Hickman Consulting Partners General Terms and Conditions to the ESTIMATE, Rev. October 2, 2023.
The Company and the Client have entered into an Estimate. These General Terms and Conditions are expressly incorporated into the Estimate and together with the Estimate, any change order, and any attachments to any of the foregoing, constitute the entire agreement between the Company and the Client and shall be referred to herein and in the Estimate, as the “Agreement”.
Accordingly, the Company and the Client agree as follows:
1. Responsibilities of the Company. The Company, with the assistance of the Client, shall carry out the Services (the “Services”) set forth in the Estimate (the “Estimate”).
2. Timing of Performance. The parties acknowledge that the Estimate may set forth mutually agreeable timing for performance of various aspects of the Services. Each party shall exercise reasonable efforts to comply with any such agreed to performance timing. The parties acknowledge that it may be necessary for a party to modify the timing of performance or delivery. In such case, that party shall notify the other party, and both parties shall endeavor to make reasonable accommodation of such modified performance timing. If delay in the performance by the Client causes delay in the Company’s performance, the parties understand that the Company may have to change the timing of performance of any of its obligations.
3. Responsibilities of the Client. The Client expressly agrees that it shall exercise reasonable efforts to ensure that:
a. Cooperation. It, its personnel, board members, officers, representatives and/or agents (the “Client personnel”) shall fully cooperate with the Company in carrying out this Agreement. That cooperation shall include but not be limited to making Client personnel available to the Company and the prompt, timely delivery of complete, accurate information requested by the Company.
b. Provide Information. The information it provides is accurate and complete. In carrying out the work, the Company shall rely upon information provided to it by the Client and, as such, shall not be responsible for any inaccuracies in its work resulting from the Company’s reliance upon Client information, representations made by Client personnel or decisions of the Client designee, identified by the Client. If the Client does not provide complete, responsive information in a timely manner, the Client understands that this may result in deficiencies in the Services, including the failure of the Services to fully address in detail each of the areas listed in the Estimate. Therefore, the Company shall not be responsible for any deficiencies in the Services, including the failure of the Services to fully address in detail each of the areas listed in the Estimate, if failure is due to the Client not providing complete, responsive information in a timely manner.
c. Client Designee. It will designate one person authorized to make decisions on its behalf to serve as a liaison with the Company. The Company shall be entitled to conclusively rely upon any decisions and/or representations (oral or written) made by the Client designee until such designee is changed and written notice of the change is given to the Company.
4. Modifications to the Services; Additional Work. The Client may request that the Company provide services other than those set forth in the Estimate, modify the engagement, change the work or that the Company perform work which the Company reasonably believes is beyond the scope of the Services (collectively, the “Additional Work”). The Company may decline to perform any Additional Work. Alternatively, the Company may prepare a change order, in the form of an email or a more formal document, to the Estimate for the Client’s review and approval. Upon the Client’s written acceptance of any change order, the change order and any attachments thereto shall be incorporated herein, governed by the terms and conditions of this Agreement. The parties further expressly agree that the Company shall be paid at its current hourly rate for any time spent preparing a change order.
5. Company Systems. The Company may provide the Client with access to certain third party systems, software, and/or applications (collectively, “systems”). The Client’s access to any systems through the Company shall terminate effective as of the termination of this Agreement. The Company shall not be liable for the performance of any systems or the loss of any information due to the failure of a system. Upon agreement by the Client and the Company, the Company may purchase, license or acquire systems from third parties for use in providing Services to the Client. The Client shall be solely responsible for the payment of any fees for such third party systems. On or before termination of this Agreement, the Company will transition access to, and management of any third party system that was acquired solely for the Client at the Client’s expense to the Client.
6. Term, Termination. The term of this Agreement shall commence as of the execution of the Estimate by the parties, or the start of the Services at the written request of the Client. The Estimate may be signed digitally or electronically and may be executed by counterpart and each counterpart shall be deemed to be an original. This Agreement shall continue for the period set out in the Estimate, if any. This Agreement may be terminated, at any time, including prior to its term, if any, by either party by giving the other party seven days’ prior written notice. The termination notice shall be deemed delivered when sent to the persons executing the Estimate at the addresses set forth in the Estimate by U.S. Postal Service; a reliable overnight courier service; hand delivered; or by electronic mail or facsimile. Upon termination, the Company shall wind down the performance of the work in an orderly manner and submit a final invoice to the Client. The Company shall be paid in full for all Services provided to date of termination, out-of-pocket fees resulting from the work (including any costs which cannot be cancelled) and work performed in winding down the engagement at the Company’s hourly rate. The Company shall provide a final invoice and refund to the Client any monies the Client has paid in excess of the total amount owed to the Company. If any monies are owed to the Company by the Client, the Client shall immediately pay the final invoice. Promptly following payment of all monies owed to the Company, the Company shall deliver to the Client any and all work other than “Work Product Information” (as such term is defined herein below).
7. Payment for the Work. The Client shall pay the Company a fee in U.S. currency equal to its hourly rate set out in the Estimate for each hour spent by the Company providing the Services. The parties acknowledge that the Estimate sets forth an estimate of the fees for Services. The parties expressly agree that such estimate is only an estimate and the actual fees for Services and the actual hours spent providing the Services may be more or less than the estimate for such. The Client shall be fully responsible for payment of the total fees and any agreed-to costs of Services provided based upon the total hours actually expended by the Company. In no event whatsoever shall the Company be required to provide any work until any payment due is paid in full. Further, should the Client fail to pay any payment on or before the due date, the Company may at its sole discretion suspend all Services until payment is made in full without notice to the Client and/or terminate this Agreement as provided in Section 6 “Term, Termination.” Any late payment shall accrue interest at the rate of 9.0 percent per annum. The Client shall be responsible for fully reimbursing the Company for all of its costs and expenses incurred in pursuing any payment owed to the Company by the Client, including reasonable attorneys’ fees and court costs and overhead and administrative costs at the Company’s then current hourly rate.
8. Out-of-Pocket Expenses. In addition to the fees payable hereunder, the Client shall reimburse the Company for its reasonable out-of-pocket expenses incurred in providing the work hereunder including, but not limited to, costs for photocopying, printing, and binding documents; research documents or materials; and travel expenses, including room, board and mileage, for any travel beyond the Washington D.C. metropolitan area. The Company shall not incur more than $25.00 in out-of-pocket expenses without the prior consent of the Client. The Client shall pay the additional amount with its next payment.
9. Independent Contractor. The Client and the Company hereby expressly agree that the Company is, and at all times during the term of this Agreement shall be, an independent contractor to the Client. The Company may, upon request by the Client, oversee the development of work performed by Client personnel and/or by third parties on behalf of the Client. The Client shall be solely and absolutely responsible for any and all payments to any third party who provides services for the Client even if the Company has recommended the third party and is overseeing the provision of services and the Company shall in no way be responsible for any work provided by Client personnel or any third party, including the quality or timeliness of any work.
10. Work Product Information. Work Product Information shall not include any items of work created or developed solely for the Client. “Work Product Information” shall mean any and all works, material, know-how, information, ideas, studies, market environment analysis, analyses, evaluations, reports, memoranda, letters, processes, methods, programs, drawings, notes and manuals and deliverables, whether or not created or developed hereunder, and any part thereof or improvements, derivative works, enhancements, or modifications thereto, which are developed, prepared, conceived or made by the Company, its employees, consultants or any third party used by the Company to perform work on its behalf (“Company personnel”), in any form or media originated or created by Company personnel. The parties expressly agree that any and all items of Work Product Information shall, in their entirety, be the sole, absolute property of the Company. The Company shall have and retains any and all rights of ownership of any kind whatsoever therein, including any copyrights or other intellectual property rights. Again, Work Product Information shall not include any items of work created or developed solely for the Client.
11. Nonhire. During the term of this Agreement and for a period of six (6) calendar months following either the expiration or termination hereof, neither party to this Agreement shall directly or acting through another party solicit for hire any employee of the other party.
12. Dispute Resolution. The parties expressly agree that they shall work together to resolve any disputes. The Company reserves all rights and remedies available to it by law or at equity. The parties hereby agree that any claim arising out or related to this Agreement shall be resolved by the courts of the County of Arlington, Virginia. Each party expressly and irrevocably consents to the jurisdiction of the Courts of Arlington, Virginia.
13. Limitation of Liability. In no event whatsoever shall either party or its respective employees, representatives or subsidiaries be liable for any consequential, indirect, punitive, incidental or special damages, whether foreseeable or unforeseeable, and whether or not the party or anyone else has been advised of the possibility of such damages, whether based upon lost goodwill, lost profits, loss of use of money, loss of data or interruption in its use or availability, stoppage of work, impairment of assets or otherwise arising out of breach of any express or implied warranty, breach of contract, negligence, misrepresentation, strict liability in tort or otherwise, and whether based on any term in any contract document, any transaction performed or undertaken under or in connection with any contract document or otherwise. IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING FOR ANY REASON WHATSOEVER, EXCEED IN THE AGGREGATE THE “LIABILITY CAP” as set out in this Agreement in the Estimate. The foregoing notwithstanding, the Client shall be responsible for paying any and all outstanding payments owed and nothing herein is intended to, nor shall it, release the Client from its obligation to pay any and all outstanding fees and expenses related to the Services rendered.
14. No Assignment; No Third Party Beneficiaries. Neither this Agreement nor any rights under this Agreement shall be assignable in whole or in part or otherwise transferable, and any attempts to do so shall be null and void. This Agreement shall inure solely for the benefit of the parties and not for the benefit of any third party.
15. Amendment, Modification; Waiver of Rights; Effectiveness. This Agreement cannot be amended or otherwise modified except in writing agreed to by the parties. No amendment or modification shall be effective unless in writing signed by the parties hereto. No waiver by either party of a right or remedy hereunder shall be deemed to be a waiver of any other right or remedy or of any subsequent right or remedy of the same kind.
16. Governing Law; Entire Agreement; Conflict. These Terms and Conditions and the Estimate shall be governed by the internal laws of the Commonwealth of Virginia.
17. Captions and Headings; Counterparts. Captions and section headings used in this Agreement are for convenience only and are not a part of this Agreement and will not be used in construing the meanings of the terms and conditions.