These Standard Terms and Conditions (the "Standard Terms") along with the HUTCHISON AVERY & ASSOCIATES PLLC (HAA) Engagement Letter, Change in Scope Document or HAA's standard contractual agreements constitute the entire agreement between the parties (the "Agreement") and may only be modified or amended in a writing signed by both parties.
A. Agreement to Provide Services
The agreement to provide Products and Services refers to the proposal, agreement letter or HAA's standard contractual agreement prepared by HAA for [INSERT CLIENT NAME] (collectively referred to herein as "Client") describing the scope of work, products and services offered, work steps, and responsibilities for a specific project, service or product. Unless withdrawn or otherwise indicated, any agreement to provide Products and Services submitted to Client by HAA is valid for sixty (60) days from the date of such Proposal for Products and Services.
B. Third Party Vendors
HAA may from time to time refer Client to third-party vendors for specific materials or services. These vendors are not subcontractors of HAA, and it is the responsibility of the Client to select and negotiate all work and fees with these vendors. HAA will assist in product selection, developing delivery schedules and reviewing proposals, as the Client deems necessary and as described in an agreed upon scope of work.
C. Subcontractors
HAA, in its sole discretion, may from time to time use subcontractors to deliver specific products or services to the Client. The management, quality of workmanship and all financial arrangements with subcontractors will be the sole responsibility of HAA.
D. Independent Contractors
The parties of this Agreement are independent contractors, and shall not be construed to be partners, joint ventures, or employer and employee. Neither party shall have the authority to bind the other party without the express written consent of the party to be bound.
E. Nonsolicitation
In consideration of the parties executing this Agreement, and other good and valuable consideration, the adequacy and sufficiency of which the Client acknowledges, Client agrees that it shall not, during the term of this Agreement and for a period of one (1) year following termination of this Agreement, directly or indirectly, by any means or device whatsoever, on behalf of Client or on behalf of, or in conjunction with any person, partnership, corporation or other entity solicit, induce, entice or hire, or attempt to hire or employ, or refer employment opportunities to, any employee of HAA. In the event Client breaches this provision, Client agrees to pay to HAA within thirty (30) days after demand, an amount equal to the greater of $50,000 or 100 percent (100%) of the annual base salary of any such HAA employee.
F. Client's Responsibilities
1. Client agrees to pay HAA all fees at the time the work is performed or as outlined in the agreement to provide services at the rates set by HAA from time to time during the normal course of business unless the agreement is proposed as a fixed fee or within a fee range.
2. Client agrees to provide HAA reasonable access to Client's staff, facilities and equipment during the term of this Agreement. Client agrees to provide HAA the periodic assistance by the Client's personnel and suitable supervised access to hardware and system (e.g., security clearance) if necessary as part of the engagement.
3. Client agrees to be responsible for and pay all state, local and other taxes or other charges directly applicable to the sale, installation, maintenance or use of the products and services provided under this Agreement. In the event HAA is assessed any such taxes due to the failure of Client to pay said taxes for any reason, Client shall reimburse HAA same within 30 days of notice by HAA.
4. Client shall provide complete, timely information and data to meet the requirements of the engagement. The Client shall furnish the required information and data as expeditiously as is necessary for the orderly progress of the work. HAA will rely on its accuracy and completeness and will not be held responsible in any way for information provided by Client. Client shall designate a representative authorized to make commitments on Client's behalf for this engagement and Agreement. The Authorized Representative shall render decisions promptly to avoid delay in the progress of HAA services.
5. Accuracy and consistency of information, Client's allocation of labor, and management direction supplied by Client is critical to the success of this engagement. If HAA believes a pattern of inaccurate or inconsistent information or inadequate labor or management direction is being provided by Client, HAA will bring this matter to Client's attention in writing. If the issue cannot be resolved, HAA has the option to withdraw from the engagement and Client agrees to pay HAA for services up to the day of withdrawal.
6. Client will use its best efforts to follow the instructions and training outlined by HAA Consultants. If HAA believes Client's personnel are not using best efforts to complete the required work steps in a manner for a successful project, HAA may notify Client in writing of such defects. HAA may withdraw fifteen (15) days after notification without liability to HAA as a result of Client delay or defects. Client agrees to pay HAA for services up to the date of withdrawal.
7. Client recognizes that the completion of this project is dependent upon a multitude of factors, generally not determinable until after the project is started. Client agrees any completion date in the Agreement is only an estimate and a time certain completion date is not and will not be provided until after acceptance of this proposal and completion of detailed project planning activities.
8. Client agrees it has reviewed the fee estimates provided in this document and acknowledges where the Agreement indicates that fees are an estimate that there is not a fixed fee or any other limitation of fee being agreed to by Client.
G. HAA's Responsibilities
HAA agrees that it shall hold, maintain and treat all information provided to HAA by Client as confidential, proprietary, or a trade secret, regardless of its source and shall not use any such information for parties other than Client, and shall take such steps reasonable to protect the proprietary, confidential or secret nature of such information. Other than for the purpose of this agreement, HAA shall not disseminate, disclose or publish information to, or use such information for the benefit of, any third person or persons, companies, corporations or other firms or association, without the express written consent of Client. The foregoing notwithstanding, any information which is publicly available through prior publication or otherwise, or which might be obtained through reasonable inquiry, shall not be considered confidential, proprietary, or a trade secret, except for customer lists, financial data relative to the Client, or any other information which might relate directly to, and solely concern Client.
H. Rights in Data
All original written material originated and prepared for Client under this Agreement shall belong exclusively to Client.
I. Retainers
Any retainer received by HAA will be applied to the Client's account as specified in the Agreement. If not specified in the Agreement, any Retainer shall be applied to the Client's final invoice from HAA.
J. Invoice Terms
Client understands it will be invoiced periodically for billable services rendered and expenses incurred in the previous billing period. Client agrees that payment is due upon receipt of the invoice. Client understands that a service charge calculated at the rate of 18% per annum will be assessed on any unpaid invoice balance after thirty (30) days from the date of the invoice (the "Service Charge"). All invoice charges will be deemed to have been accepted by Client unless Client disputes the charges reflected on an invoice in writing within thirty (30) days from the date of the invoice. Any notification of dispute must contain sufficient detail of the disputed item(s) and the resolution expected to be performed by HAA. HAA may suspend performance of services under this Agreement if the Client fails to make payment when due. Before suspending service, HAA will give seven (7) days written notice to Client. If HAA does not receive payment in full within seven (7) days of the date of the notice, the suspension may take place without further notice from HAA, and HAA shall have no liability to Client whatsoever as a result of such suspension of services.
K. Expenses
Client agrees to reimburse HAA for all reasonable out-of-pocket expenses incurred in providing consulting services. Reimbursable expenses may include but not be limited to: postage and shipping fees, travel, parking, meals and accommodations, photocopying, telecommunication charges and other related expenses. Non-incidental reimbursable expenses shall be discussed with the Client before incurring them.
L. Limitation of Liability
HAA'S MAXIMUM LIABILITY RELATING TO THE SERVICES RENDERED UNDER THIS PROPOSAL (REGARDLESS OF FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNTS PAID TO HAA FOR THE PORTION OF ITS SERVICES OR WORK PRODUCTS GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL HAA BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE LOSS, DAMAGE, OR EXPENSES (INCLUDING BUT NOT LIMITED TO CLIENT LOSS OF TIME, LOST PROFITS, MONEY OR GOODWILL, OPPORTUNITY COST, ETC.) EVEN IN THE EVENT HAA HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.
M. Limitation of Action
No action, whether based on contract, product liability or tort, including any action based on negligence, or any other legal theory arising out of the performance of this Agreement, may be brought by either party more than two (2) years after the party knew or should have know of the breach or damage (whichever is first), except that an action for non-payment may be brought within two (2) years of the date of the last payment.
N. Indemnification
Client shall indemnify, defend, and hold HAA, its employees, officers, agents and affiliates ("Indemnities") harmless from all expenses, damages, costs, fines, penalties, liabilities and amounts incurred in judgments or settlements, including attorneys' fees suffered by Indemnities, or any of them, as a result of threatened, pending or completed investigation, enforcement actions, claims, demands or any and all lawsuits by, or on behalf of, any third party against Indemnities or Client as a result of services performed.
O. Termination
If either the Client or HAA fails to perform its obligations under this Agreement, the other party shall have the right to terminate this Agreement. In such an event, HAA shall have the right to suspend performance of services hereunder without any further liability to Client whatsoever. In the event of termination by either party, a final invoice will be prepared to reflect all billable services and expenses incurred by HAA through the termination date and presented to Client for payment in accordance with the invoice terms set forth above.
P. Delays
Any failure hereunder (other than payment of money due) which is due to causes beyond either party's control, including, but not limited to, an act of God, war, acts of government, priorities of allocation, fire, flood, strike or labor problems, sabotage, delay in obtaining labor, materials, equipment or transportation, shall not be deemed to be a default and the time of performance shall be extended for a period of time equal to the period of delay and its consequences.
Q. Miscellaneous
1. Severability: If any provisions of this Agreement are held to be invalid, illegal or unenforceable, the remaining provision shall nevertheless continue in full force and effect without being impaired or invalidated in any way.
2. Required Approvals: Where agreement, approval, acceptance, or consent by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.
3. Notices: All written notices required to be given to HAA under this Agreement shall be addressed to: HUTCHISON AVERY & ASSOCIATES PLLC, Attention: Ash F. Hutchison, 2425 N. Central Expy, Ste 200, Richardson, Texas 75080. All written notices required to be given to Client shall be forwarded to the address last known. Such notices shall be sent first class, certified return-receipt-requested mail, postage prepaid.
4. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of Texas.
5. Integration: The parties further agree that this is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and that is supersedes and merges all prior proposals, understandings and agreements, whether oral or written, between the parties with respect to the subject matter hereof.
6. Captions; Interpretations: The section of subsection headings used herein are for referral and convenience only, and shall not limit or restrict the meaning of this Agreement. The exhibits referred to herein and attached, or to be attached hereto, are incorporated herein to the same extent as if set forth in full herein. In the event of any conflict or inconsistency between the provisions of these Standard Terms and Conditions and any document referred to herein or in any Schedule, the provisions of these Standard Terms and Conditions shall prevail and govern the interpretation thereof.
7. Assignment Barred: Neither party may assign its rights or duties under this Agreement without the prior written consent of the party, except to a successor of all or substantially all of its business and properties. This limitation does not restrict the right of HAA to retain independent contractors to complete its work.
8. Waiver: The waiver by either party of any term or condition of this Agreement shall not be deemed to constitute a continuing waiver thereof nor of any further or additional right that such party may hold under this Agreement.
9. Warranty of Authority: Each individual signing this Agreement individually and personally warrants and represents that he or she has actual and express authority to bind the entity for whom he or she signs.
10. Survival of Provisions: The provisions of this Agreement relating to indemnification, limitation on actions, disclaimer of warranty and limitation on liability shall survive the termination or cancellation of this Agreement.
