These Terms and Conditions shall apply to all proposals, agreements, Statements of Work, Exhibits and other arrangements by which Magenium provides Services or other Deliverables to Clients. Magenium shall not be deemed to have waived any of these Terms and Conditions, even if Magenium fails to object to any contrary or inconsistent provision appearing in, attached to, or incorporated by reference in any master services agreement, purchase order or other document issued by Client. Client’s acceptance or use of any Services or Deliverables of Magenium shall constitute Client’s acceptance of these Terms and Conditions.

1.Site of Services. Magenium shall provide the Services at the office address of Client, or such other address, as set forth in the document, email or other communication summarizing the Services or Delieverables to be provided by Magenium ("Memo of Understanding"). Client, at its cost, shall ensure that sufficient workspace, computer equipment and other items reasonably required to perform the Services are made available to Magenium during regular office hours. Magenium shall undertake reasonable efforts to avoid any undue interference with Client’s operations and personnel while performing the Services.

2.Personnel. Magenium, at its cost, shall provide qualified personnel to perform the Services. Magenium shall be solely responsible for the full payment of all compensation due such personnel, including, without limitation, all wages, benefits, withholdings, payroll taxes and contributions.

3.Confidentiality. Except as reasonably required to perform the Services, neither party shall not use or disclose, and shall undertake reasonable efforts to prevent the use or disclosure by any of its personnel, of any designated confidential information of the other party disclosed to the receiving party during the performance of the Services. "Confidential information" shall mean information regarded by that party as confidential, including, but not limited to, information relating to either party's past, present or future research, development or business affairs which either party does not disclose to the public in the ordinary course of its business. From time to time, each party may identify in writing its confidential information as such in advance of disclosing it to the other. The foregoing shall not prohibit or limit either party’s use of information, including, but not limited to, ideas, concepts, know-how, techniques and methodologies: (i) previously known to it; (ii) independently developed by it without reference to Client's confidential information; (iii) acquired by it from a third party without continuing restriction on use; or, (iv) which is or becomes, publicly available through no breach by it of executing the work in the Memo of Understanding.

4.License Grant. Magenium shall own and retain all right, title and interest in the Services and deliverables, if any, resulting from the Services ("Deliverables"), and the Deliverables will not be deemed to be works made for hire. Subject to the terms of the Memo of Understanding and these Terms and Conditions, and upon full and final payment for all Services and/or Deliverables provided in the applicable Memo of Understanding, Magenium agrees to grant Client a royalty-free, non-exclusive, non-assignable, non-transferable internal use license to use the Deliverables in accordance with, and per the scope of, the applicable Memo of Understanding. Any other rights to Deliverables shall be provided, as appropriate, in an applicable Memo of Understanding.

5.Limited Warranty. Magenium hereby warrants that the Services provided by Magenium shall be performed in a good and workmanlike manner. Magenium agrees to reperform any Services not in compliance with this warranty within ninety (90) days after those Services are performed, provided that Magenium receives written notice of any such defect within such 90-day period and promptly following its initial observance. This limited warranty is conditioned upon (i) Client’s full compliance with the terms of the Memo of Understanding; (ii) Client’s proper use of the computer software systems subject to Magenium’s Services; (iii) the absence of any attempted modification of the Deliverables resulting from Magenium’s Services; and (iv) the absence of any intentional or negligent act or other cause not attributable to Magenium that affects the operability or serviceability of the Services or the computer software systems that are subject to the Services.

6.Disclaimer of All Other Warranties. CLIENT ACKNOWLEDGES AND AGREES THAT, WITH THE SOLE EXCEPTION OF THE FOREGOING LIMITED WARRANT, MAGENIUM HAS NOT MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, WHETHER VERBAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING ANY SERVICES OR DELIVERABLES THAT MAY BE PROVIDED BY MAGENIUM, OR ANY THIRD-PARTY HARDWARE OR SOFTWARE THAT MAY BE PROVIDED BY MAGENIUM OR BY THE CLIENT UNDER THE MEMO OF UNDERSTANDING. MAGENIUM SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES AND DELIVERABLES AND THIRD-PARTY HARDWARE AND SOFTWARE, WHETHER VERBAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.

7. Limitation of Liability. MAGENIUM’S TOTAL LIABILITY FOR DAMAGES, IF ANY, ARISING IN CONNECTION

WITH A MEMO OF UNDERSTANDING SHALL NOT EXCEED THE FEES PAID BY CLIENT TO MAGENIUM UNDER THE MEMO OF UNDERSTANDING FOR THE SPECIFIC SERVICES OR DELIVERABLES IN DISPUTE, REGARDLESS WHETHER ANY SUCH CLAIM ARISES IN OR UNDER CONTRACT, STATUTE OR TORT. MAGENIUM SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED REVENUES OR PROFITS; LOSS OF GOODWILL; LOSS OR DESTRUCTION OF DATA; EQUIPMENT DOWNTIME OR OTHER INTERRUPTION OR LOSS OF USE OF EQUIPMENT; OR DAMAGES RESULTING FROM CLAIMS FOR COMMERCIAL LOSS BROUGHT AGAINST CLIENT BY OTHER PERSONS, AND REGARDLESS WHETHER MAGENIUM HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. NO CAUSE OF ACTION ARISING IN CONNECTION WITH A MEMO OF UNDERSTANDING MAY BE BROUGHT AGAINST MAGENIUM MORE THAN ONE YEAR AFTER IT ACCRUES.

8. Indemnification.

8.1. Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expenses (including counsel fees and court costs) relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused by the negligence or willful misconduct of the indemnifying party, its personnel or agents during the course of the Services hereunder.

8.2. If Client promptly notifies Magenium in writing of a third party claim against Client that any Deliverable infringes a patent or copyright of any third party, Magenium will defend such claim at its expense and will pay any costs or damages that may be finally awarded against Client, subject to the remaining provisions of these Terms and Conditions, including, but not limited to, this Section 8.2. Magenium will not indemnify Client, however, if the claim of infringement is caused by (1) Client's misuse or modification of the Deliverable; (2) Client's failure to use corrections or enhancements made available by Magenium; (3) Client's use of the Deliverable in combination with any product or information not owned or developed by Magenium; (4) Client's distribution, marketing or use for the benefit of third parties of the Deliverable; or (5) information, direction, specification or materials provided by Client or any third party not under Magenium’s direction. If any Deliverable is, or in Magenium's opinion is likely to be, held to be infringing, Magenium shall at its expense and option either (a) procure the right for Client to continue using it, (b) replace it with a noninfringing equivalent, (c) modify it to make it noninfringing, or (d) direct the return of the Deliverable and refund to Client the fees paid for such Deliverable less a reasonable amount for Client's use of the Deliverable up to the time of return. The foregoing remedies constitute Client's sole and exclusive remedies and Magenium's entire liability with respect to infringement.

8.3. Unless Magenium expressly assumes any such responsibility in a Memo of Understanding and except to the extent any claim is covered by the preceding indemnity obligations of Magenium, Client agrees to indemnify and hold Magenium harmless from third party claims arising out of the Services or Client’s use of the Deliverables and reimburse Magenium for all expenses (including counsel fees and court costs) incurred by Magenium in connection with such claim.

8.4. To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party's expense) and full authority to defend or settle the claim or suit. The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party’s written consent.

9. Termination.

9.1. Unless otherwise provided in a Memo of Understanding, Client may terminate the Services at any time upon ninety (90) days written notice to Magenium.

9.2. Unless otherwise provided in a Memo of Understanding, Magenium may terminate the Services upon 30 days' notice to Client if Client is in breach or default of any term or condition of this Memo of Understanding, provided that such breach or default is not cured within said 30-day period. Notwithstanding the foregoing, Magenium may suspend or terminate the Services immediately upon Client’s failure or refusal to pay any sums that are due and payable to Magenium.

9.3. Either party may terminate the Services immediately if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency

9.4. Upon termination of the Services, Client shall pay Magenium for all Services rendered and expenses incurred by Magenium prior to the date of termination. In the event of termination by Client, Client shall also pay Magenium for any out-of-pocket demobilization or other direct costs resulting from such early termination.

9.5. These Terms and Conditions shall survive the termination of the Services or the termination or completion of any Memo of Understanding.

10. Independent Contractor Status. Magenium shall be deemed an independent contractor of Client for all purposes relating to a Memo of Understanding. A Memo of Understanding shall not be deemed to create a partnership, joint venture or agency relationship between the parties. Neither party hereto shall hold itself out as having any authority to bind or otherwise make commitments on the other party’s behalf.

11. No Third-Party Beneficiaries. Nothing contained in a Memo of Understanding shall be deemed to create, or be construed as creating, any third-party beneficiary right of action for any party or entity whatsoever, in any manner whatsoever.

12. Non-Solicitation of Personnel. Magenium has expended substantial time and expense in the identification, retention, education and training of its personnel. Accordingly, Client agrees that it will not, and will not allow any other individual or entity, either directly or indirectly, during the performance of the Services or for a period of 18 months thereafter, to solicit, offer employment, hire, or otherwise retain the services of any personnel of Magenium. In the event that Client breaches this provision, it shall immediately pay Magenium liquidated damages equal to the greater of (a) 500 hours at said person’s regular hourly billing rate, or (b) 50% of said person’s annualized compensation upon being hired or otherwise retained by Client. Client acknowledges and agrees that said damages are reasonable in amount and constitute liquidated damages and not a penalty for solicitation of Magenium personnel.

13. Finance Charges and Attorneys’ Fees. Client shall be liable for finance charges at the rate of 18% per annum (or the highest amount allowed by law, whichever is less) on the unpaid balance of any fees and expenses due Magenium in accordance with a a Memo of Understanding or these Terms and Conditions, in addition to all costs of collection, including Magenium’s reasonable attorneys’ fees and costs.

14. Notice. All notices under a Memo of Understanding or these Terms and Conditions shall be in writing and deemed to have been given if personally delivered; transmitted by facsimile or e-mail during regular business hours, with receipt confirmed; or mailed by certified mail, postage pre-paid, return receipt requested, to the other party at its address set forth above or to such other address as said party may hereafter designate in writing.

15. Authorization. Client represents that the person entering into a Memo of Understanding on its behalf is fully authorized and empowered to do so, and that a Memo of Understanding entered into by such person constitutes a valid and binding obligation of Client fully enforceable in accordance with the terms of the Memo of Understanding and these Terms and Conditions.

16. Invalidity. If any provision of this Memo of Understanding is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision shall be deemed stricken from this Memo of Understanding without in any way affecting or impairing the validity, legality and enforceability of any of the remaining provisions hereof.

17. Insurance. Upon written request, Magenium shall provide Client with a certificate of insurance evidencing coverage for workers’ compensation, employer’s liability, commercial general liability and/or automotive liability insurance, as appropriate.

18. Waiver. The failure of either party to enforce any provision of a Memo of Understanding or these Terms and Conditions shall not be construed to constitute a waiver of such provision or of the right of such party to enforce each and every such provision.

19. Fees. As consideration for the Services, Client hereby agrees to pay Magenium, on a timely basis, the fees specified in the Memo of Understanding. Unless otherwise specified in the Memo of Understanding, all fees shall be quoted in United States dollars and must be drawn on a U.S. bank. Magenium shall also be entitled to reimbursement of its reasonable, business-related expenses as set forth in the Memo of Understanding. Unless otherwise specified in the Memo of Understanding, Magenium shall invoice, on a semi-monthly basis, all fees and expenses payable by Client pursuant to these Terms and Conditions or a Memo of Understanding, and Client shall pay such fees and expenses not later than thirty (30) days following date of invoice.