Stem MSA-d Online Form for Distribution Partners
Please find Stem Inc.’s online Master Services Agreement (MSA-d) below for your review and signature. This MSA-d form is a standard, non-negotiable, required document for all partners to sign who purchase a Stem energy storage solution through distribution. Once you complete the form, it will be submitted to Stem’s Legal department for execution.
Please read and sign the MSA-d below.
STEM MASTER SERVICES AGREEMENT
«ACCOUNT_CUSTOMER_NO»
This agreement (“Agreement”) is between «ACCOUNT_LEGAL_ENTITY», a
«ACCOUNT_STATE_OF_INCORPORATION» «ACCOUNT_LEGAL_ENTITY_TYPE» (“Customer”), and Stem, Inc., a
Delaware corporation together with its successors and assigns (“Stem”).
Customer has purchased Systems through a Distributor, which Customer may install in combination with Customer’s solar
generation systems at one or more Sites as more fully described in each associated Services Order.
Customer wants to purchase certain advanced energy storage and optimization and other services to support the
deployed Systems. Stem, directly and through its assignees and subcontractors, is willing to provide such services subject
to the terms and conditions of this Agreement and each associated Services Order.
In consideration of the mutual promises and agreements stated in this Agreement, the parties agree as follows.
1. ATTACHMENTS
The following attachments are incorporated by reference: Attachment 1, Defined Terms, and Exhibit 1, Form of Transfer
Agreement.
2. SYSTEMS
2.1. Shipping. The Systems will be packaged and marked for shipment to the Location at no additional cost to
Customer except that Customer shall be solely responsible for any increases in the shipping costs that are not
due to Stem's action or inaction.
2.2. Delivery Requirements. For each delivery of Systems or Component Parts, Customer shall take such actions as
are necessary to (i) properly prepare the delivered Component Parts delivered under the Initial Shipment and,
where applicable, Interim Shipment for the receipt of the Final Shipment, (ii) maintain and comply with the
respective Manufacturers’ Warranties, (iii) comply with delivery requirements as more fully described in the
Systems Documentation provided in accordance with section 2.11 and (iv) comply with all requirements of any
governmental authority (including, without limitation, any physical enclosure requirements) for each of the
shipments.
2.3. Delivery Shipments. Systems will be delivered in either a single shipment or in one or more shipments of
Component Parts. Such deliveries are dependent on the manufacturer and the size of the shipment.
A. Initial Shipment. The first shipment of Component Parts as delivered to Customer in a single calendar day is
the initial shipment (“Initial Shipment”). Delivery of the Initial Shipment will be on, or with Customers’ prior
written consent, before the Delivery Date. In some cases, the Initial Shipment and the Final Shipment are the
same.
B. Interim Shipment. If applicable, additional interim deliveries of Component Parts may be required for items
such as, but not restricted to, battery racking (“Interim Shipment”).
C. Final Shipment. Dependent on the manufacturer, the Final Shipment is either: (i) the remainder of the
Component Parts, such as the equipment to be housed within the enclosures, batteries at the module level,
battery modules previously integrated into the rack-level, or battery modules previously integrated into larger
battery blocks or stacks, or (ii) when Systems are delivered in a single shipment the full shipment of the
Systems ((i) or (ii) may be referred to as “Final Shipment”). The Final Shipment may be delivered in one or
more deliveries depending on the Systems’ size. In the case where there is an Initial Shipment and a Final
Shipment, the Delivery Date for Final Shipment will be specified on the purchase order as issued by the
Distributor and confirmed before the completion of the installation of the Initial Shipment and, where
applicable, Interim Shipments. A Final Shipment will not be delivered before the completion of the installation
of the Component Parts delivered in the Initial Shipment and, where applicable, Interim Shipments unless
otherwise requested and specified by the Customer and approved by Stem and the associated manufacturer.
2.4. Delivery to Alternate Delivery Location. If Customer is unable to accept delivery of the Systems or Component
Parts on the Delivery Date Customer may request that Stem deliver a shipment to an Alternate Delivery Location.
Stem will deliver a scheduled shipment to an Alternate Delivery Location subject to the following:
A. The request for delivery to an Alternate Delivery Location must be submitted in writing to Stem at least ten
Business Days before the then-current Delivery Date.
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B. Where Customer does not have access to an Alternate Delivery Location (such as a Customer controlled
warehouse or other holding facility), Stem will, at Customer’s written request, sole responsibility, and cost
facilitate locating an Alternate Delivery Location. Upon Customer’s written confirmation to Stem of the
Alternate Delivery Location Stem will reroute the shipment to the Alternate Delivery Location. Customer shall
be solely responsible for all contracts with any Alternate Delivery Location.
C. Customer shall be solely responsible for additional costs associated with delivery to an Alternate Delivery
Location.
D. Unloading of any shipment delivered to an Alternate Delivery Location will be as stated in section 2.5.
E. Risk of loss for any shipment delivered to an Alternate Delivery Location will be as stated in section 2.6 A.
F. Customer shall be responsible for ensuring that the Systems are stored in compliance with the Manufacturers’
Warranties.
G. Delivery to an Alternate Delivery Location will be considered delivery to Customer. The Acceptance Period as
stated in section 5.4 will commence upon such delivery. Title will pass to Customer as stated in section 3.8.
H. Placing the Systems or Component Parts in an Alternate Delivery Location will not affect the commencement
of the term of the Manufacturers’ Warranties.
2.5. Unloading. Unloading. Unloading of the Systems or Component Parts will be as follows:
A. Unloading of Shipments to Alternate Delivery Location. Customer will be responsible for unloading all
Systems or Component Parts delivered to an Alternate Delivery Location.
D. Unloading of Shipments to Location. Except as stated in section 2.5 C. below, Customer will be
responsible for unloading all Systems or Component Parts delivered to the Location.
B. Unloading of Shipments to Location with Manufacturers’ On-Site Scope. If a Final Shipment is subject
Manufacturers’ On-Site Scope, the manufacturer will be responsible for unloading the Systems or Component
Parts delivered to the Location if (i) the Final Shipment is delivered directly to the Location by Stem or the
manufacturer, or (i) the Final Shipment is delivered to the Location by Customer as routed from an Alternate
Delivery Location.
2.6. Risk of Loss. The transfer of risk of loss will be as follows:
A. Risk of Loss for Shipments to Alternate Delivery Location. The risk of loss for all shipments of Systems
or Component Parts that are delivered to an Alternate Delivery Location by Stem or the manufacturer will
transfer to Customer upon commencement of Customer’s unloading of the shipment at the Alternate Delivery
Location.
E. Risk of Loss for Shipments Directly to Location. Except as stated in section 2.6 C. below, the risk of loss
for all shipments of Systems or Component Parts that are delivered directly to the Location by Stem or the
manufacturer will transfer to Customer upon commencement of Customer’s unloading of the shipment at the
Location.
B. Risk of Loss for Shipments Subject to Manufacturers’ On-Site Scope. If the Final Shipment is delivered
directly to the Location by Stem or the manufacturer, and if the manufacturer is responsible for Manufacturers’
On-Site Scope, then the risk of loss for the delivered Systems or Component Parts will transfer to Customer
upon completion of the Manufacturers’ On-Site Scope.
2.7. Manufacturers’ On-Site Scope. In some instances, the manufacturer will be responsible for performing
Manufactures’ On-Site Scope as associated with the Final Shipment to the Location. Unless otherwise requested
and specified in writing by the Customer and approved in writing by Stem and the associated manufacturer,
Manufacturers’ On-Site Scope will not commence until the Systems and Component Parts delivered as part the
Initial Shipment and any Interim Shipment have been both (i) delivered to the Location either directly by Stem or
the manufacturer or by Customer from an Alternate Delivery Location, and (ii) unloaded and installed at the
Location by Customer. Stem shall cause the manufacturer to repair or replace delivered Component Parts that
are damaged during the Manufacturers’ On-Site Scope if (a) such damage occurred during the performance of
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Manufacturers’ On-Site Scope, (b) the damage was caused by any act or omission of the manufacturer or its
representatives, (c) such damage is discovered before the completion of manufacturer’s commissioning of the
portion of the Systems or Component Parts associated with the Manufacturers’ On-Site Scope, and (d) Customer
has provided substantial evidence to prove it was the manufacturer or the manufacturer’s agents or
subcontractors that caused such damage. If the damage is discovered after the completion of the commissioning
of the Systems or Component Parts associated with the Manufacturers’ On-Site Scope Customer may file a claim
under the Manufacturers Warranties.
2.8. Inspection and Acceptance. Customer shall have ten days from the delivery to the Location or Alternate
Delivery Location, as applicable, of either the Initial Shipment, Interim Shipment, or Final Shipment to inspect the
delivered Systems or Component Parts (the “Acceptance Period”). Such inspection is for visible external damage,
defective, or nonconformance with this Agreement's requirements or the associated Services Order. Customer
shall provide Stem written notification of any nonconformity before the completion of the Acceptance Period. Stem
will have 15 Business Days to correct such nonconformity. The Acceptance Period will re-start on the date that
either Stem delivers conforming goods or provides written notice of correction of any reported nonconformity. A
shipment will be considered accepted by Customer upon Stem’s receipt of Customer’s written acceptance of each
shipment to Stem within the Acceptance Period or expiration of the Acceptance Period.
2.9. Systems Title. Stem shall cause legal title to pass to Customer, free and clear of all security interests, liens, and
encumbrances, upon delivery of the Systems to the Location or an Alternate Delivery Location except that, until
payment in full for the delivered Systems is received, Customer grants Stem a first priority security interest in any
of Customer’s existing and after-acquired rights in the Systems including all modifications, accessions,
accessories, replacements, and proceeds.
2.10. Systems Installation. Except installation that is performed through Manufacturers’ On-Site Scope, which will be
completed by the manufacturer at Stem’s sole cost and expense, Stem shall have no responsibility to cause any
portion of the Systems to be installed. Stem shall provide all necessary specifications, instructions,
documentation, and reasonable requirements to Customer in writing in accordance with section 2.11. Customer
acknowledges and agrees that failure to comply with installation requirements may void any applicable warranties.
2.11. Systems Documentation. Stem will, through a secure web portal, provide Customer with (i) operating and safety
instructions describing the operation of the Systems, (ii) copies of the Manufacturers’ Warranties, (iii) all required
installation and commissioning documentation and instructions for the Systems, and (iv) such other
documentation as required (collectively “Systems Documentation”). All provided Systems Documentation will be
as listed in an attachment to in each Services Order.
2.12. Systems Commissioning with Manufacturer’s On-Site Scope. When the manufacturer commissions the
Systems during the completion of Manufacturers’ On-Site Scope, Stem shall coordinate with the Customer to
allow the manufacturer’s completion of the Systems' remote and on-site commissioning. Additionally, Stem shall
coordinate with Customer to enable the Systems to be granted permission to operate by the associated utility
before the Stem Services' commencement as provided under a Services Agreement.
2.13. Systems Commissioning without Manufacturer’s On-Site Scope. Except when the manufacturer
commissions the Systems during the completion of Manufacturers’ On-Site Scope, upon completion of the
installation of the Systems, Customer shall provide or cause to be provided to Stem certain documents (which
may include but are not limited to a manufacturers’ construction checklist, a Systems equipment checklist, and
interval data from the associated utility). Stem shall coordinate with the Customer to allow the completion of the
remote and on-site commissioning of the Systems by the manufacturer. Additionally, Stem shall coordinate with
Customer to allow the Systems to be granted permission to operate by the associated utility before the Stem
Services' commencement as provided under a Services Agreement.
2.14. Manufacturers’ Warranties. Stem shall provide copies of the warranties for the Systems, as provided by the
manufacturers of the Systems or each Component Part (each a “Manufacturer’s Warranty” and collectively
“Manufacturers’ Warranties”).
2.15. Transfer of Manufacturer’ Warranties. Stem represents that it has the authority to freely assign the
Manufacturers’ Warranties to Customer without the consent of or additional notice to the applicable manufacturer
and the right to administer, on behalf of Customer, the Interim Warranty Coverage during the applicable period of
the Interim Warranty Coverage and, through the Stem Services, the Manufacturers’ Warranties during the
applicable Warranty Period. Stem agrees to assign to Customer the Manufacturers’ Warranties on or before the
date as stated in each Manufacturer’s Warranty (such date is the “Warranty Commencement Date”). Until the date
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that Stem assigns each Manufacturer’s Warranty, Stem shall provide Interim Warranty Coverage from the
respective manufacturer that is identical in quality and quantity to the warranty coverage under the applicable
Manufacturer’s Warranty (“Interim Warranty Coverage”). The terms of each Interim Warranty Coverage will be
enforceable by Customer against Stem commencing upon delivery of the Systems until assignment of the
applicable Manufacturer’s Warranty. Upon completion of the assignment of each Manufacturer’s Warranty, the
Interim Warranty Coverage will cease.
2.16. Further Assignment of Manufacturers’ Warranties. Upon the transfer of title to the Systems and completion of
the Manufacturer Warranty Assignment from Stem to Customer, Customer may further assign the Manufacturers’
Warranties in accordance with the terms of such Manufacturers’ Warranties.
2.17. Disclaimer of Warranties for Systems. Manufacturers’ Warranties contain all warranties that are being provided
with respect to the Systems, and such warranties are expressly in lieu of and exclude all other express or implied
warranties and all other obligations or liabilities on the part of Stem under this Agreement.
2.18. Extension of Warranties. Stem agrees and acknowledges that delay in delivery may impact the benefit received
from a Manufacturer’s Warranty. In the event of any such delay and where caused by Stem, which causes such
benefit to decrease by a particular number of days, Stem agrees to take such action so as to cause the affected
Manufacturer’s Warranty to be extended by the equivalent number of days.
2.19. Actions of Stem. Stem agrees and acknowledges that if the acts or omissions of Stem or its subcontractors limit
or void the Interim Warranty or the Manufacturers’ Warranties, then Stem shall take such actions so as to cause
the same to be reinstated, for the original periods of the voided warranty, at no cost to Customer.
2.20. Remote Access. During the Term of each Integrated Contract, remote access for firmware and software updates
by the manufacturer is provided directly through the Systems, and remote access for updates to the Stem
Equipment is provided through the Stem Services.
3. SERVICES
3.1. Services Orders. Following the Effective Date of this Agreement, Customer may,
through one or more Services Orders, place orders for Stem Services. Stem Services
will only include those items specifically identified in each Services Order and will be
provided in accordance with this Agreement, as amended, and each applicable
Services Order.
3.2. Integrated Services Contract. The parties acknowledge that each fully executed
Services Order and this Agreement constitutes a standalone, separable Integrated
Services Contract, which Integrated Services Contract may be assigned in
accordance section 13.1
3.3. Scope of Stem Services. Stem, either directly or through its subcontractors, agrees
to provide the Stem Services described in the applicable Services Order during the
term of each Services Order, subject to the terms and conditions of this Agreement,
each associated Services Order, and payment in full by the Distributor for the Systems
and the Stem Services as identified in each Services Order. Any delegation or other
engagement with any subcontractor will not relieve Stem of any of its duties,
responsibilities, obligations, or liabilities under an Integrated Services Contract.
3.4. Delivery and Installation of Stem Owned Equipment: Stem will provide to
Customer the Stem Equipment for Customers installation at the Location. Stem may
make substitutions of Stem Equipment due to product availability or installation
constraints.
3.5. Access Rights. Upon reasonable notice by Stem, Customer shall grant to Stem
(including Stem’s agents and representatives) access to Sites and any utility lines,
electrical lines, metering equipment and the like, and any other areas as may be
reasonably necessary for the maintenance, care, repair, operation, and monitoring of
the Stem Equipment, and to provide the Stem Services. In the event of an emergency
or malfunction of the Systems or the Stem Equipment, access will be granted as
needed to effect repairs or corrections to the Systems and the Stem Equipment. At all
times, Stem will have remote access to performance data generated by the Systems
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or the Customer with respect to the Systems. Customer shall ensure that other
Persons allowed access to Locations by Customer do not interfere with the Systems
or the performance of the Stem Services.
3.6. Operation and Maintenance of Stem Equipment: Stem will operate and maintain
the Stem Equipment in a commercially reliable manner. Customer shall promptly notify
Stem of any visual or audible malfunction of the Stem Equipment or potential threat to
the Stem Equipment of which Customer becomes aware. If the Stem Equipment is
damaged, lost, impaired, or destroyed, in whole or in part, and such damage, loss,
impairment, or destruction has not been caused by an action or inaction on the part of
Stem and is not covered by the Stem Services Warranty as stated in section 6, Stem
will, at Stem’s sole discretion, either repair or replace the Stem Equipment or affected
portion and invoice Customer for the costs and expenses associated with such repair
or replacement.
3.7. Stem Title to Services and Stem Equipment. Customer agrees that Stem will retain
title to and be the legal and beneficial owner of the Stem Services, Stem Equipment,
and all alterations, additions, or improvements made to the Stem Services or Stem
Equipment. Customer acknowledges and agrees that the Stem Services and Stem
Equipment will at all times retain the legal status of personal property and will not be
or be deemed to be Customer’s or any other Person’s real property or any fixture to
real property. Customer acknowledges that it will in no event have any ownership or
leasehold interest of any kind or nature in any portion of the Stem Services or Stem
Equipment including, but not limited to all technology and software components, and
Customer disclaims any and all interest or ownership at any time.
3.8. Liens. Stem will not permit or suffer any liens or encumbrances on Systems or Sites
arising directly from the performance of the Stem Services by Stem or any of its
subcontractors.
3.9. Documentation. Stem will provide Customer with (i) operating and safety instructions
describing the operation of the Systems, (ii) copies of the Manufacturers’ Warranties,
and (ii) such other documentation as required, through a secure Stem web portal. All
provided documentation will be as listed in an attachment in each Services Order.
3.10. Operations and Maintenance. During the applicable Services Order term, Stem shall
safely and reliably cause the Systems to be operated and maintained and to remain in
good condition and repair in accordance with (i) each Integrated Services Contract, (ii)
the associated Services Order, (iii) Prudent Industry Practices, (iv) Applicable Law, (v)
Manufacturers’ Warranties, (vi) the Preventive Maintenance Plan, and (vii) applicable
permits.
3.11. Firmware Updates. Stem will facilitate firmware updates to the Systems as provided
by the manufacturer. Stem will make commercially reasonable efforts to maintain the
Stem Services’ compatibility with the Systems firmware updates insofar as maintaining
such compatibility is not economically infeasible to Stem. In the case where a firmware
update negatively impacts the Stem Services, Stem will, where possible, maintain the
most current viable version of the firmware.
3.12. Utility Data. Customer receives certain data from its utility and grants to Stem during
the term of each associated Services Order the right to use such data to perform the
Stem Services, verify the performance of the Systems, calculate payments under the
applicable Services Order, and for all other purposes required for an Integrated
Services Contract. Within ten Business Days from receipt of Stem’s written request,
Customer shall cause Stem to be authorized to request and receive all such utility
data for the Sites as is required to perform the Stem Services.
3.13. Electricity Supply. Customer agrees that Stem is not purchasing from or selling to
Customer any electricity and that Stem is not a utility. Customer is responsible for all
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costs and liabilities associated with the procurement, purchase, and use of any
electricity, whether from on-site generation or supplied by the utility.
3.14. Notice of Non-Compliance. A party will notify the other party within 14 days if (i) it
receives written notification of non-compliance with any laws from any person or entity
in connection with its use of the Systems or (ii) it learns of an incident or accident of
any type relating to the Systems.
3.15. Removal of Stem Equipment. Upon the expiration or earlier termination of any
Services Order, Stem will, no later than 90 days after such expiration or termination,
remove the Stem Equipment, and will leave the Sites in neat and clean order. Stem
will ensure that all conduit and wiring are safely capped but left in place. Such removal
will be at Stem’s sole cost. Customer shall provide sufficient space for the temporary
storage and staging of tools, materials, equipment, and for the parking of construction
crew vehicles and temporary construction trailers and facilities reasonably necessary
during the Stem Equipment removal.
4. NEW REVENUE SERVICES; ENVIRONMENTAL INCENTIVES
4.1. New Revenue Services. During the term of an Integrated Services Contract, either
party may identify potential additional revenue streams from services that could be
provided by the Systems through Stem Services but are not within the scope of an
Integrated Services Contract (“New Revenue Services”). The parties agree to confer
to determine (i) if such New Revenue Services are feasible, (ii) projected revenues
and costs associated with such New Revenue Services (iii) any potential impacts to
Customer, End Users, the Stem Services, or the Customer Equipment performance,
including any potential upgrade requirements, and (iv) the terms on which any New
Revenue Services will be provided. Stem shall have no obligation to provide New
Revenue Services until the parties (and, if applicable, the End User) agree in writing to
such New Revenue Services.
4.2. Environmental Incentives. Except for those Environmental Incentives associated
with New Revenue Services or as otherwise stated in a Services Order, Stem will
have no rights, title, or interest in any Environmental Incentives related to, or resulting
from, the installation and operation of the Systems.
5. REPRESENTATIONS AND COVENANTS OF THE PARTIES
5.1. Representations. Each party represents that (i) it is organized, validly existing, and in
good standing under the laws of its organization and each jurisdiction where it is
required for the transactions contemplated under each Integrated Services Contract,
(ii) it has the right to enter into this Agreement, and (iii) the execution of this
Agreement will not violate the terms of any contract, obligation, law, regulation, or
ordinance to which it is subject.
5.2. Covenants. Each party shall comply with all Applicable Laws in the execution of this
Agreement, in performance of the Stem Services, and use of the Systems.
5.3. Customer Additional Covenants. During the Term, Customer covenants that it will not (i) modify, alter, relocate,
or replace the Stem Equipment (ii) modify, alter, relocate, or replace the Systems without written notice to Stem
and Stem’s written acknowledgement of such notice, (iii) misuse, abuse, damage, impair, or otherwise cause the
Stem Equipment or Systems at any Site, subject to the relevant Integrated Services Contract, to become
non-functional for its intended purpose, (iv) turn-off or disconnect from the power supply the Systems except for
emergency purposes and in accordance with the Systems manufacturers’ guidelines, or (iv) do anything, permit,
or allow to exist any condition or circumstance that would cause the Systems not to operate as intended at the
Sites. Additionally, Customer acknowledges that the Stem Services are not designed nor made available for life
support, critical care, medical, safety equipment, or similar applications where a failure in the Stem Services could
result in loss of life or personal or physical harm and accordingly that Stem disclaims all liability, and Customer
assumes all risks arising from any such or similar application of the Systems.
6. STEM SERVICES WARRANTY
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6.1. Stem Services Warranty. During the term of each Services Order, Stem warrants
that the Stem Services and the associated Stem Equipment will be free from material
defects in workmanship, material, and design. The Stem Services will be performed,
and the Stem Equipment will be operated and maintained in accordance with (i) the
Integrated Services Contract, (ii) Prudent Industry Practice, (iii) Applicable Law, (iv)
applicable permits, and (v) the Manufacturers’ Warranties and Preventive
Maintenance Plan applicable to the Systems. For the avoidance of doubt, and without
limiting any Manufacturers’ Warranties applicable to the Systems, the Stem Services
Warranty is not a warranty for the Systems or any other component or equipment
including but not limited to meters, relays, breakers, inverters, or any other items that
are not part of the Stem Equipment. Stem shall use commercially reasonable efforts to
perform the Stem Services and operate and maintain the Stem Equipment in a
manner that will minimize interference with the Sites.
6.2. Remedy Under Warranty. Following notice from Customer, or upon Stem becoming
aware of a defect covered by the Stem Services Warranty and subject to section 6.3,
Stem shall, at its sole cost and expense and as commercially reasonable, effect
re-performance of the Stem Services or take such other action as is necessary, as
reasonably determined by Stem, to cure such defect and to bring it to conformance
with the Stem Services Warranty.
6.3. Limitations of Warranty. Stem will be excused under section 6.2 to the extent the
defect or Stem’s inability to perform the Stem Services in accordance with the
standards stated in section 6.1 is due to any of the following: (i) a Force Majeure
event, (ii) defects in, damage to, or destruction of the Systems not caused by Stem
(including any issues that are subject to a Systems warranty claim), (iii) any changes
to the Sites not caused by Stem, (iv) the inoperability of any components not caused
by Stem, (v) the inoperability of any equipment or services at a Site not connected to
the Systems or connected to the Systems and required by the Systems to operate, in
each case not caused by Stem, (vi) Customer’s or End User’s breach of any provision
of an Integrated Services Contract, or act or omission, negligence, gross negligence,
or willful misconduct, (vii) the presence of any Hazardous Materials at the Sites not
introduced at the Sites by Stem, (viii) cancellation or termination of the Manufacturers’
Warranties, where such cancellation or termination has not been caused by any action
or inaction on the part of Stem, or (ix) cancellation or termination of the Manufacturers’
Warranties, where such cancellation or termination has been caused by an action or
inaction on the part of Stem, and where such action or inaction has been required by
Customer, in writing, even if Stem has provided notice of the possibility that such
action or inaction may result in a cancellation or termination of the Manufacturers’
Warranties.
6.4. Disclaimer of Warranties. SUBJECT TO ANY LIMITATIONS UNDER APPLICABLE
LAW, THE LIMITED WARRANTIES STATED IN THIS AGREEMENT ARE
EXPRESSLY IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS OR IMPLIED
WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR PARTICULAR PURPOSE, USE, OR
APPLICATION, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART
OF STEM. EXCEPT AS SPECIFIED IN THESE LIMITED WARRANTIES, OR
ELSEWHERE IN THIS AGREEMENT OR ANY ASSOCIATED SERVICES ORDER,
ALL STEM SERVICES ARE PROVIDED “AS IS.”
7. INDEMNIFICATION
7.1. Indemnification by Stem – Losses. Stem shall fully indemnify, hold harmless and
defend Customer, Customer’s Affiliates, End Users, and their respective shareholders,
members and partners, and each of their respective representatives, employees,
officers, directors, and agents (collectively, the “Customer Indemnitee”) from and
against all third-party claims and all expenses (“Losses”) incurred by Customer
Indemnitee in connection with or arising from any claim by a third party for physical
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damage to or physical destruction of property, or death of or bodily injury to any
person, but only to the extent caused by (i) the negligence, to the extent of such
negligence, of Stem or its Affiliates, agents, employees or others under Stem’s control
(which, for greater certainty, will not include Customer, its Affiliates, or subcontractors
or such party or parties’ willful misconduct), or (ii) a breach by Stem of any of its
obligations under the affected Integrated Services Contract.
7.2. Indemnification by Stem – Infringement. Stem specifically agrees to indemnify,
defend, and hold the Customer Indemnitee harmless from and against all Losses of
any kind whatsoever arising from actual or alleged infringement or misappropriation of
any Intellectual Property rights of a third party based on the technology used by Stem
to perform the Stem Services or in Stem’s performance of the Stem Services
(“Infringement”), except where such claim is based on (i) the combination of the
technology used by Customer with any technology provided by Stem under the
affected Integrated Services Contract; or (ii) any modifications to the Stem Services
not performed by Stem. For the avoidance of doubt, the indemnity in this section does
not pertain to the Systems and does not cover any claims or Losses related to
infringement or misappropriation of Intellectual Property related to the Systems not
provided by Stem. In addition, for any claims of infringement or misappropriation of
Intellectual Property rights for which Stem must indemnify Customer (or if Stem
reasonably believes that such a claim is likely), Stem, at its option, may choose to
modify, and Customer shall permit Stem to so modify as commercially reasonable, the
technology which is the basis of the claim to rectify any alleged infringement or
misappropriation.
7.3. Indemnification by Customer. Customer shall fully indemnify, hold harmless and
defend Stem, Stem’s Affiliates, and their respective shareholders, members and
partners, and each of their respective representatives, employees, officers, directors,
and agents (collectively, the “Stem Indemnitee”) from and against all Losses incurred
by Stem Indemnitee in connection with or arising from any claim by a third party for
physical damage to or physical destruction of property, or death of or bodily injury to
any person, but only to the extent caused by (i) the negligence, to the extent of such
negligence, of Customer or its Affiliates, agents or employees or others under
Customer’s control (which, for greater certainty, will not include Stem, its Affiliates or
subcontractors), or (ii) a breach by Customer of any of its obligations under the
affected Integrated Services Contract.
7.4. Indemnification Remedies. If any claim is brought against any Customer Indemnitee
or Stem Indemnitee (the “Indemnified Party”), the Indemnified Party shall promptly, but
no more than ten Business Days after becoming aware of such claim, provide notice
of such claim to the other party (the “Indemnifying Party”). The Indemnifying Party will
be entitled to participate in, and, unless in the opinion of counsel for the Indemnified
Party, acting reasonably, a conflict of interest between the parties may exist with
respect to such claim, assume the defense of such claim, with counsel reasonably
acceptable to the Indemnified Party. If the Indemnifying Party does not assume the