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Consulting Services Agreement
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is made as of [Effective Date] ("Effective Date") by and between [Name of Consulting Company], Inc., ("[Short Name of Consulting Company]"), a [State of Consulting Company] corporation having a place of business at [Address of Consulting Company], [City of Consulting Company], [State of Consulting Company], [Zip Code of Consulting Company] and [Name of Client Company] Incorporated ("[Short Name of Client Company]"), having a place of business at [Address of Client Company] , [City of Client Company] , [State of Client Company] , [Zip Code of Client Company], and who shall collectively be known as Parties.
The Parties agree as follows:
1. Services Provided by [Short Name of Consulting Company]. [Short Name of Consulting Company] shall provide Customer with advice and consultation Services ("Services") in the form and manner specified in each Statement of Services ("SOS"), attached hereto as Exhibit A and made a part hereof, and in future SOS(s) signed by a duly authorized representative of each party.
2. Fees, Expenses, & Payment. Unless otherwise agreed to in an applicable SOS, Customer shall (i) pay [Short Name of Consulting Company] at the hourly rates set forth in each SOS (for all work performed in both [Short Name of Consulting Company] offices and at Customer sites); (ii) reimburse [Short Name of Consulting Company] for all reasonable and necessary travel and living expenses incurred by [Short Name of Consulting Company] in the performance of this Agreement provided that such expenses comply with [Short Name of Consulting Company]'s travel and expense policies, and provided further that such expenses are incurred pursuant to an applicable SOS or other request for services by Customer; and (iii) pay [Short Name of Consulting Company] net (30) days from the date of each Invoice.
Upon Customer's written request, or as specified in each SOS, [Short Name of Consulting Company] will submit supporting expense documentation and receipts to Customer.
3. Obligations of [Short Name of Consulting Company]. [Short Name of Consulting Company] shall perform the obligations described in each SOS in a timely and competent manner. [Short Name of Consulting Company] shall consider and treat all subcontractors as [Short Name of Consulting Company] personnel with regards to the performance of each provision of this Agreement.
4. Obligations of Customer. Customer shall, in connection with each SOS:
(a) provide one (1) Customer-designated point of contact for [Short Name of Consulting Company] to use for all questions and issues relating to the project described in the applicable SOS;
(b) provide sufficient qualified personnel who are capable of performing Customer's duties, responsibilities, and obligations under the applicable SOS;
(c) provide [Short Name of Consulting Company] with access to Customer's facilities during Customer's normal business hours and otherwise as reasonably requested by [Short Name of Consulting Company] in order to facilitate [Short Name of Consulting Company]'s ability to timely perform the services outlined in the applicable SOS;
(d) provide [Short Name of Consulting Company] with such reasonable and necessary working space and office support (including access to telephones, photocopying equipment and the like) as [Short Name of Consulting Company] may reasonably request; and
(e) perform such other duties and tasks identified on an SOS as may be reasonably required to permit [Short Name of Consulting Company] to perform its duties under the applicable SOS.
(f) provide [Short Name of Consulting Company] with ten (10) business days advance notice of desired staffing extensions.
5. Insurance. [Short Name of Consulting Company] shall maintain adequate Worker's Compensation and Employer's Liability Insurance.
6. Confidential Information.
6.1 The term "Confidential Information" shall mean: (i) any and all information which is disclosed by either party ("Owner") to the other ("Recipient") verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of this Agreement and any proposals or other documents that preceded this Agreement. Confidential Information includes, but is not limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, customer lists, employee information, financial information, confidential information concerning Owner's business, as Owner has conducted it or as it may conduct itself in the future, confidential information concerning any of Owner's past, current, or possible future products or manufacturing or operational methods, including information about Owner's research, development, engineering, purchasing, manufacturing, accounting, marketing, selling or leasing, and any software (including third party software) provided by [Short Name of Consulting Company]. Owner's Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient except to those third parties with a need to know and that are operating under a confidentiality agreement with non-disclosure provisions no less restrictive than those set forth herein. This Agreement imposes no obligation upon the parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation on confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information or (e) is required to be disclosed by court order or applicable law, provided notice is given to the Owner and provided further that diligent efforts are undertaken to limit disclosure. The Recipient shall not obtain, by virtue of this Agreement, any rights title or interest in any Confidential Information of the Owner. Within fifteen (15) days after termination of this Agreement, each party shall certify in writing to Owner that all copies of Owner's Confidential Information in any form, including partial copies, have been destroyed or returned to Owner.
6.2 Customer shall protect the deliverables resulting from Services with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Customer utilizes for Customer's Confidential Information.
6.3 The terms of this Section 6 shall survive termination of this Agreement.
7. Indemnity.
7.1 Patent and Copyright Indemnity. [Short Name of Consulting Company] shall indemnify and defend Customer against any claims that the software resulting from the provision of Services pursuant to a Statement of Services ("Software") infringe any United States or Canadian patent or copyright, provided that [Short Name of Consulting Company] is given prompt notice of such claim and is given information, reasonable assistance, and sole authority to defend or settle the claim. In the defense or settlement of the claim, provided the Agreement has not been terminated, [Short Name of Consulting Company] shall, in its reasonable judgment and at its option and expense: (i) obtain for Customer the right to continue using the Software; or (ii) replace or modify the Software so that it becomes non-infringing while giving equivalent performance. [Short Name of Consulting Company] shall not have any liability for a claim alleging that any Software infringes a United States patent or copyright if the alleged infringement was developed based on information furnished by Customer or if the alleged infringement is the result of a modification made by Customer.
7.2 Indemnity. Each party ("Indemnifying Party") shall indemnify and hold the other party ("Indemnified Party") harmless against any claim including costs and reasonable fees brought by the Indemnified Party's employees or agents in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or failure to act by the Indemnifying Party, its employees or agents while on Customer's premises which result in death, personal injury, or tangible property damage. This indemnification obligation is contingent upon the Indemnified Party providing the Indemnifying Party with prompt written notice of such claim, information, all reasonable assistance in the defense of such action, and sole authority to defend or settle the claim.
7.3 Survival. The terms of this Section 7 shall survive termination of this Agreement.
8. Representations. [Short Name of Consulting Company] warrants that it has the right and power to enter into this Agreement and that the Services will be performed in a workmanlike manner. [Short Name of Consulting Company] DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL [Short Name of Consulting Company] BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS.
9. Limitation of Liability. [Short Name of Consulting Company]'S MAXIMUM LIABILITY FOR ANY ACTION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT OR CONTRACT, ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF SERVICES FEES PAID BY CUSTOMER HEREUNDER. THE SERVICES PROVIDED BY [Short Name of Consulting Company] UNDER THIS AGREEMENT ARE ADVISORY AND NO SPECIFIC RESULT IS ASSURED OR GUARANTEED.
10. Rights to Development. All recommendations, ideas, techniques, know-how, designs, programs, enhancements, Software, and other technical information provided to Customer by [Short Name of Consulting Company] in the course of performing consultation Services hereunder are the property of [Short Name of Consulting Company] and are licensed to Customer, without further license fees, pursuant to the [Short Name of Consulting Company] software license agreement to which the consultation services pertain, provided, however, to the extent such recommendations, ideas, techniques, know-how, designs, programs, enhancements, and other technical information provided to Customer by [Short Name of Consulting Company] contains Customer's Confidential Information, Customer shall retain title to such Confidential Information.
11. Independent Contractor Status. [Short Name of Consulting Company] performs this Agreement as an independent contractor, not as an employee of Customer. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, or agency relationship between Customer and [Short Name of Consulting Company].
12. Termination. Unless otherwise agreed to, either party may terminate this Agreement at any time by giving the other party written notice of termination; however, Customer shall pay [Short Name of Consulting Company] for work performed prior to [Short Name of Consulting Company]'s receipt of notice of termination. Customer agrees to provide [Short Name of Consulting Company] with ten (10) business days advance notice of unscheduled termination dates. If Customer provides less than ten (10) business days notice for releasing consultants, [Short Name of Consulting Company] may invoice Customer for two (2) full days of consulting services per consultant released.
13. Waiver. No modification to this Agreement nor any failure or delay in enforcing any term, exercising any option, or requiring performance shall be binding or construed as a waiver unless agreed to in writing by both parties.
14. General. This Agreement shall be governed by the laws of the State of California, excluding choice of laws principles. All notices and demands shall be made in writing and delivered to the other party at their respective address set forth above, set forth in a SOS, or as modified from time to time in writing. If any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless remain in full force and effect. This Agreement and the SOS(s) constitute the entire understanding between the Parties with respect to the subject matter herein and may only be amended or modified by a writing signed by a duly authorized representative of each party. This Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations between the Parties.
Accepted by: Accepted by: [Short Name of Consulting Company] USA, Inc.
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__________________________________ __________________________________
Authorized Signature Authorized Signature
__________________________________ __________________________________
Printed Name and Title Printed Name and Title
_____________________ _____________________
Date Date
Consulting Services Agreement
Exhibit A
Statement of Services
This Statement of Services ("SOS") is made as of [ Statement of Services Effective Date] ("SOS Effective Date") by and between [Short Name of Consulting Company] USA, Inc. ("[Short Name of Consulting Company]") and [Short Name of Client Company] Incorporated ("Customer"). This SOS incorporates by reference the Consulting Services Agreement between the Parties dated [Effective Date] ("Agreement").
This SOS replaces and supersedes any prior verbal or written understandings, communications, and representations between the Parties regarding the subject matter contained herein. No purchase order, other ordering document, or handwritten change to this SOS that purports to modify or supplement the printed text of this SOS shall add to or vary the terms of this SOS. All such proposed variations or additions (whether submitted by [Short Name of Consulting Company] or Customer) are objected to and deemed material unless agreed to in writing.
[Short Name of Consulting Company] Project Manager:
Customer Point of Contact/Manager:
Description:
Milestones:
Fees:
Payment Schedule:
Accepted by: Accepted by:
0
__________________________________ __________________________________
Authorized Signature Authorized Signature
__________________________________ __________________________________
Printed Name and Title Printed Name and Title
_____________________ _____________________
Date Date