Terms of Service

This Terms of Service Agreement (this "Agreement") is incorporated into each Services Agreement ("SA") and/or Change Order Agreement ("COA") and/or Estimates/Orders, 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 this Agreement carefully before using Consultant's services. By using the services, the Customer agrees to be bound by all of the terms and conditions of this Agreement. This is version 3.0 of the LEFCON Terms of Service Agreement, effective October 6, 2025.

Recitals

A. Consultant wishes to provide certain information technology professional/managerial services (the "Services") as set forth in that certain Services Agreement between Consultant and Customer.

B. 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:

1. Scope of Work

1. Subject to the terms and conditions of this Agreement, Consultant agrees to provide the Services described in the Services Agreement. In performing the Services, Consultant will comply with the service levels set forth in that certain Service Level Agreement between Consultant and Customer.
2. 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 and sufficient terms of the service are provided in the email or the Consultant is recommending service which is subsequently accepted by the Customer.

2. Term / Termination

1. This Agreement shall remain in effect for one (1) year from the Effective Date (the "Initial Term"). After the expiration of the Initial Term or any Renewal Term, this Agreement shall automatically renew for successive annual terms (each a "Renewal 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. Any agreed upon renewal period shall be referred to as each a "Renewal Term" and collectively the "Renewal Terms", and together with the Initial Term, the "Term."
2. During the Initial Term, this Agreement may not be terminated for convenience. Termination during the Initial Term is available only upon a material default as set forth in Section 2(c) below. 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.
3. Either Party may terminate this Agreement, effective upon written notice to the other Party (the "Defaulting Party") if the Defaulting Party:
   1. 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.
   2. Becomes insolvent or admits its inability to pay its debts generally as they become due.
   3. 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.
   4. Is dissolved or liquidated or takes any corporate action for such purpose.
   5. Makes a general assignment for the benefit of creditors.
   6. 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 property or business.
4. Notwithstanding anything to the contrary in this Section 2, Consultant may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any undisputed amount when due hereunder and such failure (x) continues for sixty (60) days after Customer's receipt of written notice of nonpayment; or (y) occurs more than two (2) times in any twelve (12) month period.
5. 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. 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, without limitation, 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; an epidemic or pandemic; war, invasion, terrorism, or other violence; national or regional emergencies; strikes, labor stoppages/slowdowns, or other industrial disturbances; and major telecommunication breakdowns, power outages or shortages. 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.

3. Payment for Services

1. 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 by Customer within thirty (30) days of invoice date.
2. Customer may, upon notice to Consultant, withhold payments for Services which are not performed in 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 sixtieth (60th) day. No later than thirty (30) days after the aforementioned sixtieth (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.
3. 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 property or other assets.
4. Except for invoiced payments that the Customer has disputed, all late payments shall bear interest at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law. 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 fifteen (15) days following written notice thereof.

4. Rates

1. The pricing and terms for Consultant's Services made available to the Customer are detailed on the Service Agreement. The Service Agreement may be updated from time to time at the mutual written agreement of the parties to add or remove products and services as appropriate.

5. Travel / Reimbursable Expenses

1. 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.

6. Independent Contractor

1. 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.
2. 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.

7. Consultant's Responsibilities

1. Consultant and all Consultant Parties shall, when present on site at a Customer's or its Customer's facility (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. Consultant shall comply in all respects with reasonable security procedures or guidelines as Customer may designate from time to time.
2. If, in exercising its rights and obligations under this Agreement, Consultant or any of the Consultant Parties causes damage to any portion of the Customer's facilities or Customer's personnel, 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.
3. 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).
4. As part of providing the Services, Consultant may have access to data, files, transmissions, and communications sent to or from Customer, which may also include personal information of Customer's employees or customers ("Customer Data"). Consultant shall use its best efforts to prevent unauthorized access to or sharing of the 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. "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs. The Parties acknowledge that Consultant does not control or process Customer Data under this Agreement.
5. Consultant shall implement and maintain industry-best practices and technical safeguards designed to protect the confidentiality, integrity, and availability of Customer Data. If Consultant becomes aware of any unauthorized access or disclosure, destruction, loss, or alteration to Customer Data, Consultant shall notify Customer within seventy-two (72) hours and assist Customer in any investigation and remediation thereof.

8. Confidential Information

1. 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 ("Confidential Information"). 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 8; (ii) is or becomes available to the Receiving Party on a nonconfidential basis from a third-party source not prohibited from disclosing such 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 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.

9. Intellectual Property

Consultant shall own all intellectual property 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 and/or Background IP of Customer, Customer Data, or any other materials supplied by Customer to Consultant. "Background IP" means all documents, works, names, systems, inventions and other intellectual property owned by Customer as of the Effective Date and/or created or developed by Customer during the Term. Consultant hereby grants Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, irrevocable license to use all Intellectual Property Rights in the Deliverables during the Term and to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.

10. Indemnification

1. Consultant agrees to indemnify, defend, and hold Customer and its officers and directors, affiliates, subsidiaries, agents, and employees (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 to the extent they arise directly or indirectly from or in connection with:
   1. The failure of Consultant or any of its officers, employees, agents, independent contractors, subcontractors, and/or representatives (collectively, "Consultant Parties") to comply with applicable laws, regulations, or orders;
   2. Any grossly negligent act or omission or intentional misconduct on the part of any Consultant Parties;
   3. Breach of any obligation, representation, or warranty of Consultant contained in this Agreement; and
   4. 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.
2. 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 property caused by the negligent acts or omissions of Customer's personnel while Consultant's personnel are performing work for Customer under this Agreement.
3. Each party hereto shall promptly notify the other in writing of any claim that is subject to a party's indemnification obligations under this Section 10 and shall reasonably cooperate with the Indemnifying Party in defending against any such claim.

11. Default and Remedy

1. In the event Consultant materially defaults in any of its obligations under this Agreement, Customer shall be entitled to: (i) terminate this Agreement pursuant to the procedures set forth in Section 2(c)(i) without an obligation to pay for any Services if Consultant materially fails to deliver such Services; and (ii) subject to the limitations of liability set forth in Section 16, recover damages for Consultant's breach of this Agreement.
2. The parties acknowledge that a breach of Section 8 of this Agreement (Confidential Information) would result in damages that would be difficult to quantify. Accordingly, in the event of a breach of those provisions, in addition to any other remedies available at law or in equity, the non-defaulting party shall be entitled to injunctive relief without being required to post a bond.
3. If Customer defaults in its payment obligations, Consultant shall be entitled to terminate this Agreement and to recover payment for all Services rendered up to the date of such termination, plus interest at the lesser of the rate of eighteen percent (18%) per annum or the highest rate permissible under applicable law. Customer's dispute of any invoice shall not be deemed a default under this provision.

12. Consultant's Insurance

Throughout the Term of this Agreement, Consultant shall procure and maintain insurance with limits of liability not less than those stated below:

1. Workers' Compensation in accordance with the workers' compensation laws of the state(s) in which the Services are being performed. Employers' Liability Insurance of $500,000 per accident, per employee, disease policy limit, and in the aggregate.
2. 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 property damage.
3. 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, including non-owned and hired autos.
4. 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.)
5. 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, covering: (1) liability arising from theft, dissemination and/or use of Customer Data and Confidential Information; (2) Network Security Liability arising from unauthorized access to or tampering with computer systems; and (3) liability arising from the introduction of a computer virus into Customer's or third person's computer systems.
6. Crime Coverage with a minimum per loss limit of $500,000, including employee dishonesty, forgery or alteration, and computer fraud.

All coverages shall be placed with insurers holding at least an A-VII A.M. Best rating, authorized to do business in the state(s) where Services are performed, on a primary and non-contributory basis, naming Customer and its Affiliates as additional insureds (except workers' compensation), with a waiver of subrogation in favor of Customer, and providing at least thirty (30) days' prior notice to Customer of cancellation or nonrenewal.

13. Customer's Insurance

During the Term of this Agreement, Customer shall, at its own expense, maintain commercial general liability insurance in a sum no less than $2,000,000 with financially sound and reputable insurers. Upon Consultant's request, Customer shall provide a certificate of insurance evidencing such coverage within three (3) business days.

14. Taxes

1. Fees and charges reflected in Services Agreement are exclusive of any sales, use, personal property, 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.
2. 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.

15. Representations and Warranties

1. Consultant represents that it possesses: (i) all licenses and/or certifications as required in the local jurisdictions; (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.
2. 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.
3. 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.
4. 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.
5. 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, 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 gross negligence or willful acts or omissions of Consultant, its employees, agents or contractors.
6. Customer represents and warrants that (i) it has the right to lawfully transfer to Consultant all data related to Customer's access or use of the Services; (ii) its use of the Services 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.

16. Total Liability

1. 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.
2. 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.
3. The limitations of liability contained in Section 16(b) shall not apply to (i) a party's indemnification obligations hereunder; (ii) Consultant's obligations under Section 7(b) to repair damage to Customer premises; (iii) Customer's obligations to pay all undisputed Fees for Services performed; (iv) gross negligence or intentional misconduct of any Consultant Parties; (v) breach of Sections 7(d), 7(e), or 8 of this Agreement; and (vi) a party's fraud or illegal conduct.

17. Publicity

Except for disclosures required by law or governmental regulation, both parties agree not to use the name or logo(s) of the other party or any of its affiliated companies in any sales or marketing publication or advertisement or make any public disclosure relating to this Agreement without obtaining the prior written consent of the other party.

18. 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.

19. 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.

20. 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.

21. General Provisions

1. Headings. Section and paragraph headings are for convenience only and shall not be a part of the terms and conditions of this Agreement.
2. 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.
3. 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.
4. Subcontractors. Customer reserves the right of approval of all subcontractors, which approval will not be unreasonably withheld by Customer. 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.
5. 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 (ii) Customer may assign this Agreement to a bona fide, third-party purchaser of all or substantially all of Customer's assets.
6. 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.
7. Survival. Sections 2(e), 5, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, and 20 of this Agreement shall survive the completion and termination of this Agreement.
8. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the Commonwealth of Pennsylvania. Both parties consent to jurisdiction and venue in the state and federal courts of Butler County, Pennsylvania.
9. Complete Agreement. This Agreement together with the Services Agreement, and any 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.
10. 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: [email protected]
    
    If to Customer: The address set forth in the preamble paragraph of the Services Agreement.
11. 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.

22. 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. Unless otherwise agreed upon, Consultant shall meet with Customer personnel to discuss and review progress of the current assignment on a monthly basis.

The parties execute this Terms of Service Agreement by their duly authorized representatives on the dates indicated on the Services Agreement. Current version: v3.0, effective October 6, 2025.