Consulting Agreement - Template, Sample Form Online Pro · US-law

CONSULTING AGREEMENT

State of ________

This Consulting Agreement (this "Agreement") is entered into and made effective as of ________ (the "Effective Date"), by and between the following parties:

________ (the "Consultant"), a corporation organized and existing under the laws of the State of ________, having its principal place of business at the following address:

________
Email: ________

The specific individual representing the Consultant is the following party: ________. This individual shall continue to be referred to as the "Consultant" throughout this Agreement, as he or she will be representing the Consultant.

and

________ (the "Client"), a corporation organized and existing under the laws of the State of ________, having its principal place of business at the following address:

________
Email: ________

The Consultant and the Client may be referred to individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, the Client wishes to retain the Consulting Services (as defined below) of the Consultant;

WHEREAS, the Consultant has the skills, qualifications, and expertise required to provide the Consulting Services to the Client; and

WHEREAS, the Consultant wishes to render such Consulting Services to the Client.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1 – DEFINITIONS

As used in this Agreement:

a) "Consulting Services" means the following specific services that the Consultant will provide to the Client under the terms and conditions set forth herein:

________

b) "Consulting Project" means the specific project the Consultant will be working on for the Client, the details of which are as follows:

________

c) "Commencement Date" means the date the Consultant begins work on the Consulting Services for the Client. The Commencement Date shall be ________.

d) "Completion Date" means the date the Consultant will complete or cease the provision of Consulting Services to the Client, which shall be the date the Consulting Project is completed.

e) "Fees" means the compensation the Client will pay to the Consultant for the rendering of the Consulting Services. Specifically, the Fees shall be as follows:

$________ (________), as a fixed fee for all Consulting Services rendered.

f) "Retainer" means the following amount, which the Client shall pay to the Consultant prior to the Commencement Date in order to begin the Parties' relationship: $________ (________). The Retainer shall be due on the following date: ________.

ARTICLE 2 – ENGAGEMENT

Subject to the terms and conditions of this Agreement, the Consultant hereby agrees to render the Consulting Services to the Client, beginning on the Commencement Date and ending on the Completion Date, and the Client agrees to pay the Consultant the Fees required for the Consulting Services.

ARTICLE 3 – INDEPENDENT CONTRACTOR RELATIONSHIP

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ARTICLE 4 – LOCATION

The Consultant will render the Consulting Services at any location the Consultant considers appropriate to the type and nature of the work required to complete the Consulting Services.

ARTICLE 5 – EXPENSES

The Client will reimburse the Consultant for all reasonable and pre-approved expenses related to this Agreement, provided that the Consultant provides itemized receipts or other documentation reasonably acceptable to the Client.

ARTICLE 6 – STAFF OR EMPLOYEES

The Consultant may engage any staff or employees of the Consultant that the Consultant deems fit and capable for the provision of the Consulting Services to the Client. Any such staff or employees engaged by the Consultant must agree to be bound by terms substantially equivalent to those of this Agreement, including the confidentiality and intellectual property provisions herein.

ARTICLE 7 – ADDITIONAL WORK

In order to begin any additional work, including projects not previously contemplated, the Consultant and the Client must each agree and manifest their assent in a writing signed by both Parties.

ARTICLE 8 – FEES AND PAYMENT

The Client agrees to pay the Consultant the required Fees, as outlined elsewhere in this Agreement, for the provision of the Consulting Services, subject to the following terms and conditions:

a) Invoice Interval: The Consultant shall be entitled to invoice the Client at the following interval: ________.

b) Invoice Period: The Client shall have the following period within which to pay the Consultant's invoice:

________

c) Method of Payment: The Consultant will accept the following forms of payment:

________

d) Penalties: If the Client does not pay the invoiced and required amount by the date stated in the invoice or as otherwise provided for in this Agreement, the Consultant shall be entitled to:

I) charge interest on the outstanding amount at the rate of ________% per annum (________ percent per annum), or the maximum rate permitted by applicable law, whichever is less;

II) require the Client to pay for the Consulting Services, or any remaining part thereof, in advance; and/or

III) suspend or cease performance of the Consulting Services, in whole or in part, until payment is made, at the Consultant's sole and exclusive discretion.

e) Tax Statement: Any and all charges payable under this Agreement are exclusive of taxes, surcharges, or other amounts assessed by federal, state, or local governments. Taxes imposed upon or required to be paid by the Client or the Consultant shall be the sole and exclusive responsibility of each, respectively.

ARTICLE 9 – CONFLICTS OF INTEREST

The Consultant shall disclose to the Client, in writing, any conflicts of interest or potential conflicts of interest, whether such conflicts are present at the commencement of the Parties' relationship or arise thereafter. The Client shall make a determination as to whether any such conflict prevents the Parties from working together or continuing to work together.

ARTICLE 10 – CLIENT OBLIGATIONS

During the provision of the Consulting Services, the Client hereby agrees to:

a) cooperate with the Consultant for anything the Consultant may reasonably require;

b) provide any information and/or documentation needed by the Consultant relevant to the provision of the Consulting Services or payment therefor; and

c) require any staff or agents of the Client to cooperate with and assist the Consultant as the Consultant may reasonably require.

ARTICLE 11 – INTELLECTUAL PROPERTY

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Any intellectual property provided by the Client to the Consultant to assist in the provision of the Consulting Services, that was not created by the Consultant pursuant to this Agreement, shall belong to the Client.

Any intellectual property belonging to the Consultant, provided or disclosed to the Client in any manner, that was not created by the Consultant pursuant to this Agreement, shall remain the property of the Consultant. The Consultant hereby grants the Client a non-exclusive, royalty-free license to use such pre-existing intellectual property to the extent necessary to enjoy the benefit of the Consulting Services and the Created IP. A list of such pre-existing intellectual property belonging to the Consultant is provided below:

________

ARTICLE 12 – CONFIDENTIALITY

Each Party acknowledges and agrees that it and the other Party each possess certain non-public Confidential Information (as hereinafter defined) and may also possess Trade Secret Information (as hereinafter defined) (collectively, the "Proprietary Information") regarding their business operations and development. The Parties agree that the Proprietary Information is secret and valuable to each of their respective businesses, and the Parties have entered into a business relationship through which each will have access to the other Party's Proprietary Information. Each Party desires to maintain the secret and private nature of any Proprietary Information disclosed. "Receiving Party" refers to the Party receiving the Proprietary Information, and "Disclosing Party" refers to the Party disclosing the Proprietary Information.

"Confidential Information" means any information which is confidential and commercially valuable to either of the Parties. The Confidential Information may be in the form of documents, techniques, methods, practices, tools, specifications, inventions, patents, trademarks, copyrights, equipment, algorithms, models, samples, software, drawings, sketches, plans, programs, or other oral or written knowledge and/or secrets, and may pertain to, but is not limited to, the fields of research and development, forecasting, marketing, personnel, customers, suppliers, intellectual property, and/or finance, or any other information which is confidential and commercially valuable to either of the Parties.

Confidential Information may or may not be disclosed as such, through labeling, but shall be considered any information which ought reasonably to be treated as confidential under the circumstances in which it was disclosed.

Confidential Information shall not include any information which:

a) is known or available to the public at the time of disclosure, or becomes known or available after disclosure through no fault of the Receiving Party;

b) is already known, through legal means, to the Receiving Party;

c) is given by the Disclosing Party to third parties, other than the Receiving Party, without restriction;

d) is given to the Receiving Party by any third party who lawfully had the Confidential Information and the right to disclose it; or

e) is developed independently by the Receiving Party, where the Receiving Party can demonstrate such independent development.

"Trade Secret Information" shall be defined as any formula, process, method, pattern, design, or other information that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, the public, consumers, or competitors, and that is the subject of reasonable efforts to maintain its secrecy, consistent with the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 et seq., and applicable state trade secret law.

Both Parties hereby agree that they shall:

a) not disclose the Proprietary Information through any unauthorized means to any third party during the term of this Agreement and after its termination;

b) not disclose the Trade Secret Information to any third party at any time, for so long as such information remains a trade secret under applicable law;

c) not use the Confidential Information or Trade Secret Information for any purpose except those contemplated herein or as expressly authorized by the Disclosing Party.

Notwithstanding the foregoing, pursuant to 18 U.S.C. § 1833(b), an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

ARTICLE 13 – INSURANCE

The Consultant hereby warrants that it maintains appropriate commercial general liability and professional liability insurance with a combined coverage limit of not less than $________. The Consultant agrees to maintain such insurance for the duration of the Parties' relationship and to provide a certificate of insurance to the Client upon reasonable request.

ARTICLE 14 – WARRANTIES

The Consultant represents and warrants that it will render the Consulting Services using reasonable care and skill consistent with the standards of a competent consultant in its field, and that any end products or materials provided by the Consultant to the Client under this Agreement will not infringe upon or violate the intellectual property rights or any other rights of any third party.

ARTICLE 15 – LIMITATION OF LIABILITY

Except in cases of death or personal injury caused by a Party's negligence, or in cases of fraud, gross negligence, or willful misconduct, each Party's liability in contract, tort, or otherwise arising out of or in connection with this Agreement or the performance of obligations hereunder shall be limited to the total amount of Fees paid by the Client to the Consultant under this Agreement.

To the maximum extent permitted by applicable law, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty, or otherwise for any indirect, incidental, special, consequential, or punitive loss, damage, costs, or expenses of any nature whatsoever, including, without limitation, any economic loss, data loss, loss of goodwill, or loss of turnover, profits, or business.

ARTICLE 16 – TERM AND TERMINATION

This Agreement shall commence on the Commencement Date and shall continue in full force and effect until the Completion Date, unless terminated earlier in accordance with the terms of this Agreement.

Either Party may terminate this Agreement at any time, for any reason, by providing the other Party with written notice of termination not less than ________ in advance. In the event of such termination, the Client shall pay the Consultant for all Consulting Services rendered up to and including the date of termination, as well as any expenses properly incurred prior to the date of termination.

Upon termination of this Agreement, each Party shall promptly return to the other Party any property, documents, materials, or Confidential Information belonging to the other Party that is in its possession or control.

The provisions of this Agreement that by their nature should survive termination, including, without limitation, those relating to intellectual property, confidentiality, limitation of liability, and indemnification, shall survive the termination or expiration of this Agreement.

ARTICLE 17 – INDEMNIFICATION

Each Party (the "Indemnifying Party") hereby agrees to indemnify, defend, and hold harmless the other Party (the "Indemnified Party"), and its officers, directors, employees, agents, and representatives, from and against any and all claims, liabilities, damages, losses, costs, and expenses, including reasonable attorneys' fees, arising out of or resulting from:

a) any breach of this Agreement by the Indemnifying Party;

b) any negligent or wrongful act or omission of the Indemnifying Party;

c) any breach of any representation, warranty, or covenant made by the Indemnifying Party under this Agreement; and

d) any violation by the Indemnifying Party of any applicable law, rule, or regulation.

The Indemnified Party shall promptly notify the Indemnifying Party in writing of any claim for which indemnification is sought under this Article.

The Indemnifying Party shall have the right to assume the defense of any such claim with counsel of its choosing, subject to the reasonable approval of the Indemnified Party.

This indemnification obligation shall survive the termination or expiration of this Agreement.

ARTICLE 18 – GENERAL PROVISIONS

a) GOVERNING LAW: This Agreement shall be governed in all respects by the laws of the State of ________ and any applicable federal law, without regard to its conflict of laws principles. Both Parties consent to the exclusive jurisdiction of the state and federal courts located in ________ County, State of ________. The Parties agree that this choice of law, venue, and jurisdiction provision is mandatory and not permissive in nature.

b) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.

c) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.

d) AMENDMENTS: This Agreement may only be amended by a writing signed by both Parties.

e) NO WAIVER: No term of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute a waiver of any term of this Agreement. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute a waiver of such term or any other term.

f) SEVERABILITY: If any provision or term of this Agreement is held to be unenforceable, then this Agreement shall be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the remainder of this Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included.

g) PUBLIC ANNOUNCEMENT: Neither Party will make any public announcement or disclosure concerning the existence of this Agreement or any of its terms without the prior written approval of the other Party.

h) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral, relating to its subject matter.

i) HEADINGS: Headings to this Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of this Agreement.

j) FORCE MAJEURE: The Consultant shall not be liable for any failure to perform due to causes beyond its reasonable control, including, without limitation, acts of God, acts of civil or military authorities, riots, embargoes, natural disasters, epidemics, pandemics, and other acts due to unforeseen circumstances.

k) NOTICES; ELECTRONIC COMMUNICATIONS PERMITTED: Any notice to be given under this Agreement shall be in writing and shall be sent by first-class mail, overnight courier, or email to the address of the relevant Party set out at the head of this Agreement.

Notices sent as above shall be deemed to have been received three (3) business days after the date of posting (in the case of first-class mail), one (1) business day after dispatch (in the case of overnight courier), or on the next business day after sending (in the case of email).

In proving the giving of a notice, it shall be sufficient to prove that the notice was properly addressed and posted, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of electronic communication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged, as the case may be.

l) COUNTERPARTS; ELECTRONIC SIGNATURES: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means shall be deemed valid and binding pursuant to the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.) and applicable state law.

EXECUTION

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

CONSULTANT

Name: ________

Name of Consultant: ________

Consultant Signature: ____________________

Title: ________

Date: ________

CLIENT

Name: ________

Representative Name: ________________________

Representative Signature: _____________________

Representative Title: _________________________

Date: ________