Sample Consulting Agreement
We welcome you to copy or print this document in its entirely but please know we at Business Pipeline are not liable in anyway for the use of this document in any legal or educational way. You should consult a lawyer before using the contents of this form due to the fact it is intended solely to give you ideas about what to include, validity requirements can vary greatly from state to state, so many must be modified for your particular location and circumstances. (Hint: If in doubt it's generally better to include unneeded clauses than to leave out necessary ones. . . . but it's even better to check with a competent source.) We recommend people consult a lawyer.
CONSULTING AGREEMENT
THIS AGREEMENT is entered into on ________, 2010 (herein the "Effective
Date") between , Inc., a corporation ("Company") and consultant name , an individual residing in ("Consultant").
A. Consultant provides consulting services in connection with Company's ongoing business activities.
B. Company desires to employ the services of Consultant to provide Consulting Services, as defined below, and Consultant desires to provide such services to Company.
NOW, THEREFORE, for the mutual promises, representations, warranties and covenants contained herein, the parties agree as follows:
AGREEMENT
1. Consulting Services. Consultant shall provide the following services throughout the term of this Agreement (collectively the "Consulting Services"):
1.1 (describe services in detail)
1.2 (describe services in detail)
1.3 (describe services in detail)
2. Consulting and Business.
2.1 For the period commencing upon the Effective Date and continuing until one (1) year therefrom (herein "Consulting Term"), Consultant shall render Consulting Services, as directed, verbally or in writing, solely by the Company's Board of Directors, to Company in connection with the Company's business (the "Business").
2.2 During the term of this Agreement Consultant has no and shall not assert any ownership interest to the business names or trademarks of Company.
3. Disclosure of Ideas. Consultant shall during the Consulting Term disclose to Company all of the ideas, inventions, trade secrets, processes, contacts, and discoveries of Consultant that relate to the Consulting Services (collectively "Intellectual Property") and hereby assigns all present and future such Intellectual Property to the Company, to the extent such Intellectual Property is assignable without infringement on third parties.
4. Nondisclosure.
4.1 Consultant covenants and agrees to use any Confidential Information, as described below, released to Consultant from Company solely for the purpose of performing his consulting Services hereunder. Consultant covenants and agrees not to use the Confidential Information for any competitive purpose or in any manner that may damage Company and shall protect the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized use, dissemination, or publication as Consultant uses to protect his own proprietary confidential information. This covenant not to disclose Confidential Information shall be effective during and for one (1) year after the termination of this Agreement.
4.2 "Confidential Information" shall include any information transferred from Company to Consultant in connection with his Consulting Services, in written form, in code or electronically including any information concerning TECHNICAL DATA, PROCESSES and PROCEDURES, DESIGN SPECIFICATIONS, DATABASE INFRASTRUCTURE, BUSINESS MODELS, MARKET STRATEGIES, SOFTWARE AND FIRMWARE, TRADE SECRETS OR KNOW-HOW.
4.3 Confidential Information does not include information that:
4.3.1 the Consultant can prove was in his possession at the time of the disclosure by the disclosing party, or
4.3.2 is currently, or becomes publicly known through no fault of Consultant, or
4.3.3 is received from a third party without similar restrictions and without breach of this Agreement, or
4.3.4 is approved for release by written authorization of Company subsequent to this Agreement, or
4.3.5 is independently developed by Consultant without the use of any Confidential Information.
5. Nonsolicitation. For the Consulting Term, Consultant shall not directly or indirectly solicit, divert or take away any of the customers or employees of Company, notwithstanding that such customers or employees may have been originally obtained or recruited through the efforts of Consultant.
6. Non-Violation of this Agreement. Consultant shall not be deemed to be in violation of this Agreement by continuing to provide consulting services to those companies listed in Exhibit "A" as such services are being currently delivered as of the date of this Agreement and provided that Consultant does not deliver Company's Confidential Information to such companies.
7. Compensation. Consultant shall receive as compensation for his Consulting Services the following:
7.1 Equity. A grant of an option to purchase shares of the Company's common stock at the exercise price of $ per share as provided under that certain Stock Option Agreement executed on even date herewith. Company shall not be responsible for reimbursing any out-of-pocket expenses incurred in performing the Consulting Services unless Company approves such expenditures beforehand.
7.2 Cash. $ per (month, week, day, hour) payable on the first business day of each month following the pay period.
8. Termination. This Agreement may be terminated by either party prior to the expiration of the Consulting Term as follows:
8.1 immediately at anytime by the mutual written consent of the parties;
8.2 upon the material breach of any provision of this Agreement and the failure to cure such breach within five (5) days of written notice of such breach;
8.3 upon thirty (30) days written notice by either party.
8.4 a consolidation or merger of the Company with another entity which results in the Company's shareholders having less than a fifty and one one-hundredth percent (50.01%) voting and economic interest in the successor/surviving entity; or
8.5 the sale of substantially all of the Company's assets, provided that the sale of substantially all of the Corporation's proprietary intellectual property shall be deemed a sale of substantially all of its assets;
9. Survival of Terms. Upon termination of this Agreement for whatever reason, the nondisclosure provisions of section 4 shall survive such termination for a period of one (1) year and the indemnification provisions of Section 12 shall survive the termination of this Agreement.
10. Unique Nature of Services and Covenants. The services to be performed by Consultant hereunder involve the disclosure of confidential information that are unique, special and extraordinary in value and character, and each of the covenants to be kept by Consultant pursuant to this Agreement are important, material and essential to the transactions of which this Agreement is an integral part. Accordingly, in addition to any other rights and remedies Company may have at law or in equity or under provisions of this Agreement, Company shall have the right to obtain an order of a court of competent jurisdiction enjoining any breach or threatened breach of any of the terms of this
Agreement to be observed by Consultant and to recover any consequential damages, which Company may sustain by reason of any such breach (collectively "Additional Relief").
11. Relationship of the Parties. Consultant shall be an independent contractor and not an employee or agent of Company. Nothing herein contained, or otherwise, shall be deemed to place or is intended to have the effect of rendering Consultant in a relationship with Company as one other than an independent contractor, and for no purpose shall Company and Consultant be deemed, respectively, employer and employee. Subject to consultation with Company, Consultant shall at all times have full power and control respecting the mode and details of performing the services described in this Agreement. It is understood by the parties that no duty on the part of Company shall arise to pay any sums on behalf of or for the benefit of Consultant relating to withholding taxes, unemployment compensation insurance, disability insurance, Social Security contributions or any other similar amounts or contributions customarily payable by virtue of an employment relationship. Consultant shall be responsible for all such obligations described in the preceding sentence, shall be responsible for making any required reports or disclosures to federal, state or local taxing authorities regarding Consultant's income and expenses and shall defend, indemnify and save harmless Company from any and all liability arising from Consultant's failure to make such payments and reports in a timely and proper fashion.
12. Indemnification. Consultant and Company for each of themselves hereby agrees to indemnify and hold harmless each other and each of their officers, directors, shareholders, agents, representations and employees ("Indemnities") for any suit, claim a, action, obligation or liability affecting the Indemnities arising from the negligent acts of the other or their agents or arising from any intellectual property infringement by the other or their agents in connection with this Agreement.
13. Severability. If any provision of this Consulting Agreement is for any reason unenforceable or void as set forth herein, such provision shall be deemed modified and severed from the balance of this Agreement to the extent required to eliminate only such portions or applications as are either unenforceable or void, but otherwise shall remain in full force and effect.
14. Nominees, Successors and Assigns. This Agreement shall bind and inure to the benefit of the nominees, successors and assigns of the parties. The obligation to make the payments provided herein shall survive the liquidation of Consultant as a corporate entity. The obligation of Consultant to perform the consulting services hereunder may not be assigned by Consultant except with the consent of Company. Notwithstanding the foregoing, any right, title or interest of Company arising out of this Agreement may be assigned to any corporation controlling, controlled by, or under common control with Company, or succeeding to the business and substantially all of the assets of Company; provided, however, that no such assignment shall relieve Company of its obligations hereunder without the express written consent of Consultant.
15. Notice. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing, and if sent by registered or certified mail, postage prepaid, to the addresses set forth below:
Consultant
Company
Either party may change the address for giving of notices by notice given pursuant to this Paragraph.
16. Waiver. The waiver by one party of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any prior or subsequent breach of such provision or of any other provision.
17. Entire Agreement: Captions. This Agreement contains the entire agreement of the parties relating to the subject matter set forth and may be amended only by a writing signed by Company and Consultant. Paragraph captions are for the convenience of the parties and are not a part of this Agreement.
18. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement shall be resolved through binding arbitration in accordance with the rules and procedures set forth by the American Arbitration Association ("AAA"), however, nothing in this section shall preclude Company from seeking provisional remedies, including the filing of injunctions and writs of attachment where Consultant is in default because of violation of his or her confidentiality covenants hereunder. Any party electing to commence arbitration shall give written notice to the other parties of such election. The parties shall agree upon an arbitrator who is experienced in the industry; or if the parties are unable to agree upon an arbitrator within a reasonable time, an arbitrator will be appointed pursuant to rules and procedures of AAA. All arbitration proceedings shall take place in the jurisdiction of Vendor's primary place of business. Arbitration shall be selected by the parties and shall be persons experienced with the Company's Business.
19. Default. Each party shall be in default of this Agreement if either party breaches any term or condition of this agreement, provided, however, that Company shall have five (5) days in which to cure any such default upon notice from the non-defaulting party.
20. Further Assurances. Each party agrees to cooperate with the other, and to execute and deliver, or cause to be executed and delivered, all such other instruments and documents, and to take all such other actions as may be reasonably requested of it from time to time, in order to effectuate the provisions and purposes of this Agreement.
21. Counterparts. This Agreement may be executed by the parties hereto in counterparts, each of which shall be deemed to be an original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY.
By:
Name:
Title:
CONSULTANT
By:
Name:
Title:
