Lucidity Networks Inc.
Terms and Conditions

1. Services

This Agreement contemplates that Lucidity Networks Inc. ("Lucidity") will furnish, to the client named below ("Client"), such services (the "Services") as Lucidity and Client shall agree from time to time, as set forth on the attached Statement(s) of Work ("SOW') and/or Service Level Agreement(s) ("SLA"), which shall be incorporated into and made part of this Agreement. Any SOW or SLA entered into by Lucidity and Client after the date of this Agreement shall be deemed to be attached to, incorporated into and made part of this Agreement.

2. Cooperation

Client acknowledges and agrees that Lucidity’s ability to successfully provide the Services depends upon Client's good faith cooperation with Lucidity. Without limitation, Client understands that Lucidity will rely on the information furnished and to be furnished by Client concerning its needs, existing resources, and systems, and Client agrees to make available to Lucidity, when reasonably requested, such access to its systems, files and personnel, and the cooperation of such personnel, as Lucidity may reasonably request in order to provide Services. Lucidity similarly agrees to act in good faith in providing the services. The parties also agree to work together in good faith if unforeseen circumstances or unanticipated developments occur during Lucidity’s provision of the Services, which unforeseen circumstances or unanticipated developments may result in a modification of scope, scheduling or pricing.

3. Payment

Client shall make payment to Lucidity in such amounts and at such times as are mutually agreed upon or pursuant to any SOW or SLA then in effect. All of Lucidity’s invoices shall be due and payable within 30 days of the date thereof, and shall, if not so paid, bear late charges from the date of the invoice, of 1.5% per month of the overdue amount. Client shall pay (and indemnify Lucidity against) all sales, use, transfer and other taxes, whether federal, state or local, however designated, which are levied or imposed by reason of the transactions under this Agreement, except for income taxes on Lucidity’s profits. Client expressly authorizes Lucidity to charge any amount more than 30 days past due pursuant to the terms of this Agreement, on any credit, debit, bank or charge card provided by Client for any purpose. Client shall reimburse Lucidity for any expenses incurred by Lucidity, including but not limited to reasonable attorney's fees and court costs, in collecting any sums which are not paid as required by this agreement. No delay on the part of Lucidity in exercising any of its rights under this Agreement for non-payment shall constitute a waiver of such rights.

4. Termination

Either party may terminate this Agreement for any reason upon ninety (90) days' written notice to the other party. Either party may also cancel this Agreement, without prior notice, in the event the other fails to fulfill any material obligation contained in this or any other agreement between the parties. After termination by any party for any reason, Lucidity shall retain the right to recover all accrued charges due and owing by Client to Lucidity, and Client agrees that it waives any right it may have against Lucidity to offset fees payable by Client to Lucidity.

5. Warranty

Lucidity warrants that it will provide the Services in a competent, diligent, professional and workmanlike manner and that Lucidity’s personnel will comply with Client's policies while on Client's premises. LUCIDITY DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN AS STATED ABOVE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LUCIDITY SHALL HAVE NO LIABILITY WITH RESPECT TO THE SERVICES OR ANY OTHER OBLIGATION UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Confidentiality

Lucidity acknowledges that in the course of providing the Services it may obtain confidential or proprietary information of Client, and agrees to use a degree of care at least as great as it uses with its own confidential information, to preserve the secrecy of such confidential information.

Client agrees, and acknowledges, that during the course of the provision of Services by Lucidity that Lucidity may have access or be privy to certain information that is protected by various federal, state, and local laws ("Privacy Laws"), and which Privacy Laws may require that Client provide notice to and/or receive express consent and permission from, in writing or otherwise, certain individuals to whom the information pertains ("Protected Individuals"). Client agrees, acknowledges, represents and warrants that it will provide and/or obtain all notices, consents, and permission from the Protected Individuals, as required by applicable Privacy Laws. As further consideration for provision of Services under this Agreement, Client agrees to indemnity, defend and hold harmless Lucidity, and its officers, shareholders, directors, employees and agents (collectively, the "Lucidity Indemnified Parties"), from and against any and all third party claim, demand, proceeding, suit and action, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, expenses including reasonable attorneys' and accountants' fees and disbursements and costs (collectively, "Claim"), incurred by, borne by or asserted against any of the Lucidity Indemnified Parties to the extent any Claim relates to, arises out of or results from Client's failure to provide and/or obtain all notices, consents, and permission from the Protected Individuals, as required by applicable Privacy Laws.

If Client's business involves the creation, receipt, maintenance, or transmission of "protected health information", as that term is defined in 45 C.F.R. §160.103, and Client must disclose same to Lucidity in order for Lucidity to provide the Services, Lucidity will enter into a Business Associate Agreement with Client that meets the requirements of the Health Information Portability and Accountability Act and the regulations promulgated thereunder.

7. Lucidity Personnel

Lucidity acknowledges that its personnel may be required to perform the Services at Client's premises and such personnel shall abide by the policies of Client required to be observed by Client's own employees. Client shall have the right, upon notice, to require Lucidity to remove any of its personnel who have been found to violate such policies.

8. Nonsolicitation

Client recognizes that the employees of Lucidity, and such persons' loyalty and service to Lucidity, constitute a valuable asset of Lucidity. Accordingly, Client agrees not to make any offer of employment to, nor to employ or enter into a consulting relationship with, any Lucidity employee who provided Services to Client on behalf of Lucidity within one year of the last date on which such Services were provided.

9. Delays or Defaults

Lucidity shall not be liable for delays or defaults in furnishing the Services hereunder, if such delays or defaults on the part of Lucidity are due to:
(i) Acts of God or of a public enemy;
(ii) Acts of the United States or any state or political subdivision thereof;
(iii) Fires, severe weather, floods, earthquakes, natural disasters, explosions or other catastrophes;
(iv) Embargoes, epidemics or quarantine restrictions; or
(v) Other causes beyond the control of Lucidity including, but not limited to, the acts or failures to act of Client.

10. Relationship of the Parties

Lucidity has at all times been, and shall at all times be and be deemed to be an independent contractor of Client. Neither Lucidity nor any of its staff is an employee or agent of Client for any purpose whatsoever and shall not be entitled to any benefits provided to Client's employees. Nothing contained within this Agreement shall be construed to render Lucidity or any member of Lucidity’s staff, an employee, partner, agent of, or joint venturer with Client for any purpose. Neither Lucidity nor Lucidity’s staff has or have any authority to create any contract or obligation, express or implied, on behalf of, in the name of, or binding upon Client in the absence of an express written authorization to the contrary.

11. Notices

Any notice required to be given by a party to the other party shall be in writing and shall be effective when personally delivered to the addressee or transmitted by email with delivery confirmed, or one business day after the date sent by nationally recognized overnight courier with delivery confirmed, to the address set forth below or to such other address as may be specified by a party in a notice duly given to the other party.

12. General

This Agreement is the entire agreement and understanding of the parties with respect to its subject matter and supersedes and merges any prior understandings, agreements (oral or written), quotes, proposals, specifications or negotiations. This Agreement may not be modified except by a writing signed by both parties. This Agreement shall be governed and construed exclusively by the laws of New York State, without reference to the conflicts rules of such state which might direct the application of the substantive law of any other jurisdiction. Unless Lucidity otherwise elects, any litigation concerning this Agreement shall be tried exclusively in a court with subject matter jurisdiction located in Monroe County, New York, and the parties hereby irrevocably submit and consent to the personal jurisdiction of all such courts for this purpose. No action, regardless of form, arising out of this Agreement, shall be brought by Client more than two years after such cause of action shall have accrued. This Agreement shall be deemed entered into on the date when fully executed by the duly authorized representatives of the parties, and shall not be binding on either party until so executed.