These Terms and Conditions (these “Terms”) shall apply to all proposals, quotes, statements of work, descriptions of scope of work, schedules, exhibits, agreements and other arrangements by which Magenium provides Services or Products to Customer. Magenium shall not be deemed to have waived any of these Terms, or to have agreed to any contrary or inconsistent provision appearing in, attached to, or incorporated by reference into any master services agreement, purchase order or other document, including, but not limited to, any Internet-based form or communication of Customer, unless the agreement, order, document, form or other communication has been separately negotiated, reduced to writing, and signed in “wet ink” by both a Managing Director of Magenium and by Customer. Customer’s acceptance or use of any Services or Products of Magenium shall constitute Customer’s acceptance of these Terms.

1. Services. Customer hereby retains Magenium to provide, and Magenium hereby agrees to provide, the services (collectively, the “Services”) and equipment and other products (collectively, the “Products”) described in the applicable agreement, quote, statement of work, or description of scope of work executed by Magenium and Customer (collectively, the “SOW”). The parties acknowledge and agree that from time to time they may amend a SOW or enter into a new SOW. Each such SOW shall be subject to these Terms.

2. Change in Scope . Where the scope of the Services or Products to be provided by Magenium changes due to additional requirements, restrictions or other causes attributable to Customer, Magenium shall so notify Customer and the parties shall enter into a change order confirming the additional Services or Products that Magenium has agreed to provide and the additional Fees that Customer has agreed to pay for such additional Services or Products. Magenium retains the right to suspend the provision of all or any portion of its Services or Products until the parties have executed a change order satisfactory to Magenium addressing such change in scope.

3. Fees . As consideration for the Services and Products to be provided by Magenium, Customer hereby agrees to pay Magenium, on a timely basis, the fees, charges, expenses and other sums specified in the applicable SOW (collectively, the “Fees”). Unless otherwise specified in the SOW, all Fees shall be quoted in United States dollars and must be drawn on a U.S. bank. Unless otherwise specified in the SOW, Magenium shall invoice, on a semi-monthly basis, all Fees payable by Customer, and Customer shall pay such Fees not later than thirty (30) days following date of invoice. All Fees reflect a discount for a cash payment (e.g., by check or wire transfer) made by Customer in full within the terms of the applicable invoice. Payment in any other form, including, but not limited to, credit card, p-card, or other non-cash methods shall be subject to a convenience charge assessed by Magenium. In the event of Customer’s failure to pay any invoice on a timely basis, Magenium reserves the right to terminate or suspend its provision of Services or Products to Customer upon not less than five (5) days prior written notice to Customer.

4. Taxes . In addition to the Fees, Customer shall be responsible for payment of all applicable sales, service, use, personal property value-added and other taxes payable by Magenium as a result of Magenium ’s provision to Customer of any Services or Products (other than any franchise taxes or other taxes payable by Magenium based on its income). Magenium shall have the right to invoice Customer for all such taxes, which Customer shall pay on a timely basis. If Customer is a tax-exempt organization, Customer must present Magenium with a tax exemption certificate prior to Magenium’s purchase of any Products specified in an applicable SOW. Customer shall defend, indemnify and hold Magenium harmless from and against any and all taxes, penalties and interest assessed against Magenium and payable by Customer pursuant to this provision, including any taxes, penalties and interest resulting from Magenium’s reliance on a tax exemption certificate presented by Customer.

5. Insurance. Upon written request, Magenium shall provide Customer with a certificate of insurance evidencing coverage for workers’ compensation, employer’s liability, commercial general liability and automotive liability insurance, as applicable.

6. Shipment of Products . All pricing for Products is F.O.B. manufacturer’s plant or other point of shipment. Customer shall pay all destination charges in accordance with Magenium’s shipping and billing practices. Customer shall assume all risk of loss or damage to Products upon Magenium’s release of the Products to the carrier, and Customer shall be responsible for securing any desired insurance on the Products prior to shipment. In addition, Customer shall be responsible for the proper receipt, unpacking, inspection, installation and integration of all Products, unless otherwise specifically stated in an applicable SOW.

7. Security Interest . In addition to any mechanic’s lien rights of Magenium, Customer hereby grants Magenium, with respect to the Products, a security interest under the Uniform Commercial Code of the applicable state, and grants Magenium the right to file a UCC-1 financing statement to perfect its security interest. The security interest granted by this provision shall terminate upon the Customer’s full payment to Magenium of the Fees for the applicable Products.

8. Site of Services . Magenium shall provide the Services at the site set forth in the applicable SOW. If the Services are to be provided at a Customer site, Customer, 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. Further, if the Services include the installation of Products in connection with a construction project, Customer, at its cost, shall ensure that the work area is substantially complete, free of clutter and dust, and accessible to [Magenium for the amount of time required for Magenium to complete the Services. Customer’s failure to do so may result in Magenium’s assessment of additional Fees. Magenium shall use all reasonable efforts to avoid any undue interference with Customer’s operations and personnel while performing the Services.

9. 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.

10. Confidentiality. Except as reasonably required to perform the Services, each party shall refrain from using or disclosing, and shall undertake reasonable efforts to prevent the use or disclosure by any of its personnel, of the confidential information of the disclosing party disclosed to the receiving party during the performance of the Services. "Confidential information" shall include, but not limited to, all trade secrets, inventions, software in both object and source code, algorithms, proprietary data, documentation, and operating, technical, research and development, customer, vendor and personnel information designated by the disclosing party as confidential, as well as any such information communicated in a manner or under circumstances that a person should reasonably recognize that such information constitutes the confidential information of the disclosing party. The foregoing shall not prohibit or limit either party’s use of information (i) previously known to such party, (ii) independently developed by such party without reference to the other party’s confidential information, (iii) acquired by such party from a third party without continuing restriction on use, or (iv) which is or becomes publicly available through no breach by such party of its obligations under these Terms. Each party shall retain all right, title and interest in and to its Confidential Information.

11. License Grant. Magenium shall own and retain all right, title and interest in and to the Services and the deliverables, if any, resulting from the Services, including, but not limited to, any programs, applications, configuration files, scripts, know-how, best practices, techniques and methodologies (collectively, the “Deliverables”), and the Deliverables shall not be deemed works made for hire. Subject to the applicable SOW and these Terms, Magenium, upon Customer’s full and final payment for all Services and Products provided under an applicable SOW, shall grant Customer a royalty-free, non-exclusive, non-assignable, non-transferable internal use license to use the Deliverables, only in machine-readable object code form, in accordance with, and per the scope of, the applicable SOW and these Terms. Customer shall not seek to reverse-engineer any Deliverables. If Customer is a branch of the U.S. government, any proprietary software furnished to Customer shall, for purposes of all SOWs, be deemed “restricted computer software,” and any data, including, but not limited to, installation and systems configuration information, shall be deemed “limited rights data,” as those terms are defined in applicable provisions of the Code of Federal Regulations.

12. Limited Warranty Regarding Services . Magenium 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 such Services are performed, provided that Magenium receives written notice of any such defect within 10 days of its initial observance. This limited warranty is conditioned upon (i) Customer’s full compliance with the terms of the applicable SOW and these Terms, (ii) Customer’s proper use of the Deliverables subject to the Services, (iii) the absence of any attempted modification of the Deliverables, 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 Deliverables.

13. Limited Warranty Regarding Products . If an applicable SOW requires Magenium to access, copy, deliver, install, distribute, utilize, modify or prepare for application by Customer any software, equipment or other products of Customer or any third party (collectively, “Third Party Products”), Customer represents and warrants to Magenium that Customer possesses all licenses, authorizations, consents, approvals and other rights required for Magenium to lawfully perform the Services without infringing the intellectual property rights of the owners, licensees or providers of the Third Party Products. Customer shall ensure that all Third Party Products comply with all applicable legal requirements, including laws governing the importing and exporting of Third Party Products, and Customer shall not require Magenium to provide any Third Party Products or perform any Services that would violate any applicable legal requirements. All Third Party Products are subject to the terms of any warranties provided by the owner, manufacturer or distributor of the Third Party Products, and Magenium shall pass through to Customer any such warranties to the extent permitted. Customer acknowledges and agrees that Magenium is not making any other warranty with respect to any Third Party Products.

14. Disclaimer of All Other Warranties. CUSTOMER ACKNOWLEDGES AND AGREES THAT, WITH THE SOLE EXCEPTION OF THE FOREGOING LIMITED WARRANTIES, 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 PRODUCTS THAT MAY BE PROVIDED BY Magenium OR ANY THIRD-PARTY PRODUCTS. Magenium SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES AND PRODUCTS AND THIRD-PARTY PRODUCTS, WHETHER VERBAL OR WRITTEN, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ALL REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.

15. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY SOW OR THESE TERMS, Magenium’s total liability for damages, if any, arising in connection with any sow shall not exceed the fees paid by Customer to Magenium under that sow for the specific Services OR PRODUCTS 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 CUSTOMER BY OTHER PERSONS, AND REGARDLESS OF WHETHER Magenium HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES AND IRRESPECTIVE OF THE NATURE AND NUMBER OF SUCH CLAIMS. No cause of action arising in connection with ANY SOW may be brought against Magenium more than one year after it accrues.

16. Indemnification. Subject to these Terms, each party shall defend, indemnify and hold harmless the other party, its owners, directors, officers, managers, employees and agents from and against any and all claims, demands, causes of action, liabilities, judgments, damages, fines, penalties, costs and expenses (including reasonable attorneys’ fees, court costs and other litigation expenses) (collectively, “Damages”) arising from or relating to (i) the indemnifying party’s breach of an applicable SOW or these Terms, (ii) the indemnifying party’s failure to comply with all applicable legal requirements, and (iii) bodily injury or death of any person, or damage to any real or tangible personal property, directly caused by the negligence or willful misconduct of the indemnifying party. In addition, Customer shall defend, indemnify and hold harmless Magenium, its owners, directors, officers, managers, employees and agents from and against any damages arising from or relating to Customer’s use of the Services, Products and Deliverables.

17. Termination . Each party shall have the right to terminate any outstanding SOW 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 law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise. In the event of such termination, Customer shall pay Magenium for all Services and Products provided by Magenium prior to the date of termination.

18. Force Majeure . Neither Magenium nor Customer shall be liable for any delay, failure or inability to perform its obligations (except the obligation to make payments) under any SOW due to any cause beyond its reasonable control, including, but not limited to, natural disasters, accidents, war, civil disturbances, acts of terrorism, equipment breakdowns, utility failures, the substantial inoperability of the Internet, transportation or shipping delays, or unavailability of personnel due to disability, leaves or other reasons.

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

20. No Third-Party Beneficiaries. Nothing contained in any SOW or these Terms shall be deemed to create, or be construed as creating, any third-party beneficiary right of action for any other person, in any manner whatsoever.

21. Non-Solicitation of Personnel. Magenium has expended substantial time and expense in the identification, retention, education and training of its personnel. Accordingly, Customer agrees that it will not, and will not allow any 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 Customer breaches this provision, Customer 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 Customer. Customer acknowledges and agrees that said damages are reasonable in amount and constitute liquidated damages and not a penalty for solicitation of Magenium personnel.

22. Finance Charges. Customer shall be liable for finance charges at the lower of (i) 1.5% per month or (ii) the highest rate allowed by law on the unpaid balance of any Fees due Magenium in accordance with an applicable SOW or these Terms.

23. Authorization . Each party represents that the person executing any SOW on its behalf is fully authorized and empowered to do so, and that this Agreement constitutes a valid and binding obligation of said party fully enforceable in accordance with such SOW and these Terms.

24. Governing Law; Interpretation. Each SOW and these Terms shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to rules governing conflicts of laws, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. There shall be no presumption against either party on the ground that such party was responsible for the drafting of any provision of any SOW or these Terms. If any provision of any SOW or these Terms is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision shall be deemed stricken from this Agreement without in any way affecting or impairing the validity, legality and enforceability of any of the remaining provisions hereof.

strong>25. Disputes. In the event of any dispute relating to any SOW or these Terms, the parties shall attempt to resolve such dispute through consultation and negotiation in good faith and mutual cooperation. In the event that such dispute is not resolved, any action arising out of or related to any SOW or these Terms shall be brought exclusively in the Circuit Court of DuPage County, Illinois or the United States District Court, Northern District of Illinois, Eastern Division, and each party hereby consents to such venue and to the jurisdiction of such courts over such action and themselves. Customer shall not assert in any such action that Customer is not subject to the jurisdiction of such court or that the venue of such action is improper or an inconvenient forum.

26. Assignment . Magenium shall have the right to subcontract any of the Services to be performed under any SOW to any other person, provided that Magenium shall remain liable for the oversight, performance and work product of its contractors. Additionally, Magenium shall have the right to assign each SOW to a purchaser of substantially all of its assets. Subject to the foregoing, neither party may assign any SOW or any of its rights or obligations under any SOW without the prior written consent of the other party.

27. Waiver . The failure of either party to enforce any provision of any SOW or these Terms 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 of any SOW or these Terms.

28. Entire Agreement. Applicable SOWs and these Terms constitute the entire agreement between the parties with respect hereto and thereto, and supersede all prior and contemporaneous communications, representations, warranties, understandings and agreements with respect hereto and thereto.