methods of operation, engineering methods and processes, programs and databases, patents and designs, vendors and suppliers, prices, business methods and procedures, finances, management, or any other business information relating to Discloser that is marked “Confidential,” or if disclosed orally or otherwise in non-documented form, is identified as confidential at the time of initial disclosure, and is designated as confidential in a writing provided to Recipient within thirty (30) days after disclosure; provided, however, that Confidential Information does not include information that: (i) was known to Recipient prior to receipt from Discloser; (ii) is or becomes part of the public domain through no breach of this Agreement; (iii) is received from a third party without breach of any obligation of confidentiality; or (iv) is independently developed by Recipient without reference to Confidential Information.

“Cost Reduction” has the meaning assigned in Section 8.6(c),

“Cost Structure” has the meaning assigned in Section 3.1(b).

“Courts” has the meaning assigned in Section 19.15(b).

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“Customer-Furnished Items” has the meaning assigned in Section 10.1.

“Customer Indemnitees” has the meaning assigned in Section 13.1.

“Delivered Cost” means Benchmark’s quoted cost of the Components together with any applicable VAT and/or in-process duties, plus a [***] markup on said costs for inbound freight, handling and reasonable restocking charges.

“Deviation” means a specific written authorization, granted prior to the manufacture of an item, to depart from a Specification’s particular performance or design requirement, drawing or other document for a specific number of Products or a specific period of time. A deviation differs from an engineering change in that an engineering change requires corresponding revision of Specifications of the affected item, whereas a deviation does not contemplate revision of the applicable Specifications.

“DFx” means any combination of DFC (design for component), DFM (design for manufacturability), DFT (design for testing) or DFQ (design for quality) services and related change proposals, if any, provided by Benchmark relative to any Product(s) in connection with this Agreement.

“Dispute” has the meaning assigned in Section 19.15(a).

“Dispute Period” has the meaning assigned in Section 7.3(b).

“E&O List” has the meaning assigned in Section 7.3(a).

“ECO” means a written engineering change order.

“Excess Components” means the individual Component inventory (limited to Authorized Purchases) that exceeds a six (6) month demand for such Component based upon Customer’s Order(s) and/or then-current Forecast.

“Export/lmport Laws” has the meaning assigned in Section 18.2(a).

“Forecast” has the meaning assigned in Section 7.1.

“Foreground IP” means any and all Intellectual Property Rights developed specifically for Customer on or after the Effective Date, and that is used exclusively in the manufacture, assembly, validation, integration, testing, service, or repair of a Product or Products. For the avoidance of doubt, Foreground IP does not include any Background IP or Benchmark’s general knowledge, know-how and ideas and those of its employees, contractors, affiliates, and/or vendors.

“Impacted Products” has the meaning assigned in Section 6.3.

“Indemnitee” has the meaning assigned in Section 13.4.

“Indemnitor” has the meaning assigned in Section 13.4.

“Initial Volume Production Date” has the meaning assigned in Section 3.3(a).

“Intellectual Property Infringement” means actual or alleged infringement or misappropriation of any Intellectual Property Rights.

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“Intellectual Property Rights” means any and all industrial and other intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including without limitation: (a) trade dress, trademark, and service ▇▇▇▇ rights; (b) patents, patent applications and patent rights; (c) internet domain names, web addresses, web pages, website, and URLS; (d) rights associated with works of authorship, expressions, designs and design registrations, copyrights and copyrightable works, software and firmware, maskworks rights, mask work applications, mask work registrations, data, data files, and databases and other specifications and documentation; (e) rights relating to trade secrets and confidential information; and (f) all industrial and intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, including all registrations and applications therefor, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.

“Items” has the meaning assigned in Section 18.2(b).

“Local Currency” has the meaning assigned in Section 6.3.

“Long Lead-rime Components” means those Components with procurement lead times greater than ninety (90) days.

“MOQ” means that minimum order quantity of Components that certain suppliers may require generally or at certain price points.

“MRO” means maintenance, repair and operations supplies and consumables that are necessary for normal equipment maintenance and repair, and manufacturing operations but not typically included in the Specifications.

“NCNR” means Component purchases that are non-cancellable and/or non-returnable, whether designated as such at purchase or that become NCNR after purchase (including “broken” packages, open reels, or passage of time).

“Nonconforming Product” means a Product that does not conform to the Product warranty provided in Section 11.1(a).

“NRE Charges” means setup, tooling, ECO, or non-recurring engineering activities.

“Obsolete Components” shall mean the individual Component inventory (limited to Authorized Purchases) purchased by Benchmark or for which Benchmark has issued a non-cancelable purchase order and that is no longer required by Benchmark to manufacture Products within the subsequent one hundred and eighty (180) days based upon accepted Order(s) and/or the then-current Forecast (whether as a result of an ECO or any other reason whatsoever).

“OFAC” has the meaning assigned in Section 18.1(c).

“Party” or “Parties” shall refer in the singular to either Customer or Benchmark, and collectively to both.

“Passive Sourcing” shall include sending a letter to key Component suppliers advising them of their PCR responsibilities, then archiving any data/certification communications received and forwarding such information to Customer.

“PCBA” has the meaning ascribed in Section 11.1(f):

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“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, governmental authority or any other entity.

“Prepaid Inventory” has the meaning assigned in Section 7.4(a).

“Prepaid Inventory Balance” has the meaning assigned in Section 7.4(c).

“Prices” has the meaning assigned in Section 3.1(a).

“Product” means those finished good items specified in an SOW and/or a Product Quotation for volume production accepted by Customer.

“Product Content Regulation” or “PCR” refers to the following laws and/or regulations on content, packaging, or labeling of Products, Components or substances, and/or similar issues, including without limitation any implementing regulations and/or administrative rules applicable to any such PCR: (a) “RoHS”: (EU Directives 2011/65/EU on Restriction of Hazardous Substances Directive and 2015/863 amending Annex II to Directive 2011/65/EU); (b) “WEEE”: (EU Directive 2002/96/EC on Waste Electrical and Electronic Equipment); (c) “REACH”: (EC Regulation No 1907/2006 on Registration, Evaluation and Authorization of Chemicals); (d) any European Union Member State’s implementations of RoHS, WEEE and REACH; (e) “Conflict Minerals”: as defined in the U.S. ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act § 1502(b) and any implementing legislation and rules thereof; (f) the People’s Republic of China (PRC) Management Methods for the Restriction of the Use of Hazardous Substances in Electrical and Electronic Products; and (g) any other PCR mutually agreed to by the Parties.

“Product Quotation” means Benchmark’s written proposal(s) from time to time Issued to Customer listing the Product and the new or revised pricing for each assembly of the Product, together with the Assumptions (as defined in Section 3.1) upon which the proposal relies.

“Purchase Order” or “Order” means a written or other mutually agreed upon signal obligating Benchmark to manufacture and ship Products according to the particulars of the signal or SOW that it pertains to, and for Customer to purchase such Products as agreed.

“Restricted Part List” has the meaning assigned in Section 18.1(c).

“RMA” means Return of Merchandise Authorization and the related procedure at Section 11.1.

“Specifications” means, drawings, SOW, BOM, AML, AVL or other Customer-provided documentation or data that sets forth the Components, design, technical aspects, configuration, labeling, manufacturing and deliverable details and/or requirements for a Product, or any of these that are approved in writing by Customer and clearly provided as Specifications to Benchmark.

“Statement of Work” or “SOW” means a document executed by the Parties in substantially similar form as Exhibit A that details the particulars for a specific product(s) or program(s) to be covered by this Agreement,

“Technology” means all know-how, information, ideas, inventions, modifications, prototypes, tools, other tangible embodiments, and works of authorship, including without limitation, specifications, drawings, software, databases, compilations, schematics, documentation, and presentations.

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“Test Fabrication” shall mean services for the design and/or build of production test equipment relative to the Products provided under a separate SOW and owned by Customer upon Customer’s approval and/or release of the production test equipment for use in manufacturing.

“Trigger Period” has the meaning assigned in Section 6.3.

“Waiver” shall mean a written authorization to accept a configuration item or other designated items, which during production or after having been submitted for inspection, are found to depart from Specifications, but nevertheless are considered suitable “as is” or after rework by an approved method.

“Warranty Period” has the meaning assigned in Section 11.1(a).

“Workmanship” means Benchmark’s manufacturing processes performed in accordance with the Specifications and workmanship standards set forth therein; or in any case where the Specifications are silent with respect to particular workmanship standards, then for those details Workmanship means that Benchmark will manufacture in accordance with IPC-A-610 (current rev). Class 2.

(a) Section headings and subheadings used in this Agreement are for convenience only and do not affect the interpretation of this Agreement.

(b) Words of any gender include all genders and the plural shall include the singular and bodies corporate shall include unincorporated bodies and (in each case) vice versa.

(c) For the purpose of the construction and interpretation of this Agreement, the words “including,” “include,” “includes,” and “such as” are not terms of limitation, but rather will be deemed to be followed by the words “without limitation,” and the words “herein,” “hereof,” and “hereunder” will refer to this Agreement as a whole. References to “third party” or “third parties” do not mean either Party or any Affiliate of either Party. Except as otherwise expressly stated in this Agreement, whenever the term “day,” “month,” or “quarter” is used in this Agreement that term will mean a calendar day, a calendar month, and a calendar quarter, respectively. Whenever a Party’s approval or consent is required under this Agreement, the Party may grant or withhold its consent, or impose conditions on granting its consent, in its absolute discretion without any requirement to act reasonably, unless expressly stated otherwise.

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(d) No provision of this Agreement will be construed adversely to a Party because that Party was responsible for the preparation of this Agreement or that provision. The provisions of this Agreement shall be construed and interpreted fairly and in good faith to both Parties without regard to which Party drafted the same.

(e) This Agreement is written in the English language. The meaning of the English text herein shall prevail over the meaning of any translation thereof.

(a) During the term of this Agreement, “Prices” or price models for relevant Products shall be set forth in a SOW and/or a Product Quotation accepted by Customer. Prices are in U.S. Dollars, are effective for the duration stated in the relevant SOW and/or accepted Product Quotation and are based upon: (i) the configuration set forth in the Specifications provided to Benchmark and referenced in the relevant SOW and/or accepted Product Quotation; and (ii) the projected annual volumes of Products to be sold to Customer, minimum Product order quantities, minimum ship quantities and other assumptions (“Assumptions”) set forth in the relevant SOW and/or accepted Product Quotation.

(b) Product Quotations shall incorporate (i) a fully-transparent costed BOM (down to Component level, incorporating manufacturer and manufacturer part number), (ii) a material overhead rate consistent with Exhibit E and Section 10.4 that is inclusive of, but is not limited to, acquisition costs, inbound freight, material handling and storage (iii) SMT, assembly and test labor cost (based on a defined hourly labor rate consistent with Exhibit E and the actual SMT time, assembly man-hours and test man-hours), and (iv) fixed percentage-based costs (as a percentage of Price) consistent with Exhibit E that account for, but are not limited to, indirect labor and manufacturing overhead, SG&A, 3nd profit. Subject to Section 19.7, Customer shall have the right to audit on mutually agreeable terms the components of the Product Quotation. Benchmark shall cooperate with reasonable requests of Customer for information regarding any component of the Product Quotation. The Parties shall use the defined cost structure and rates set forth on Exhibit E for the term of this Agreement (“Cost Structure”). The Cost Structure corresponding to the quoted annual revenue in Exhibit E will be applicable when the quarterly revenue run rates are within [***]. A quarterly revenue below [***] will trigger a pricing change to the lower annual revenue pricing model in the following quarter.

(c) To add a new Product to this Agreement, Benchmark shall issue a Product Quotation to Customer stating the new Product and the proposed Price for such Product, provided that such Product Quotation shall be in U.S. Dollars and shall be set at least thirty (30) days prior to commencement of volume production based on the cost structure outlined in Exhibit E. To indicate Customer’s acceptance of the Product Quotation, Customer shall: (i) provide Benchmark with written acceptance (by electronic mail or facsimile) of the Product Quotation; (ii) enter into an SOW incorporating the Product Quotation; or (iii) issue an Order or revise an open Order to reflect the new Product. All Product Quotations accepted by Customer shall be made a part of this Agreement as if set out herein in their entirety.

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(d) Variable elements of the Cost Structure, consisting of the BOM cost and labor content (time, man-hours), will be subject to review by the Parties on a quarterly basis and at such other times as may be mutually agreed by the Parties at a review meeting to be arranged by the authorized representatives of the Parties. Any change to the Price of a Product will be based on changes to the variable elements of the Cost Structure and changes to revenue forecasts for future quarters affecting the applicable rates on Exhibit E, or other pricing Assumptions set forth in the relevant SOW and/or Product Quotation accepted by Customer with respect to a Product.

(a) Outbound freight from a Benchmark site to Customer, export and/or import licensing of the Product, or payment of broker’s fees, duties, tariffs, or other similar charges; any such charges shall be separately stated and invoiced to Customer;

(b) taxes or charges (other than those based on net income of Benchmark) imposed by any taxing authority upon the manufacture, sale, shipment, storage, “value add,” or use of the Product which Benchmark is obligated to pay or collect; any such taxes or charges shall be separately stated and invoiced to Customer;

(c) the cost of compliance with any legislation that relates to the return of end-of-life Product from Customer to Benchmark for disposal; if Benchmark is required to comply with such legislation, Benchmark shall be compensated for reasonable costs incurred, chargeable on a monthly basis;

(d) NRE Charges, which shall be separately stated and invoiced; provided, however, that upon mutual agreement of the Parties Benchmark will amortize NRE Charges over a period of time to be mutually agreed upon by the Parties in writing; or

(e) expedited fees or premiums charged by suppliers of Components resulting from Customer’s schedule changes as permitted herein.

Prior to adding a new Product to this Agreement, the Parties shall mutually agree on the engineering development charges and other costs associated with new Product introduction, including but not limited to, manufacturing, process and quality engineering, program management, and test development. Any such charges and costs mutually agreed upon by the Parties will be billed to Customer as a NRE charge.

(a) Initial Volume Production. In the event Customer reasonably determines it is unable to start initial volume production by the mutually-agreed initial date identified in the delivery schedule of the first production Purchase Order (“Initial Volume Production Date”), Customer will be responsible for the costs/charges associated with maintaining the minimum project support (including Customer project interface, managing Component availability, supply chain awareness) and any additional support requested, at a mutually agreed amount per month. The lead-time required to restart initial volume production will be as mutually agreed by the Parties, Benchmark shall maintain the production unit Price during the development phase or prior to initial volume production. Customer shall pay Benchmark for all reasonable expenses resulting from the request to delay the start of initial volume production until after the Initial Volume Production Date, including Customer pre-approved charges related to volume material purchases essential to maintain the then current negotiated unit price or to address end of life issues. Notwithstanding anything to the contrary in this Section 3.3(a), in no event shall Customer be responsible for any project support costs for project delays if a cross-functional team is already in place and fully supported by and on-going production of another Customer Product.

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(b) Pricing Assumptions. Customer acknowledges that the Prices set forth in a SOW and/or an accepted Product Quotation are based on the Assumptions set forth in such SOW and/or accepted Product Quotation. If Benchmark experiences an increase or decrease in cost as a result of changes in the Assumptions, Benchmark may re-quote the Prices of the affected Products by submitting a Product Quotation with revised Prices to Customer subject to Customer’s acceptance in accordance with Section 3.1(d).

(c) Component Pricing. In the event Benchmark is unable to purchase Components at the standard costs set forth in the BOM (including where Customer furnishes Component prices to Benchmark or represents that Benchmark will be able to purchase the Components at such furnished prices) used by Benchmark to prepare a Product Quotation that is later accepted by Customer, Benchmark shall be permitted to process a PPV charge, subject to Customer approval in advance of purchase by Benchmark if there is a one-time materials cost adjustment, or process a buy up or buy down of the inventory during a quarterly pricing adjustment if there is an on-going materials cost adjustment.

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(a) Schedule Push-Outs. Customer may reschedule Orders, in whole or in part, for Products with ship dates falling outside of the [***] period immediately following the date Benchmark receives the notice from Customer, as follows:

Days to shipment date

(b) Schedule Pull-Ins. Customer may request that Benchmark ship Products in advance of the scheduled ship date. Benchmark will use reasonable efforts to accommodate such reschedule requests. Customer shall be responsible for material premiums and expedite costs to meet such upside rescheduling.

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If Customer is or becomes privately held, then Benchmark may, from time to time, require Customer to provide financial statements accurately and fairly evidencing Customer’s financial condition, including without limitation annual audited financial statements, together with quarterly (within forty-five (45) days after the end of each fiscal quarters) balance sheets, income statements, and/or statement of cash flows.

(a) Initial Forecast Horizon. Upon the execution of this Agreement, Customer shall provide Benchmark with an initial forecast for Product requirements (in weekly buckets) for [***] (“Forecast”).

(b) Rolling Forecast Horizon. Each month, Customer shall provide a Forecast update sufficient to maintain the Forecast horizon described above.

(a) Within [***] after the end of each calendar month, Benchmark shall provide Customer with a list of any Excess Components or Obsolete Components in its inventory and the Delivered Cost of such Components (the “E&O List”) for reconciliation between the Parties. Benchmark will make good faith efforts to mitigate Customer’s liability by attempting to return or sell Excess Components and Obsolete Components, and Customer shall be responsible for payment of all restocking fees and reimbursement of price variances from quoted standard cost incurred due to such mitigation efforts.

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(b) Within [***] after receiving Benchmark’s E&O List (“Dispute Period”), Customer shall:

(c) Liability for any items appearing on the E&O List shall be deemed agreed to by Customer, unless Customer provides a written objection within the Dispute Period. The Parties will escalate any dispute regarding Excess Components or Obsolete Components for which no Order is issued pursuant to Section 7.3(b) to the Parties’ respective executive management level (General Manager or above) for prompt resolution within twenty (20) days after the end of the Dispute Period.

(d) The Parties may mutually agree to place undisputed Excess Components or Obsolete Components in consignment at Benchmark’s facility, subject to an inventory carrying charge of [***] of the total Delivered Cost of such Excess Components or Obsolete Components. Customer shall own all such consigned Components. Customer shall take actual delivery and possession of any consigned Excess Components or Obsolete Components that have been in Benchmark’s inventory for more than [***] without activity.

(e) For those undisputed Excess Components or Obsolete Components with demand beyond [***] that Customer and Benchmark agree will not be sold to Customer, Benchmark has the right to charge Customer an inventory carrying charge of [***] of the total Delivered Cost of Excess Components; provided, however, that Benchmark shall only carry such Components for [***] after the date they became Excess Components, at which point Customer shall issue an Order for any such Excess Components at the Delivered Cost.

(a) “Prepaid Inventory” shall consist of the undisputed Excess Components on the then current E&O List provided by Benchmark to Customer that the Parties agree to handle according to the Prepaid Inventory Option and for which Benchmark has issued Customer an invoice according to paragraph (c) below. Customer waives any further dispute to Customer’s liability for such Excess Components added to Prepaid Inventory.

(b) Customer shall own the Prepaid Inventory upon issuance of an invoice according to paragraph (c) below.

(c) The “Prepaid Inventory Balance” means Benchmark’s total Delivered Cost for Prepaid Inventory. By the [***] day of each month, or such other interval as may be mutually agreed between the Parties, Customer shall issue an Order to Benchmark in the amount of the Prepaid Inventory Balance for those items the Parties agree to be handled under the Prepaid Inventory Option pursuant to paragraph (a) above. Benchmark shall invoice Customer for the amount of such Order, and Customer shall pay such invoice within the payment term specified in Section 6.2.

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(d) Within [***] after the end of each month Benchmark shall provide to Customer a complete Prepaid Inventory reconciliation detailing the total Prepaid Inventory previously purchased by Customer and in Benchmark’s care custody or control.

(e) In the event of a decrease in the Prepaid Inventory for any reason, Benchmark shall issue a credit to Customer for Benchmark’s unburdened cost, in the amount of the decrease.

(f) Benchmark will hold Prepaid Inventory items for a maximum of [***] after the date that such Excess Component is added to Prepaid Inventory, at which time Prepaid Inventory items will be shipped or dispositioned, at Customer’s discretion. Customer will be responsible for approved and reasonable costs incurred by Benchmark for such shipment and/or disposal.

(g) Benchmark shall retain such Excess Components in its inventory for the duration of the Prepaid Inventory process. In the event that the Parties agree to terminate the Prepaid Inventory process or upon expiration or termination of this Agreement, the Parties shall complete a final Prepaid Inventory reconciliation as provided in paragraph (d) above to close the Prepaid Inventory process, at which time the Prepaid Inventory will be shipped and/or dispositioned at Customer’s discretion. Customer will be responsible for approved and reasonable costs incurred by Benchmark for such shipment and/or disposal.

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(a) The Parties shall conduct quarterly program reviews with specific emphasis on quality, delivery, and cost improvements. Benchmark cost savings realized as a result of implementing Cost Reductions shall be shared between the Parties as follows:

i) For Cost Reductions proposed solely by Customer (without any input from Benchmark), the Price of the affected Products shall be reduced by the entire amount of Benchmark’s cost savings due to the Cost Reduction proposal.

ii) For Cost Reductions proposed solely by Benchmark, such savings shall initially be shared equally between the Parties for a period of [***] and thereafter retained exclusively by Customer.

iii) For Cost Reductions proposed jointly by the Parties, such savings shall initially be shared equally between the Parties for a period of [***], and thereafter retained exclusively by Customer.

(b) The foregoing Cost Reductions will commence only after all open Orders have been closed and Benchmark consumes all Components on-hand, in work in process or contained in non-shipped Products; or alternatively at Customer’s option, Customer may issue an Order for the cost of such Component cost reduction buy down, in which case the Component Cost Reductions shall commence upon the issuance of the cost reduction buy down Order.

(c) “Cost Reduction” means lower Product purchase prices based on changes in Benchmark’s manufacturing processes, labor cost reductions, alternate Components or alternate Component supplier or as otherwise mutually agreed by the Parties.

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(a) All Customer-Furnished Items are and shall remain the property of Customer including any tooling, test equipment, or fixtures made or purchased by Benchmark at Customer’s cost and expense. Benchmark shall clearly identify all Customer-Furnished Items by a tag, where appropriate, and shall utilize such Customer-Furnished Items only for Customer. Benchmark shall not make or allow modifications to be made to the Customer-Furnished Items without Customer’s prior written consent.

(b) Benchmark shall be responsible for (i) reasonable diligence and care in the use and protection of any Customer-Furnished Items, ordinary wear and tear excepted, and (ii) routine maintenance and repairs to any Customer-Furnished Items.

(c) Customer shall be responsible for: (i) the costs of non-routine repairs to Customer-Furnished Items, except where due to Benchmark’s gross negligence; (ii) end of life replacements of Customer-Furnished Items; (iii) service warranties and/or third-party calibration to Customer-Furnished Items; and (iv) repair or replacement of failed or defective Customer-Furnished Items. If any Customer-Furnished Items are defective, Benchmark has the right to return such defective items to Customer at Customer’s sole expense, and Customer acknowledges that such return may impact the Product shipment date(s).

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(d) Upon Customer’s written request, Benchmark shall return to Customer all Customer-Furnished Items at Customer’s sole expense. If such return inhibits or prevents Benchmark from performing aftermarket service or warranty obligations, then Benchmark shall be relieved of responsibility for such performance only to the extent that Benchmark is unable to repair or replace warranty returns without the specific use of such Customer-Furnished Items.

(e) All Tooling or Equipment charged to Customer will be passed through to Customer at [***].

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(a) Manufacturing Services. For a period of [***] from the date of shipment of a Product to Customer, subject to extension as provided in Section 11.2 (“Warranty Period”), Benchmark warrants that (i) at shipment to Customer the Product shall conform to the applicable Specifications; and (ii) all Workmanship related to such Product shall be free from defects.

(b) Compliance with PCR. Benchmark warrants that its manufacturing processes for the Products will comply with all PCR identified in the Specifications.

(c) Free from Infringement. Benchmark represents and warrants that the Products, including the manufacture of the Products, will not give rise to, nor be subject to any claim or liability of any third party for Intellectual Property Infringement arising solely as a result of, or relating to the use of, Background IP of Benchmark.

(d) Test Fabrication Warranty. Benchmark warrants that any Test Fabrication provided will be performed in a professional and workmanlike manner and in accordance with any applicable SOW, specification, or documentation for a period of [***] following acceptance. If Test Fabrication fails to conform to this warranty, Benchmark shall, at its expense and as its sole liability and Customer’s exclusive remedy, re-perform such nonconforming Test Fabrication. Any Test Fabrication provided will be done at Customer’s cost and expense, but without markup by Benchmark.

(e) Limited Remedies. Benchmark shall, at its option and at its expense, repair, replace or issue a credit of the Price for Nonconforming Products returned to Benchmark during the Warranty Period pursuant to the RMA Procedure below.

(f) No Component Warranties by Benchmark. Benchmark will pass on, transfer and/or assign to Customer all Component manufacturer warranties to the extent possible, but Benchmark does not independently warrant any Components. In the event of any defective Component on a printed circuit board assembly (“PCBA”), Benchmark will bear the cost of PCBA repair and/or rework to repair/or replace the defective component on the PCBA.

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Customer will not pass through to end users or other third parties the warranties made by Benchmark under this Agreement. Furthermore, Customer will not make any representations to end users or other third parties on behalf of Benchmark, and Customer will expressly indicate that the end users and third parties must look solely to Customer in connection with any problems, warranty claims or other matters concerning the Product.

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(a) Upon the expiration or termination of this Agreement (in whole or in part) and/or an Order, for any reason, Customer shall be responsible for:

i) the Price for all finished goods held by Benchmark at the time of expiration or termination;

ii) Benchmark’s incurred costs for all work in process (including burdened labor, materials, any applicable VAT and a ▇▇▇▇-up for recovery of handling costs incurred [***] of the value of the work in process (no other markups shall apply)), provided, however, that in lieu of paying such incurred cost to Benchmark, Customer may pay Benchmark the Price for such Products, provided further that Benchmark completes the manufacture of such Products and delivers them to Customer as set forth in the applicable Order for such Products or as otherwise agreed by the Parties;

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iii) Benchmark’s Delivered Cost for all Authorized Purchases provided those Authorized Purchases have been delivered to and/or paid for by Benchmark (including non-cancellable orders). Upon Customer’s payment to Benchmark, title to such Authorized Purchases will transfer to Customer (after Benchmark has made good faith efforts to mitigate Customer’s liability under this clause by first attempting to return or sell remaining Components); and

iv) any vendor cancellation and restocking charges, including Benchmark’s cost for NCNR Components on open orders with suppliers where the Components have not yet been shipped to Benchmark.

Benchmark shall invoice Customer for the foregoing as soon as practicable after the effective date of expiration or termination, and Customer shall pay Benchmark within the payment term specified in Section 6.2.

(b) At any time during the term of this Agreement, and no later than thirty (30) days following the expiration or termination of this Agreement, Benchmark shall, upon request of Customer, return to Customer all tooling, equipment and assets of Customer held by Benchmark and authorize the transfer to Customer of all tooling, equipment and assets of Customer held by Benchmark vendors or subcontractors. If not already paid for and owned by Customer, the purchase price for such tooling, equipment and assets will be at [***]. Customer will be responsible for all shipping costs incurred to return such assets to Customer.

(c) Upon payment in full of the charges and the performance of a Party’s obligations set forth in this Section 12.3, including without limitation the payment in full of any charges and expenses provided herein, such Party shall not incur any additional liability by reason of the expiration or termination of this Agreement, and the other Party shall have been deemed to release the first Party from any claims of any nature (including damages sustained on account of loss of prospective profits, or on investments, contracts, leases or other commitments) resulting from or arising out of such expiration or termination.

(a) personal injury (including death) or property damage to the extent any of the foregoing is proximately caused by Benchmark’s manufacturing processes, or the grossly negligent or willful acts of Benchmark or its officers, employees, subcontractors or agents; or

(b) Intellectual Property Infringement arising from or in connection with Benchmark’s manufacturing processes or Benchmark Background IP.

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(a) personal injury (including death) or property damage to the extent any of the foregoing is proximately caused by a Customer-Furnished Item, the Specifications, a Product defective in design or marketing or the grossly negligent or willful acts of Customer or its officers, employees, subcontractors or agents; or

(b) Intellectual Property Infringement arising from or in connection with the Products, Specifications and/or Customer-Furnished Items (excluding any portion of any Claims arising from or in connection with Benchmark’s manufacturing processes or Benchmark’s Background IP).

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(a) Customer will own any and all Foreground IP, and Benchmark shall and does hereby assign any right, title, or interest in such Foreground IP to Customer, or, to the extent required by applicable laws, will cause the same to be so assigned. Benchmark shall promptly identify and deliver to Customer any and all Foreground IP developed by or on behalf of Benchmark during the term of this Agreement and any applicable Purchase Order. Benchmark shall acknowledge and promptly deliver to Customer, at Customer’s expense, such written instruments and do such other acts as may be necessary in the reasonable opinion of Customer to obtain and maintain patents in the Foreground IP and to vest and perfect the entire right and title in Foreground IP in Customer.

(b) Benchmark hereby grants to Customer a nonexclusive, irrevocable, royalty free, fully paid, worldwide and perpetual license, with the right to sublicense, to Benchmark’s Background IP included in a Product or Products, (i) to use, sell, offer for sale, export, import, maintain, support, and repair Products; and (ii) to copy, translate, modify, distribute, make derivative works of (limited, however, to the scope of use of the Products as known to the Parties on the Effective Date or as mutually agreed between the Parties during the term of this Agreement), publicly perform, and publicly display, in whole or in part, any Benchmark Background IP constituting works of authorship necessary for the purpose of using, selling, offering to sell, manufacturing, repairing, supporting, exporting, importing, or remanufacturing, of Products, prototype Products, or pilot Products, and Benchmark hereby warrants waiver of all moral rights in any such Benchmark Background IP.

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(c) Each Party retains all right, title and interest in and to any Background IP that such Party uses in the performance of its obligations under this Agreement. Except as expressly provided herein, nothing in this Agreement shall be construed as granting a Party any rights or interests in the other Party’s Background IP.

(d) Except as otherwise expressly provided herein, Benchmark will not sell or provide Products or any products or services using, embodying or including Customer Background IP or Foreground IP, to any person other than Customer and Customer’s Affiliates, without Customer’s prior written approval.

Except as may be required to perform warranty or other continuing obligations, upon the termination or expiration of this Agreement: (a) the licenses granted herein by Benchmark under Section 16.2(b)(ii) shall terminate; (b) the licenses granted herein by Customer shall terminate; (c) Benchmark shall deliver to Customer all materials possessed by It relating to Customer’s Background IP and Foreground IP; (d) Customer shall deliver to Benchmark all materials possessed by it relating to Benchmark Background IP; (e) Benchmark shall cease all further use of Customer’s Background IP and Foreground IP; and (f) Customer shall cease all further use of Benchmark’s Background IP provided that Customer shall not be obligated to cease use of Benchmark Background IP embodied in Products already delivered or sold to Customer. There are no other rights or licenses granted by Customer to Benchmark relating to Customer’s Technology or by Benchmark to Customer, except as specifically stated herein.

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(a) Workers’ Compensation and Employers Liability Insurance as prescribed by state or country law with minimum limits of $5,000,000 per accident / $5,000,000 per disease / $5,000,000 policy limit;

(b) Comprehensive Automobile Liability - Bodily Injury/Property Damage Insurance covering all motor vehicles used In connection with this Agreement, with minimum limits of $1,000,000 combined single limit per occurrence;

(c) Commercial General Liability Insurance, including blanket contractual liability and broad form property damage, with minimum limits of $5,000,000 combined single limit per occurrence and an aggregate limit of at least $ 20,000,000 but in no event less than the amount otherwise carried by the contract holder. Coverage must be written on ISO occurrence form CG 00 01 12 04 (or an equivalent substitute form) or ISO claims-made form CG 00 02 12 04 (or an equivalent substitute form). The policy must include coverage for, but not limited to, Bodily Injury and Property Damage, Personal Injury and Advertising Injury, Fire legal liability, Products Liability (including with respect to the design of the Products and all components) and completed operations; and

(a) All policy(s) and coverages must:

i) Be written in a form acceptable to Benchmark;

ii) Specify that all coverage provided by Customer is primary.

iii) Excluding coverage specified in Section 17.1(a), contain an additional insured endorsement in favor of and acceptable to Benchmark, which shall not be limited by Customer’s liability under any of its indemnity obligations under this Agreement;

iv) Require notice to Benchmark in writing at least thirty (30) days prior to any cancellation, non-renewal, substitution or material alteration of such policies; and

v) Be written by a reputable insurance company acceptable to Benchmark or with a current Best’s Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided.

(b) Prior to and as a condition precedent to Benchmark’s commencing Product manufacture, Customer shall furnish to Benchmark an acceptable certificate(s) of insurance from an authorized representative evidencing the required coverage(s), endorsements, and amendments. Customer shall deliver a copy of each additional insured endorsement within two (2) business days after request by Benchmark. Failure by Customer to provide evidence as required shall be deemed a material breach of this Agreement. Acceptance of a certificate that does not comply with this Section 16.7 shall not operate as a waiver of Customer’s obligations hereunder.

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(c) If coverage(s) under Section 17.1(c) is written on a claims-made form, the policies shall provide, and Customer warrants, that: (i) any retroactive date applicable to coverage under the policy precedes the effective date of this Agreement; and (ii) continuous coverage will be maintained for a period of three (3) years beginning from the time this Agreement is no longer in effect or the policies extended discovery period, if any, will exercised for the maximum time of the policy.

(a) Anti-Corruption /Anti-Bribery. In addition, the Parties shall:

i) comply with all applicable country laws relating to anticorruption or anti-bribery, including but not limited to legislation implementing the Organization for Economic Co-operation and Development “Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,” or other anti-corruption/anti-bribery convention, the Foreign Corrupt Practices Act as amended (FCPA) (15 US.C. §§78dd-l, et. seq.), whether either Party is within the jurisdiction of the United States; and

ii) neither directly nor indirectly, pay, offer, give, or promise to or give, anything of value received from a Party to a non-U.S. public official or any person in violation of the FCPA and/or any applicable country laws relating to anti-corruption or anti-bribery.

(b) Nondiscrimination. Executive Orders 11246 and 13201 and 29 C.F.R. Part 470 and 41 C.F.R. Parts 60-1.4, 60-1.8, 60-250.5, 60-300.5 and 60-741.5, as amended, are incorporated, as applicable.

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(c) Restricted Parties. The Parties hereby represent that neither party nor any parent, subsidiary or affiliate of a party is included on any of the restricted party lists maintained by the U.S. Government, including the Specially Designated Nationals List administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), Denied Parties List, Unverified List or Entity List maintained by the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”), or the List of Statutorily Debarred Parties maintained by the U.S. State Department’s Directorate of Defense Trade Controls, or the consolidated list of asset freeze targets designated by the United Nations, European Union, and United Kingdom (collectively, “Restricted Party Lists”). Each party shall immediately notify the other party if a party, or any parent, subsidiary or affiliate of SELLER becomes listed on any Restricted Party List or if a party’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S, or non-U.S. government entity or agency.

(a) With regard to each Party’s respective obligations under and performance of this Agreement, each Party shall at all times comply with all export/import laws (including re-export), sanctions, regulations, orders, and authorizations (including the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC)) that are applicable to the export or import of goods, software, technology, or technical data (“Items”) or services (collectively, “Export/import Laws”).

(b) The Party conducting the export or import shall obtain all export or Import authorizations which are required under the Export/import Laws for such Party to execute its obligations under this Agreement. Each Party shall reasonably cooperate and exercise reasonable efforts at its own expense to support the other Party in obtaining any necessary licenses or authorizations required to perform its obligations under this Agreement. Reasonable cooperation shall include providing reasonably necessary documentation, including import, end user and re-transfer certificates.

(c) The Party providing Items or services under this Agreement shall, upon request by the other Party, notify the other Party of the export classification (e g. the Export Control Classification Numbers or U.S, Munitions List (USML) category and subcategory) of such Items or services as well as the export classification of any components or parts thereof if the classification is different from the export classification of the Item or service at issue. The Parties acknowledge that this representation means that an official capable of binding the Party providing such Items or services knows or has otherwise determined the proper export classification. Each Party agrees to reasonably cooperate with the other in providing, upon request by the other Party, documentation or other information that supports or confirms this representation.

(a) Benchmark Responsibilities. Upon written request by Customer, Benchmark shall:

i) certify in writing that its Product manufacturing processes comply with applicable PCR;

ii) provide Customer with compliance information regarding applicable PCR for the consumable (MRO) materials which Benchmark adds to the Product and which are not typically listed on the BOM (for example, solder paste), and for open source Components, if any, for which Customer has delegated independent selection authority to Benchmark;

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iii) provide Customer with SVHC compliance information on Products received through Passive Sourcing, as may be required of Benchmark under REACH Article 33;

iv) provide Customer with Product environmental documentation received from Component suppliers through Passive Sourcing; and

v) provide disclosures legally required regarding Conflict Minerals.

Except as expressly provided above, Benchmark has no responsibility or obligation to evaluate, document or demonstrate that any design, Specification(s), BOM, Components, Products, packaging or labeling satisfy any PCR which may be applicable to the Components and/or Product(s).

(b) Customer Responsibilities. Customer shall have the sole responsibility to evaluate and ensure that all Product design elements (Including any DFx, Specifications, BOM, Components, AVL and/or AML) meet the requirements of any applicable PCR, including whether all Components and materials incorporated into, and the packaging and labeling of, such Product(s) conform to any applicable PCR. Customer shall have the sole responsibility and expense for any Product’s required PCR compliance, including: (i) any REACH-required application and registration, and/or otherwise obtaining compliance for all Products, customer-directed processes and/or Components; and (ii) any WEEE-required funding or utilizing recycling mechanisms applicable to any Product and/or Component.

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(a) The Parties shall first seek to settle through good faith negotiations any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof (“Dispute”).

(b) The construction, interpretation and performance hereof and all Disputes concerning this Agreement will be governed by the laws of the State of New York, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws. The Parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention). The sole and exclusive forum for

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litigation permitted under this Agreement will be the State of Arizona courts, or the United States District Court for the District of Arizona, U.S.A., that are situated within the geographic bounds of Maricopa County, Arizona (the “Courts”). Each Party irrevocably submits to the jurisdiction of the Courts for the litigation of Disputes, and irrevocably waives and agrees not to assert any claim or defense that the Party is not subject to the jurisdiction of the Courts, or that the Courts are an inconvenient forum or an improper venue. Each Party shall bear their own attorneys’ fees and costs expended in connection with the resolution of any Disputes.

Both Parties declare that none of its officers are government officials, police officers or civil servants.

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed effective as of the Effective Date, by their duly authorized officers.

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List of Exhibits/Attachments: