ARTICLE ONE: SERVICES

1.1 Services.

Epic Machines, Inc. (“EMI”) provides services on a fixed-cost, time and material basis or on a recurring basis. Services include but are not limited to, engineering, administration, research, configuration, consulting, staff augmentation, warehousing, integration, design, installation, support, managed security services, and project management performed by EMI’s employees, agents, subcontractors, consultants, and representatives, as detailed in a Scope of Work (“SOW”) and governed by the Master Services Agreement or Master Professional Services Agreement (“MSA”). 

1.2 Scope of Work.

To purchase services, an EMI customer (“Client”) must execute a SOW together with an MSA. Client may execute an unlimited number of SOWs, each of which will be subject to these terms and conditions herein and the MSA once executed by both Parties. Any changes to any SOW must be in writing and agreed to by both parties in writing.

 1.3 Personnel.

EMI shall provide the necessary skilled personnel to perform the services described in the SOW. EMI reserves the right to change assigned personnel.

1.4 Client Responsibilities

Client shall cooperate withEMI to provide any reasonable technical, administrative, and commercial support required.If required, Client shall provide EMI with any hardware, user accounts, documentation, licenses, statements, and credentials necessary for EMI to perform the services. Clientmay also be responsible for satisfying certain prerequisites before work by EMI can begin as set forth in the applicable SOW. In no event shall EMI be held liable and/or responsible for delays caused by Client.

ARTICLE TWO: PRODUCTS

2.1 Hardware.

For the sale of hardware, EMI will issue a quote. To accept the quote and place an order,Clientmust indicate acceptance in writing.  This can be accomplished with a signature on the quote, by sending EMI a purchase order, or any other written form of acceptance and agreement to purchase.  EMI will invoice Client (i) upon Client’s request; (ii) whenthe hardware is shipped to Client from the point of origin; or (iii) whenClient accepts the hardware at the shipping address, whichever occurs earliest.

2.2 Software Licenses and Subscriptions.

For the sale of software licenses and subscriptions, EMI will issue a quote. To accept the quote and place an order, Client must indicate acceptance in writing.  This can be accomplished with a signature on the quote, by sending EMI a purchase order, or any other written form of acceptance and agreement to purchase.  EMI will invoice Client (i) upon Client’s request; (ii) when the software or access credentials are sent from the source; or (iii) when Client receives the software or access to it, whichever occurs earliest. Client will be deemed to have accepted the software when the customer receives the license or access credentials.  

2.3 Domestic Shipment.

Hardware and/or software will be shipped to the Client directly from the manufacturer, a distributor of EMI, EMI’sthird-party warehouse, or EMI’s integration center. Allrisk of loss shall pass to Client as soon as the products leave the manufacturer, distributor, or other source. EMI reserves the right, in its sole discretion, to select the means of shipment and routing.

2.4 Returns.

Returns are only permitted if: (i) the hardware is damaged; (ii) breach of manufacturer’s warranty, or (iii) the product is errant, all of which require compliance with and acceptance by manufacturer. Software may not be returned. Upon manufacturers, distributors, or EMI approval credits will be applied and if approved by EMI refunds will be given. 

2.5 Cancellations.

EMI has the right to cancel any orders placed for any hardware, software, or services listed at an incorrect price or shown with incorrect information, whether due to typographical error or otherwise, and whether or notClient’s order was accepted.

2.6 Product Support

Product support may be available from the manufacturer. WhenClient purchases this type of product supportthroughEMI, EMI shall pass the product support contract directly to Client and all terms and conditions of the product support contract shall apply. EMI shall not be liable for any deficiencies, breaches, or other issues with the product support contract between the manufacturer, and Client.  Client shall look solely to the manufacturer or product supportprovider for remedy.

2.7 EMI Product Support Services

EMI offers joint product support services that collaboratively enhance and augment a manufacturer’s product functionality and product support experience for Client. When Client purchases this type of EMI product support service the services may be bundled with the sale of product or software license subscriptions. Such product support services require an MSA and subsequent SOW. In such cases, those services are not cancellable until the product or software license subscriptions terminate. This will be defined in the SOW details. EMI shall not be liable for any deficiencies, breaches, or other issues with the product support contract after escalation to the manufacturer. In such cases, Client’s sole recourse shall be through the manufacturer or product support provider.

2.8 Termination.

All sales are final and Client is obligated to pay the entire invoice unless otherwise agreed in writing.  If approved by the manufacturer, other sources, distributor, or supplier, EMI will pass through any refund of any unused pre-paid fees for the productsless any restocking or return fees.  If Client desires to terminate a product support contract, software subscription contract, or license and EMI has purchased contracts or licenses for the Client, Client shall indemnify EMI and hold EMI harmless for any liability EMI may have to the manufacturer or supplier arising from the purchase of those contracts or license.

ARTICLE THREE: WARRANTIES; LIABILITY

3.1 Services Warranty.

EMI represents and warrants that (i) the services delivered to Client pursuant to the applicable SOW shall conform and perform in all material respects to the specifications described in the applicable SOW; (ii) EMI shall perform all services hereunder consistent with or exceeding customary industry standards; and (iii) EMI’s services shall not infringe the intellectual property rights of Client or any third party in its performance of services. In order to receive any warranty remedies, Client must report deficiencies in the services within thirty (30) days of completion of those services. For any breach of the above warranties, Client’s exclusive remedy, and EMI’s entire liability, shall be the re-performance of the services. If EMI is unable to perform the services as warranted, Client shall be entitled to a credit for the fees paid to EMI for the deficient services.

3.2 Product Warranty.

Warranty and warranty information, if applicable, are provided by the manufacturer of the products, which shall pass to the Client upon acceptance of the products. While EMI tries to ensure the accuracy and completeness of its manufacturer’sproducts, EMI is not responsible for manufacturer’s errors.

3.3 Warranty Disclaimers.

1. Services Warranty Disclaimer.  

EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, EMI DOES NOT MAKE ANY WARRANTY OR REPRESENTATION FOR SERVICES PROVIDED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE.

1. Product Warranty Disclaimer.

EXCEPT FOR THE MANUFACTURER’S WARRANTY, IF ANY, AND TO THE EXTENT PERMITTED BY LAW, THE PRODUCTS SOLD HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OR PRODUCT NON-INFRINGEMENT.

3.4 Client’s Representations.

Client represents and warrants to EMI that: (i) the person signing any SOW, MSA, or any other agreement is duly authorized to act on behalf of Client; and (ii) Client’s execution of these terms and conditions will not violate any provision or law of its governing, organizational documents, or result in the breach of any agreement to which the Client is a party. Client acknowledges and agrees that EMI’s performance is dependent on the Client’s timely and effective satisfaction of all of Client’s responsibilities hereunder and timely approvals by Client. EMI is entitled to rely on all approvals of Client in connection with the products provided hereunder.

3.5 Limitation of Liability.

CUSTOMER AGREES THAT EMI,ITS EMPLOYEES, OFFICERS, AND AGENTS, SHALL NOT BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, FOR NEGLIGENCE, MISREPRESENTATION, LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) AND EVEN IF SUCH DAMAGES WERE FORESEEABLE, ARISING FROM THE USE OF OR INABILITY TO USE THE CUSTOMER’S SYSTEM AND/OR COMPONENTS; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. IN NO EVENT SHALL EMI’S LIABILITY EXCEED THE AMOUNT INVOICED UNDER THE APPLICABLE QUOTE OR SOW.

ARTICLE FOUR: INVOICING AND PAYMENT

4.1 Invoicing and Payment.

Client shall be invoiced for products as described in ARTICLE TWO: PRODUCTS, Section 2.1 and 2.2. Client shall be invoiced for services upon quote acceptance unless otherwise agreed in the SOW or quote.  All invoices are due and payable upon receipt unless otherwise agreed in the SOW, quote, Clientpurchase order, or other written agreement.

4.2 Incidental Expenses.

Freight charges may be invoiced separately. For any services where EMI incurs travel costs, Client shall reimburse EMI for reasonable, actual travel and out-of-pocket expenses incurred in connection with providing such services. Travel and other related expenses shall be billed to Client once incurred. Invoices for incidental expenses are due and payable upon receipt unless otherwise agreed in the SOW, quote, Client purchase order, or other written agreement.

4.3 Fees on International Transactions.

Additional fees may apply to product shipments and services provided in a country outside the United States, including but not limited to taxes, duties, and subcontractor fees, which shall be the responsibility of Client. Fees for VAT, import duties, shipping, administrative fees, insurance, freight, or tax apply to products delivered, or services provided, outside the United States, and are the responsibility of Client. These fees may be estimated on quotes; final fees will be invoiced upon receipt of cost amounts from third parties.

4.4 Taxes.

All prices are based on U.S. dollars unless otherwise specifically agreed to in writing by both parties. Client shall be solely responsible for the payment of all taxes, including any interest and penalties, including but not limited to any sales, use, excise, value-added taxes (“VAT”), consumption, and other taxes and duties assessed on the products and services. All products and services under this Agreement are deemed taxable unless Client provides EMI with a tax exemption certification acceptable to all relevant taxing authorities prior to delivery.

4.5 Late Payments.

A late feecharge equal to five percent (5%) of the amount of the late payment. This late payment fee will be in addition to any other amounts payable by the Client under this Agreement, including, without limitation, interest payable at the post-default rate. EMI reserves the right to suspend any services for payments later than 30 days from the due date.

Revised: January 22, 2024

In Witness Whereof, the Parties have executed this Agreement as of the date below.

Client                                                                       Epic Machines, Inc.

By:                                                                              By:                                                                 

Name:                                                                          Name:                                                               

Title:                                                                            Title:                                                               

Date:                                                                           Date: