HALLORAN CONSULTING GROUP, INC.
TERMS AND CONDITIONS
These terms and conditions govern the Statement of Work (“SOW”) agreed upon by Halloran Consulting Group, Inc. (“Halloran”) and the client entity identified in the SOW (“Client”).
By accepting the SOW or otherwise ordering or accepting the services (whether by signing the SOW or otherwise), Client is indicating its acceptance of and agreement to these terms and conditions. These terms and conditions form a part of and are integrated into the SOW. These terms and conditions, together with each document incorporated into this document by reference and the SOW, are collectively referred to in this document as the “Agreement”. If these terms and conditions conflict with those of a SOW, these terms and conditions will prevail unless an express term or condition in such SOW is stated as an intended and express variation to these terms and conditions.
For good and valuable consideration, the receipt and sufficiency of which is acknowledged by both parties, and intending to be legally bound, the parties agree as follows:
1. Retention. Client retains Halloran to provide consultative services (“Services”) subject to the terms and conditions set forth in this Agreement.
2. Fees, Expenses and Payment.
2.1. The hourly rates set forth in the SOW are subject to an increase at the beginning of each calendar year, and invoices issued thereafter shall incorporate such new rates.
2.2 If Halloran promotes a consultant to a higher position, the hourly rate for such consultant shall increase, effective thirty (30) days after such promotion. Halloran shall provide written notice to Client prior to implementing such rate change. The consultant’s new rate automatically will be incorporated on invoices issued following the effective date of the rate change.
2.3 Fees. Each SOW will specify whether Halloran will charge fees on a time and materials, fixed fee or retainer basis.
a.) Time and Materials Basis. If the SOW specifies that fees will be billed on a time and materials basis (“T&M”), Client will pay Halloran for its time expended in performing the Services based on the hourly rates and payment schedules set forth in the SOW. Unless otherwise indicated, estimates of cost, time, and/or other items that may be included within the SOW are provided solely as a general guideline for Client. Halloran will document and record all time spent in the performance of the Services to the reasonable satisfaction of Client.
b.) Fixed Fee Basis. If the SOW specifies that fees will be billed on a fixed fee basis, (the “Fixed Fee”), Client shall pay the Fixed Fee(s) set forth in the SOW. If a payment schedule is not outlined in the SOW, Client shall pay the Fixed Fee as follows: (i) fifty percent (50%) of the Fixed Fee shall be due upon execution of the SOW, and the remaining fifty percent (50%) of the Fixed Fee shall be due upon completion of the Services, as determined by Halloran in its reasonable discretion. Should Client request any changes to either the Services subject to a Fixed Fee or the delivery dates agreed upon in the SOW and such changes cause Halloran to incur additional expenses, Client shall pay Halloran such additional expenses, provided that Halloran shall notify Client of such additional expenses in writing.
c.) Retainer. If the SOW specifies that fees will be billed on a retainer basis, the SOW will set forth the anticipated number of months during which Halloran shall perform Services and the monthly charge for the retainer period. The retainer shall be an agreed monthly charge payable by Client on or about the first day of each month during which Halloran shall provide Services (the “Retainer”). If Client and Halloran mutually agree to extend the time period subject to the Retainer, Halloran shall issue an amendment to the SOW to Client which outlines the extended payment schedule. The Retainer will apply without regard to holidays occurring during the term of the Retainer Services. Halloran Holidays are memorialized in Appendix A.
2.4 Travel Time and Expenses.
a.) Travel time will be billed in accordance with the hourly travel rates provided in the SOW. Expenses, including any third party costs, will be billed to Client as incurred. Client will reimburse Halloran for all reasonable travel expenses incurred by Halloran in rendering the Servicesas provided in Halloran’s travel policy then in effect, which can be found here, and which is incorporated into this Agreement by reference.
b.) Additional expenses which are: (1) not anticipated in the SOW, (2) deemed necessary by Halloran and (3) incurred by Halloran in the performance of the Services, must be submitted in writing to and approved by Client prior to Halloran incurring said expenses from any third party or by Halloran itself. Said approval from Client will not be unreasonably withheld, conditioned or delayed.
2.5 Invoicing and Payment.
a.) For T&M billing, on or about the first day of each calendar month during the performance of the Services hereunder, Halloran will provide to Client an invoice for Services rendered and expenses incurred during the preceding month. For Fixed Fee and Retainer billing, Halloran will provide to Client an invoice for Services rendered and expenses incurred on or about the first day of each month during the period of time when Halloran is providing Services or on such other date as may be specified on the SOW outlining the terms of such Fixed Fee or Retainer, as applicable. All invoices will be sent by e-mail to the billing contact identified by Client in the SOW or otherwise provided by Client to Halloran from time to time.
b.) Client must indicate upon signature of the SOW if a purchase order is required. Purchase orders are for administrative purposes only; additional or different terms in any purchase order are void and are hereby rejected.
c.) Client must indicate the format of invoice it requires upon signature of the SOW, if any, in order to expedite the billing process. If Client does not specify the detail required by its respective financial department, Halloran will send invoices in Halloran format in accordance with Halloran’s standard process.
d.) Fees will be due and payable in accordance with the payment schedule set forth on the SOW. If no payment schedule is set forth on the SOW, fees will be due and payable within thirty (30) days from the invoice date. Expenses will be due and payable within thirty (30) days from the invoice date. All payments must be made in U.S. currency. Any sum not paid by Client when due will bear interest until paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less. If any amount is not paid when due hereunder, without prejudice to any other rights or remedies Halloran may have, Halloran will be entitled to (a) suspend the provision of Services until it has received payment in full for all outstanding amounts and (b) recover from Client the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and reasonable attorneys' fees). Notwithstanding anything to the contrary in this Agreement, all rights granted to Client under this Agreement with respect to Services provided under the SOW are conditioned upon Client’s payment in full of all amounts due under the SOW.
3.1 This Agreement will commence on the date the SOW is executed by both parties and, subject to the termination provisions contained in this Section 3, will continue in effect until the SOW is completed.
3.2 Either party may terminate the SOW in effect with or without cause upon at least thirty (30) days written notice to the other party.
3.3 Sections 2, 3.3, and 4 through 16 will survive any termination of the Agreement.In the event of termination of this Agreement or the SOW, Client will pay Halloran for all work performed and, if applicable, expenses incurred, by Halloran up to the effective date of termination and all non-refundable expenses. If a terminated SOW is on a Fixed Fee or Retainer basis, the fees due will be calculated based on the pro-rata portion of the Fixed Fee or Retainer for time expended by Halloran in performing the Services prior to the effective date of termination.
4.1 Client Materials. All content and materials provided by Client to Halloran in connection with this Agreement (“Client Materials”) will remain the sole and exclusive property of Client.
4.2 Deliverables. Halloran hereby assigns to Client all right, title, and interest in and to any work product created by Halloran in the course of rendering the Services under this Agreement. Notwithstanding the foregoing, Halloran will retain all right, title, and interest in and to any pre-existing Halloran materials (including without limitation pre-existing Halloran training materials) provided by Halloran to Client in connection with the Services.
4.3 Halloran Know-How. Client acknowledges that prior to the commencement of Services Halloran had acquired, conceived, developed or licensed, and in the course of rendering the Services Halloran will continue to acquire, conceive, develop or license, certain know-how relating to the type of Services to be performed for Client (collectively, “Halloran Know-How”). Client desires Halloran to apply the Halloran Know-How in connection with the Services hereunder, and acknowledges that performance of the Services will enhance and expand the Halloran Know-How. Subject to the confidentiality provisions of this Agreement, nothing in this Agreement or any SOW will impair Halloran’s right to use the Halloran Know-How for its own behalf or on behalf of others.
5.1 Warranty. Halloran warrants that the Services provided hereunder will be performed with that level of skill and care ordinarily exercised in Halloran’s profession. Client’s sole and exclusive remedy for breach of the foregoing warranty will be, at Halloran’s option, re-performance of the Services or termination of the applicable SOW and return of the portion of the fees paid to Halloran by Client for the Services. Client must notify Halloran within fifteen (15) days of Halloran’s alleged breach of the foregoing warranty to be entitled to the foregoing remedy. Notwithstanding the foregoing, Halloran makes no representations or warranties with respect to third party products or services in connection with the Services.
5.2 No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC OR GENERAL PURPOSE AND THOSE ARISING BY STATUTE OR BY LAW, OR FROM A CAUSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
6. Indemnification. Client will indemnify, hold harmless and defend Halloran and Halloran’s directors, officers, agents and employees from and against any loss, costs (including reasonable attorneys’ fees) damages, injury, liability, claims, demands, or causes of action arising out of or resulting from or in connection with the Services or this Agreement, except for claims directly arising out of Halloran’s gross negligence or willful misconduct.
7.1 For the purposes of this Agreement, a party’s "Confidential Information" means information of the party of a confidential nature, and includes, without limitation, information entrusted to the party by a third party in confidence and all data, information and materials that a recipient should reasonably understand to be confidential, given the manner or circumstances of its disclosure, irrespective of whether or not the specific designation “confidential” or any similar designation is used.
7.2 The receiving party (a) will not disclose the disclosing party’s Confidential Information except as expressly set forth in Section 7.3, (b) will not use the disclosing party’s Confidential Information except for the purposes contemplated by this Agreement, (c) will use at least the same degree of care to safeguard the disclosing party’s Confidential Information that it uses to protect its own confidential and proprietary information, and in any event not less than a reasonable degree of care under the circumstances, and (d) will make copies of the disclosing party’s Confidential Information only as needed for such purpose, all of which will include any existing markings indicating that they are the disclosing party’s Confidential Information, or will have markings supplied by the disclosing party.
7.3 The receiving party may disclose the disclosing party’s Confidential Information to the extent necessary to comply with applicable laws or regulations, or in response to a valid order of a court or other governmental body having jurisdiction over the party, but only to the extent and for the purposes of such required disclosure and provided that (a) to the extent legally permissible, the receiving party promptly notifies the disclosing party in order to provide the disclosing party the opportunity to seek a protective order, and (b) the receiving party takes all reasonable actions to obtain confidential treatment for such information and, if possible, to minimize the extent of such disclosure.
7.4 Upon termination of this Agreement, and at any other time as may be requested by the disclosing party, each party will return to the other party any and all copies of the material containing the other party’s Confidential Information, or any portion thereof.
7.5 The obligations of this Section 7 will not apply to any information which (a) is or becomes publicly available through no fault of the receiving party; (b) is already in the receiving party's possession without restriction on disclosure when disclosed by the disclosing party; (c) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (d) is rightfully obtained by the receiving party from a third party without violating the rights of the disclosing party.
8. Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Client will not solicit for hire or engagement, or cause others to solicit for hire or engagement, directly or indirectly, as an employee or independent contractor, any employee or contractor of Halloran who is involved in the performance of Services under this Agreement. The term “solicit for hire or engagement” excludes any broad-based effort to attract applicants if not specifically targeted to or specifically designed to attract Halloran’s employees or contractors. Notwithstanding the foregoing, in the event that Client solicits, hires or otherwise engages an employee or contractor of Halloran, or causes others to solicit an employee or contractor of Halloran for hire or engagement, directly or indirectly, whether as an employee or independent contractor, Client shall make an immediate payment to Halloran equal to one year of such person’s base compensation, provided that if Client hires or engages more than one Halloran employee or contractor, the amount payable to Halloran shall be the one year’s base compensation of all such persons multiplied by 1.3.
9. Publicity. Each party may include the other party’s name and general case study information within their marketing material provided that such listing does not state or imply that the other party endorses the party or its services. Any other use of the other party’s name will be subject to its prior written approval.
10. Limitation of Liability. In no event will Halloran, its suppliers or its subcontractors be liable for (a) any incidental, special, punitive or consequential damages, lost profits, lost revenues, or any indirect damages, whether arising in contract, tort (including negligence) or otherwise or (b) any costs or expenses for the procurement of substitute equipment or services, in each case, even if informed of the possibility thereof. All liability of Halloran, its suppliers and its subcontractors arising out of this Agreement will be limited to Client’s direct damages and will not exceed the fee(s) paid by Client to Halloran for the Services under the SOW giving rise to such liability.
11. Non-Debarment. Neither Halloran nor any its personnel performing Services under this Agreement have been debarred, and to the best of Halloran’s knowledge, are not under consideration to be debarred, by The Food and Drug Administration from working in or providing services to any pharmaceutical or biotechnology company under the Generic Drug Enforcement Act of 1992. Halloran will immediately notify Client if it becomes aware of any such action being taken or threatened to be taken against it or any of its personnel.
12. Independent Contractor. All Services will be rendered by Halloran as an independent contractor and this Agreement does not create an employer-employee relationship between Halloran and Client.
13. Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.
14. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement is in the federal and state courts located in Massachusetts, USA, and both parties hereby consent to such jurisdiction and venue for this purpose.
15. Miscellaneous Provisions. In the event that any provision of this Agreement is determined by any court of competent jurisdiction to be unenforceable, including without limitation by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision will be deemed to be modified to permit its enforcement to the maximum extent permitted by law. Headings are for convenience of reference only and will in no way affect interpretation of the Agreement. This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, will be in the English language. This Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .PDF or .JPG format), and electronic signatures will be deemed to be original signatures.
16. Entire Agreement. This Agreement, the SOW and any and all other documents incorporated into this Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning its subject matter. No change, modification or waiver to this Agreement will be effective unless in writing and signed by both parties. Additional or different terms in any written communication from Client (such as in a purchase order) are void and are hereby rejected. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
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