STANDARD TERMS AND CONDITIONS

1. Services.

Client hereby engages Phigenics to perform the work described in the Proposal and the Statement of Work. The Proposal, the Statement of Work and these Standard Terms and Conditions are collectively referred to as the “Proposal Documents.”

2. Acceptance; Term.

This Agreement becomes effective upon the date of the last signature, unless otherwise stated in the Engagement Agreement and will continue until terminated by either party in accordance with the terms of the Agreement.

3. Terms of Payment.

The Fee set forth in the Proposal Documents represents payment for the work outlined in the Statement of Work during the Term. Unless otherwise stated in the Proposal, payment is due to Phigenics within 30 days of receipt of Phigenics’ invoice. If paying by credit card, a 3% fee will apply. If the parties desire to renew the Term or expand the scope of work, the parties will execute a change order to include such additional work and an appropriate change to the Fee. Any invoice amounts unpaid and past due will be subject to accrued interest at the lessor of 8% or the maximum permitted by law.

4. Warranty; Damages.

Phigenics warrants that it will perform the work outlined in the Proposal Documents in a professional, workmanlike manner, consistent with industry standards. All equipment is warranted against defects for the warranty period provided by the equipment manufacturer. Notwithstanding anything to the contrary contained in the Proposal Documents, Phigenics makes no representations or warranties as to outside services, the security, compatibility, capability, or capacity of equipment or products which may be selected or used by the Client in connection with the Proposal Documents or any systems that are used by the parties to share the recommendations and data. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, PHIGENICS MAKES NO WARRANTY, EXPRESSED OR IMPLIED, WHETHER OF MERCHANTABILITY, INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR OTHERWISE. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED

Limitation of Liability IN NO EVENT SHALL EITHER PARTY AND/OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, OR SUBCONTRACTORS BE LIABLE REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, INCLUDING LOST PROFITS, DIMUNITION OF VALUE, LOSS OF DATA OR BUSINESS INTERRUPTION. 

5. Independent Contractor.

Phigenics is an independent contractor with no authority to act for, bind, or obligate the Client in any respect.

6. Taxes.

The Client will be responsible for and will promptly and timely pay to Phigenics, or if requested by Phigenics, directly to the taxing authority, all applicable taxes, fees, levies, imports, duties, withholdings, or other charges (including any interest and penalties thereon), if any, imposed by any taxing authority by reason of the sale and delivery of services or equipment herein provided. In no event shall Client be responsible for taxes based on Phigenics income or revenues, or employee payroll taxes.

7. Confidential Information.

The parties recognize and acknowledge that they may come into possession of certain confidential information of each other concerning business affairs, finances, properties, technologies, methods of operation and other data (collectively, the “Confidential Information”). It is further acknowledged that the goodwill of each party’s business depends upon it keeping such information confidential and that unauthorized disclosure of the same would irreparably damage such party. Accordingly, the parties agree that, except as directed by the other party, they will not at any time during or after the Term disclose any Confidential Information to any person nor permit any person to examine or make copies of any documents prepared by it or that come into its possession by reason of this engagement. To the extent the terms and conditions in this Section are inconsistent with any other confidentiality agreement between Phigenics and the Client, the terms and conditions of the confidentiality agreement will govern.

8. Termination by Either Party.

Either party has the right to cancel this engagement upon 30 days prior written notice to the other party. The indemnities and limitations of liability set forth in this Agreement will survive termination.

9. Indemnification.

 (a) Phigenics agrees to defend, indemnify and hold the Client, its subsidiaries and affiliates and its officers, directors, employees and agents (each a “ Client Indemnified Party”), harmless from and against any and all losses, liabilities, damages, judgements, charges, expenses, actions, suits, demands or claims (including claims made by third parties and, including, without limitation, amounts paid in settlement, the reasonable costs of investigation or providing evidence, and reasonable attorney’s fees and disbursements associated therewith) (collectively “Client Damages”), whether commenced or threatened, in connection with any claim, action or proceeding to which any Client Indemnified Party becomes subject caused by, or arising out of a breach of Phigenics’ duties set forth in the Proposal Documents. 

(b) Client agrees to defend, indemnify and hold Phigenics, its subsidiaries and affiliates and its officers, directors, employees and agents (each a “Phigenics Indemnified Party”) harmless from and against any and all losses, liabilities, damages, judgements, charges, expenses, actions, suits, demands or claims (including claims made by third parties and, including without limitation, amounts paid in settlement, the reasonable costs of investigation or providing evidence, and reasonable attorney’s fees and disbursements associated therewith) (collectively “Phigenics Damages”), whether commenced or threatened, in connection with any claim, action or proceeding to which any Phigenics Indemnified Party becomes subject, that is not caused by, or does not arise out of a breach of Phigenics’ duties set forth in the Proposal Documents or its negligence or willful misconduct. 

(c) In the event of an incurrence of any damages, the indemnified party will: 

1. promptly notify the indemnifying party of such damages, 
2. reasonably cooperate with the indemnifying party in the defense thereof, and 
3. not settle any damages without the indemnifying party’s consent which the indemnifying party agrees not to unreasonably withhold.

10.Severability

If any provision of this Agreement shall be held or made invalid by a court decision, statute or rule, or shall be otherwise rendered invalid, the remainder of this Agreement shall not be affected thereby.

11.Survivability. Neither the termination of this Agreement nor the completion of any services to be provided by Phigenics hereunder, shall affect the provisions of 4. Warranty, 5. Limitation of Liability, 9.  Indemnification, of this Agreement that shall remain in full force and effect.

12.Force Majeure.  In no event shall the Trustee or the Agents be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee or the Agents, as the case may be, shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

13. Miscellaneous

(a) Governing Law. The Proposal Documents will be governed by and construed under the laws of Illinois, without regard to conflicts of laws principles. Client and Phigenics agree that any cause of action that may arise in any way under or due to the Proposal Documents may be brought and have venue in the Circuit Court of Cook County, Illinois, or the Northern District of Illinois.

(b) Notices. All notices which are required to be given will be in writing and delivered to the address set forth on the first page of the Proposal. In the case of Phigenics, all notices will be delivered to Phigenics LLC, 3S701 West Avenue, Suite 100, Warrenville, IL 60555. Any such notice will be delivered by hand or by certified first class mail, postage prepaid, return receipt requested, or by a nationally recognized overnight delivery service. Notice will be deemed given upon the date hand delivered, or three days after certified mailing or one business day after delivery to the overnight delivery service.

(c) Entire Agreement. Except for any confidentiality agreement, the Proposal Documents constitute the entire final, complete, and exclusive understanding and agreement between the Client and Phigenics regarding the subject matter and supersedes all prior representations, proposals, or understandings. The Proposal Documents may not be amended or modified, except in writing as agreed to and signed by the parties.