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1. TRANSACTION.

   1. Leviant, Inc. (the “Seller”) shall cause the equipment listed in the estimate (the “Equipment”) to be delivered at the address referenced in the estimate (the “Delivery Point”) on a mutually agreed upon date (the “Closing Date”). 

   2. If for any reason Buyer (as defined in the estimate) fails to accept delivery of the Equipment by the Closing Date, or if Seller is unable to deliver the Equipment to the Delivery Point owing to any act or omission of Buyer or its representatives, including without limitation the failure to provide appropriate instructions, documents, licenses, or authorizations: (i) Buyer shall bear the risk of loss to the Equipment; (ii) the Equipment shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Equipment until collected by Buyer, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

2. REPRESENTATIONS & WARRANTIES.

   1. Seller is a Delaware corporation and has the power and authority to enter into this agreement, and to perform the transactions contemplated herein.

   2. Seller is the sole owner of the Equipment and has good and valid title to the Equipment, free and clear of all liens, security interests, or other encumbrances.

   3. Buyer is validly existing and in good standing under the laws of the jurisdiction in which it is organized and has the power and authority to enter into this agreement and to perform the transactions contemplated hereby.

   4. Buyer has inspected the Equipment and, in entering into this agreement and in its evaluation and acceptance of the Equipment, is relying only on such inspection, and has not relied on any representation or warranty of Seller other than any representation or warranty expressly made herein.

   5. The obligation of Seller to sell the Equipment pursuant to this agreement is subject to the condition, which may be waived by Seller, that the representations and warranties of Buyer contained herein shall be true and correct on the date hereof and the Closing Date.

3. TITLE AND RISK OF LOSS.  Title and risk of loss pass to Buyer upon closing.

4. PRICE.  The price listed in the estimate (the “Price”) is exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer unless such taxes, duties, or charges are listed in the estimate.  Buyer shall be responsible for all such charges, costs, and taxes; provided, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

5. PAYMENT TERMS.  Except for the Price, which is due immediately upon delivery, Buyer shall pay all invoiced amounts due to Seller within 30 days of Seller’s invoice.  Buyer shall make all such payments by wire transfer of immediately available U.S. funds.  Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.  Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees.

6. NO SETOFF.  Buyer shall not, and acknowledges that it will not, have any right under this agreement or applicable law to withhold, offset, recoup, or debit any amounts owed (or to become due and owing) by Seller or any of its affiliates, whether under this agreement, applicable law, or otherwise and whether relating to Seller’s or its affiliates’ breach or non-performance of this agreement or any other agreement between Buyer or any of its affiliates and Seller or any of its affiliates or otherwise, against any amount owed (or to become due and owing) by Buyer to Seller or its affiliates.

7. DISCLAIMER OF WARRANTIES BY SELLER.  THE EQUIPMENT IS PURCHASED BY BUYER “AS IS” AND “WITH ALL FAULTS.”  EXCEPT AS MAY BE EXPRESSLY PROVIDED IN PARAGRAPH 2 HEREOF AND WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMER SET OUT IN THE FIRST SENTENCE OF THIS PARAGRAPH 7, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

8. LIMITATION OF LIABILITY.

   1. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

   2. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID TO SELLER FOR THE EQUIPMENT SOLD HEREUNDER.

9. COMPLIANCE WITH LAW.  Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances.  Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this agreement.

10. INDEMNIFICATION.  Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, managers, members, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, other fees, and the costs of enforcing any right to indemnification under this Agreement and pursuing any insurance providers, incurred by Indemnified Party in a final judgment, relating to any claim of a third party arising out of or occurring in connection with the use of the Equipment, or Buyer’s negligence, willful misconduct, or breach of this agreement.  Buyer shall not enter any settlement without Seller’s and any other applicable Indemnified Party’s prior written consent.

11. TERMINATION.  In addition to any remedies that may be provided in this agreement, Seller may terminate this agreement and repossess the Equipment with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this agreement; (ii) has not otherwise performed or complied with any of the terms of this agreement, in whole or in part; or (iii) 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.  The termination of this agreement pursuant to this Section 14 shall not release Buyer from any obligation or liability to Seller that has already accrued hereunder.  Seller shall not be liable to Buyer for any damage of any kind (whether direct or indirect) that Buyer may incur by reason of the termination of this agreement.

12. CONFIDENTIAL INFORMATION.  The terms and conditions of this agreement and the transactions contemplated hereby and all non-public, confidential, or proprietary information of Seller, including, but not limited to, documents, data, or business operations, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this agreement are confidential, solely for the purpose of this agreement and the transactions contemplated hereby and may not be disclosed or copied unless authorized by Seller in writing.  Upon Seller’s request, Buyer shall promptly return all Seller documents and other materials that Buyer has received from Seller.  Seller shall be entitled to injunctive relief for any violation of this Section.  This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.

13. GOVERNING LAW.  This agreement will be governed in all respects by the substantive laws of the State of New York (without regard to its conflict of laws rules).  The parties consent to the personal and exclusive jurisdiction of courts located in New York.

14. ARBITRATION.  Any claim between the parties except from those identified in this subsection shall be decided by submission to final and binding arbitration, governed by the Federal Arbitration Act, except any claims exempted from arbitration by state or federal law.  The arbitrator shall be jointly chosen by the parties, and agreed in writing.  Such arbitrator shall apply the law (including applicable filing limitations periods and exhaustion of administrative remedies) to the same extent as would a New York state or federal court.  Judgment shall be final upon the award rendered by the arbitrator and may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, the parties agree that any actions to enforce the specific performance of this agreement and/or to seek injunctive relief, including, without limitation, a temporary injunction, preliminary injunction, or permanent injunction, are hereby excluded from arbitration and, therefore, may be sought in a court of appropriate jurisdiction without resort to arbitration.

15. SEVERABILITY.  If any provision herein will be held to be unenforceable, this agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. 

16. ENTIRE AGREEMENT.  This agreement, together with the Buyer’s respective estimate, quote, and/or invoice, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings, and agreements, whether oral or written, between them relating to the subject matter hereof. 

17. SURVIVAL.  Paragraphs 10 and 12 hereof shall survive the expiration or earlier termination of this agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.

18. NOTICES.  All notices, requests, consents, claims, demands, waivers, and other communications under this agreement must be in writing and addressed to the parties at their respective address set forth in the estimate.  Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid).  Except as otherwise provided herein, a notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the notice has complied with the requirements of this Paragraph.

19. WAIVER.  No waiver by any party of any of the provisions herein shall be effective unless explicitly set forth in writing and signed by the waiving party.  Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising hereunder shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

20. CUMULATIVE REMEDIES.  All rights and remedies provided herein are cumulative and not exclusive, and the exercise of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.

21. ASSIGNMENT.  Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations hereunder without the prior written consent of Seller.  Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void.  No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder.  Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations hereunder without Buyer’s prior consent.

22. CHOICE OF FORUM.  Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this agreement, including all exhibits, schedules, attachments, and appendices attached to this agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the U.S. District Court for the Southern District of New York, While Plains Division, or, if such court does not have subject matter jurisdiction, the courts of the State of New York sitting in the County of Westchester, and any appellate court from any thereof.  Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the U.S. District Court for the Southern District of New York, While Plains Division or, if such court does not have subject matter jurisdiction, the courts of the State of New York sitting in the County of Westchester.  Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

23. WAIVER OF JURY TRIAL.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

24. FORCE MAJEURE.  No party shall be liable or responsible to the other, or be deemed to have defaulted under or breached this agreement, for any failure or delay in fulfilling or performing any term hereof (except for any obligations of Buyer to make payments hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. 
    The Impacted Party shall give notice within seven (7) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue.  The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.  The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.  In the event that the Impacted Party’s failure or delay remains uncured for a period of fourteen (14) consecutive days following written notice given by it under thisSection 29, either party may thereafter terminate this agreement upon seven (7) days’ written notice.

25. RELATIONSHIP OF THE PARTIES.  The relationship between the parties is that of independent contractors.  Nothing contained herein shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

26. FURTHER ASSURANCES.  Buyer shall, and shall cause its affiliates to, from time to time at Seller’s request and Buyer’s sole expense, furnish Seller such further information or assurances; execute and deliver such additional documents and instruments; and take such other actions and do such other things, as may be reasonably necessary or appropriate to carry out the provisions hereof and give effect to the transactions contemplated hereby.