and Conditions, or its Staffing and Placement Terms and Conditions into any resultant
agreement or statement of work. The text of these terms if provided below for Customer
reference. Absent terms agreed in writing to the contrary, the appropriate terms below shall
apply to contracts with Golden & Associates, Inc.
| CONSULTING TERMS AND CONDITIONS (rev. 09feb04) These Consulting Terms and Conditions (“Terms”) shall apply to Customer’s acquisition from Golden & Associates, Inc. (“GAI”) of the services and/or deliverables (“Consulting Services”) set forth in any Statement of Work (“SOW”) executed by Customer and GAI that incorporates these Terms either by direct reference hereto or by reference to any master contract between GAI and Customer that contains these Terms. SECTION 1. PROJECT FEES (a) Customer agrees to pay GAI the professional fees as detailed on the SOW. Customer also agrees to reimburse GAI for all reasonable and actual expenses incurred by GAI on behalf of Customer that are reasonably necessary and appropriate in connection with the performance of any SOW. (b) Payment is due within thirty (30) days of Customer’s receipt of invoice. If Customer fails to pay any charges when due, Customer agrees to pay a late payment charge of 1-1/2 percent per month, but not in excess of the lawful maximum, on the past due balance. SECTION 2. TAXES Customer agrees to pay all taxes of whatever nature arising out of or in connection with the SOW, excluding any taxes based upon GAI’s net income. SECTION 3. CONFIDENTIALITY Both parties acknowledge that information supplied by either party and designated as proprietary and/or confidential and that is disclosed in connection with work performed under any SOW is the proprietary information of the disclosing party. The receiving party agrees: (i) to hold proprietary and/or confidential information in strictest confidence; (ii) not to make use of proprietary and/or confidential information other than to perform the obligations under the SOW; and (iii) not to reproduce proprietary and/or confidential information except as required for completion of items defined in the SOW. SECTION 4. ASSIGNMENT No SOW may be assigned or otherwise transferred without the prior express written consent of the other party. Any assignment or transfer in violation of this provision shall be null and void. SECTION 5. OWNERSHIP RIGHTS (a) Except as set forth in (b) below, GAI assigns to Customer upon delivery all rights, title, and interest in any Deliverables identified in a SOW. (b) GAI shall retain all copyright, patent and intellectual property rights with respect to any software GAI may develop in the performance of the SOW, including the format of any templates that may be required to display the data and/or information included in the Deliverables. GAI grants to Customer a non-exclusive license to use and employ such software solely within its enterprise. (c) The ideas, concepts, methodologies, processes, inventions and tools (including computer hardware and software where applicable) that GAI supplies, together with the methods and techniques that GAI uses to produce the Deliverables under the SOW, are collectively defined as the “Consulting Methodology”. All rights, title, and interest in and to the Consulting Methodology used in performance of a SOW remain the property of GAI. No rights, title or interest in the Consulting Methodology shall pass to Customer by operation of estoppel or otherwise. SECTION 6. PROJECT CHANGE REQUESTS (a) A Project Change Request (“PCR”) is a written document that requests a change in the scope of Consulting Services described in a SOW, an adjustment of the prices, or an adjustment in the time of performance. (b) The parties shall agree upon changes or additions to the SOW by executing a PCR that describes the requested changes or adjustment in detail. If a PCR will increase or decrease the cost or time required to complete the SOW, then the PCR shall set forth the appropriate adjustment to completion deadlines or compensation. (c) Changes requested by either party shall not be implemented until the PCR is approved in writing by both parties. SECTION 7. NONSOLICITATION During the term of any SOW, and for a period of six (6) months following the completion, expiration or termination thereof, neither party will, except with the other party’s prior written approval, hire or solicit to hire, either directly or indirectly, the personnel of the other party. This prohibition does not apply to personnel of either party who respond to a public advertisement or who otherwise participate in a public job solicitation. This prohibition includes contracting with an independent contractor to utilize the services of a party’s personnel who have performed Consulting Services under the SOW. SECTION 8. WARRANTY DISCLAIMER EXCEPT AS EXPRESSLY SET FORTH IN ANY SOW, GAI MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE CONSULTING SERVICES PERFORMED HEREUNDER INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. SECTION 9. LIMITATIONS OF LIABILITY (a) IN NO EVENT SHALL GAI BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST BUSINESS OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, EVEN IF GAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SOW. (b) GAI’s total liability for damages arising out of or in connection with the SOW shall be limited to the greater of $25,000 or the total of the fees (excluding expenses) due GAI under the SOW. The limitation set forth herein shall not apply to claims for personal injury or for damages to real or tangible personal property to the extent caused by GAI’s fault or negligence, or to breach of the Confidentiality provisions contained in Section 3. SECTION 10. TERMINATION FOR BREACH (a) A SOW may be canceled by either party upon written notice in the event the other party fails to comply with these Terms or the terms contained in a SOW and the breaching party does not cure such failure within ten (10) days after receipt of written notice specifying the failure. (b) Subject to the provisions in Section 5, Ownership Rights, in the event of termination pursuant to this Section, Customer retains all rights to any Deliverable then in progress, provided GAI is paid an equitable amount for the work completed as of the date of termination. SECTION 11. GENERAL (a) GAI and Customer each warrant that they have the authority to agree to and execute the SOW and these Terms. If required, Customer will notify all other parties having any interest in relevant equipment, software, and other assets that the Consulting Services will be performed by GAI and shall obtain consent from any such party. (b) Other than Customer's obligation to make payment for amounts due and payable under these Terms, neither party shall be responsible for delays in fulfillment of obligations under these Terms due to causes beyond its reasonable control. (c) The legal protections afforded to GAI under these Terms shall be extended to GAI, its parent companies, its subsidiaries and affiliates, and its subcontractors and other suppliers. (d) Any notices required or permitted to be given pursuant to these Terms shall be in writing, by confirmed facsimile, or sent via certified mail, return receipt requested, or delivered by hand, addressed as set forth in the applicable SOW or to such other address as may be specified from time to time by notice in writing to the other party, and shall be deemed to have been given when received. (e) All provisions that by their nature would be expected to survive termination of these Terms shall so survive, including, without limitation, provisions relating to confidentiality, warranty, limitation of liability, and legal status of the parties. No term or provision of these Terms shall be deemed waived by either party, and no breach excused by either party, unless the waiver or consent shall be in writing signed by an authorized representative of the party granting such waiver or consent. If any term or provision of these Terms shall be found to be illegal or unenforceable then such term or provision shall be deemed stricken, and all other terms and provisions shall remain in full force and effect. (f) Customer may not assign the SOW or these Terms without the prior written consent of GAI and any assignment attempted in violation of this provision shall be void. (g) Neither these Terms nor the terms of any SOW shall constitute appointment by either party as the agent or legal representative of the other party for any purpose whatsoever nor shall either party hold itself out as such, nor shall they create a partnership, joint venture of relationship of associates or principal and agent between the parties. Both parties are independent contractors and principals for their own accounts. (h) In the event that either party is required to resort to litigation or other legal or equitable action in order to enforce its rights under these Terms, the prevailing party shall be entitled to reimbursement from the other party for all reasonably costs and expenses, including, without limitation, reasonable attorneys fees. (i) Each party agrees to comply with all laws and regulations applicable to its performance under these Terms and to be responsible for obtaining any approvals or licenses necessary to maintain such compliance, including, without limitation, the export control laws of the United States. These Terms shall be governed by and interpreted in accordance with the laws of the State of Maryland without regard to the conflict of laws provisions thereof. (j) The applicable SOW and these Terms constitute the entire understanding between Customer and GAI and supersedes all prior oral and written communications and proposals and may be amended or modified only in writing signed by both parties. In the event of a conflict between these Terms and the terms of any SOW, the terms of the SOW shall control. |
| STAFFING AND PLACEMENT TERMS AND CONDITIONS (rev. 01feb05) These Staffing and Placement Terms and Conditions (“Terms”) shall apply to Customer’s acquisition from Golden & Associates, Inc. (“GAI”) of the staff augmentation, and/or placement services and/or related services and deliverables (“Services”) set forth in any Statement of Work (“SOW”) executed by Customer and GAI that incorporates these Terms either by direct reference hereto or by reference to any master contract between GAI and Customer that contains these Terms. SECTION 1. PROJECT FEES (a) Customer agrees to pay GAI the professional fees as detailed on the SOW. Customer also agrees to reimburse GAI for all reasonable and actual expenses incurred by GAI on behalf of Customer in connection with the performance of any SOW. (b) If Customer hires GAI personnel or subcontractors on a permanent basis, either directly or through a third party, within twelve (12) months of utilizing such personnel under GAI contract, then Customer agrees to pay GAI a lump sum placement fee equal to twelve percent (12%) of the person’s first years salary, unless otherwise specified on the SOW. (c) Payment is due within thirty (30) days of Customer’s receipt of invoice. If Customer fails to pay any charges when due, Customer agrees to pay a late payment charge of 1-1/2 percent per month, but not in excess of the lawful maximum, on the past due balance. SECTION 2. TAXES Customer agrees to pay all taxes of whatever nature arising out of or in connection with the SOW, excluding any taxes based upon GAI’s net income. SECTION 3. CONFIDENTIALITY Both parties acknowledge that information supplied by either party and designated as proprietary and/or confidential and that is disclosed in connection with work performed under any SOW is the proprietary information of the disclosing party. The receiving party agrees: (i) to hold proprietary and/or confidential information in strictest confidence; (ii) not to make use of proprietary and/or confidential information other than to perform the obligations under the SOW; and (iii) not to reproduce proprietary and/or confidential information except as required for completion of items defined in the SOW. SECTION 4. ASSIGNMENT These Terms, the SOW, or payable may not be assigned or otherwise transferred without the prior express written consent of the other party. Any assignment or transfer in violation of this provision shall be null and void. Notwithstanding, GAI is authorized to subcontract the Services, in whole or part. SECTION 5. OWNERSHIP RIGHTS (a) Except as set forth in (b) below, GAI assigns to Customer upon delivery all rights, title, and interest in any Deliverables identified in a SOW. (b) The ideas, concepts, methodologies, processes, inventions and tools (including computer hardware and software where applicable) that GAI supplies, together with the methods and techniques that GAI uses to produce the Deliverables under the SOW, are collectively defined as the “Consulting Methodology”. All rights, title, and interest in and to the Consulting Methodology used in performance of a SOW remain the property of GAI. No rights, title or interest in the Consulting Methodology shall pass to Customer by operation of estoppel or otherwise. SECTION 6. PROJECT CHANGE REQUESTS (a) A Project Change Request (“PCR”) is a written document that requests a change in the scope of Services described in a SOW, an adjustment of the prices, or an adjustment in the time of performance. (b) The parties shall agree upon changes or additions to the SOW by executing a PCR that describes the requested changes or adjustment in detail. If a PCR will increase or decrease the cost or time required to complete the SOW, then the PCR shall set forth the appropriate adjustment to completion deadlines or compensation. (c) Changes requested by either party shall not be implemented until the PCR is approved in writing by both parties. SECTION 7. NONSOLICITATION OF EMPLOYEES Except as provided for in Section 1 (b) herein, during the term of any SOW, and for a period of twelve (12) months following the completion, expiration or termination thereof, Customer will not, except with the GAI’s prior written approval, hire or solicit to hire, either directly or indirectly, GAI personnel. This prohibition includes contracting with an independent contractor to utilize the services of a party’s personnel who have performed Services under the SOW. SECTION 8. WARRANTY DISCLAIMER EXCEPT AS EXPRESSLY SET FORTH IN ANY SOW, GAI MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PERFORMED HEREUNDER INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. SECTION 9. LIMITATIONS OF LIABILITY (a) IN NO EVENT SHALL GAI BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST BUSINESS OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, EVEN IF GAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SOW. (b) GAI’s total liability for damages arising out of or in connection with the SOW shall be limited to the greater of $25,000 or the total of the fees (excluding expenses) due GAI under the SOW. The limitation set forth herein shall not apply to claims for personal injury or for damages to real or tangible personal property to the extent caused by GAI’s fault or negligence, or to breach of the Confidentiality provisions contained in Section 3. SECTION 10. TERMINATION (a) A SOW may be canceled prior to its completion date by either party upon five (5) days written notice. Fee shall be due for all Services rendered prior to actual completion of Services. (b) Subject to the provisions in Section 5, Ownership Rights, in the event of termination pursuant to this Section, Customer retains all rights to any Deliverable then in progress, provided GAI is paid an equitable amount for the work completed as of the date of termination. SECTION 11. GENERAL (a) GAI and Customer each warrant that they have the authority to agree to and execute the SOW and these Terms. If required, Customer will notify all other parties having any interest in relevant equipment, software, and other assets that the Services will be performed by GAI and shall obtain consent from any such party. (b) Other than Customer's obligation to make payment for amounts due and payable under these Terms, neither party shall be responsible for delays in fulfillment of obligations under these Terms due to causes beyond its reasonable control. (c) The legal protections afforded to GAI under these Terms shall be extended to GAI, its parent companies, its subsidiaries and affiliates, and its subcontractors and other suppliers. (d) Any notices required or permitted to be given pursuant to these Terms shall be in writing, by confirmed facsimile, or sent via certified mail, return receipt requested, or delivered by hand, addressed as set forth in the applicable SOW or to such other address as may be specified from time to time by notice in writing to the other party, and shall be deemed to have been given when received. (e) All provisions that by their nature would be expected to survive termination of these Terms shall so survive, including, without limitation, provisions relating to confidentiality, warranty, limitation of liability, and legal status of the parties. No term or provision of these Terms shall be deemed waived by either party, and no breach excused by either party, unless the waiver or consent shall be in writing signed by an authorized representative of the party granting such waiver or consent. If any term or provision of these Terms shall be found to be illegal or unenforceable then such term or provision shall be deemed stricken, and all other terms and provisions shall remain in full force and effect. (f) Neither these Terms nor the terms of any SOW shall constitute appointment by either party as the agent or legal representative of the other party for any purpose whatsoever nor shall either party hold itself out as such, nor shall they create a partnership, joint venture of relationship of associates or principal and agent between the parties. Both parties are independent contractors and principals for their own accounts. (g) In the event that either party is required to resort to litigation or other legal or equitable action in order to enforce its rights under these Terms, the prevailing party shall be entitled to reimbursement from the other party for all reasonably costs and expenses, including, without limitation, reasonable attorneys fees. (h) Each party agrees to comply with all laws and regulations applicable to its performance under these Terms and to be responsible for obtaining any approvals or licenses necessary to maintain such compliance, including, without limitation, the export control laws of the United States. These Terms shall be governed by and interpreted in accordance with the laws of the State of Maryland without regard to the conflict of laws provisions thereof. (i) The applicable SOW and these Terms constitute the entire understanding between Customer and GAI and supersedes all prior oral and written communications and proposals and may be amended or modified only in writing signed by both parties. In the event of a conflict between these Terms and the terms of any SOW, the terms of the SOW shall control. |
