All Harvard University schools, tubs, local units, Affiliate Institutions, Allied Institutions and University-wide Initiatives.

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1 HARVARD UNIVERSITY FINANCIAL POLICY INDEPENDENT CONTRACTOR CLASSIFICATION Policy Title: Independent Contractor Classification Responsible Office: OERP and UFS Effective Date: October 4, 2000 Revision Date: December 15, 2008 Policy Number: TAX101 IMPORTANT NOTE ON EFFECTIVE DATE This policy should be followed as written, effective immediately, with the following exception: the Employee/Independent Contractor Questionnaire (Appendix B) signature requirement will go into effect March 1, This will allow time for units to receive training on the policy, and allow units to change related business processes if necessary. POLICY STATEMENT A worker providing services to the University must be properly classified as either an employee or an independent contractor. If a worker is classified as an independent contractor, all supporting documentation referenced in this policy must be completed and signed before services are rendered. REASON FOR POLICY Federal and state law govern when an employee-employer relationship exists in the workplace. Employers who fail to follow these guidelines, and misclassify employees as independent contractors, are subject to significant penalties under the law. This policy exists to ensure that Harvard consistently and fairly classifies its workers, and complies with state and federal guidelines. WHO MUST COMPLY All Harvard University schools, tubs, local units, Affiliate Institutions, Allied Institutions and University-wide Initiatives. RESPONSIBILITIES Tubs: Tub financial deans or equivalent tub financial officers, and tub HR deans or directors, are responsible for ensuring that local units abide by this policy and the accompanying procedures. Tub HR deans or designees, AND authorized service contract approvers (per the Recommended Minimum University Threshold for Review of Service Contracts document, at must sign the Employee/Independent Contractor Questionnaire (Appendix B of this policy) before contractors can be set up as vendors for payment. The Office of Employee Relations and Policy (OERP): OERP, within the Office of Human Resources, is responsible for maintaining the University s Independent Contractor policy, in conjunction with University Financial Services. Specifically, OERP is responsible for communicating this policy to tub HR deans or directors, and for assisting tubs in making proper workerclassification determinations based on information provided by the tubs. University Financial Services (UFS): UFS, within the Office of the Controller, is responsible for maintaining the University s Independent Contractor policy, in conjunction with the Office of Employee Relations and Policy. Specifically, UFS is responsible for communicating this policy to tub financial deans. UFS is also responsible for setting up and paying vendors, and for Form 1099 reporting. RELATED POLICIES Stewardship Responsibility: University-wide Business Expense Policy: HARVARD UNIVERSITY FINANCIAL POLICY Page 1 of 5

2 Policy Title: Independent Contractor Classification Responsible Office: OERP and UFS Effective Date: October 4, 2000 Revision Date: December 15, 2008 Policy Number: TAX101 RELATED DOCUMENTS Recommended Minimum University Threshold for Review of Service Contracts: Documentation Retention Procedures for Common Financial Transactions: IRS Internal Training Manual: Independent Contractor or Employee?: Advisory on the Massachusetts Independent Contractor/Misclassification Law: PROCEDURES Clarification on Policy Application: This policy does not apply when Harvard is contracting with a third-party company to obtain temporary personnel services for the University. This policy does apply to individuals who are themselves incorporated, and who are providing services to the University, just as it applies to non-incorporated individuals providing services to the University. In certain circumstances, a department may want to retain the services of a former employee, such as a retiree, due to that person s institutional knowledge or other factors. Departments retaining former employees to provide services to the University must follow this policy and its procedures, regardless of work location or estimated number of hours to be worked. Documentation: The following documentation is required: o o Signed Employee/Independent Contractor Questionnaire (Appendix B), including the evaluation section. The Questionnaire must be signed by a tub HR dean or designee, AND an authorized service contract approver (per the Recommended Minimum University Threshold for Review of Service Contracts document, at Note: The Office of the General Counsel (OGC) and the Office of Employee Relations and Policy (OERP) are available to help interpret Questionnaire results. Signed contract and/or standard Consulting Agreement (Appendix D). Note: All payments must be processed according to University policy and procedures. See Independent Contractor Processing Payments (Appendix C). Documentation must be completed and signed before services are rendered. Completed documents will be required before contractors can be set up as vendors for payment. Local units are responsible for maintaining appropriate documentation to support the classification and nature of work of the independent contractor. Record Retention: The following are standards for record retention of documents related to this policy: o o o Employee/Independent Contractor Questionnaire: 6 years from date of questionnaire Signed contract: 6 years from date of completion of contract Invoice: original invoices will be imaged and maintained centrally in AP. See Documentation Retention Procedures for Common Financial Transactions at HARVARD UNIVERSITY FINANCIAL POLICY Page 2 of 5

3 Policy Title: Independent Contractor Classification Responsible Office: OERP and UFS Effective Date: October 4, 2000 Revision Date: December 15, 2008 Policy Number: TAX101 PROCEDURES, continued Contracts: Written contracts state the relationship and outline the expectations of both Harvard and the contractor. They document the terms and conditions by which independent contractors are hired. Local units are responsible for ensuring contracts with independent contractors are reasonable and do not subject the University to unnecessary risk. A structure must be established locally to ensure that only authorized employees enter into contractual agreements on behalf of the University. Contracts must be carefully reviewed to ensure terms are reasonable, including services to be performed, deliverables, term, and payments. OGC is available to help financial administrators review contractual terms. OGC has developed a standard Consulting Agreement (Appendix D). Background: In the past, the common law standard was the primary guideline used to determine worker status. Under the common law standard, an employer-employee relationship exists when the business has the right to direct and control the worker who performs a service. Control refers not only to the result to be accomplished by the work, but also the means and details by which that result is to be accomplished. The employer does not have to actually direct or control the manner in which the services are performed; having the right to do so is sufficient. Over the years, the IRS has litigated several worker status cases in the Tax Courts. The Tax Courts have used several factors in reaching their decisions. The IRS compiled 20 of the most common factors used and published them in Revenue Ruling This has become known as the Twenty Factor Test. The Twenty Factor Test has been difficult to apply in practice because each factor varies in importance depending on the industry and the facts of each case. In 1996, the IRS developed a training manual for its agents in an attempt to identify, simplify, and clarify the relevant facts that should be evaluated in order to accurately determine worker classification. The training manual establishes three categories of factors: o o o Behavioral Control - facts that illustrate whether there is a right for the business to direct and control how the worker performs a specific task. Financial Control - facts that illustrate whether there is a right to direct or control how the business aspects of a worker s activities are conducted. Relationship of the Business and Worker - facts that illustrate how the parties perceive their relationship. In addition, the IRS training manual (see IRS web site at indicates which of the 20 factors have become more or less important over time in classifying workers, and adds three additional factors that should be considered. See Appendix B for Employee/Independent Contractor Questionnaire. More recently, the IRS promulgated a new Form 8919, which invites certain categories of workers who believe they should have been treated as employees, rather than independent contractors, to seek to reclassify the relationship as an employment arrangement. The form (which can be found at asks the person filing to identify the entity for which he or she provided services, and to specify the reasons the person believes he or she has been misclassified. Included among those reasons are common situations that should clearly result in an employee classification (described in Appendix B, Part I). It is therefore even more imperative that care be taken in correctly classifying employees. Finally, the Massachusetts Independent Contractor Law creates a presumption that a work arrangement is an employeremployee relationship unless the party receiving the services can overcome the legal presumption of employment by establishing that three factors are present: 1. The worker must be free from the presumed employer s control and direction in performing the service, both under a contract and in fact; HARVARD UNIVERSITY FINANCIAL POLICY Page 3 of 5

4 Policy Title: Independent Contractor Classification Responsible Office: OERP and UFS Effective Date: October 4, 2000 Revision Date: December 15, 2008 Policy Number: TAX101 PROCEDURES, continued 2. The service provided by the worker must be outside the employer s usual course of business; and 3. The worker must be customarily engaged in an independent trade, occupation, profession, or business of the same type. Criteria relating to the above factors will be considered the most critical in making a determination. In 2008 the Massachusetts Attorney General s office issued an Advisory on the Massachusetts Independent Contractor Law. In order for an individual to be properly classified as an independent contractor, the Advisory indicated that the following factors must be present: There must be a written contract specifying that the worker is free from the company s direction and control in performing the service, The worker must carry out activities and duties with minimal instruction, for example, completing the job using his/her own approach with little direction and with the freedom to set the hours when the work will be performed and; The service is incidental, rather than necessary, to the business of the hiring company. 1 Restricted fund spending: Expenses charged to restricted gift or endowment funds must be in accordance with the restrictions stipulated by the donors of those funds. FORMS Vendor Justification Form: OGC Model Documents page: CONTACTS AND SUBJECT MATTER EXPERTS Local tub finance and human resource offices. Tub finance offices may contact the University Financial Services manager assigned to their tub, the Office of the General Counsel ( or tub Human Resources Officers. Tub human resource offices may contact the Office of Employee Relations and Policy ( , or employee_relations@harvard.edu) or the Office of the General Counsel ( Key subject matter experts who provided input in the development of this policy were the Financial Managers Forum and managers throughout Financial Administration. DEFINITIONS The terms Contractor and Consultant are used interchangeably in this policy and all its appendices. For clarification of the terms Affiliate Institutions and Allied Institutions, used in the Who Must Comply section of this 1 The advisory gives the following example: a company in the business of conducting motor vehicle appraisals could not classify an individual appraiser as an independent contractor because the appraiser is performing an essential part of the appraisal company s business. HARVARD UNIVERSITY FINANCIAL POLICY Page 4 of 5

5 Policy Title: Independent Contractor Classification Responsible Office: OERP and UFS Effective Date: October 4, 2000 Revision Date: December 15, 2008 Policy Number: TAX101 DEFINITIONS, continued policy, please see the Harvard University Fact Book, available from the Office of the Provost website, at APPENDICES Appendix A Summary of Differences: Employee vs. Independent Contractor Appendix B Employee/Independent Contractor Questionnaire Appendix C Independent Contractor - Processing Payments Appendix D Consulting Agreement HARVARD UNIVERSITY FINANCIAL POLICY Page 5 of 5

6 Appendix A Summary of Differences: Employee vs. Independent Contractor Employee* Relationship With Employer Employer directs and controls the worker Payment Method Payroll System Withhold Federal Income Tax? Withhold FICA? Benefits Eligible? Reporting Yes Yes Yes Form W-2 Independent Contractor Employer does not direct and control the worker Web Voucher No** No** No Form 1099 * Treatment of student employees may differ. Refer questions to University Financial Services. ** Independent contractors are responsible for filing estimated federal income tax payments on a quarterly basis, including FICA taxes at the current rate.

7 Appendix B Employee/Independent Contractor Questionnaire Part I 1. (a) Was this worker previously treated as an employee by Harvard? Yes (Proceed to question 1(b) of this Part) No (Proceed to question 2 of this Part) (b) Is this worker performing services in a substantially similar capacity AND under substantially similar direction and control? Yes Stop here and classify the worker as an employee No (Proceed to question 2 of this Part) 2. Are coworkers, performing substantially similar services AND under substantially similar direction and control, treated as employees? Yes Stop here and classify the worker as an employee No (Proceed to Part II) Part II Common Law Factors Yes No Characteristics that Lead to Employee Classification BEHAVIORAL CONTROL 1. Will the worker be trained by Harvard? 2. Is the worker instructed about when, where and how work is to be done? 3. Will the worker have control over hiring and supervising assistants? 4. Will the worker perform the services personally? 5. Will the worker be required to provide regular progress reports? 6. Will the worker perform the services in a prescribed sequence? 7. Will the worker devote a set amount of time to performing services for Harvard? Trained by Harvard Complies with department s work instructions Cannot hire assistants to perform their work Renders services personally Regular progress reports may be required Must follow prescribed sequence Required to work a set number of hours Characteristics that Lead to Independent Contractor Classification Responsible for own training Determines when, where and how work is performed May hire assistants to perform their work and pay out of contract proceeds May use own employees or subcontractors Progress reports required only if part of contract agreement Sets own pattern or sequence Required to complete the contracted services without regard to the amount of time

8 Common Law Factors Yes No Characteristics that Lead to Employee Classification 8. Will Harvard supply the worker with any tools or materials? 9. Does the worker have set hours? 10. Will the worker perform services on Harvard s campus? FINANCIAL CONTROL 11. Could the worker realize a profit or loss as a result of the work to be performed? 12. Does the worker have a significant investment in tools or other types of instruments? 13. Does the worker make his or her services available to the general public? 14. Does the worker perform his or her services for more than one business? 15. Is the worker paid by the hour, week, month or assignment? 16. Will the worker be reimbursed by Harvard for business expenses? RELATIONSHIP OF THE BUSINESS AND WORKER 17. Will the worker s services be integrated into Harvard s educational or other activities? 18. Is there a written contract that sets forth the terms and conditions of the services? Tools and materials supplied by Harvard Hours specified by Harvard Provides services on campus Cannot realize profit or loss No investment in work facilities Services are not offered to the general public Works for only one business at a time Paid on a consistent and regular basis Reimbursed for business expenses Services are fully integrated into Harvard s business No contract Characteristics that Lead to Independent Contractor Classification Provides own tools and materials Sets own hours May choose where to perform work Can realize a profit or loss Significant investment in work facilities Advertises services to the general public (e.g., business cards, phone book listing) May work for several businesses at the same time Paid based on work assigned in accordance with contract Pays own business expenses Services are not fully integrated into Harvard s business Contract exists

9 Common Law Factors Yes No Characteristics that Lead to Employee Classification 19. Does the worker earn employee benefits from Harvard (e.g., vacation/sick days, health/life/disability insurance, pension plan eligibility)? 20. Is the worker incorporated? 21. Does the worker have a continuing relationship with Harvard? 22. Can the worker be terminated at Harvard s discretion? 23. Can the worker end his or her relationship with Harvard at any time? Earns Harvard employee benefits Not incorporated Ongoing relationship Generally employed at will, may be terminated at Harvard s discretion May quit job without obligation Characteristics that Lead to Independent Contractor Classification Does not earn Harvard employee benefits Incorporated Temporary relationship Generally terminated only for material breach of contract Cannot quit until job is completed Prior to engaging the worker, hiring administrators should make a determination of whether the worker is an employee or independent contractor based on the answers to the preceding questions. Administrators should consider the answers to all of the questions in making this determination. If the answers indicate the University has the right to direct and control the worker, the individual should be classified as an employee. OGC and the Office of Employee Relations and Policy are available to provide assistance where the determination is not clear. Evaluation: Must be signed by tub HR dean or designee, AND authorized service contract approver (per the Recommended Minimum University Threshold for Review of Service Contracts document at, HR dean or designee signature (required): Based on the above, it is my determination that the individual providing the desired service should be most properly classified as an (check one): Employee Independent Contractor Include any comments/rationale regarding the classification decision: Signature: School or Department: Title: Date: Authorized service contract approver signature (required): I acknowledge that the University may hold my unit financially responsible for any additional taxes, interest, and penalties that may be assessed due to misclassification. Signature: School or Department: Title: Date:

10 Appendix C Independent Contractor - Processing Payments 1. Payment procedures for Independent Contractors Independent Contractor providing services to Harvard signs a contract, or a standard Consulting Agreement (Appendix D), for the Harvard department that has retained its services. Independent Contractor providing services to Harvard submits an itemized invoice to the department that has retained its services. Invoices must include professional fees and billable expenses related to the services performed, such as travel. Independent Contactor retains original receipts for expenses, and provides copies of such receipts to Harvard upon request. It is the responsibility of the Independent Contractor to report and deduct travel and other expenses when they file their personal tax returns. Independent Contractors are required to report to the IRS all income from services to Harvard, even if less than $600. Note: Though Independent Contractors may prefer to be separately reimbursed for expenses, it is standard industry practice to combine professional fees and reimbursable expenses in one invoice. Combining fees and expenses simplifies and expedites the payment process. 2. Payment procedures for Harvard local units hiring Independent Contractors Prior to entering into an agreement, local unit completes an Employee/Independent Contractor Questionnaire (Appendix B), justifying Independent Contractor status. The Questionnaire must be signed by an HR dean or designee AND an authorized service contract approver (per the Recommended Minimum University Threshold for Review of Service Contracts document, at and retained locally by the department (not submitted with supporting documentation to Accounts Payable). Local unit signs a contract, or a standard Consulting Agreement (Appendix D), prior to engaging the services of an Independent Contractor. This original contract, or Consulting Agreement, must be retained locally by the department, and not submitted with supporting documentation to Accounts Payable. Local unit reviews Independent Contractor invoice(s) for appropriateness. Local units are encouraged to request copies of all receipts to ensure that expenses are consistent with the contract agreement. Copies of these receipts should not be forwarded to Accounts Payable, but may be retained by the local unit. Local unit processes payment through Web Voucher. Payment by Web Voucher is the only acceptable method of paying Independent Contractors; Harvard employees should not pay for such services out of pocket, or by using a Harvard corporate card or PCard. Local units should code Web Voucher payments to the appropriate professional services object code. Local units must submit original invoices, regardless of amount, to Accounts Payable, supporting the Web Voucher payment request. Local units should refer to the main Independent Contractor policy for information on record retention and contract requirements.

11 Appendix D Consulting Agreement HARVARD UNIVERSITY OFFICE OF THE GENERAL COUNSEL Model Consulting Agreement, Short Form BEFORE GIVING THIS FORM TO CONSULTANTS, DELETE THE OGC LOGO, THE HEADING ABOVE, THE EXPLANATORY PARAGRAPH BELOW AND NOTES AND INAPPLICABLE TEXT (for example, optional or alternate ). This short form is appropriate for simple engagements with individuals, with relatively short terms (for example, twelve months or less), modest fees, and uncomplicated services generally excluding a deliverable which is a product. (See Model Consulting Agreement with Comments.) This form should not be used to obtain security, custodial or dining services for any period of time exceeding nine months or if payments will exceed $50,000. This form should not be used to engage an artist to create a work of art for installation in or on University property. If you have questions about this form, please call the Office of the General Counsel at (617) CONSULTING AGREEMENT This Consulting Agreement (the Agreement ) dated as of the day of, 200 (the Effective Date ), is by and between President and Fellows of Harvard College, a Massachusetts nonprofit educational corporation, acting through [insert name of School, department, or other unit involved] ( Harvard ) with a principal place of business at [insert address], and [insert name of Consultant] ( Consultant ) with an address at [insert address]. [Optional recitals, for example, description of project, business or educational activity involved, special skills of consultant.] In consideration of the premises and mutual covenants contained in this Agreement, Harvard and Consultant agree as follows: 1. Consultant s Services. Harvard hereby retains Consultant and Consultant hereby agrees to serve as a consultant to Harvard on the terms and conditions set forth in this Agreement.

12 Consultant shall provide the following services (the "Work"): [describe]. Any change to the Work must be approved in advance in writing by both parties. The Work shall be performed with reasonable care, consistent with applicable professional and industry standards and in compliance with all applicable laws, and substantially in accordance with the description set forth in this Section. Consultant owns all the rights that Consultant is assigning to Harvard under this Agreement (see Rights in Work Product). Consultant s work product shall not infringe any patents, copyrights, trademarks, trade secrets or other proprietary rights of any third party. 2. Payment to Consultant. 2.1 For the Work, Harvard shall pay Consultant the following fees: [describe]. Alternate #1:2.2 Harvard also shall reimburse Consultant for all reasonable expenses that Consultant incurs in connection with the Work; provided that Harvard shall not be obligated to reimburse any expense of more than [for example, $250] unless Consultant has obtained prior written approval of such expense from [insert name or title]. {optional: Consultant shall comply with [insert name of School, department, or other unit] s expense billing policy.} Alternate #2:2.2 Consultant s fees shall be full compensation for Consultant s services and all expenses incurred by Consultant in connection with the Work. 2.3 Harvard shall pay fees [and reimburse expenses] as follows: [describe payment schedule]. [optional]2.4 Consultant shall submit itemized invoices to Harvard in accordance with the payment schedule. All invoices shall contain such information and supporting documentation as Harvard shall reasonably request. If Harvard is reimbursing expenses, the invoice shall include a list of any reimbursable expenses incurred during the period covered by the invoice, together with reasonable documentation of such expenses. Provided that the Work has been performed in accordance with this Agreement, Harvard shall pay each invoice within 60 days of receipt. 3. Term and Termination. The term of this Agreement shall begin as of the Effective Date and shall continue [Alternate #1: until completion of the Work,] or [Alternate #2: until,] unless sooner terminated under this Term and Termination Section or extended by written agreement of the parties.

13 [optional]harvard shall have the right to terminate this Agreement for any reason in its sole discretion upon [for example, 30] days written notice to Consultant. In addition to any other rights and remedies it may have, Harvard may terminate this Agreement if Consultant fails to perform or breaches any of Consultant s obligations, warranties or representations in this Agreement and such failure or breach continues uncured for [ ] days after written notice thereof is given by Harvard to Consultant. Within [_] days of any termination or expiration of this Agreement, (i) Consultant shall deliver to Harvard all work product and materials related to Work completed or in progress as of the date of termination or expiration; and (ii) Harvard shall pay Consultant undisputed amounts owing for Work performed in accordance with this Agreement and, if applicable, reimburse Consultant for expenses properly incurred by Consultant through the date of termination or expiration. Consultant shall use reasonable efforts to promptly wind up Work and cancel expenses upon receiving notice of termination. The provisions of this Agreement which by their explicit terms or their manifest intent are to survive, including without limitation those which relate to confidentiality, rights in work product and use of Harvard Names, [if section 15 is included: and indemnification,] shall survive expiration or termination of this Agreement. 4. Status and Authority of Consultant; Benefits and Taxes. Consultant shall be an independent contractor, free from Harvard s direction and control, and not an agent or employee of Harvard. Consultant shall have no authority to act on behalf of Harvard or in its name, to incur any obligations or expenses on behalf of Harvard, or to bind Harvard, either directly or indirectly, in any manner. Consultant shall be solely responsible under all applicable laws for (i) taxes on Consultant s income, (ii) other tax and welfare and benefits payments and contributions required with respect to Consultant, and (iii) Consultant s professional and other licensing fees. Consultant shall not be entitled to receive any employee benefits from Harvard. 5. Confidentiality. During the course of the Work, Harvard may provide Consultant with or Consultant may obtain access to Confidential Information, which shall mean any and all (a) non-public information about Harvard, a Harvard department, faculty, school or other unit, or Harvard property (tangible or intangible), (b) non-public information of third parties, (c) non-public and other personal information about current or former Harvard faculty members, employees, students, other persons associated with Harvard and other individuals ( Personal Data ), and (d) any other information specifically identified by Harvard as confidential. Consultant (i) will use reasonable care to protect the security of Confidential Information; (ii) will not use Confidential Information except as necessary for the performance of the Work; (iii) will not at any time during or after the term of this Agreement disclose Confidential Information to any person except with Harvard s prior written consent (except as otherwise required by law in which case Consultant shall,

14 unless otherwise prohibited by law, promptly notify Harvard); (iv) will comply with such additional protections as Harvard shall reasonably require from time to time; and (v) will immediately notify Harvard upon learning of any breach in the security of Confidential Information. All Confidential Information will remain the property of Harvard. At any time on Harvard s request and in any case upon termination or expiration of this Agreement, Consultant will unless otherwise instructed by Harvard return all documents containing Confidential Information to Harvard, delete all electronic files and records containing Confidential Information, and retain no copies of Confidential Information in any medium; provided, that Consultant shall be entitled to retain such records as are reasonably necessary solely for reference and archive purposes, on the condition that such records shall continue to be subject to the provisions of this Confidentiality Section and any Personal Data in such records shall be deleted or redacted. 6. Rights in Work Product. Harvard shall own and Consultant hereby assigns to Harvard all right, title and interest in and to all Work and all work product created, prepared or developed by Consultant in the course of performing the Work and any patents, copyrights and other intellectual property embodied in the Work and work product, free of all liens, claims and encumbrances; provided that all Work and work product subject to copyright shall be considered work made for hire by Consultant for Harvard to the extent permitted by law. Consultant hereby waives all "moral rights" to the extent permitted by law. Consultant shall execute and deliver to Harvard all documentation that Harvard reasonably requires to evidence Harvard s rights in and to work product and shall comply at Harvard's expense with all reasonable requests for documentation in connection with (i) applications for registration of any patents, copyrights or other similar ownership rights in work product and (ii) any action or proceeding with respect to Harvard's protection or defense of its ownership rights. 7. Use of Harvard Names. Consultant shall not use or register the name "Harvard" (alone or as part of another name) or any logos, seals, insignia or other words, names, symbols or devices that identify Harvard or any Harvard school, unit, division or affiliate ( Harvard Names ) for any purpose except with the prior written approval of, and in accordance with restrictions required by, Harvard. Without limiting the foregoing, Consultant shall cease all use of Harvard Names on the termination or expiration of this Agreement except as otherwise approved by Harvard. 8. Remedies. Consultant acknowledges that any remedy at law for any violation of the provisions of this Agreement regarding Confidential Information, Harvard s rights in work product, and the use of Harvard Names, will be inadequate and that Harvard may suffer irreparable damage through any such violation and that therefore, in addition to any other

15 remedies it may have, Harvard may seek and obtain injunctive relief against a breach or threatened breach of such obligations of Consultant. 9. Waiver. Any waiver by either party of a breach of any provision of this Agreement shall not operate as, nor be construed to be, a waiver of any subsequent breach. No delay or omission in the exercise or enforcement of any right or remedy provided in this Agreement or by law by either party shall be construed as a waiver of such right or remedy. 10. Severability. In the event that any provision or section of this Agreement shall be held to be invalid by any court, such holding shall not affect in any respect whatsoever the validity of the remainder of the Agreement. 11. Assignment; Subcontracting. This Agreement may not be assigned by either party without the prior written consent of the other. Consultant shall not engage any third party to perform any portion of the Work without Harvard s prior written consent. 12. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts (excluding conflict of laws rules). 13. Notices. Any notice under this Agreement shall be sufficiently given if delivered in person, or sent by fax (with the original sent promptly by ordinary mail), by electronic mail, by registered or certified mail, postage prepaid, or by recognized delivery service, using the most recent contact information provided by the recipient, and such notice shall be deemed to have been given when so delivered, sent by fax or electronic mail, or mailed. 14. Entire Agreement; Amendment. This Agreement contains and constitutes the entire understanding and agreement between the parties hereto with respect to the subject matter of this Agreement and supersedes and cancels all previous negotiations, agreements, commitments, and writings relating to the subject matter. It may be amended only by an agreement in writing, signed by each of the parties hereto. [Optional]15. Indemnification.

16 Consultant agrees to defend and indemnify and hold Harvard and its affiliates, employees, faculty members, students, members of its governing boards and agents harmless from and against any claims, losses, liabilities, damages, costs and expenses including reasonable attorneys' fees arising out of or relating to Consultant's breach or alleged breach of any warranty or other provision of this Agreement, or any other negligent or wrongful act or omission of Consultant. Consultant shall not be obliged to pay or indemnify any settlement amount unless Consultant has consented to the settlement. [Optional]16. Insurance. Consultant shall maintain at all times during the term of the Agreement: A fully-paid Commercial General Liability insurance policy, alone or in combination with umbrella liability insurance, in form and amount and with deductibles acceptable to Harvard, but with a combined single limit of at least $1,000,000 and an annual aggregate limit of at least $2,000,000 with respect to bodily injury, personal injury, and property damage; and Professional liability or errors and omissions insurance in form and amount satisfactory to Harvard, but with a limit of at least $2,000,000. If the liability or errors and omissions policies described above are claims made policies, Consultant shall maintain such insurance in force for not less then one year after the termination or expiration of this Agreement. Consultant shall submit certificates of said policies to Harvard evidencing that the required coverages are in effect prior to the commencement of the Work under this Agreement. Each certificate shall name Harvard as an additional insured and provide for at least 10 days notice to Harvard prior to any cancellation or modification of the coverage. IN WITNESS WHEREOF, the parties have executed this Agreement under seal as of the date first above written. PRESIDENT AND FELLOWS OF HARVARD COLLEGE acting through By: Name: Title: [CONSULTANT] By: Name: Title: