Terms of Services

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TERMS OF SERVICE

This Terms of Service Agreement (this “Agreement”) are incorporated into each Services Agreement and/or Change Order Agreement (together a “Services Agreement”) and/or any other agreement between LEFCON LLC, a Pennsylvania limited liability company (“Consultant”) having a principal place of business at 514 German Street, Harmony, PA 16037 and the Customer. Please read these Terms carefully before using LEFCON LLC’s services. By using the services, the Customer agrees to be bound by these Terms.

RECITALS

Consultant wishes to provide certain information technology professional/managerial services (the “Services”) as set forth in Services Agreement
Customer wishes to procure the Services from Consultant, for good and valuable consideration.

NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows:

AGREEMENT

Scope of Work

Subject to the terms and conditions of this Agreement, Consultant agrees to provide the Services described in Services Agreement. In performing the Services, Consultant will comply with the service levels set forth in the Services Agreement.
In the event that additional assignments and/or services are agreed upon between Consultant and Customer, the parties shall execute addendums to this Agreement describing the additional assignments and/or services, including the fees and schedule for such additional assignments and/or services. An email from an authorized individual from the Customer may constitute a sufficient writing when the Customer is requesting additional service or the Consultant is recommending service which is subsequently accepted by the Customer.

Term / Termination

This Agreement shall remain in effect until the sooner of: (i) if applicable, the completion by Consultant of all Services pursuant to the schedule set forth in Services Agreement, and one (1) year after the Effective Date (this effective period is referred to herein as the “Initial Term”); or (ii) as otherwise provided in this Agreement. After the expiration of the Initial Term or any Renewal Term, and provided that neither party is in breach or default of its obligations under this Agreement or the Terms of Service, this Agreement shall automatically renew for successive annual terms (each a “Renewal Term” and collectively the “Renewal Terms”, and together with the Initial Term, the “Term”) unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then-current Term.
After the Initial Term, this Agreement may be terminated by either party following thirty (30) days’ prior written notice to the other party. In the event of the expiration or termination of this Agreement for any reason, Consultant shall be paid for all Services which it performed prior to such termination, including any authorized Services performed during the applicable nonrenewal or default notice or cure period.
Notwithstanding anything to the contrary contained herein, if, in Customer’s reasonable opinion a Force Majeure Event (defined below) materially and adversely affects the safe and orderly operation of the Customer and Customer decides to suspend the operations of the Customer or a Force Majeure Event occurs that results in the temporary closure of Customer (a “Closure”), Customer may suspend performance of its obligations under this Agreement, including, without limitation, payment obligations, until such time as Customer resumes its operations (the “Closure Period”) and the parties will negotiate in good faith compensation of Consultant for the level of Services deemed necessary by Customer during the Closure Period. Customer may exercise its right to suspend Services as contemplated in this paragraph by providing written notice to Consultant within ten (10) days of the start of such Closure. A “Force Majeure Event” means a circumstance beyond a party’s reasonable control including fire or other casualty; unpredictable weather, oceanic or seismic events such as flood, hurricanes and earthquakes; laws, regulations or orders issued by a governmental authority (federal, state, or local) that prohibit a party’s performance under this agreement; a epidemic or pandemic; and war, invasion, terrorism, or other violence. A Force Majeure Event does not include an event that is caused by the gross negligence or misconduct of the party claiming relief under this section, and in no circumstances includes an inability to pay any amounts due under this Agreement.

Payment for Services

Customer agrees to pay Consultant in accordance with the fees set forth in Services Agreement (the “Fees”). Consultant shall submit to the Customer an itemized monthly invoice for the Services rendered on an hourly basis by labor category, as set forth on Services Agreement, as well as authorized expenses incurred. Invoices shall be payable within thirty (30) days of invoice date.
From time to time the parties may negotiate and mutually agree in writing to adjust the monthly rate of this Agreement in proportion to the real inventory of the Customer, as set forth in the Services Agreement, to reflect growth or downsizing of the Customer’s business.
Customer may, upon notice to Consultant, withhold payments for Services which are not performed in material compliance with the Services Agreement and/or reasonably question any item(s) reflected on Consultant’s invoice. Pending the settlement or resolution of the issue(s), the non-payment of these items shall not constitute a default of this Agreement, however, should the parties be unable to resolve the issues within sixty (60) days, either may terminate the contract after the 60th day with notice to the other Party. No later than the aforementioned 60th day, Customer shall pay Consultant all amounts due that are not in dispute. In the event Customer withholds any payments from Consultant due to non-acceptance of any Services, Customer shall concurrently provide Consultant with detailed written notice setting forth the reason(s) for such non-acceptance, and Consultant shall have a reasonable opportunity to correct such Services. Upon such correction, the withheld amounts shall be promptly paid. If Consultant disputes Customer’s contention that appropriate grounds exist for withholding payments, it may suspend the performance of Services hereunder until settlement or resolution of the issue. Notwithstanding anything in this Agreement to the contrary if a final determination by a court of competent jurisdiction finds that Customer did not have sound justification for withholding any payments that are subject to dispute between the parties hereto, such nonpayment shall constitute a material breach of this Agreement that will entitle Consultant to appropriate legal remedies.
Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Consultant’s income, revenues, gross receipts, personnel, or real or personal Customer or other assets.
Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. In addition to all other remedies available under this Agreement or at law (which Consultant does not waive by the exercise of any rights hereunder), Consultant shall be entitled to suspend the provision of any Services if the Customer fails to pay any undisputed amounts/fees when due hereunder and such failure continues for ten (10) days following written notice thereof.

Travel/Reimbursable Expenses

Customer shall, within thirty (30) days of receipt by Customer of an invoice from Consultant accompanied by receipts and reasonable supporting documentation, reimburse Consultant for reasonable and customary out-of-pocket business expenses incurred by Consultant in connection with Consultant’s rendering of the Services if such expenses have been pre-approved in writing by Customer.

Independent Contractor

Consultant shall perform all Services hereunder as an independent contractor, and nothing contained herein shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or master and servant, or employer and employee between the parties hereto or any affiliates or subsidiaries thereof, or to provide either party with the right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other party.
Consultant also agrees not to be treated, or seek to be treated, as an employee of Customer for any purpose, including for the purposes of fringe benefits provided by Customer, or for disability income, social security taxes and benefits, Federal unemployment compensation taxes, State unemployment insurance benefits and Federal income tax withholding at sources. Consultant hereby represents that Consultant, on its own behalf and as employer of its employees, has and at all times will maintain timely payments of all taxes due to the Internal Revenue Service and all other government agencies, including withholding and all other taxes.

Consultant’s Responsibilities.

Consultant and all Consultant Parties (as defined below) shall, when present on site at a Customer’s Customer (inclusive of exterior and interior areas), conduct its activities so that its equipment, working conditions and methods are safe and without risk to the health and safety of its own and any other party present at Customer’s Customer, including without limitation, Customer’s personnel, guests, contractors or representatives. Customer shall have no duty to inspect, supervise, or control the working conditions or work environment of Consultant’s personnel when they are performing work at the Customer. Consultant shall comply in all respects with reasonable security procedures or guidelines as Customer may designate from time to time, and Consultant shall be responsible for ensuring that all of the Consultant Parties, while present at the Customer, comply with all instructions delivered by Customer’s representatives. In the event that Consultant or any of the Consultant Parties disregards such instructions, or uses the Customer or facilities for purposes other than providing the work or services contemplated herein, Customer shall have the right, at its election and in addition to its other remedies at law or in equity or its other contractual remedies, to request that the individual involved immediately cease performing the work or Services, or, upon two (2) days’ notice, to exclude such person from Customer. In such event, Consultant shall provide a replacement and shall be solely responsible for all costs and expenses associated therewith.
If, in exercising its rights and obligations under this Agreement, Consultant or any the Consultant Parties, or any person or entity claiming under Consultant, causes damage to any portion of the Customer or the personal property of Customer located in or around the Customer, Consultant will reimburse Customer on demand for all costs incurred by Customer as a result of such damage. The obligations stated in this subparagraph shall survive expiration or termination of this Agreement to the greatest extent permitted by law.
Consultant may use subcontractors to perform its obligations under this Agreement, and the use of such subcontractors does not relieve Consultant of any obligations under this Agreement and Consultant shall remain liable for any work or Services performed, or damages caused by its subcontractor(s).
Consultant will use its best efforts to employ commercially available hardware or software to prevent unauthorized access to the data, files, transmissions, communications sent to or from Customer (“Customer Data”) or unauthorized access to Customer’s computers and computer network and to keep Customer’s computers and computer network free of Malicious Code, however Consultant does not guarantee that such hardware and/or software will always prevent access or infection by Malicious Code. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
Consultant agrees that it will comply with all of Customer’s standard physical security procedures in place at Customer’s Customer.

Confidential Information

From time to time during the Term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (ii) is or becomes available to the Receiving Party on a nonconfidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (iv) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sub-licensees, subcontractors, attorneys, accountants, and financial advisers.
Intellectual Property of Customer. Consultant shall own all intellectual Customer rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Customer Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Consultant in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Customer, Customer Data, or any other materials supplied by Customer to Consultant. Consultant hereby grants Customer a license to use all Intellectual Customer Rights in the Deliverables free of additional charge and on a revocable, non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free basis during the Term and to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.

Indemnification

Consultant agrees to indemnify, defend, and hold Customer and its Affiliates (collectively, the “Customer Parties”) harmless from and against any and all liabilities, claims, judgments, losses, orders, awards, damages, expenses, reasonable costs, fines, penalties, costs of defense, and reasonable attorneys’ fees (collectively, “Liabilities”) to the extent they arise directly or indirectly from or in connection with:
The failure of Consultant or any of its officers, employees (including its employees on assignment), agents, independent contractors, subcontractors, and/or representatives (collectively, “Consultant Parties”) to comply with applicable laws, regulations, or orders;
Any grossly negligent act or omission or intentional misconduct on the part of any Consultant Parties;
Breach of any obligation of Consultant contained in this Agreement; and
Any direct claim for workers’ compensation benefits for job-related bodily injury or death asserted against the Customer Parties by any employees or subcontractors of Consultant or, in the event of death, by their personal representatives;
Customer agrees to indemnify and hold Consultant and Consultant’s officers and directors, affiliates, subsidiaries, agents, and employees harmless from any loss or damage arising out of a third party claim or action against such parties for injuries or damage to person or Customer caused by the negligent acts or omissions of Customer or Customer’s personnel (i) while Consultant’s personnel are performing work for Customer under this Agreement, or (ii) as a result of Customer’s use of the Deliverables at any time.
Each party hereto, and/or its Affiliates, as applicable (“Indemnified Party”) shall promptly notify the other (“Indemnifying Party”) in writing of any claim that is subject to a party’s indemnification obligations under this Section 9 (each, an “Indemnification Claim”) and, at no out-of-pocket expense to Indemnified Party shall reasonably cooperate with Indemnifying Party in defending against any Indemnification Claim. If Indemnifying Party acknowledges its indemnification obligations under this Section 9 in writing within five (5) business days after receipt of written notice from Indemnified Party of an Indemnification Claim, Indemnifying Party shall have sole authority to control the defense and any related settlement of the Indemnification Claim. If Indemnifying Party fails to acknowledge its indemnification obligations under this Section 9 in writing within five (5) business days after receipt of written notice from Indemnified Party of an Indemnification Claim, Indemnified Party is entitled to engage such attorneys and other persons that Indemnified Party may choose to defend against the Indemnification Claim. Indemnifying Party shall pay the reasonable charges and expenses of such attorneys and other persons within thirty (30) days after receiving invoices or bills for such attorneys and other persons from Indemnified Party.

Default And Remedy

Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
Becomes insolvent or admits its inability to pay its debts generally as they become due;
Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five (45) days after filing;
Is dissolved or liquidated or takes any corporate action for such purpose;
Makes a general assignment for the benefit of creditors; or
Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its Customer or business.
Notwithstanding anything to the contrary in this Section 10, Consultant may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder and such failure (x) continues for thirty (30) days after Customer’s receipt of written notice of nonpayment; or (y) occurs more than two (2) times in any 12 month period.
In the event Consultant materially defaults in any of its obligations under this Agreement, then, in addition to all other remedies to which Customer may be entitled under this Agreement (whether at equity or under applicable law), Customer shall be entitled to the following remedies:
If and as applicable and notwithstanding anything to the contrary in this Agreement, Customer may terminate this Agreement pursuant to the procedures set forth in Section 2(c)(i) without an obligation to pay for Services for which Consultant materially failed to deliver such Services in accordance with the schedule set forth on Services Agreement.
Subject to the limitations of liability set forth in Section 15, Customer may recover damages for Consultant’s breach of this Agreement.
The parties acknowledges that a breach of Section 7 of this Agreement (Confidential Information) would result in damages to the other party that would be difficult to quantify but may result in serious harm to the other party. Accordingly, the parties agree that in the event of a breach of those provisions of this Agreement, in addition to any other remedies available to the parties at law or in equity, the non-defaulting party shall be entitled to injunctive relief and/or any other equitable relief and to obtain order or orders for the same, including without limitation emergency or otherwise expedited restraining orders. Such orders may require, among other appropriate relief, that defaulting party take action or refrain from action in order to preserve the secrecy of the non- defaulting party’s Confidential Information and to protect the non-defaulting party from additional damages. The defaulting party agrees that the non-defaulting party shall not be required to post a bond to obtain an injunction and waives any right the defaulting party would otherwise have to require such a bond.
Subject to the condition set forth in Section 3(a), if Customer defaults in its payment obligations, Consultant shall be entitled to terminate this Agreement by giving written notice of termination to Customer (unless Customer first cures such default in accordance with Section 2(c)(i)) and to recover payment for all Services rendered by Consultant under this Agreement up to the date of such termination, plus interest at the lesser of the rate of 18% per annum or the highest rate permissible under applicable law on the amount outstanding from the date payment was due until paid.

Consultant’s Insurance. Throughout the Term of this Agreement, Consultant shall procure and maintain insurance against claims for injury to persons or damage to Customer which may arise from or in connection with the Services by Consultant or any of the Consultant Parties. Throughout the Term of this Agreement, Consultant shall provide coverage with limits of liability not less than those stated below. An excess liability policy or umbrella policy may be used to meet the minimum liability requirements provided that coverage is written on a “following form” basis.

Workers’ Compensation in accordance with the workers’ compensation laws of the state(s) in which the Services are being performed. In addition, Consultant must carry Employers’ Liability Insurance of $500,000 for each accident, disease policy limit, and disease-each employee.
Commercial General Liability with a minimum limit of $1,000,000 per occurrence and aggregate to include products and completed operations, personal and advertising injury, contractual liability, and broad form Customer damage.
Commercial Auto Liability, if Consultant’s work involves use of vehicles in performance of the Services, with a minimum limit of $1,000,000 combined single limit per occurrence. Coverage should include any auto, including non-owned and hired autos, which will be used in performance of the Services.
Umbrella (Excess) Liability with a minimum limit of $1,000,000 per occurrence. (Note: If Umbrella or Excess Liability Insurance is not carried, then the underlying General Liability and Auto Liability each must reflect per occurrence limits of $2,000,000 instead of $1,000,000.)
Professional Liability (Errors and Omissions Liability) including Cyber Liability (Network Security and Privacy Liability) with a minimum limit of $2,000,000 per occurrence or per claim. The policy shall cover professional misconduct or lack of ordinary skill for those positions defined in the scope of the Services under this Agreement. The insurance shall provide coverage for the following risks (1) liability arising from theft, dissemination and/or use of the Customer Data and Confidential Information, including, without limitation, bank account, credit card account, personal information such as name, address, social security numbers, etc. information, stored or transmitted in electronic form, (2) Network Security Liability arising from the unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an unauthorized third party to gain access to Consultant’s Services including denial of service, unless caused by a mechanical or electrical failure, and (3) liability arising from the introduction of a computer virus into, or otherwise causing damage to, Customer’s or third person’s computer, computer system, network or similar computer related Customer and the data, software, and programs thereon. If such insurance is maintained on an occurrence form basis, Consultant shall maintain such insurance for an additional period of one (1) year following termination of this Agreement. If such insurance is maintained on a claims-made basis, Consultant shall maintain such insurance for an additional period of three (3) years following termination of this Agreement. If Consultant contends that any of the insurance it maintains pursuant to other sections of this clause satisfies this requirement (or otherwise insures the risks described in this section), then Consultant shall provide proof of same.
Crime Coverage with a minimum per loss limit of $500,000. Coverage shall include employee dishonesty, forgery or alteration and computer fraud. If Consultant is physically located on Customer’s premises, third party fidelity coverage extension shall apply. The policy shall include coverage for all directors, officers, agents and employees of Consultant. The policy shall include coverage for extended theft and mysterious disappearance. The bond or policy shall not contain a condition requiring an arrest and conviction. The above insurance coverages shall be placed with insurers that are authorized to do business in the state(s) where the Services are being performed and with insurers that have at least an A-VII A.M. Best rating. The above insurance coverages shall also provide for a waiver of subrogation in favor of the Customer and its Affiliates for losses arising from the Services performed by Consultant. Each of the above coverages shall be on a primary and non-contributory basis and, except for workers’ compensation and employers’ liability insurance, shall name the Customer and its Affiliates as additional insureds. All of the above insurance shall be in force prior to the commencement of any Services being performed and must be maintained without any lapse throughout the duration of this Agreement and during the period when any Services are being performed. Consultant shall furnish Certificate(s) of Insurance and any renewal thereof reflecting all of the above coverages, the required additional insured language, and a provision providing for at least thirty (30) days’ prior notice of cancellation or nonrenewal.

Customer’s Insurance. During the Term of this Agreement, Customer shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability in a sum no less than $2,000,000 with financially sound and reputable insurers. Upon Consultant’s request, Customer shall provide Consultant with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in this Agreement. Failure to provide such proof of insurance within three (3) business days of a request by Consultant shall be a material breach of this Agreement.

Taxes.

Fees and charges reflected in Services Agreement hereof are exclusive of any sales, use, personal Customer, value added and goods/services taxes. Where applicable, such taxes shall appear as a separate item on Consultant’s invoice and Customer shall be liable for the payment of such taxes to Consultant.
Notwithstanding the foregoing, Customer shall not be responsible for any foreign, federal, state or local taxes based on Consultant’s net income or receipts, or such other taxes based on Consultant doing business in any particular jurisdiction.

Representations And Warranties

Consultant is being engaged by Customer in reliance upon Consultant’s representation that it possesses: (i) all licenses and/or certifications as required in the local jurisdiction; (ii) the professional expertise in the specific area of the Services called for by this Agreement; and (iii) the ability to provide the required Services independently without substantial direction by Customer. Insight further represents that it shall comply with all applicable laws, codes, regulations, ordinances and rules, whether local, regional or national, with respect to the Services to be performed and the equipment or materials to be furnished hereunder and shall cause the Services to be performed in compliance with this Agreement.
Consultant represents and warrants that the Services performed pursuant to this Agreement shall be performed in a professional manner by individuals well qualified to perform such work, and agrees to provide Customer, on request, with information concerning the individuals’ experience which affirms these qualifications.
Consultant warrants that the materials and equipment provided in connection with the Services shall be new and free from defects in workmanship and/or materials and equipment and agrees that any damage arising from any breach of this representation and warranty shall be promptly remedied by Consultant at its sole expense. If Consultant defaults or neglects to correct defective materials and equipment (excluding products procured from a third party) within a five (5) day period after receipt of written notice from Customer, Customer may, without prejudice to other remedies, correct such deficiencies at Consultant’s expense.
EXCEPT AS STATED IN THIS AGREEMENT OR ANY STATEMENT OF WORK, CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. Notwithstanding anything herein to the contrary, Consultant makes no warranties with respect to any portion of any deliverable developed by Customer or by any third party, including any third-party software, hardware, or other third party products provided by Consultant.
Consultant disclaims and will under no circumstances be liable for breaches of data integrity or security, or interruption of the deliverables or cessation of their functionality (collectively, “Incidents”), as a result of viruses, worms, bugs, or other like mediums, or the acts or omissions of any third-parties including but not limited to Customer’s agents and employees, unless such Incidents are caused directly by the negligent or willful acts or omissions of Lefcon, its employees, agents or contractors..
Consultant hereby represents and warrants that the Services, the Intellectual Customer, and any information, material, products, designs, specifications or instructions provided by Consultant, or the use of any of the foregoing, do not infringe any patent, utility model, industrial design, copyright, trade secret, trademark or any other third party intellectual Customer right or right of confidentiality in any country where Consultant performs Services or delivers or invents.
Customer represents and warrants that (i) it has the right, including consent where required, to lawfully transfer to Lefcon all data and any other data or information related to Customer’s access or use of the Services or deliverables; (ii) its use of the Services and deliverables does and at all times will comply with applicable law; (iii) it is responsible and liable for all activities that occur in user accounts; and (iv) it shall not misuse any Services or deliverables by sending spam or otherwise duplicative or unsolicited messages or store infringing, obscene, threatening, or otherwise unlawful material or material that is harmful to children or violates third party privacy rights.
Consultant represents and warrants that (i) it has the right to perform the Services and provide the Deliverables to Customer; (ii) its performance of the Services and provision of the Deliverables does and at all times will comply with applicable law; (iii) it is responsible and liable for all activities of its employees and contractors providing the Services and Deliverables; and (iv) to grant the license to the Deliverables described in Section 8 of this Agreement.
Each party represents and warrants to the other that it is authorized to enter into this Agreement and to grant the rights to the other party that are the subject of this Agreement and perform its duties hereunder, and that it has procured all rights, releases and permissions necessary to perform its responsibilities under this Agreement, and that its entry into this Agreement will not violate, nor subject the other party to liability under, any third-party agreements to which it is a party.

LIMITATIONS ON LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST DATA, LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHER INDIRECT DAMAGES OF ANY KIND FOR ANY REASON WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES BASED UPON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY.
IN NO EVENT SHALL EITHER PARTY’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 AGGREGATE AMOUNTS PAID OR PAYABLE TO CONSULTANT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The parties agree that amounts stated herein are fair under the circumstances and that the prices reflect the limitation of liability.
The limitations of liability contained in Section 15(b) shall not apply to (i) Consultant’s obligations under Section 6(b) to repair damage to the Customer premises caused by any of the Consultant Parties; (ii) Customer’s obligations to pay Fees for Services performed; (iii) gross negligence or intentional misconduct of any of the Consultant Parties; (iv) breach of Section 7 of this Agreement; or (v) a party’s fraud or illegal conduct.

TOTAL LIABILITY

CONSULTANT SHALL NOT BE LIABLE FOR ANY LOST DATA, LOST PROFITS OR INCIDENTAL,

CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHER INDIRECT DAMAGES OF ANY KIND FOR ANY REASON

WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES BASED UPON NEGLIGENCE, BREACH OF

WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY. IN NO EVENT SHALL CONSULTANT’S

AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CONSULTANT IN THE TWELVE (12) MONTH PERIOD

PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

The parties agree that amounts stated herein are fair under the circumstances and that the prices reflect the limitation of liability.

Publicity. Both parties agree not to use the name or logo(s) of the other party or any of its affiliated companies, including Customer’s Affiliates, in any sales or marketing publication or advertisement or make any public disclosure relating to this Agreement or the other party or any of its affiliated companies, including Customer’s Affiliates, without obtaining the prior written consent of the other party.

Non-Solicitation. During and for a period of one (1) year following termination of this Agreement, each party will not, without prior written consent of the other party, hire or attempt to hire any employee of the other party or its subsidiaries or affiliates, who were involved in the performance of Services hereunder.

Nondiscrimination. Consultant agrees to comply and to cause each of the Consultant Parties to comply with the provisions of all applicable federal, state, and local laws, regulations and executive orders relating to equal opportunity and nondiscrimination in employment, and the use of minority business enterprises, to the extent that any such laws, orders and regulations are applicable in the performance of their work hereunder. For the purpose of this Agreement, the provisions of such laws, orders and regulations shall be deemed an integral part of this Agreement to the same extent as if they were written at length herein.

Non-Subordination. Each party agrees that in performance of its obligations under this Agreement, it will not make or offer to make any payments to, or confer, or offer to confer any benefit upon any employee, agent or fiduciary of any third party, with the intent to influence the conduct of such employee, agent or fiduciary in relation to the business of such third party, in connection with this Agreement.

General Provisions

Headings. Section and paragraph headings are for convenience only and shall not be a part of the terms and conditions of this Agreement.
Waiver. Failure by either party at any time to enforce any obligation by the other party, to claim a breach of any term of this Agreement or to exercise any power agreed to hereunder will not be construed as a waiver of any right, power or obligation under this Agreement, will not affect any subsequent breach, and will not prejudice either party as regards any subsequent action.
Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain unimpaired and in full force and effect.
Subcontractors. Customer reserves the right of approval of all subcontractors, which approval will not be unreasonably withheld by Customer. Approval of any subcontractor by Customer shall not constitute the superseding or waiver of any right of Customer to reject work which is not in conformance with its standards or this Agreement. Consultant shall be fully responsible for its subcontractors. Nothing in this Agreement shall be construed to create any contractual relationship between Customer and any subcontractor, nor any obligation on the part of Customer to pay or to see to the payment of any money due any subcontractor as may otherwise be required by law.
Assignment. Neither party may assign any rights or obligations under this Agreement without the prior consent of the other; provided, however, that upon notice to Consultant (i) Customer may assign any rights or obligations to a subsidiary or affiliate or to any third party assuming all or part of the business function of the Customer unit which will receive the Services and provided hereunder, and (ii) Customer may assign this Agreement to a bona fide, third-party purchaser of all or substantially all of Customer’s assets and/or the Customer(s) at which the Services are being provided.
Modification. No modification, waiver or amendment of any term or conditions of this Agreement shall be effective unless and until it shall be reduced to writing and signed by both of the parties hereto or their legal representatives.
Survival. The provisions of this Agreement that by their nature and content are intended to survive the performance hereof, shall so survive the completion and termination of this Agreement. Without limiting the generality of the foregoing, Sections 2(e), 5, 7, 9, 10, 13, 14, 15, 16, 17, and 20 of this Agreement shall so survive.
Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the Commonwealth of Pennsylvania without regard to conflicts of laws principles and shall be construed as a contract formed in Pennsylvania. Both parties consent to jurisdiction and venue in the state and federal courts having jurisdiction in Allegheny County, Pennsylvania.
Complete Agreement. This Agreement together with the Services Agreement and all of their duly-executed appendices, exhibits and schedules constitutes the entire agreement of the parties with respect to its subject matter and may not be modified in any way except by written agreement signed by both parties. There are no other agreements either express of implied with regard to this subject matter. In the event of any conflict of interpretation or application of any term or provision of this Agreement and any term or provision of the Services Agreement, the term or provision of this Agreement shall prevail unless expressly stated otherwise in the Services Agreement.
Notice. When written notice is required under this Agreement, the notice must be delivered in person or by nationally recognized overnight courier or sent by registered or certified mail to the address set forth below and shall be deemed received upon confirmation of receipt or the receiving party’s refusal to accept delivery:

If to Consultant:

LEFCON, LLC

514 German Street

Harmony, PA 16037

With copy, which shall not constitute notice, to Consultant’s counsel:

Strassburger McKenna Gutnick & Gefsky 444 Liberty Avenue, Suite 2200

Pittsburgh, PA 15222 Attn: Julie Kline

Email: jkline@smgglaw.com

If to Customer: The address set forth in the preamble paragraph of the Services Agreement

Attorneys’ Fees. In the event of any litigation or arbitration arising out of this Agreement, the prevailing party shall be entitled to its reasonable costs and fees incurred in connection therewith, including reasonable attorneys’ fees.
No Third Party Beneficiaries. Consultant and Customer are the only intended beneficiaries of this Agreement.

Work Policy. Consultant agrees to observe the working hours, work rules, building security measures and holiday schedule of Customer on Customer premises, which will be provided to Consultant upon request; provided, however, that adherence to such working hours and schedules shall not constitute justification for non-accomplishment of agreed upon schedules and deadlines. Consultant further agrees to employ all reasonable efforts to meet Customer’s assignment deadlines and documentation standards, as applicable. Unless otherwise agreed upon, Consultant shall meet with Customer personnel to discuss and review progress of the current assignment on a regular basis.

Third-Party Support and Liability Disclaimer:

Third-Party Support:

If included in the contract, LEFCON will work with third-party vendors to resolve issues not directly under LEFCON’s responsibility. LEFCON will make reasonable efforts to ensure effective issue resolution.

Limitation of Liability:

LEFCON is not responsible for lost revenue, loss of business, or downtime due to third-party delays or failures. This limitation acknowledges LEFCON’s limited control over third-party vendors.

The parties execute this Terms of Services by their duly authorized representatives on the dates indicated on the Services Agreement.

Revision: November 2023