Applicability. These terms and conditions (these “Terms”) are the only terms that govern the provision of services and/or deliverables by Access TCA, Inc. (“Provider”) to the customer named on, and executing, the applicable order (“Client“). The applicable Order (as defined below) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, or agreements, whether written and oral. No terms included in such document provided by the Client shall apply to any services and/or deliverables ordered unless mutually agreed to by the Parties in writing.
Scope of Services. Provider shall provide the services (the “Services”) and/or deliverables (the “Deliverables”) to the Client as per the detailed description, specifications, performance standards and schedules set forth in one or more written orders executed by both Parties (the “Orders”) and in accordance with these Terms.
Change Orders. Client may request reasonable changes to the scope of the Services and/or Deliverables by submitting details of the requested change in a written notice to the Provider (“Change Notice”). Provider shall, within a reasonable time after receiving a Change Notice, provide a written estimate to Client of: (i) Estimated time and materials required to implement the change; (ii) Estimated effect of the change on the Services and/or Deliverables; (iii) Any adjustments to the Provider’s compensation and other charges for the Services and/or Deliverables arising from the change. Provider may charge for the time it spends assessing and documenting a Change Notice from Client on a time and materials basis in accordance with the Order. Provider reserves the right to invoice Client for any portion or all of the costs and expenses related to the change at the time of execution of the Change Order (defined below); and (iv) Any other impact the change might have on performance. (b) Promptly after the receipt of the written estimate, the parties shall agree in writing on the terms of the change(s) to the applicable Order (“Change Order”). Provider shall not be required to commence performance of a Change Order until the Change Order is executed by both parties. However, Provider and Client understand and agree that onsite changes and additions are ordinary in the course of business. Therefore, onsite changes may be allowed by written approval via email and Client agrees to pay for all changes that are authorized by Client Personnel in good faith to Provider.
Fees and Expenses; Payment Terms. (a) Client shall pay the Provider in accordance with the payment terms detailed in the applicable Order for all Services and/or Deliverables. (b) Client shall reimburse Provider for all actual travel-related and other expenses incurred by Provider in connection with the Services and/or Deliverables (“Reimbursable Expenses”) as set out in the Order or as otherwise mutually agreed between the Parties. (c) Provider shall provide complete and accurate invoices to the Client (the “Invoice”) which shall include at a minimum the following information: (i) Purchase Order number, if applicable; (ii) event date if applicable; (iii) description of the Services and/or Deliverables, (iv) the invoiced amount for each Service and/or Deliverable invoiced; (v) the invoice total before statutorily-required costs including, but not necessarily limited to sales tax; (vi) the name and amount of each statutorily-required cost; and (vii) the invoice total. Client will pay all invoiced amounts due to the Provider as per the payment schedule set forth in the applicable Order. If the applicable Order does not contain a payment schedule, Client shall pay the Provider within thirty (30) days from the date of each Invoice. (d) Client may withhold any invoiced amounts that it reasonably disputes in good faith only if the Client promptly notifies Provider in writing of such dispute, which shall not be more than fifteen (15) days from the receipt of the Invoice. Promptly after the receipt of such withholding notice from the Client, the Parties shall negotiate in good faith to resolve any such disputes. Client will pay all undisputed amounts as per the terms the applicable Order. (e) All undisputed late payments that are not paid by their due date shall accrue interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Client shall also reimburse Provider for all reasonable costs incurred by Provider in collecting any undisputed late payments, including, without limitation, reasonable attorney’s fees and costs of collection. In addition to all other remedies available under this Agreement or at law, Provider shall be entitled to suspend the provision of any Services and/or Deliverables if the Client fails to pay any undisputed amounts when due hereunder and such failure continues for thirty (30) days following notice of nonpayment. (f) All payments shall be made in U.S. dollars by check, certified check, wire or electronic transfer, as directed by Provider on Provider’s Invoice. Client shall mail or deliver, at Client’s choice, payments made by check to Access TCA, Inc., Attn: Accounts Receivable, One Main Street, Whitinsville, MA 01588.
Taxes. Client 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 Client pursuant to this Agreement. Notwithstanding the foregoing, in no event shall Client pay or be responsible for paying any taxes imposed on, or with respect to, Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
Representations and Warranties. (a) Provider warrants that Services and/or Deliverables (i) shall conform and be performed in accordance with the written specifications, drawings and technical descriptions set forth in the applicable Order; (ii) shall be rendered in a good and workmanlike manner; and (iii) shall be free of material defects in material and workmanship for a period of ninety (90) days from date of Client’s first installation (the “Warranty”). If Client discovers any material defect in material or workmanship during the warranty period, it shall so notify the Provider in writing. Upon receipt of the notice and confirmation of the defect, Provider shall at its option promptly remedy the defect or replace the defective Deliverable(s) at no additional cost to Client. All costs reasonably incidental to the repair or replacement of the defective Deliverables, including, but not limited to, shipping, removal, redesign, disassembly, reinstallation, reconstruction, retesting and reinspection, shall be borne by Provider. This Warranty shall not apply if the Deliverables are subjected to accident, abuse, improper use, or improper handling by Client, shippers or subcontractor’s selected by Client or otherwise used or handled in violation of this Agreement. (b) The Warranty shall not apply to any part of the Services and/or Deliverables provided by contractors, subcontractors, and suppliers (each a “Third-Party Supplier”). Any warranties related to materials incorporated into the Deliverables and/or Services provided by such Third-Party Suppliers are provided “as is” and any representation or warranty of or concerning any ThirdParty Supplier Deliverables and/or Services is strictly between the Client and the Third-Party Supplier. In the event of a warranty dispute with any such Third-Party Supplier, Provider shall provide reasonable assistance and support to the Client in any efforts to resolve the warranty issue with such Third-Party Supplier. (c) PROVIDER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. CLIENT UNDERSTANDS AND AGREES THAT PROVIDER’S LIABILITY, REGARDLESS OF FORM UNDER THIS SECTION 6 SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE DEFECTIVE SERVICES AND/OR DELIVERABLE. IN NO EVENT SHALL PROVIDER BE HELD LIABLE FOR ANY MONETARY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY CONSEQUENTIAL, COINCIDENTAL, PUNITIVE, SPECIAL DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR ANY OTHER PECUNIARY LOSS EVEN IF PROVIDER IS ADVISED OF THE PROBABILITY OF SUCH DAMAGES. NO ACTION RELATING TO DEFECTIVE OR NON-CONFORMING SERVICES AND/OR DELIVERABLES, REGARDLESS OF FORM, MAY BE BROUGHT MORE THAN SIX (6) MONTHS AFTER THE DATE OF DELIVERY OF THE APPLICABLE SERVICE AND/OR DELIVERABLE.
Intellectual Property. (a) Except as set forth in Section 7(b) below, Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables, including all intellectual property rights therein. Provider agrees, and will cause its personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire”, such Deliverables are hereby deemed a “work made for hire” for the Client. To the extent that any of the Deliverables do not constitute a “work made for hire”, Provider hereby irrevocably assigns, and shall cause its personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Provider shall cause its personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Provider personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables. (b) All inventions, discoveries, improvements, trade secrets, know-how and the like, including processes, programs, systems, products, formulae and designs templates, methodologies, technologies, proprietary processes, and construction techniques, whether patentable or not, and every writing, including computer programs and other work subject to copyright registration created, developed or licensed by Provider (i) prior to the performance of the Services or creation of Deliverables pursuant to this Agreement, or (ii) in connection with providing Services and/or Deliverables pursuant to this Agreement shall remain the property of Provider (“Provider IP”), except to the extent to which any Provider IP depends upon or incorporates Confidential Information of the Client. Upon payment in full by Client to Provider for the applicable Order under which a Deliverable was created or developed, Provider shall grant to Client a perpetual, non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid up, license to use the Provider IP solely as incorporated into, and solely in conjunction with use of the Deliverable as set forth in these Terms and the applicable Order. (c) Provider will convey a limited license in relation to a third-party intellectual property, similar to the limited rights conveyed in relation to the Provider IP license described in Section 7(b) of the Terms, for the use of thirdparty intellectual property that Provider, uses to create, or incorporates into, a Deliverable. Provider’s use or in corporation of such shall include no obligation or promise to convey all intellectual property rights of such third-party intellectual property to Client. (d) Client warrants that the designs, plans, schematics, written materials and other intellectual property, including advertising materials provided by Client to Provider for use during the performance of the Services and/or creation of Deliverables shall not infringe any patents, trademarks, copyrights, trade secrets or other intellectual property rights of any third party.
Confidential Information. (a) During the term of the Order, each party may disclose (the “Disclosing Party”) Confidential Information to the other party (the “Receiving Party”). During the term of the Order, and for a period of five (5) years thereafter, the Receiving Party shall: (i) hold all such Confidential Information in confidence; (ii) restrict the use of Confidential Information to the intended purpose of this Agreement; (iii) limit dissemination of Confidential Information within the Receiving Party’s own organization only to those employees, agents, or subcontractors who need to access the Confidential Information for the purpose of performance of their duties under this Agreement and who have been informed of the requirements of this Section; and (iv) not use, duplicate, reproduce, distribute, disclose or otherwise disseminate any such Confidential Information, except as expressly permitted under this Agreement. Any reproduction by the Receiving Party of any Confidential Information shall remain the property of the Disclosing Party, and continue to be Confidential Information subject to the terms and conditions of this Agreement. “Confidential Information” shall mean: All information concerning the Disclosing Party identified in writing by the Disclosing Party as confidential prior to or concurrent with disclosure of said information to the Receiving Party or that would reasonably be expected to be the confidential or proprietary information of the Disclosing Party. Without limitation, all trade secrets, inventions, ideas, processes and process improvements, data, know-how, formulas, designs, drawings, photographs, documentation, templates, programs, methodologies, processes, technologies, proprietary processes, forms of software or electronic media, equipment, methods, concepts, facilities, construction plans and specifications, construction techniques, research, development, sales, profits, pricing, other financial data and know-how, financial projections, business forecasts, and marketing plans and information of a party disclosed to the other party or learned by the other party as a result of activities taken pursuant to this Agreement. (b) Receiving Party shall have no obligation of confidentiality and non-use with respect to any portion of Confidential Information which (i) is or later becomes publicly known, through no act or omission of the Receiving Party, except that Receiving Party will treat as confidential any Confidential Information the Disclosing Party notifies Receiving Party was released publicly in violation of Disclosing Party’s rights; (ii) is obtained from a third party who had the legal right to disclose the information to the Receiving Party without any restriction on the disclosure; (iii) was in the Receiving Party’s possession, as evidenced by its written records, free of any obligation of confidence at the time the Disclosing Party disclosed it to the Receiving Party; or (iv) was developed by the Receiving Party independently of and without reference to any information the Disclosing Party communicated to the Receiving Party. (c) In the event Receiving Party becomes legally compelled to disclose any Confidential Information, it shall immediately provide the Disclosing Party with notice thereof prior to any disclosure, if possible in accordance with the law, and shall use its best efforts to minimize the disclosure of any Confidential Information and shall cooperate with the Disclosing Party should it seek to obtain a protective order or other appropriate remedy. (d) Receiving Party shall return all Confidential Information in tangible form, including, but not limited to, all copies, translations, interpretations and adaptations thereof, within a reasonable time upon written request by the Disclosing Party.
Indemnification. Each party shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the other party and its directors, officers, employees, agents, partially or wholly owned subsidiaries, successors and assigns (each an “Indemnified Party”) from and against any and all suits, actions, legal or administrative proceedings, claims, liens, demands, damages, liabilities, losses, costs, fees and expenses (including, without limitation, reasonable attorney’s fees and expenses) based upon a violation or claimed infringement of a third-party’s patent, copyright, trademark, service mark, trade secret or other legally protected proprietary right, relating to the Indemnified Party’s utilization of any materials furnished by to it by the other party.
Termination and Effects of Termination. (a) Either party may terminate an applicable Order: (i) If the other party is in default of any of the terms, obligations, conditions and undertakings of this Agreement and fails to cure such default within thirty (30) days (or such longer period as agreed by the Parties in writing) after receiving written notice of such default, the non-defaulting party, at its option, may thereafter by written notice to the defaulting party terminate the applicable Order in its entirety, except for those provisions which expressly survive termination as set out in this Terms, (ii) Immediately upon providing written notice, if the other party becomes insolvent, if a petition in voluntary or involuntary bankruptcy is filed by or against the other party under any chapter of the United States bankruptcy laws and not bonded or discharged within thirty (30) days of the date a receiver or trustee is appointed, or if the other party makes an assignment for the benefit of creditors, or (iii) At any time upon sixty (60) days prior written notice to the other party. (b) In the event of termination of a specific Order, Provider will terminate all affected Services in progress in an orderly manner as soon as practical. Client shall promptly pay Provider for all commitments and expenses including any non-cancellable and non-refundable commitments and expenses and for all Services performed up to the date of termination, including those services necessary to an orderly wind-up of the Services, provided that Provider will exert its commercially reasonable efforts to minimize such costs. (c) The termination of any applicable Order for any reason shall not relieve either party from its obligations pursuant to this Agreement prior to the effective date of such termination.
Warehoused Client Property / Risk of Loss. Client shall bear all risk of loss for any property of Client warehoused or stored on Provider’s premises, and Client shall be solely responsible for deciding whether to obtain insurance against any or all risks, and for procuring and paying for such insurance. Client hereby releases and holds harmless Provider from and against any loss, cost, or damages to such property of Client while stored or warehoused at Provider’s premises, except for losses or damage caused by Provider’s gross negligence or willful misconduct.
Non-Solicitation. During the term of the applicable Order, and for a period of two (2) years thereafter, Client shall not solicit for employment or employ any person who is, on the effective date of the applicable Order, employed by the Provider, unless the Provider shall have granted permission to the Client, in writing, to hire said person.
Waiver. None of the terms of this Agreement may be waived except by an express agreement in writing signed by the party against whom enforcement of such waiver is sought. The failure or delay of either party in enforcing any of its rights under this Agreement shall not be deemed a continuing waiver of such right. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
Amendments. No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by persons with appropriate signing authority of both Parties.
Adoption of UCC. Article 2 of the Massachusetts Uniform Commercial Code (the “UCC“) is incorporated herein and is intended to supplement this Agreement and any interpretations of it. Definitions contained in the UCC are applicable to all provisions of this Agreement except for conflicts between the UCC and this Agreement, in which event, the provisions contained in this Agreement shall control the Parties’ rights and obligations.
Governing Law and Venue. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. The Parties to this Agreement hereby submit to the exclusive jurisdiction of the federal or state courts of the Commonwealth of Massachusetts located in Worcester County.
Assignment. This Agreement shall be binding upon and inure to the benefit of each party and its successors and assigns, provided neither party has the right to assign or transfer the Agreement or any part of its rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the above, Provider may assign or otherwise transfer this Agreement or any interest therein, without the consent of Client, to any affiliate or to any entity with which Service Provider may merge or consolidate, or any entity which may purchase Provider or a material part of its business or assets integral to the Services contemplated hereunder. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns.
Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, any applicable Order or the transactions contemplated hereby.
Survival. All provisions of this Agreement that, by their nature or terms, should survive, shall survive termination of this Agreement for any reason, including but not limited to provisions related to confidentiality, publicity, governing law and indemnification.
Severability. If any provision of this Agreement shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of the remaining provisions shall not be affected thereby.
Force Majeure. The Provider shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
This is the website of Access TCA, Inc. Our postal address is One Main Street Whitinsville, MA, 01588
We can be reached via e-mail at email@example.com or you can reach us by telephone at 508.234.9791.
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