TERMS & CONDITIONS
1. Services. Client hereby retains Magenium to provide, and Magenium hereby agrees to provide, the services (the “Services”) and equipment and other products (collectively, the “Products”) which are both described in the applicable quote, statement of work, or description of scope of work executed by Magenium and Client (each individual mutually executed quote, statement of work or description of scope of work is individually and generically a “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 this Agreement.
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 Client, Magenium shall so notify Client 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 Client 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. License Grant. Magenium shall own and retain all right, title and interest in and to the Services and the Deliverables. This includes any programs, applications, configuration files, scripts, know-how, best practices, techniques and methodologies (collectively, the “Deliverables”). The Deliverables shall not be deemed works made for hire. Subject to the applicable SOW and this Agreement, upon Client’s full and final payment for all Services and Products provided under an applicable SOW, Magenium grants Client 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 the scope of, the applicable SOW and this Agreement. Client shall not attempt to reverse-engineer any Deliverables. If Client is a branch of the U.S. government, any proprietary software furnished to Client 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 defined in the applicable Code of Federal Regulations.
4. Fees. As consideration for the Services to be provided by Magenium, Client 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 Client, and Client shall pay such Fees not later than thirty (30) days following date of invoice. Magenium reserves the right to stop services if the Fees are not paid on a timely basis.
5. Payment Terms and Methods. As consideration for the Services to be provided by Magenium, Client agrees to pay Magenium the fees, charges, expenses, and other sums specified in the applicable SOW (collectively, the “Fees”). All Fees shall be quoted in United States dollars and must be drawn on a U.S. bank. Magenium shall invoice all Fees on a semi-monthly basis, and Client shall pay such Fees no later than thirty (30) days following the date of the invoice. Payment shall be made by check or EFT. If Client seeks to use any other payment methods that result in increased transaction costs to Magenium, the new payment method must be approved in writing, and Client shall be responsible for paying the increased transaction costs associated with the change.
Overdue balances are subject to a finance charge of 1.5% per month, or the highest rate permitted by applicable law. In the event of Client’s failure to pay any invoice on a timely basis, Magenium reserves the right to terminate or suspend its provision of Services to Client upon providing five (5) business days written notice. In the event Magenium must pursue collection of unpaid invoices, Client agrees to pay all of Magenium’s costs of collection, including its attorneys’ fees. Additionally, Magenium reserves the right to pass through certain charges, including but not limited to third-party costs, charges, taxes, duties, or other government-imposed charges resulting from Magenium’s provision of Services or Products to Client.
6. Taxes. In addition to the Fees, Client 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 Client 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 Client for all such taxes, which Client shall pay on a timely basis. If Client is a tax-exempt organization, Client must present Magenium with a tax exemption certificate prior to Magenium’s purchase of any Services or Products specified in an applicable SOW. Client shall defend, indemnify and hold Magenium harmless from and against any and all taxes, penalties and interest assessed against Magenium and payable by Client pursuant to this provision, including any taxes, penalties and interest resulting from Magenium’s reliance on a tax exemption certificate presented by Client.
7. 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 Client site, 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. Further, if the Services include the installation of Products in connection with a construction project, Client, 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. Client’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 Client’s operations and personnel while performing the Services.
8. 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.
9. 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) Client’s full compliance with the terms of the applicable SOW and this Agreement, (ii) Client’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.
10. Limited Warranty Regarding Products. If an applicable SOW requires Magenium to access, copy, deliver, install, distribute, utilize, modify or prepare for application by Client any software, equipment or other products of Client or any third party (collectively, “Third party Products”), Client represents and warrants to Magenium that Client 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. Client 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 Client 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 Client any such warranties to the extent permitted. Client acknowledges and agrees that Magenium is not making any other warranty with respect to any Third-party Products.
11. Disclaimer of All Other Warranties. Disclaimer of All Other Warranties CLIENT 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. THIS DISCLAIMER SHALL COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS.
12. Indemnification. The Parties shall defend, indemnify, and hold harmless each other against all damages, claims, liabilities, losses, and other expenses, including without limitation reasonable attorneys’ fees and costs, whether or not a lawsuit or other proceeding is commenced, that arise in whole or in part from: (a) any gross negligence or willful misconduct of a party, its agents, or subcontractors, (b) a party’s failure to fully conform to all laws, ordinances, rules, and regulations which affect the SOW, or (c) a party’s uncured material breach of this Agreement. This indemnification includes third-party claims. If one party fails to promptly indemnify and defend such claims and/or pay the other party’s expenses, as provided above, the other party shall have the right to defend itself, and in that case, the indemnifying party shall reimburse the indemnified party for all of its reasonable attorneys’ fees, costs, and damages incurred in settling or defending such claims within thirty (30) days of each of the indemnifying party’s written requests. The Parties shall promptly notify each other of any claims or potential claims subject to this indemnification.
13. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY SOW OR THIS AGREEMENT,
MAGENIUM’S total liability for damages, whether direct or indirect, arising in connection with any SOW shall not exceed the fees paid by Client to MAGENIUM under that SOW for the specific Services in dispute, regardless of whether any such claim arises in or under contract, statute, or tort. No cause of action arising in connection with ANY SOW may be brought against MAGENIUM more than one year after it FIRST accrues.
14. Consequential Damages. 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, OR OTHER INTERRUPTION OR LOSS OF USE OF EQUIPMENT, OR DAMAGES RESULTING FROM CLAIMS FOR COMMERCIAL LOSS BROUGHT AGAINST CLIENT BY OTHER PERSONS. THIS EXCLUSION APPLIES REGARDLESS OF WHETHER MAGENIUM HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES AND IRRESPECTIVE OF THE NATURE AND NUMBER OF SUCH CLAIMS.
15. 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, Client shall pay Magenium for all Services and Products provided by Magenium prior to the date of termination.
16. Force Majeure. Magenium shall not be liable for any delay, failure, or inability to perform its obligations under any SOW due to any cause beyond its reasonable control, including, but not limited to, natural disasters, pandemics, epidemics, accidents, war, civil disturbances, acts of terrorism, governmental actions, equipment breakdowns, utility failures, substantial inoperability of the Internet, transportation or shipping delays, or unavailability of personnel due to disability, leaves, or other reasons. Upon the occurrence of a force majeure event, Magenium shall promptly notify the Client in writing, specifying the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. The performance of Magenium’s obligations shall be suspended for the duration of the force majeure event, and Magenium shall use reasonable efforts to mitigate the impact of such event. If the force majeure event continues for a period of more than sixty (60) days, either party may terminate the affected SOW upon written notice to the other party.
17. Governing Law; Interpretation; and Severability. Each SOW and this Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, excluding any Choice of Law provision. 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 this Agreement. If any provision of any SOW or this Agreement 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. Provisions concerning confidentiality, indemnification, and any other obligations that inherently extend beyond the termination or expiration of this Agreement shall remain in effect.
18. Independent Contractor Status. Magenium shall be deemed an independent contractor of Client for all purposes relating to each SOW. A 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.
19. No Third-:Party Beneficiaries. Nothing contained in any SOW or this Agreement 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.
20. 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 be 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 the confidential information, to the extent such information was: (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 this Agreement. Each party shall retain all right, title and interest in and to its Confidential Information.
21. Non-Solicitation of Personnel. 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 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 working directly with Client. This does not apply to general employment advertisements where employee initiates contact with Client. In the event that Client breaches this provision, Client 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.
22. 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 this Agreement.
23. 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 automotive liability insurance, as applicable.
24. Disputes. In the event of any dispute relating to any SOW or this Agreement, 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 this Agreement shall be brought exclusively in a State Court located in Hennepin County, Minnesota or the United States District Court, for the District of Minnesota, and each party hereby consents to such venue and to the jurisdiction of such courts over such action and themselves. Client shall not assert in any such action that Client is not subject to the jurisdiction of such court or that the venue of such action is improper or an inconvenient forum.
25. Assignment. Magenium shall have the right to subcontract any of the Services to be performed under any SOW to any other person including but not limited to a corporate affiliate of Magenium, 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 in the event of a change of ownership and/or sale of all or, 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, which shall not be unreasonably conditioned, withheld or delayed.
26. Name Change. The parties agree that a change in the name of either party shall not affect the validity or enforceability of this Agreement or any SOW under this Agreement. If either party changes its name, it shall promptly notify the other party in writing of such change, and this Agreement and subsequent SOWs shall continue to be binding upon the Parties under the new name.
27. Waiver. The failure of a party to enforce any particular provision of any SOW, Exhibit, RSA, this Agreement or any agreement governed by this Agreement, shall not be construed to constitute a waiver of such provision or of the subsequent right of such party to enforce such provision.
28. Notice. The Parties agree to accept electronic-mail (e-mail) or certified mail delivery of all notices. All notices must be in writing. All e-mails shall be sent using read receipts and delivery notifications. Any notice will be considered to have been given one business day after the date of sending.
29. Counterparts and Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by electronic means constitutes a good and valid execution and delivery of this Agreement
30. Severability Clause. If any part of this MSA is found to be invalid or unenforceable, the remaining provisions will still be in effect.
31. Headings. The headings in this Agreement are for reference only and have no legal significance.
32. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written.
Equipment Purchases: The T&Cs below only apply to Equipment Purchases. Equipment purchases also include the T&Cs above.
1. Shipment of Products. All pricing for Products is F.O.B. manufacturer’s plant or other point of shipment. Client shall pay all destination charges in accordance with Magenium’s shipping and billing practices. Client shall assume all risk of loss or damage to Products upon Magenium’s release of the Products to the carrier, and Client shall be responsible for securing any desired insurance on the Products prior to shipment. In addition, Client shall be responsible for the proper receipt, unpacking, inspection, installation and integration of all Products, unless otherwise specifically stated in an applicable SOW. Client shall defend, indemnify, and hold harmless Magenium against any claims by any tax authority for all unpaid taxes or for any sales tax exemption claimed by Client.
2. Security Interest. In addition to any mechanic’s lien rights available to Magenium, the Client hereby grants Magenium a security interest in the Products under the Uniform Commercial Code of the applicable state, as well as under the Minnesota commercial code and the laws of the state(s) where the work is performed or equipment is delivered. This security interest covers all Equipment, including any additions, replacements, accessories, parts, and connecting Equipment now or hereafter affixed thereto. Magenium has 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 Client’s full payment to Magenium of all fees related to the applicable Product(s), unless otherwise specified in an installment payment agreement. This security interest shall secure all amounts owed by the Client under this Agreement. A copy of this Agreement along with the SOW may be filed with the appropriate authority at any time after the Client’s signature. Such filing does not constitute acceptance of this Agreement by Magenium.
3. Title. Where applicable, title to the Equipment passes to the Client on the earlier of: (a) the date of shipment from Magenium to Client, or (b) the date on which Magenium transmits its invoice to Client.
4. Risk of Loss or Damage. Notwithstanding Client’s payment of the purchase price for Equipment, all risk of loss or damage shall transfer from Magenium to Client upon transfer of Title to Client. Client shall be responsible for securing insurance on Equipment from this point forward.
5. Receiving/Integration. Unless the Agreement expressly includes integration services by Magenium, the Client agrees to furnish all services required for receiving, unpacking and placing Equipment in the desired location along with integration. Packaging materials shall be the property of the Client.
6. Equipment Warranties. To the extent Magenium receives any warranties from a manufacturer on Equipment; it will pass them through to Client to the full extent permitted by the terms of each warranty. Factory warranties vary by manufacturer, and no additional warranties are expressed or implied.
7. Remedies. Upon default as provided herein, Magenium shall have all the rights and remedies of a secured party under the Delaware commercial code and under any other applicable laws. Any requirements of reasonable notice by Magenium to Client, or to any guarantors or sureties of Client shall be met if such notice is mailed, postage prepaid, to the address of the party to be notified shown on the first page of this Agreement (or to such other mailing address as that party later furnishes in writing to Magenium) at least ten calendar days before the time of the event or contemplated action by Magenium set forth in said notice. The rights and remedies herein conferred upon Magenium, shall be cumulative and not alternative and shall be in addition to and not in substitution of or in derogation of rights and remedies conferred by the Minnesota commercial code and other applicable laws.
8. Limitation of Remedies for Equipment. Magenium’s entire liability and the Client’s sole and exclusive remedy in all situations involving performance or nonperformance of Equipment furnished under this Agreement, shall be the adjustment or repair of the Equipment or replacement of its parts by Magenium, or, as agreed upon by the Parties, replacement of the Equipment.
9. Acceleration of Obligations and Default. Payment in full for all “Equipment” received by Client, which is defined as all goods identified in the section of the Agreement with the same title, as well for any and all other undisputed amounts due to Magenium shall be due within the terms of the Agreement. Upon the occurrence of any event of default by Client, Magenium may, at its option, with or without notice, declare the whole unpaid undisputed balance of any obligation secured by, delivered and completed under this Agreement immediately due and payable and may declare Client to be in default under this Agreement.