CONTRACTING SERVICES STANDARD TERMS AND CONDITIONS

Transcription

1 CONTRACTING SERVICES STANDARD TERMS AND CONDITIONS 1. DEFINITIONS: The following definitions shall apply to the Purchase Order (PO): a. College of Southern Maryland: CSM identified on the front of the Purchase Order or receiving possession of the Services rendered (as defined below). b. Contractor: The person or entity to provide the Services (as defined below). c. PO, Purchase Order or Agreement: The attached Purchase Order, issued by CSM to Contractor, and these CSM Standard Terms and Conditions, which are hereby incorporated by reference. d. Services: All labor and other Services, including deliverables to be provided by Contractor under the PO and Statement of Work ( SOW ), attached hereto and incorporated herein by reference. e. Subcontractors: Personnel hired by Contractor to perform a portion or all of the Services. 2. SCOPE OF AGREEMENT AND STATEMENT OF WORK: Notwithstanding the terms and conditions of any other document submitted by Contractor (as identified on the front of the accompanying purchase order (the CSM Purchase Order ), which terms and conditions are expressly rejected unless specifically agreed to in writing by CSM, the following terms and conditions shall govern the performance of tasks and Services, in addition to the provision of software, reports and other deliverables ( Work Product ), all as described in the CSM Purchase Order or the accompanying SOW. The Services shall not exceed the dollar limits specifically authorized in writing by CSM. The CSM Purchase Order, the following terms and conditions, the SOW and any attachments hereto and to the CSM Purchase Order constitute the entire Agreement between Contractor and CSM, and Contractor s performance of any Service under the CSM Purchase Order constitutes Contractor s acceptance of this Agreement. CSM and Contractor are sometimes referred to herein as the parties. 3. SUPPLY OF SERVICES: Contractor agrees to furnish for CSM all engineers, designers, draftspersons and other personnel necessary to provide the Contractor Services as defined in the accompanying CSM Purchase Order and/or SOW authorizing the services. Owner acknowledges that Contractor may subcontract any or all portions of the Work to Subcontractors approved in advance by CSM. 4. STATUS & CONTRACTOR S RESPONSIBILITIES: a. Contractor s employees, agents and Subcontractors ( personnel ) shall at all times act as independent Contractors and shall not be considered employees or agents of CSM. Neither Contractor nor its personnel shall have, nor represent themselves as having, any authority to approve or accept any proposal on behalf of CSM, or make any promise, representation, contract or other commitment binding upon CSM. b. All personnel shall be under the exclusive supervision, direction and control of Contractor. Contractor shall have the right to control the details of the work performed by its personnel. Contractor shall establish all necessary rules, regulations and procedures related to the performance of Services. c. Contractor shall accept full and exclusive liability for its personnel s salaries, employee benefits, allowances for vacation, sick leave, holiday pay, employee insurance and retirement benefits, all payroll taxes, workers compensation and employer s liability insurance, and other insurance premiums measured by payroll costs, other contributions and benefits imposed by any applicable law or regulation, plus all Contractor personnel expenses incurred in conformance with standard Contractor policy, including travel, accommodation and subsistence expenses. CSM shall not be responsible for Contractor personnel administration matters as such relate or are applied to such personnel including, without limitation, pay, internal discipline, equal opportunity or discrimination claims. d. Contractor shall have a background investigation conducted on all its employees who will be assigned to perform work for CSM, and shall require any Subcontractors performing work for CSM to similarly conduct a background investigation on all Subcontractor employees who will be assigned to perform work for CSM. Such background investigation shall, at a minimum, include a complete criminal history records check, conducted no more than one (1) year prior to assignment to CSM, which shall report all felony convictions within the previous seven years. Such background investigation shall be conducted by a competent professional organization and shall be in compliance with the Fair Credit Reporting Act and applicable state laws. Contractor agrees to provide CSM with a complete copy of the result of such investigation for any employee who has been convicted of a felony as described Page 1 of 9

2 above. CSM reserves the right, in its sole discretion, to refuse to allow any individual with a past felony conviction to perform work for CSM. e. CSM requires that all employees of Contractor who work on CSM work sites be free of drugs and the influence of alcohol. All such employees, when reporting for duty and while on duty, must be "fit for duty," defined as the appropriate mental and physical condition necessary to perform work in a safe, competent manner, free of the influence of drugs and alcohol. Possession of drugs, drug paraphernalia, and alcohol is prohibited on CSM work sites. f. Upon written request by CSM, Contractor agrees to submit to CSM information regarding the compensation and benefits that Contractor provides any personnel. CSM agrees to request such information only when necessary to satisfy various tax and legal requirements. CSM agrees to maintain such information in a strictly confidential manner. g. Contractor agrees not to refer any employee to CSM if that employee has tested positive for any prohibited substance in the past two months. Contractor agrees to provide CSM, upon request, a complete copy of the results of such tests for any employee performing work for CSM. 5. KEY PERSONNEL: a. Contractor s personnel, as identified in the CSM Purchase Order, are hereby specified as key personnel and are deemed necessary for the successful performance of this Purchase Order. Contractor agrees that except for promotions (but not to other projects), sickness, death, leaving its employ, or at the specific request or approval of CSM, that such key personnel will remain on the project team responsible for performing the Services. b. CSM shall be afforded the opportunity to meet with and review qualifications of key personnel replacements, each replacement to be as equally well qualified as the individual leaving the project. All personnel assigned by Contractor to the project are subject to removal at the request of CSM. Whenever possible, replacements should be brought to the project team early, prior to the departure of the individual being replaced. CSM shall not be responsible for paying any fees for any such replacement person s time spent acquiring knowledge of the Services. 6. DRAWINGS AND OTHER INFORMATION PROVIDED BY CSM: a. CSM shall provide Contractor with all available information, as required, for the completion of the Work. All Drawings, specifications and other design related documents ( Design Documents ) are provided by CSM to Contractor solely for the purpose of describing the Work that is to be provided by Contractor under this Contract. Neither Contractor nor any Subcontractor may own or claim a copyright in any of said Design Documents nor shall they be permitted to use the Design Documents for any purpose other than completion of the Work. b. CSM will use reasonable efforts to minimize errors in information provided to Contractor. However, CSM shall not be held liable for the completeness or accuracy of the information so provided. Contractor, in performing the Work, shall be responsible for calling attention to and verifying critical aspects and details of the information provided by CSM. c. CSM review of Contractor Work does not relieve the Contractor of the responsibility for review of his own work, nor does it constitute CSM acceptance of or liability for Work containing errors or omissions. When observed, CSM shall provide prompt notice of errors or omissions in the Contractor s Work. 7. ALTERATIONS AND ADDITIONAL SERVICES: Contractor shall not make any change in the Services nor perform any additional Services without written approval from an authorized purchasing representative of CSM. If Contractor believes that changes are necessary, it shall so inform CSM, which, if such changes are approved, will provide written instructions. CSM reserves the right to make changes in the Services whenever it determines in its sole discretion that such changes are desirable or necessary to complete the Services fully and satisfactorily. If changes are to be made, or additional Services performed, a fair and equitable adjustment of the contract price shall be agreed upon in writing by the parties before commencement of such changes or additions. 8. WARRANTY: a. Contractor warrants and represents that all Services are complete and accurate, free of errors and omissions, are performed in a workmanlike, professional and efficient manner by qualified personnel, and conform to all requirements of this Purchase Order. If Contractor is required to provide equipment Page 2 of 9

3 as part of the Services, Contractor warrants that all such equipment (a) shall be of good quality and workmanship and free from defects, latent or patent, (b) shall conform to all specifications, drawings, and descriptions furnished by or to CSM (c) shall be merchantable and suitable for their intended purpose, (d) shall be free of any claim of any third party, and (e) shall conform to all laws and regulations relating to their manufacture and use. If Contractor is required to provide software as part of the Services, Contractor warrants that all such software developed or prepared for CSM shall contain no computer viruses or other contaminants, including any codes or instructions that may be used to access, modify, delete, damage or disable CSM s computer system. Contractor expressly waives and disclaims any right or remedy it may have at law or in equity to de-install, disable or repossess any Work Product under this Purchase Order by means of any so-called disabling devices should CSM fail to perform any of its obligations under this Purchase Order. The duration of the warranties in this paragraph shall be twelve (12) months from the last date on which Services are rendered or Work Product is delivered to CSM under this Purchase Order. b. Contractor warrants that Contractor is sufficiently staffed and equipped to fulfill its obligations under this Purchase Order, that any employee providing Services to CSM shall possess the qualifications represented by the employee s resume and that the employee will be qualified by education and experience and competent to provide the Services to be performed by such employee. CSM shall have the right to require the immediate removal from the work of any employee of the Contractor not so qualified. Contractor shall, at its own expenses, furnish a replacement employee possessing the required qualifications, if available. Such replacement shall be the sole and exclusive responsibility of the Contractor for breach of the above warranty. c. Contractor warrants that if any of the Services fail to conform to the requirements defined in the SOW or are not in accordance with sound and generally accepted industry standards, Contractor will perform such necessary corrective Services of the type originally performed as may be necessary to correct any such defects brought to Contractor s attention in writing by CSM within one (1) year of completion of the services or from completion of the discreet segment that includes the Services in question. If CSM determines that such re-performance is impractical or undesirable, CSM, after consultation with Contractor, shall determine an equitable reduction in, or rebate of, the contract price. d. Contractor represents and warrants that it has not and it shall not assign, agree, nor otherwise transfer or encumber any right, title or interest to any technology or intellectual property that would conflict with its obligations under this Purchase Order. Contractor further represents and warrants that the performance of Services and the delivery of Work Product hereunder shall not violate (i) any applicable law, rule or regulation; (ii) any contractual, fiduciary or other duties to third parties; and (iii) any patent, trademark, copyright, trade secret or other similar right. Contractor warrants that there is no actual or threatened suit by any third party that could cause Contractor to violate its obligations hereunder. The warranties set forth in this paragraph are perpetual. e. None of the remedies available to CSM hereunder or at law or equity for breach of any of the foregoing warranties may be limited except as specifically agreed upon by CSM in a separate written Purchase Order signed by its authorized representative. f. Contractor warrants that the Engineering Services shall be supplied, under applicable law, sealed by a professional engineering corporation duly licensed and registered to provide Engineering Services. 9. TITLE AND RISK OF LOSS: a. Conditioned upon payment by CSM of all undisputed sums due Contractor pursuant to the terms of this Purchase Order, Contractor warrants that title to all Work will pass to CSM free and clear of all liens, claims, security interests or encumbrances. b. Notwithstanding which party has title, the risk of damage to or loss of any material, equipment, supplies or other property, whether stored on or off the Project site shall remain with Contractor until the Project is complete and accepted by CSM. 10. AUDIT AND RECORDKEEPING: CSM shall have the right at all reasonable times to review and audit (i) all evidence, including but not limited to, correspondence, records, vouchers and books of account supporting charges invoiced to CSM by Contractor for Services performed or money expended under this Purchase Order; and (ii) all records necessary to verify Contractor s compliance with CSM s requirements described under Section 13, below. Contractor shall maintain and retain for a period of three (3) years after Page 3 of 9

4 the date of the applicable Purchase Order all invoices, time sheets, payroll records and other evidence supporting all such charges. 11. ASSIGNMENT AND SUBCONTRACTING: This Agreement may not be assigned by Contractor and Contractor may not subcontract any portion of the Services without the express, written consent of CSM. Contractor shall assume full and exclusive responsibility for the work of any subcontractor. Any acts or omissions of such subcontractor, its agents or employees, shall be considered as if the same were those of agents or employees of Contractor. Contractor agrees to bind every subcontractor to, and every subcontractor shall be considered bound by, the terms of this Agreement. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor and CSM. 12. COMPLIANCE WITH LAW AND CSM REQUIREMENTS: a. Contractor shall comply with all applicable international, federal, state and local laws, rules, and regulations including, without limitation and incorporated by reference herein, Section 202 of Executive Order (41 CFR Part 60), Section 503 of the Rehabilitation Act of 1973 (41 CFR Part 741), the Vietnam Era Veterans Readjustment Assistance Act of 1974 (41 CFR Part ), Public Law (15 USC 637(d)), and all immigration laws pertaining to employment. Contractor, in accepting this PO, agrees that it shall certify, in writing, such compliance at CSM s request. b. Contractor shall abide by any and all rules CSM may have in effect or hereafter puts into effect at the site of the work pertaining to workers, safety, use of cameras, access, security procedures or requirements, and the handling of equipment or materials. c. Contractor shall require all of its Subcontractors to keep all records, file all reports and otherwise comply with all federal, state and local laws and regulations applicable to the Services including, without limitation, all laws and Executive Orders and pertinent rules and regulations adopted thereunder applicable to suppliers of U. S. government Contractors. This Purchase Order is deemed to include all provisions specifically required by law to be incorporated herein. If Contractor performs any work contrary to such laws or regulations, Contractor shall promptly, without cost or expense to CSM, modify its performance as necessary to so comply. Permits and licenses necessary for performance of the Services shall be secured and paid for by Contractor, unless otherwise provided in the CSM Purchase Order. d. Contractor shall be duly registered, and shall hold whatever professional licenses are required for the specific work being performed, in his own state and in the state in which the work is to be performed. All drawings produced by the Contractor shall contain the approval and seal or stamp of a professional engineer. e. Contractor shall ensure that all work performed is in accordance with local, state and federal codes and regulations, appropriate industry codes and standards, and accepted industry practice. Contractor shall ensure that its personnel are familiar with the above codes, standards and regulations and their appropriate application. 13. INDEMNITY: a. Contractor shall, at its own expense, take all measures necessary to safeguard CSM s personnel and real property from any damage occasioned by the acts or omissions of Contractor s personnel. Contractor shall comply with applicable workers compensation laws, and the following indemnity shall be fully applicable to all claims and payments arising under such laws. It is the intent of this Agreement that all risk of and liability for injury (including death) to every person, and damage to or loss of use of all property, in whatever manner and by whomever occasioned, arising out of or incident to the performance of the Services shall rest upon Contractor; and Contractor shall defend, indemnify and hold harmless CSM, its directors, officers, agents, employees, successors and assigns, from any and all demands, claims, liabilities, expenses and costs, including reasonable attorney s fees, arising from any such damage, loss or injury to the fullest extent permitted by law. This indemnity shall survive the termination or expiration of this Agreement. Upon notification by CSM, Contractor shall at its own expense defend any suit or other legal proceeding alleging such injury, loss or damage whether instituted against CSM alone or jointly with Contractor or others, and whether or not negligence or liability is charged solely against CSM. CSM shall provide Contractor prompt notice of such suit and cooperate fully in the defense of such suit. Participation by CSM through its own counsel in Contractor s defense of any suit against CSM shall in no way dilute this indemnity. Page 4 of 9

5 b. Contractor agrees to defend, indemnify and hold harmless CSM for all costs and expenses associated with any claim that the Services, the Work Product or CSM s use thereof infringe a patent, copyright, trademark, trade secret or other intellectual property right of any third party. No settlement that prevents CSM from continuing to use the Work Product shall be made without CSM s prior written consent. Should CSM s use of the Work Product be enjoined by any court, Contractor will, promptly and at no expense to CSM, either: (i) obtain the right to continue to use the Work Product; or (ii) provide CSM with substitute items that are functionally equivalent to the Work Product. 14. INSURANCE: Before commencing the work, Contractor shall procure and maintain at its own expense the following minimum insurance in forms and with insurance companies acceptable to CSM: a. Workers Compensation insurance for statutory obligations imposed by Workers Compensation, Occupational Disease, or other similar laws; b. Employer s Liability: $2,000,000 per occurrence; c. Business Automobile Liability (for all owned, non-owned, hired, and leased vehicles): $2,000,000 per occurrence; d. Comprehensive General Liability (including contractual liability insurance): $2,000,000 per occurrence, and an aggregate, if any, of at least $4,000,000. The contractual liability insurance coverage shall insure the performance of the contractual obligations assumed by Contractor under this Agreement, including specifically, but without limitation thereto, Section 13, entitled INDEMNITY ; e. Professional Liability (errors & omissions), where applicable, covering the Services: $2,000,000 per occurrence. Such coverage shall remain in force for a minimum of three (3) years following termination of the Services; f. Upon acceptance of the CSM Service Order, Contractor shall provide to CSM s Corporate Insurance Department, located at 8730 Mitchell Rd., La Plata, MD 20646, certificates of insurance acceptable to CSM with respect to the above insurance requirements, and with respect to subparagraphs b, c and d above, naming CSM, its officers, directors, employees and agents as additional insureds. Such certificates and insurance coverage required by this Section 14 shall contain a provision that no coverage afforded under the policies will be canceled, materially changed or allowed to expire until at least thirty (30) days prior written notice has been given to CSM. Such insurance shall provide a waiver of subrogation in favor of CSM, state that coverage is primary to any other valid insurance available to CSM (to the extent permitted by applicable insurance law), and allow cross-liabilities and coverage regardless of fault; g. Contractor shall maintain adequate insurance coverage for subcontractors, and in the event any subcontractor(s) provide any Services hereunder, Contractor shall require such subcontractor(s) to maintain insurance in accordance with the requirements of this Section ACCEPTANCE: To the extent that the statement of work requires Contractor to provide a deliverable, the following shall apply: CSM shall have the right to review and approve the Services as described in the SOW. CSM will accept the Services when CSM determines the Services have been completed in accordance with the terms and conditions of this Agreement, and as per the requirements of the SOW. It is expressly understood and agreed, however, that CSM s acceptance of all or part of the Services, shall not relieve Contractor from liability of its guarantee and warranty obligations, and shall in no event be deemed a waiver by CSM in any respect or degree whatsoever of any of the terms and conditions of this Agreement or any rights of CSM should Contractor fail to comply strictly with the terms and conditions of this Agreement. 16. PAYMENT: a. Reimbursement, Compensation and Payment CSM shall pay to Contractor only the compensation described in the CSM Purchase Order and/or SOW, and shall not be responsible for any services performed in excess of the total price of the CSM Purchase Order unless approved in writing by an authorized representative of CSM. b. Contractor shall submit an original and one copy of all invoice(s) at the end of each month for Services actually performed. All billing(s) shall be documented and identified by the CSM Purchase Order number, Contractor invoice reference number and date, billing period, time expended by person and date, and a narrative description of the billable task. Hourly rates shall be effective for two (2) years from the effective date specified in the CSM Purchase Order or the commencement date of the SOW, whichever is later. Contractor may also be paid on a project basis, as determined solely by CSM, with a Page 5 of 9

6 fixed payment for completion of a particular project; the project, fixed payment and the terms of completion shall be fully indicated on the SOW and agreed to by both parties. c. CSM may reimburse Contractor for actual reasonable, documented out-of-pocket expenses incurred by Contractor in performing the Services, including travel and related expenses, provided that such expenses are approved in advance in writing by CSM and supported by documentation satisfactory to CSM. All Contractor travel shall be in accordance with the CSM travel and expense policies. Expense invoices will include a detailed summary of expenses. Expenses shall be invoiced on a monthly basis. Contractor agrees to maintain records of any expenses for CSM s inspection for a period of one (1) year from the date of final payment. d. Terms of Payment Invoices shall be payable by CSM on a net 30-day basis. Notwithstanding the foregoing, CSM shall not be required to pay invoices on a net 30-day basis if there is a delay in receiving any data requirements in the number of copies specified or if there are errors and omissions in the invoice or data requirements. 17. TERM AND TERMINATION: a. Term This Agreement shall commence on the effective date specified in the CSM Purchase Order and shall remain in effect until the date specified therein, unless terminated earlier pursuant to this Agreement. Provided however, if there is a SOW for which the parties have obligations that extend beyond such termination date, the terms of this Agreement shall continue to apply to the SOW until all obligations have been satisfied. To the extent engineering services are provided prior to the execution of this Agreement, all of those services shall be considered Services delivered under the terms and conditions of this Agreement. The term of this Agreement may be renewed or extended by written Purchase Order signed by the parties hereto. b. Termination for Convenience CSM may at any time terminate performance of the work under this Agreement in whole or from time to time in part for the convenience of CSM by written notice to Contractor. Such termination shall be effective in the manner and upon the date specified in said notice and shall be without prejudice to any claims that CSM may have against Contractor. c. Termination for Cause if Contractor refuses or fails to prosecute the work or any separable part thereof with such diligence as will ensure its completion within the time specified in the CSM Purchase Order or any extension thereof, or fails to complete said work within such time, or if Contractor fails to perform any of the other provisions of the Agreement, CSM, at its sole discretion, may terminate this Agreement. d. In addition, CSM may also terminate in the event of the occurrence of any of the following: (i) A breach by Contractor of any of the terms and/or provisions of the Agreement. (ii) The refusal or neglect of Contractor to supply such number of properly skilled personnel as shall be determined at any time or from time to time by CSM as being required to complete the Services in accordance with the schedule provided in the CSM Purchase Order, or if no such schedule is provided then within a reasonable time. (iii) A seizure pursuant to judicial process of any of Contractor s assets. (iv) Insolvency, or financial instability of Contractor; the appointment of a receiver or trustee for Contractor; or the execution by Contractor, of an assignment for the benefit of creditors. e. Payment Upon Termination (i) Reimbursable Costs In the event of a termination of this Contract for convenience, Contractor shall be entitled to recover for its services actual costs incurred in accordance with this Agreement through the date of termination. The total reimbursable cost shall in no event exceed the CSM Purchase Order price. (ii). Fixed Fee (if applicable) In the case of a termination for convenience, in addition to its reimbursable costs, Contractor shall be entitled upon termination of this Agreement to such part of its firm fixed fee, as may be earned through the date of termination. (iii) Notwithstanding anything to the contrary herein, in the case of a termination for cause, Contractor shall not be entitled to receive any portion of the monies due it, which may have been earned prior to the date of termination but that it has not actually received prior thereto, until such time as the costs incurred by CSM for which Contractor is liable as a result of its default are determined by CSM in accordance with Section 17(f), below. When such determination is made, Contractor shall receive such amount, if any, as is in excess of the costs occasioned by Contractor s default. f. Liability for Cost of Default If performance of work under this Agreement is terminated for cause, CSM may complete or arrange for the completion of the Services, and Contractor shall be liable to CSM Page 6 of 9

7 for increased costs incurred by CSM as a result of the default. Contractor shall pay the difference to CSM within 30 days of CSM s demand therefor. If this Agreement is terminated before or during any task(s) to be performed as part of the Services, Contractor will refund to CSM all amounts associated with all such uncompleted tasks. 18. CONFIDENTIALITY: a. Contractor agrees that (i) all knowledge and information that Contractor may receive from CSM or from its employees or other Contractors of CSM, or by virtue of the performance of Services under and pursuant to this Agreement, including but not limited to, all financial, economic, business, operational, strategic, regulatory, technical or other information regarding CSM or any affiliate, including all business and marketing plans, customer lists, pricing information, policies and procedures, software, specifications, drawings, models, scopes of work, reports, forecasts, data, know-how, designs, algorithms, software programs, financial projections, research, developments, ideas and operations, including any material bearing or incorporating any such information, whether contained in or relayed by writing, electronic form, verbally, or otherwise, and whether disclosed prior to or after the date hereof, and (ii) all information provided by Contractor to CSM in its reports, together with any other such information acquired by or as direct result of Contractor s retention by CSM ((i) and (ii) shall collectively be defined for purposes of this Agreement as Confidential Information ), shall for all time and for all purposes be regarded by Contractor as strictly confidential and held by Contractor in confidence, and solely for CSM s benefit and use, and shall not be used by Contractor or directly or indirectly disclosed by Contractor to any person whatsoever except to CSM or with CSM s prior written permission. b. Confidential Information shall not include any information that: (i) Contractor can reasonably demonstrate was in its possession, care, custody or control, on a non-confidential basis, prior to disclosure hereunder; (ii) is or becomes publicly known through no wrongful act of Contractor; (iii) is lawfully received by Contractor from a third party not bound by a confidentiality obligation to CSM; or (iv) has been independently developed without reference to or use of any Confidential Information. These exceptions are subject to CSM s right to correct any inadvertent failure to designate information as confidential by providing Contractor with written notification of the failure to designate the information as confidential as soon as practical after discovery of such failure. From the time Contractor receives such notification, it shall treat such information as Confidential Information in accordance with this Agreement. c. Contractor shall return all Confidential Information in the form in which it was provided and return all copies in the form in which they exist, or provide a written certification that all such Confidential Information and/or such copies have been destroyed, to CSM upon termination of this Agreement or at CSM s request. d. In the event Contractor breaches or threatens to breach this section, Contractor acknowledges and agrees that CSM shall be irreparably harmed if Contractor s obligations under this section are not specifically enforced and that money damages would be inadequate to remedy such breach or threatened breach. Therefore, Contractor agrees and consents that in addition to any other remedy CSM may have at law or in equity, CSM may seek to enforce this Agreement by injunction, restraining order, or other equitable remedy, which may be granted immediately upon commencement of a suit and without notice or prejudice to any other remedy Contractor may have. Contractor waives (i) the defense that damages at law will be adequate to remedy such breach or threatened breach of this Agreement and (ii) any requirement or entitlement to demand that CSM post any bond in connection with any suit at equity to enforce the above provisions with respect to Confidential Information. 19. RIGHT TO USE: a. All work done pursuant to this Agreement is acknowledged to be work made for hire. CSM reserves the exclusive rights to print, reprint, publish, copy, and vend all such work. Contractor shall maintain its intellectual property rights in its drawings, design and engineering. b. CSM shall have complete and unrestricted right to use all plans, specifications, drawings, reports, manuals and documents prepared or generated by Contractor in connection with its performance of the Services described or referred to herein. Said documents, including any copyright therein, are to be the property of CSM and are not to be used on other projects except by Purchase Order of CSM in writing. If, for any reason, CSM is found not to own such copyright, an assignment thereof shall be made by Page 7 of 9

8 Contractor. Any re-use of work by CSM, or its Contractors, agents, assigns, and successors, shall be at CSM s sole risk, and CSM shall indemnify and hold Contractor harmless from such re-use of work for purposes other than intended under this Agreement. 20. GOVERNING LAW AND VENUE: This Agreement is to be interpreted and enforced under the law of the jurisdiction where the Services are to be rendered (without regard to the choice of law provisions thereof), and any dispute involving this Agreement shall be heard in a court of competent jurisdiction in such jurisdiction. Where Services are provided to or performed in more than one jurisdiction, this Agreement is to be interpreted and enforced under Maryland law. 21. NON-SOLICITATION: During the term of this Agreement and for twelve (12) months thereafter, neither party will solicit for employment any employee, agent, or Contractor of the other. A general advertisement or a request for employment which is initiated exclusively by an employee or Contractor of the other shall not be considered a solicitation pursuant to this section. 22. PUBLICITY: Contractor agrees that it will not, without the prior written consent of CSM, use in advertising, publicity or otherwise, the name or logo of CSM, or refer to the existence of this Agreement in any press release, website, advertising or promotional material. Contractor shall, within five (5) days of the date of this Agreement, remove any existing reference to CSM from any website. 23. NOTICE: Any notice provided hereunder shall be in writing via hand delivery or mail delivery with confirmation of receipt to the addresses specified in the CSM Purchase Order, which may be changed by either party upon written notice. 24. SEVERABILITY: If any provision of this Agreement shall be construed to be illegal, invalid, or unenforceable, it shall not affect the legality, validity or enforceability of any of the other provisions hereof, and the illegal, invalid or unenforceable provision(s) shall be deemed stricken and deleted hereof to the same extent and effect as if never incorporated herein, but all other provisions hereof shall continue. 25. NON-WAIVER: A failure by CSM to exercise any right hereunder, or otherwise waive or condone any delay or failure by Contractor to comply with any of the terms or conditions of this Agreement shall not constitute a continuing waiver of any such requirement or provision, or any rights of CSM hereunder. 26. CSM S REMEDIES: All of the remedies hereunder enjoyed by or given to CSM are cumulative, and are, in addition to any other rights or remedies that CSM may have at law, in equity or otherwise; each such remedy is not exclusive of, and does not limit, any other remedy in any way. 27. MISCELLANEOUS: a. Time is of the essence in this Agreement. b. CSM reserves the right to perform Work with CSM employees and/or to engage other Contractors in connection with the project to which the Services relate. In such case, these Contractors shall coordinate their Services accordingly. c. No representation or promise hereafter made, nor any modification or amendment of this Purchase Order, shall be binding upon either party, unless made in writing and signed by the parties hereto. 28. SURVIVAL: The representations, warranties, indemnities and covenants contained and/or made in this Agreement shall survive the termination of this Agreement and the performance of the Work contemplated by this Agreement. 29. FORCE MAJEURE: a. Neither party shall be considered to be in default in the performance of its obligations under this Agreement, to the extent that the performance of any such obligation is prevented or delayed by any cause which is beyond the reasonable control of and without the fault or negligence of the affected party. Contractor shall bear the risk of loss to all items damaged or destroyed by a Force Majeure event. b. Notice of Event. If either party s ability to perform its obligations under the Contract is affected by an event of Force Majeure, such party shall promptly, upon learning of such event and ascertaining that it will Page 8 of 9

9 affect its performance under the Contract, give notice to the other party stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. Such notice shall be given no later than two (2) days after the affected party ascertains that its performance will be affected. Failure to give such notice within the time specified shall be deemed a waiver of the relief for Force Majeure provided herein. c. Extension of Time for Performance. The party claiming Force Majeure may only extend the time for its performance for a period, which in CSM s sole opinion, would be necessary to compensate in time for the effect of such Force Majeure event. d. Excuse From Performance. In the event that the performance by either party or a portion thereof is rendered impossible by a Force Majeure event, that portion of performance so affected shall be deemed terminated and the price shall be adjusted accordingly. e. Risk of Loss. Contractor shall bear all costs and expenses caused by a Force Majeure event and the risk of loss to all items damaged or destroyed by a Force Majeure event. 30. ENTIRE AGREEMENT: This Agreement, the CSM Purchase Order, the SOW and any attachments hereto and to the CSM Purchase Order, constitute the entire Agreement and understanding between the parties concerning the subject matter hereof and supersede all prior written and oral Agreements, proposals, promises and representation of the parties respecting the subject matter hereof. 31. ORDER OF PRIORITY: In the event of any conflicts or inconsistencies between the provisions of this Agreement, the CSM Purchase Order, the SOW or any attachments hereto, then to the extent possible, such provisions shall be interpreted so as to make them consistent, and if such interpretation is not possible, then any conflict among or between the documents making up this Agreement will be resolved in favor of the more specific over the more general, if it cannot be so resolved then in the following order of precedence: a. The CSM Purchase Order; b. The CSM Standard Terms and Conditions; c. The SOW; and d. The attachments to the CSM Purchase Order. Contractor By: COLLEGE OF SOUTHERN MARYLAND (College) By: Typed Name: Typed Name: Title Title Date: Date: Page 9 of 9