Terms of Service

Revised 2021

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This Agreement is between you (the "Client") and Morgan Leahy (the "Contractor").

Content. Client will provide all images and text content required to complete work. If Client does not provide content, work will be considered complete with placeholder images and text. If an invoice is not paid within the credit terms provided, Contractor is under no obligation to keep the site on Contractor’s testing server or continue with the project in any way.

Support. The Contractor will not provide support for any deliverable once the Client accepts it, unless otherwise agreed in writing.

Expenses. Client shall reimburse all expenses incurred by the Contractor on behalf of the Project that are reasonable and that have been authorized in writing by Client in advance; payable within 15 days of itemized invoice.

DEPOSIT.

If Monthly Payment option is elected, the first installment will initiate work.

PAYMENT TERMS.

Client understands the importance of paying independent contractors in a timely manner and wants to maintain a positive working relationship with Contractor to keep the project moving forward.

Deposit and Payments Due.

For non-recrruing or one-time services, work will commence after the first installment (deposit) payment is made. For recurring or subscription services, Payments are due at the start of each Service Period or Subscription Period. In case of overdue payments, Contractor reserves the right to stop work until payment is received.

Credit Card Payments.

If Client elects a monthly payment option for recurring services, at Contractor’s discretion, Contractor may make an option available to the Client to pay for these services by credit card on file through the Contractor’s website. Under this option, the Client’s credit card on file will be charged prior to the start of each Service Period. Client is responsible for providing current and valid credit card information and for updating this information in the case that changes to the preferred payment method need to be made. In the case that a charge is denied for any reason, Client will be responsible for providing an alternate payment method (i.e. valid credit card, cash or check) within 7 business days of the denied charge. After 7 days, support services, including but not limited to hosting, site content updates, site backups or site security maintenance, may be discontinued until all payments in arrears and penalties are paid in full. Credit card charge back fees are returned to client at $25 per charge. Additionally, accounts that have no payments for over 90 days may be sent to an outside collection agency.

LATE PAYMENT.

In the event an invoice is not paid on time, to the maximum extent allowable by law, Contractor will charge a late payment fee of 1.5% per month on any overdue and unpaid balance not in dispute.

Contractor’s acceptance of such service charges does not waive its rights to any remedies for Client’s breach of this Agreement. All payment obligations are non-cancelable and fees paid are non- refundable.

CANCELLATION FEE.

If the Client terminates this Agreement earlier without cause, Contractor will charge a cancellation fee of 100% of the total amount due for the current Service Period.

PROJECT RESTART FEE.

Because of substantial cost incurred by Contractor to stop and restart a project once it is underway, should this Project's progress be halted at any time for 30 or more days by the client, for any reason, a project restart fee of of 100% of previous Service Period payment in Section "Scope of Work & Payment" will be due and payable immediately.

REPRESENTATIONS.

The representative of Client has the authority to enter into this Agreement on behalf of Client. Client agrees to cooperate and to provide Contractor with everything needed to complete the Services as, when and in the format requested by Contractor.

The representative of Client will perform as single point of contact for all Project- related communications between Client and Contractor.

Contractor has the experience and ability to do everything Contractor agreed to for Client and will do it all in a professional and timely manner. Contractor will endeavor to meet every deadline that’s set and to meet the expectation for Services to the best of its abilities.

Contractor Has Right To Give Client Work Product. The Contractor promises that it owns the work product, that the Contractor is able to give the work product to the Client, and that no other party will claim that it owns the work product. If the Contractor uses employees or subcontractors, the Contractor also promises that these employees and subcontractors have signed contracts with the Contractor giving the Contractor any rights that the employees or subcontractors have related to the Contractor’s background IP and work product.

Client Will Review Work. The Client promises to review the work product, to be reasonably available to the Contractor if the Contractor has questions regarding this project, and to provide timely feedback and decisions.

Client-Supplied Material Does Not Infringe. If the Client provides the Contractor with material to incorporate into the work product, the Client promises that this material does not infringe on someone else’s intellectual property rights.

WARRANTY.

Contractor warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Contractor may have to others; (ii) none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate

or violate any intellectual property or other right of any person or entity (including, without limitation, Contractor); (iii) Contractor has the full right to provide Client with the assignments and rights provided for herein; (iv) Contractor shall comply with all applicable laws in the course of performing the Services and (v) if Contractor’s work requires a license, Contractor has obtained that license and the license is in full force and effect.

Contractor tests website on current versions of all major desktop browsers. Users of older or less capable browsers or devices will experience a design that is appropriate to the capabilities of their software. Contractor does not cater to users of Microsoft Internet Explorer 10  or any other browsers or versions no longer being supported by their developers and/or manufacturers, and cannot predict the behavior of that browser, nor other old or abandoned browsers, for example Microsoft Internet Explorer 9 or 6 or 5.5 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified. If Client needs to consider these older browsers, Contractor will charge Client at Contractor’s standard design rate for any necessary additional design work, development and testing.

EXCEPT AS SET FORTH IN THIS ATTACHMENT, CONTRACTOR DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, COMPLETENESS OR RESULTS TO BE DERIVED FROM THE WORK. EXCEPT AS SET FORTH HEREIN, ALL DELIVERABLES ARE DELIVERED ON AN “AS-IS” BASIS.

CONFIDENTIALITY & NON-DISCLOSURE.

Each party shall maintain, in the strictest confidence, all Confidential Information (as defined in the next sentence) of the other party. “Confidential Information” means all (i) nonpublic information (at the time of disclosure) disclosed by one party to the other party under this Agreement, provided such information is marked or indicated by the disclosing party to be confidential; (ii) and any information which ought reasonably be considered confidential with regard to the circumstances surrounding disclosure, whether or not such information is marked “Confidential”.

In the event a party is required to disclose Confidential Information pursuant to a judicial or other governmental order, such party shall, to the maximum extent permitted by law or opinion of counsel, provide the other party with prompt notice prior to any disclosure so that the party or its client may seek other legal remedies to maintain the confidentiality of such Confidential Information.

Each party receiving Confidential Information shall be responsible for any breach of this provision that is caused by any of its employees, affiliates, representatives or agents and such party agrees to indemnify and hold harmless the other party from and against any liabilities, claims, damages, losses, costs and expenses resulting, directly or indirectly, from any breach by a party, or any of its employees or independent contractors, of any provision of this Agreement. The obligations of this Section shall survive termination of this Agreement for a period of 3 years.

Third-Party Confidential Information. It’s possible the Client and the Contractor each have access to confidential information that belongs to third parties. The Client and the Contractor each promise that it will not share with the other party confidential information that belongs to third parties, unless it is allowed to do so. If the Client or the Contractor is allowed to share confidential information with the other party and does so, the sharing party promises to tell the other party in writing of any special restrictions regarding that information.

OWNERSHIP & LICENSES.

Except as otherwise agreed to in writing and as necessary in the performance of this Agreement, and except for those rights that the Client explicitly gives the Contractor under this Agreement, Contractor agrees that the deliverables and materials developed pursuant to this Agreement (including graphics and other visual elements that Contractor conceives and develops pursuant to this Agreement, including all materials incorporated therein whether such materials were conceived or created by Contractor individually or jointly, on or off the premises of Client, or during or after working time) shall be treated as if the development of such deliverable constitutes a “work for hire” and shall be owned by Client upon payment of all fees due to Contractor pursuant to this Agreement.

Contractor owns the HMTL markup, CSS and other code and Contractor licenses such to Client for use on only this project. Client agrees that Contractor retains ownership of all such materials developed pursuant to this Agreement that Contractor conceives or develops in connection with Contractor’s services for Client, including all materials incorporated therein whether such materials were conceived or created by Contractor individually or jointly, on or off the premises of Client, or during or after working time), and Contractor grants Client the license to use the work product in the following way(s) upon payment of all fees due to Contractor pursuant to this Agreement: A worldwide, non-exclusive, royalty free, non-attribution license to use or otherwise exploit the work product.

Contractor’s IP That Is Not Work Product. During the course of this project, the Contractor might use intellectual property that the Contractor owns or has licensed from a third party, but that does not qualify as “work product.” This is called “background IP.” Possible examples of background IP are pre-existing code, type fonts, properly-licensed stock photos, and web application tools. The Contractor is not giving the Client this background IP. But, as part of the Agreement, the Contractor is giving the Client a right to use and license (with the right to sublicense) the background IP to develop, market, sell, and support the Client’s products and services. The Client may use this background IP worldwide and free of charge, but it cannot transfer its rights to the background IP. The Client cannot sell or license the background IP separately from its products or services. The Contractor cannot take back this grant, and this grant does not end when the Agreement is over.

Contractor’s Right To Use Client IP. The Contractor may need to use the Client’s intellectual property to do its job. For example, if the Client is hiring the Contractor to build a website, the Contractor may have to use the Client’s logo. The Client agrees to let the Contractor use the Client’s intellectual property and other intellectual property that the Client controls to the extent reasonably necessary to do the Contractor’s job. Beyond that, the Client is not giving the Contractor any intellectual property rights, unless specifically stated otherwise in this Agreement.

NON-SOLICIT.

Contractor agrees that during the period in which it is providing Services and for one year thereafter, Contractor will not encourage or solicit any employee, vendor, client or contractor of Client to leave Client for any reason.

RELATIONSHIP OF PARTIES.

Nothing contained in this Agreement shall be construed to create a partnership, joint or co- venture, agency, or employment relationship between Contractor and Client. Both Parties agree that Contractor is, and at all times during this Agreement shall remain, an independent contractor.

TERM & TERMINATION.

Either Party may terminate this Agreement at any time, with or without cause, upon 30 days written notice.

Either Party also may at any time terminate the Agreement immediately if: (i) the other party commits a breach of this Agreement and such party does not cure a breach within 5 days of written notice from the non-breaching party of such breach.

If this Agreement is terminated earlier by Client without cause, Client agrees to pay Contractor any and all sums which are due and payable for: (i) services provided as of the date of termination; and (ii) expenses already incurred, including those from documented non- cancelable commitments. Contractor agrees to use the best efforts to minimize such costs and expenses.

Termination for any reason shall not affect the rights granted to Client by Contractor hereunder. Upon termination, Client shall pay to Contractor all undisputed amounts due and payable. If upon termination Client has not paid undisputed fees owed for the material, deliverables or Services provided by Contractor as of the date of termination, Client agrees not to use any such material or the product of such Service, until Client has paid Contractor in full. Any provisions or clause in this Agreement that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary in this Agreement, Contractor shall retain a perfected security interest in the deliverable or material until Client has made payment in full for all undisputed amounts as of the termination date. Contractor hereby agrees to release and waive its security interest in the deliverable and material upon receipt of full payment for all undisputed amounts.

CHANGES.

Any material changes to the Services, including work to be performed and related fees must be approved by the prior written consent of both parties.

INDEMNIFICATION & LIMITATION OF LIABILITY.

Contractor agrees to indemnify, defend and hold harmless Client from any and all claims, actions, damages, and liabilities (excluding, without limitation, attorneys’ fees, costs and expenses) arising (i) through Contractor’s gross negligence ; (ii) out of any claim that the materials or deliverables, or any portion thereof, in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Contractor’s representations, warranties or agreements herein.

Client agrees to indemnify, defend and hold harmless Contractor from any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising in any manner caused by Client’s (i) gross negligence; (ii) out of any claim that Client provided content, or any portion thereof in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Client’s representations, warranties or agreements herein.

TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, CONTRACTOR SHALL NOT BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOST PROFIT, LOSS OF BUSINESS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS ATTACHMENT OR THIS AGREEMENT, CONTRACTOR’S PERFORMANCE HEREUNDER OR DISRUPTION OF ANY OF THE FOREGOING, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW,

CONTRACTOR’S AGGREGATE LIABILITY UNDER THIS ATTACHMENT AND THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE COMPENSATION PAID BY CLIENT TO THE CONTRACTOR UNDER THIS AGREEMENT.

RIGHT TO AUTHORSHIP CREDIT.

Both Parties agree that when asked, Client must properly identify Contractor as the creator of the deliverables. Client does not have a proactive duty to display Contractor’s name together with the deliverables, but Client may not seek to mislead others that the deliverables were created by anyone other than Contractor.

Contractor reserves the right to display and link to Client’s completed project as part of Contractor’s portfolio and to write about the project on websites, in magazine articles and in books. Client hereby agrees Contractor may use the work product as part of Contractors portfolio and websites, galleries and other media solely for the purpose of showcasing Contractors work but not for any other purpose.

Contractor will not publish any confidential or non-public work without Client’s prior written consent.

GOVERNING LAW & DISPUTE RESOLUTION.

This Agreement and any dispute arising hereunder shall be governed by the laws of the jurisdiction of Contractor’s primary business location (the “Contractor’s Jurisdiction”), without regard to the conflicts of law provisions thereof. For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the courts located in the Contractor’s Jurisdiction.

Attorneys Fees. In the event that any action is instituted by Contractor under this Agreement to enforce or interpret any of the terms hereof, Contractor shall be entitled to be paid all court costs and expenses, including reasonable attorneys fees, incurred by Contractor with respect to such action, unless as a part of such action, the court of Contractor's Jurisdiction determines that each of the material assertions made by Contractor as a basis for such action were not made in good faith or were frivolous. In the event of an action instituted by or in the name of the Client under this Agreement or to enforce or interpret any of the terms of this Agreement, Contractor shall be entitled to be paid all court costs and expenses, including attorneys fees, incurred by Contractor in defense of such action (including with respect to Contractor’s counterclaims and cross-claims made in such action), unless as a part of such action the court determines that each of Contractor’s material defenses to such action were made in bad faith or were frivolous.

The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

FORCE MAJEURE.

No failure or omission by a party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission shall arise from any cause or causes beyond the reasonable control of such party which cannot be overcome through that party’s reasonable diligence, e.g., strikes, riots, war, acts of terrorism, acts of God, severe illness, invasion, fire, explosion, floods and acts of government or governmental agencies or instrumentalities.

NOTICES.

Any notices to either Party made pursuant to this Agreement shall be made and sent (i) via US mail or a nationally recognized carrier to the other Party’s address on file; (ii) or via e-mail to the other Party’s designated representative. Each Party shall have an independent obligation to provide and update, as necessary, the mail and e-mail address on file for such notices. Notices sent by e-mail shall be deemed effective once sent if no error or “bounce back” has been received within twenty- four (24) hours of submission.

MISCELLANEOUS.

The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement.

In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.

ENTIRE AGREEMENT.

This Agreement, along with this Attachment, and any exhibits, schedules or attachments, between the Parties supersedes any previous arrangements, oral or written, and may not be modified in any respect except by a future written agreement signed by both Parties.

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