Terms and Conditions

This engagement is subject to our General Service Conditions, which are detailed below.

1. The Subscriber / Client has the right to terminate this assignment at any time, in which case there will be no further obligation on the part of either party to continue. In such event, the Subscriber / Client will be obligated to pay only for the actual time and charges accumulated through the date of cessation. All retainers are considered earned when received in consideration of planning, project scoping, budgeting and general administrative expenses incurred. If Foxboro Consulting has not reached a final conclusion at the time of such termination, Foxboro Consulting will destroy all work file contents, unless the Subscriber / Client requests at that time that the materials furnished by the Subscriber / Client or others on its behalf are returned.
2. In connection with Foxboro Consulting ’s engagement, Subscriber / Client management will furnish Foxboro Consulting with all supporting information concerning financial reports, tax returns, business plans, etc., which Foxboro Consulting reasonably deems appropriate and will provide Foxboro Consulting Non-judicial Administrative Processspecialists with access to the Subscriber / Client’s officers, directors, employees, accountants, counsel and other representatives (collectively, the “Representatives”), it being understood that Foxboro Consulting will rely solely upon such information supplied by the Subscriber / Client and its Representatives without assuming any responsibility for independent investigation or verification thereof.
3. All non-public information concerning the Subscriber / Client that is given to Foxboro Consulting will be used solely in the course of the performance of Foxboro Consulting ’s services hereunder and will be treated confidentially by Foxboro Consulting for so long as it remains non-public. Except as otherwise required by law or judicial or regulatory process, Foxboro Consulting will not disclose this information to a third party, other than its employees and counsel and other advisors retained by Foxboro Consulting, without the Subscriber / Client’s consent.
4. Recognizing that engagements of the type contemplated here sometimes result in litigation and that the role of Foxboro Consulting is limited to advising and assisting the Subscriber / Client in the matters covered by this engagement, the Subscriber / Client hereby agrees to indemnify and hold harmless Foxboro Consulting , its affiliated entities, the directors, officers, employees, consultants and agents of Foxboro Consulting and any such affiliated entities, and each person, if any, who controls Foxboro Consulting or any such affiliated entity (each, an “Indemnified Person”), from and against any and all losses, claims, damages, liabilities and expenses whatsoever (including but not limited to any and all legal or other expenses reasonably incurred by an Indemnified Person in investigating any written claim or preparing for or defending or assisting in the defense of any action commenced or threatened in writing, whether or not such claim or action may result in liability, and any amounts paid by an Indemnified Person in settlement of litigation commenced or threatened) to which they, or any of them, may become subject as a result of or in connection with Foxboro Consulting ’s engagement hereunder; provided, however, that no Indemnified Person shall be indemnified against losses, claims, damages, liabilities or expenses which are determined by final judgment of a court of competent jurisdiction, not subject to appeal or further review, to have resulted primarily from such Indemnified Person’s fraud, gross negligence or willful violation of law in connection with Foxboro Consulting ’s engagement hereunder; and provided further that the Subscriber / Client shall not be liable for the settlement of any litigation effected without its written consent (which shall not be withheld unreasonably).
5. All such losses, claims, damages, liabilities and expenses that have been paid or incurred in the first instance by an Indemnified Person shall be paid or reimbursed by the Subscriber / Client within 15 days after receipt of invoice therefore from the Indemnified Person (but the Subscriber / Client shall in any event not be required to make such payment more than once per calendar month).
6. Whenever an Indemnified Person shall have received written notice of a claim in respect of which indemnity may be sought under this agreement, such Indemnified Person shall promptly notify the Subscriber / Client of same in writing. The Indemnified Person’s failure so to notify the Subscriber / Client within a reasonable time shall not relieve the Subscriber / Client of any obligation that it may have hereunder or otherwise unless (and only to the extent that) the Subscriber / Client’s ability to defend such claim shall have been materially prejudiced by such failure. After receipt of such notice the Subscriber / Client shall be entitled to assume and control the defense of any such claim using counsel selected by the Subscriber / Client (which counsel shall be reasonably acceptable to Foxboro Consulting). If the Subscriber / Client so assumes the defense of such claim, the Indemnified Person may thereafter participate in such defense with counsel of its own choosing, but the Subscriber / Client shall not be responsible for legal fees or other expenses incurred thereafter by the Indemnified Person in connection with such participation unless (1) the employment of separate counsel by the Indemnified Person has been authorized by the Subscriber / Client; (2) the defendants in such action include both the Subscriber / Client and an Indemnified Person, and the Indemnified Person shall have been advised by its counsel that a legal conflict exists between the Indemnified Person and the Subscriber / Client that would prevent the Subscriber / Client from conducting the defense of such claim on behalf of the Indemnified Person, or otherwise that there may be defenses available to such Indemnified Person which are different from or in addition to those available to the Subscriber / Client and make it inadvisable for the same counsel to represent both the Subscriber / Client and
   Indemnified Person; or (3) notwithstanding notice to the Subscriber / Client of such claim, the Subscriber / Client has not in fact employed counsel to assume the defense of such claim within a reasonable time after receiving such notice; in each of which cases the reasonable fees, disbursements and other charges of counsel for the Indemnified Person will be at the expense of the Subscriber / Client.
7. The Subscriber / Client will not, without the prior written consent of Foxboro Consulting , settle, compromise or consent to the entry of any judgment in, or otherwise seek to terminate any pending or threatened litigation or other proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not any Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Person from all liabilities arising out of such
   litigation.
8. If for any reason the foregoing indemnification is unavailable to any Indemnified Person (other than by reason of the Indemnified Person’s fraud, gross negligence or willful violation of law) or is insufficient to hold it harmless, then the Subscriber / Client shall contribute to the amount paid or payable by such Indemnified Person as a result of such loss, claim, damage, liability or expense in such proportion as is appropriate to reflect not only the relative benefits received by the Subscriber / Client on the one hand and such Indemnified Person on the other hand but also the relative fault of the Subscriber / Client and such Indemnified Person, as well as any other relevant equitable considerations. It is hereby agreed that the relative benefits to the Subscriber / Client on the one hand and all Indemnified Persons on the other hand shall be deemed to be in the same proportion as the ratio of (i) the total fees received by Foxboro Consulting Group, Inc. for its Non-judicial Administrative Processservices to (ii) the total fees actually received by Foxboro Consulting in connection therewith. The indemnity, reimbursement and contribution obligations of the Subscriber / Client set forth herein shall be in addition to any liability which the Subscriber / Client may otherwise have to an Indemnified Person, and such other rights as the Indemnified Persons may have at common law or otherwise.
9. The Subscriber / Client agrees (i) that no Indemnified Person shall have any liability to the Subscriber / Client or any of its affiliates, or any third party whether claiming through the Subscriber / Client or otherwise, in connection with the engagement contemplated hereby, whether in contract, tort or otherwise, except to the extent that a court of law has determined by final judgment, no longer subject to appeal or further review, that such liability resulted proximately from such Indemnified Person’s fraud, gross negligence or willful violation of law in performing services in connection with this engagement, and (ii) that in any event the aggregate liability of all such Indemnified Persons shall not exceed the fees actually received by Foxboro Consulting pursuant to this agreement. The provisions of this agreement relating to indemnification and contribution and limitation of liability, and the obligations of the Subscriber / Client for payment of Foxboro Consulting ’s fees and expenses, shall survive any termination of this agreement or the engagement it describes. The obligations and rights set forth herein shall be binding upon and inure to the benefit of the Subscriber / Client and the Indemnified Person and their respective successors, assigns, heirs and personal representatives.
10. The Subscriber / Client’ obligations hereunder shall be in addition to any rights that any Indemnified Person may have at common law or otherwise. The Subscriber / Client acknowledges that in connection with the agreement Foxboro Consulting is acting as an independent contractor with duties owing solely to the Subscriber / Client.
11. This agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflicts of laws principles thereof.
    Any dispute with respect to this agreement, or breach thereof, shall be submitted to binding arbitration by a single arbitrator in Boston, Massachusetts, in accordance with the rules then obtaining of the American Arbitration Association, and the decision of the arbitrator shall be final and binding upon the parties, and may be enforced in any Court having jurisdiction thereof.