Terms & Conditions

These Agnetix Service Terms and Conditions together with any terms and conditions in any Agnetix Statement of Work (collectively, the “Terms and Conditions”) set forth the terms and conditions pursuant to which Agnetix will provide Services to customer (“Customer”). By agreeing to have Agnetix perform professional services for the Customer, Customer agrees to be bound by these terms and conditions.

01 Professional Services

Agnetix will provide Customer with a specified number of hours of professional services (“Services”) as set forth in a statement of work signed by Customer and Agnetix (“Statement of Work”) or as otherwise agreed to by Agnetix and Customer. In the event that a Statement of Work is not specified, Agnetix will use commercially reasonable efforts to provide such Services as requested by Customer up to the number of hours agreed by the parties. Agnetix will provide such resources and utilize such employees and/or consultants as it deems necessary to perform the Services. Customer agrees to furnish Agnetix with adequate technical assistance, network access, materials, and an environment suitable for Agnetix to be able to perform the Services. Customer further agrees to provide Agnetix with such technology owned or controlled by Customer (the “Licensed Technology”) as Agnetix reasonably requires to perform the Services.

Customer and Agnetix agree to cooperate in good faith to achieve completion of the Services in a timely and professional manner. Agnetix shall bear no liability or otherwise be responsible for delays in the provision of Services or any portion thereof occasioned by Customer’s failure timely to complete a Customer task or adhere to a Customer schedule.

02 Term of Terms and Conditions

These Terms and Conditions commence on the earlier of the date of the Statement of Work or date that Agnetix begins provided Services (“Effective Date”) and, unless terminated earlier pursuant to the terms of the Statement of Work, shall continue in force until exhaustion of the number of consulting hours identified in the Statement of Work or as otherwise agreed to by Agnetix and Customer.

03 Right to Perform Services

Customer acknowledges that Agnetix has extensive expertise, experience, and proprietary products and tools in the area of lighting, and that Agnetix intends to utilize such expertise, experience, products and tools in providing consulting services and other services in such field to other clients. Nothing in these Terms and Conditions shall restrict or limit Agnetix from performing such development, consulting or other services to any other entity in any industry.

04 Service Fees, Expenses and Invoicing

For the Services provided by Agnetix, Customer agrees to pay Agnetix the fees set forth in a quote issued by Agnetix to Customer or as otherwise agreed to by Agnetix and Customer (the “Payment Schedule”) plus any applicable sales or use taxes or other charges. Customer also shall reimburse Agnetix for actual, reasonable travel and out-of-pocket expenses incurred by Agnetix in connection with the provision of Services. The amounts payable to Agnetix set forth in the Payment Schedule are exclusive of any sales or use or other taxes or governmental charges. Customer shall be responsible for payment of all such taxes or charges and Customer shall pay such taxes with no reduction or offset in the amounts payable to Agnetix hereunder. Unless otherwise set forth in a Statement of Work, Agnetix will [invoice on a monthly basis] for all Services fees and 1 reimbursable expenses that have accrued. Each invoice shall be due and payable within thirty (30) days of date of a proper invoice, and shall be deemed overdue if they remain unpaid beyond that point.

If the Customer fails to pay the price or any other payment due to Agnetix promptly and when due, Agnetix may recover, in addition to the price or payment, interest thereon at a rate equal to the lesser of 1 1/2% per month and the maximum rate of interest allowable under applicable law. The Customer will be liable for all legal fees incurred by Agnetix in the event that legal action is required to collect any amount owed under a past due account.

05 Intellectual Property

Any developed technology, including patentable and unpatentable ideas, know-how, technical data, or techniques, and all intellectual property rights appurtenant thereto which may be developed by Agnetix under these Terms and Conditions or in the delivery of any services hereunder that derive from, improve, enhance or modify Agnetix product(s) or pre-existing intellectual property, will be the property of Agnetix (collectively, “Agnetix Developments”). Customer will have a nonexclusive license to the Agnetix Developments to the extent necessary to enable Customer to use any Agnetix deliverables. Agnetix may in its sole discretion develop, use, market, license, or sell the Agnetix Developments and any software, application or product that is similar or related to that which was developed by Agnetix for Customer. Agnetix shall not be required to disclose information concerning any Agnetix Developments which Agnetix deems to be proprietary or confidential.

06 Warranty Disclaimer

TO THE FULLEST EXTENT PERMITTED BY LAW, AGNETIX EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. AGNETIX MAKES NO WARRANTY THAT OPERATION OF THE AGNETIX PRODUCT SERVICED WILL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES. IN THOSE JURISDICTIONS, SUCH INAPPLICABILITY WILL NOT AFFECT THE REMAINDER OF THE PROVISIONS IN THESE TERMS AND CONDITIONS.

07 Limitation of Liability

IN NO EVENT SHALL AGNETIX BE LIABLE TO CUSTOMER FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARYDAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, LOSS OF PRODUCT, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, EVEN IF AGNETIX IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AGNETIX TOTAL AGGREGATE LIABILITY TO CUSTOMER UNDER THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

08 Indemnification

Customer will at all times defend, indemnify and hold harmless Agnetix and its officers, directors, shareholders, employees, accountants, attorneys, agents, affiliates, successors and assigns from and against any and all damages, injuries (including death), liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or related to third party claims, actions or demands arising out of or related to any (1) Customer’s use of, or inability to use, the Products (2) breach of any provision in these Terms and Conditions by Customer or end user, or (3) improper or negligent installation or use, or unauthorized repair, or integration into another lighting product, of a Product by Customer or end user (or its agents). Customer shall not settle compromise or consent to the entry of any judgment with respect to any pending or threatened claim without Agnetix consent unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against Agnetix.

09 Insurance

Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Customer is required to obtain, at its own expense, any and all certificates of insurance, permits, registrations, qualifications or authorizations necessary or desirable for Agnetix to provide the Services. All equipment should be installed per the National Electric Code and local building regulations or Electrical Standard for Industrial Machinery NFPA-79. A certified electrical contractor who meets state or local regulations and code must be on-site for all electrical work related to the Products. Agnetix Applications Engineers are not journeymen or electrical contractors, and, if applicable, will only advise and supervise the installation and startup of Agnetix Products.

10 Independent Contractors

Agnetix shall perform the Services as an independent contractor, and nothing contained in these Terms and Conditions shall be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between the parties. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and shall have no power or authority to bind the other party to assume or create any obligation or responsibility express or implied on the other party’s behalf or in its name, nor shall such party represent to any one that it has such power or authority.

11 Force Majeure:

Agnetix shall have no liability or obligation due to causes beyond Agnetix’s reasonable control including but not limited to strikes, lockouts, fires, riots, wars, acts of God, inability to obtain materials, components or supplies, failure or breakdown of machinery, production scheduling delays, government regulations or other conditions.

12 Compliance with Laws; Zoning and Permits:

Customer shall comply with all applicable laws, regulations and ordinances. Customer shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses, permissions, authorizations, and other consents necessary to carry out its business, including Customer’s use of the Services provided by Agnetix. Agnetix may terminate these Terms and Conditions if any governmental authority imposes any restriction on the sale or use of the Products. Customer agrees to timely furnish all information necessary to secure plans and permits for the work called for under any Statement of Work, and Customer warrants the Services contracted for to be in compliance with applicable zoning, classification and building codes. Any costs for work not in the invoice but required by lawful authorities to bring the work into compliance with applicable code shall be the responsibility of the Customer. Agnetix assumes no responsibility for violation of zoning rules/laws.

13 Exclusions from Services

Services do not cover any of the following: (i) electrical work external to any Agnetix product; (ii) repair or replacement of damage to or defects in the Agnetix product resulting from causes external to the Agnetix product, including disaster, fire, accident, neglect, misuse, vandalism, water, power surges, lightning, or failure of the installation site to conform to Agnetix applicable specifications; or resulting from use of the Agnetix Product for other than intended purposes; or use of the Agnetix Product with items not provided or approved by Agnetix; or resulting from the performance of maintenance or the attempted repair of an item of an Agnetix Product by persons other than Agnetix employees or persons authorized by Agnetix; (iii) furnishing supplies or accessories, or refinishing the Agnetix Product; (iv) Services in connection with the relocation of the Agnetix Product, or the addition or removal of items of equipment or parts, attachments, features, from or to other devices not furnished by Agnetix; and (v) Services in connection with computer viruses or conflicts involving software that is not installed or introduced by Agnetix.

14 Customer Obligations

Customer will provide Agnetix personnel with access to the Agnetix Products and adequate working space (including heat, light, ventilation, electric current and outlets) at no charge to Agnetix. All Customer environments must be free from all risks to health and safety (except to the extent notified to Agnetix in writing and specifically accepted in writing by Agnetix). Customer will maintain, at Customer’s expense, the installation site and provide the necessary utility services for use of the Agnetix Product in accordance with Agnetix’s applicable published specifications. Customer will be responsible for replacing, at Customer’s own expense, any and all consumable items used in connection with the Customer’s Products, including without limitation, [bulbs, fittings, hoses] . 2 Customer solely responsible for backing up Customer data. Agnetix will not under any circumstances have a duty to back up data or to restore data that is lost in the course of Agnetix’s provision of Services, or otherwise. Agnetix will not be liable for the loss of data, whatever the reason for the loss, including without limitation as a result of Agnetix negligence. Customer is solely responsible for any additional Customer obligations or responsibilities as identified in a Statement of Work.

Customer is required to obtain, at its own expense, any and all certificates of insurance, permits, registrations, licenses, certificates, permissions, clearances, registrations, qualifications or authorizations necessary or desirable for Agnetix to provide the Services. All equipment should be installed per the National Electric Code and local building regulations or Electrical Standard for Industrial Machinery NFPA-79. A certified electrical contractor who meets state or local regulations and code must be on-site for all electrical work related to the Products or Services. Agnetix Applications Engineers are not journeymen or electrical contractors, and, if applicable, will only advise and supervise the installation and startup of Agnetix Products.

If Agnetix’s performance of its obligations under these Terms and Conditions is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Agnetix shall not be deemed in breach of its obligations under these Terms and Conditions or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

15 Existing Equipment and Fixtures

Agnetix is not responsible for the performance, functionality, or compatibility of existing equipment, ductwork, electrical systems, controls, or other equipment/materials that is already in. In the event that an existing piece of equipment or system prevents the proper operation of the Agnetix Product, Customer assumes all responsibility for any additional service charges that may be incurred.

16 Governing Law:

These Terms and Conditions and all U.S. transactions contemplated by these Terms and Conditions shall be governed by the laws of the State of Nevada, without regard to that state’s choice of law principles.

17 Miscellaneous:

Agnetix and Customer are independent contractors and shall not represent themselves as principal and agent, partners or joint ventures. These Terms and Conditions shall be governed by Nevada law as if fully performed in Nevada and without regard to its conflicts of laws principles. In connection with any dispute hereunder, Agnetix and Customer irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts located in Nevada and waive any right to jury trial. Any notice under these Terms and Conditions shall be in writing, delivered personally or by facsimile to the address as the addressee shall have last furnished in writing to the addressor. Such notice shall be effective upon receipt. The provisions of these Terms and Conditions are severable and shall be interpreted so as to be valid and enforceable to the maximum extent possible under applicable law. Any invalid or unenforceable provision shall be reformed or replaced by a valid and enforceable provision that is as similar in meaning as possible, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. The rights granted hereunder are personal to Customer, and Customer may not assign its rights or delegate its duties, including without limitation, in connection with a merger, consolidation, acquisition, asset sale or similar transaction, without the prior written consent of Agnetix. Any purported assignment or delegation in violation of these Terms and Conditions is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms and Conditions. The waiver by either party of a breach or a default of any provision of these Terms and Conditions by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

18 Termination

In addition to any remedies that may be provided under these Terms and Conditions, Customer may terminate these Terms and Conditions with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under these Terms and Conditions; (b) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

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