CONSULTANT AGREEMENT
This Agreement, dated this ____ day of _________ , 20 __ by and between
_____________________ ("Consultant"), a _______________ corporation, having a principal
place of business at ___________________________________ and _____________________
("Company"), a Delaware corporation, having a principal place of business at
___________________________________ :
WITNESSETH
WHEREAS, Consultant wishes to provide certain professional services and deliverables
(the "Services" and the "Deliverables") as set forth in Appendix A, which is attached hereto and
made a part hereof; and
WHEREAS, Company wishes to procure the Services and Deliverables from Consultant,
for good and valuable consideration, as more fully described in Appendix A attached hereto and
made a part hereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter
set forth, the parties hereto agree as follows:
1. SCOPE OF WORK.
(a) Consultant agrees to provide the Services and supply the Deliverables described
in Appendix A which is attached hereto.
(b) In the event that additional assignments are agreed upon between Consultant and
Company, the parties shall execute addendums to this Agreement describing the
additional assignments, including the fees, schedule and deliverables for that
specific assignment.
2. TERM/TERMINATION.
This Agreement shall remain in effect until the sooner of: (a) the completion by
Consultant of all services specified in all Appendices hereto; (b) _____ year(s) from its
execution; or (c) as otherwise provided in the Agreement. Should both parties agree, this
Agreement may be renewed for up to _____ year (s).
This Agreement may be terminated by either party on _____ days prior written notice. In
the event of any such termination, Consultant shall be paid for all Services that it performed prior
to such termination, including any authorized Services performed during the notice period.
Upon completion of Services or earlier termination of this Agreement, Consultant and/or
its employees and subcontractors shall return to Company all data, materials and other work
product, other than as defined in paragraph 8, in their then current condition and return to
- 1 -
Company all data and materials, and any copies of such data and materials in Consultant's
possession, supplied to it in connection with this Agreement.
3. PAYMENT FOR SERVICES.
(a) Company agrees to pay Consultant in accordance with the Fees set forth in
Appendix A. Consultant shall submit to the Project Manager (as defined in
Article 15) an itemized monthly invoice for the Services rendered on an hourly
basis by labor category, as set forth on Appendix A, and authorized expenses
incurred. Invoices shall be payable within _____ days of receipt.
(b) Company may, upon notice to Consultant, withhold payments for work not
performed in compliance with this Agreement and/or reasonably question any
item(s) reflected on Consultant's invoice. Pending the settlement or resolution of
the issue(s), the non - payment of these items shall not constitute a default of this
Agreement. Company shall pay all amounts due that are not in dispute. In the
event Company withholds any payments from Consultant due to non - acceptance
of any work, Company shall concurrently provide Consultant with detailed
written notice setting forth the reason(s) for such non - acceptance, and Consultant
shall have a reasonable opportunity to correct such work. Upon such correction,
the withheld amounts shall be promptly paid. If Consultant disputes Company's
contention that appropriate grounds exist for withholding payments, it may
suspend the performance of Services hereunder until settlement or resolution of
the issue, without being in default of this Agreement.
4. TRAVEL / REIMBURSABLE EXPENSES.
(a) All travel by Consultant must be authorized in advance by the Company Project
Manager, and shall be in accordance with Company expense guidelines.
(b) The Company Project Manager should make all arrangements for Consultant for
air travel, hotel reservations and rental car usage required in connection with the
Services provided under this Agreement, through the appropriate Company
approved travel agency, using the Project Manager's account number.
(c) It is expected that all expenses associated with ground transportation (e.g., taxi
cabs) and meals incurred by the Consultant, while conducting activities on behalf
of Company, will be at reasonable rates and that the Consultant will exercise
prudence in incurring such expenses.
(d) Company will reimburse Consultant's approved business expenses at cost. The
following disbursements will not be reimbursed: (i) secretarial or word processing
services; (ii) photocopy expenses; (iii) any other charges incurred by the
Consultant's support staff, such as filing or proofreading, regardless of when
incurred; (iv) any other overhead items (e.g., office supplies, furniture, conference
room space, heating/air conditioning, etc.); and (v) local telephone or fax
- 2 -
expenses. Request for reimbursement of expenses in excess of $ _______ (for any
given expense) will require submittal of acceptable substantiating documentation
for each such expense.
5. INDEPENDENT CONTRACTOR.
(a) Consultant shall perform all Services hereunder as an independent contractor, and
nothing contained herein shall be deemed to create any association, partnership,
joint venture, or relationship of principal and agent or master and servant, or
employer and employee between the parties hereto or any affiliates or subsidiaries
thereof, or to provide either party with the right, power or authority, whether
express or implied, to create any such duty or obligation on behalf of the other
party.
(b) Consultant also agrees not to be treated, or seek to be treated, as an employee of
Company for any purpose, including for the purposes of fringe benefits provided
by Company, or for disability income, social security taxes and benefits, Federal
unemployment compensation taxes, State unemployment insurance benefits and
Federal income tax withholding at sources. Consultant hereby represents that
Consultant has and at all times will maintain timely payments of all taxes due to
the Internal Revenue Service and all other government agencies, including
withholding and all other taxes.
6. COMPLIANCE WITH LAWS.
Consultant agrees to comply with all applicable Federal, state, county and local laws,
ordinances, regulations and codes in the performance of its obligations under this Agreement,
including but not limited to the procurement of permits, licenses and certificates where required
and payment of applicable taxes. Consultant further agrees to hold harmless and indemnify
Company and its subsidiaries and affiliates against any loss or damage (including reasonable
attorney's fees) that may be sustained by reason of the failure of Consultant to comply with such
laws, ordinances, regulations and codes provided that Company:
(1) promptly notifies Consultant in writing of the claim; and
(2) cooperates with Consultant in, and grants Consultant sole authority to control the
defense and any related settlement.
7. COMPLIANCE WITH COMPANY PROCEDURES.
(a) Consultant agrees to comply with Company's Drug Abuse Policy, which prohibits
the selling, distributing, manufacturing, processing, using or being under the
influence of illegal drugs or illicit narcotics (non prescriptive medication) as
defined by the state in which the business is conducted and/or Federal
Government, while on Company business or on Company premises. In the event
that Consultant or any of Consultant's employees or subcontractors violates the
- 3 -
aforementioned policy, said person will be barred from performing any further
Services for Company and this Agreement may be terminated by Company.
(b) Consultant agrees that it will comply with all of Company's standard physical
security procedures in place at Company's locations where Consultant is
performing work.
(c) In the event this Agreement is terminated pursuant to the provisions of this Article
no further liabilities or obligations shall accrue to Company, except for any Fees
due and owing for Services performed as of the time of such termination.
8. PROPRIETARY RIGHTS.
(a) Subject to payment in full of the fees specified herein, except for Consultant's
tools, processes, pre - existing materials, methodologies and derivative works
thereof (collectively, the "Consultant Materials") which Company acknowledges
and agrees are owned by Consultant, Consultant hereby agrees that the
Deliverables and all inventions, discoveries, improvements, specifications and
other documentation, designs, methods, writings, compilations of information,
and/or materials that are protectable as intellectual property in the United States,
whether under the laws of patents, copyrights, and/or trade secrets, (hereinafter
referred to in the aggregate as "Inventions") that are conceived, designed,
practiced, prepared, produced or developed by it, either alone or in concert with
others:
(1) in the course of its engagement hereunder,
(2) based upon knowledge or information learned or gained from Company,
or
(3) that results from the use of Company's facilities, personnel, or materials,
are and shall be the sole and exclusive property of Company. The
Consultant Materials and any improvements or ancillary products
pertaining to the Consultant Materials that are created or discovered by
Consultant in connection with the Services performed hereunder are and
shall remain Consultant property.
(b) Consultant agrees that all Inventions that are reduced to practice, or otherwise
made by it, either alone or in concert with others within ____ year(s) immediately
following the end of the term of its engagement by Company, which Inventions
are reasonably within the scope of its engagement hereunder or related to
knowledge or information learned or developed during said engagement, shall be
presumed to have been conceived in the course of said engagement and are and
shall be the sole and exclusive property of Company. The foregoing, however,
may be overcome by Consultant by the production of tangible evidence showing
clearly that any such Inventions were conceived after the expiration or
- 4 -
termination of its engagement by Company under this Agreement or any
extension(s) thereof.
(c) Consultant agrees to communicate and disclose promptly to Company all
Inventions made during said one - year period immediately following the
expiration or termination of such engagement. Moreover, Consultant further
agrees to safeguard the confidentiality and proprietary nature of any and all such
Inventions in the same manner as that prescribed in Article 11 herein for the
treatment of Company's Confidential and Proprietary Information.
(d) Consultant agrees that the Deliverables and all Inventions are hereby assigned to
Company and that it will execute all documents necessary to assign and transfer
to Company, or its nominees, successors, or assigns, free of encumbrances, all
rights, title, and interest in and to the Deliverables any and all Inventions. All
such assignments shall include, among other things, existing or prospective patent
rights and copyrights in the United States and all foreign countries. All items
provided to Company which qualify as Company's property shall be marked as
follows:
Copyright(c) 20 __ by ____________________________ All Rights Reserved.
9. INDEMNIFICATION.
(a) Consultant will defend, indemnify and hold Company harmless from and against
any claim that the Services, Deliverables or the Inventions delivered under this
Agreement or Company's use thereof infringe a patent, utility model, industrial
design, copyright, trade secret, trademark or other third party intellectual property
right or right of confidentiality in the country where Consultant performs
Services, provided that Company:
(1) promptly notifies Consultant in writing of the claim; and
(2) cooperates with Consultant in, and grants Consultant sole authority to
control the defense and any related settlement.
(b) Consultant will pay the cost of such defense and settlement and any costs,
attorney's fees and damages awarded by a court of competent jurisdiction against
Company. If such a claim is made or appears likely to be made, Consultant may
procure the right for Company to continue using the Services, Deliverables, or the
Inventions, or may modify, or may replace same. If use of the Services,
Deliverables or Inventions is enjoined, Consultant will modify Services,
Deliverables or Inventions and provide substitute Services, Deliverables or
Inventions acceptable to Company that do not infringe, or refund Company for
payments made for such Services, Deliverables or Inventions which are subject to
any injunction.
- 5 -
(c) Consultant shall separately defend, indemnify and hold Company harmless from
and against any claim, liability, loss, cost or expense (including reasonable
attorneys' fees) arising out of or resulting from any personal injury or death to
persons, or damage to property, in the performance of the Services caused by the
negligence or willful misconduct of Consultant, Consultant's employees, agents,
or subcontractors provided that Company:
(1) promptly notifies Consultant in writing of the claim; and
(2) cooperates with Consultant in, and grants Consultant sole authority
to control the defense and any related settlement.
10. LIMITATION OF LIABILITIES.
Company AND Consultant SHALL HAVE NO LIABILITY FOR ANY CLAIM
RELATING TO THIS AGREEMENT IN EXCESS OF THE FEES AND EXPENSES PAID TO
Consultant, EXCEPT PURSUANT TO Consultant's INDEMNIFICATION OBLIGATIONS
CONCERNING THIRD PARTY CLAIMS AGAINST Company UNDER ARTICLE 9. IN NO
EVENT SHALL Company AND Consultant BE LIABLE TO EACH OTHER FOR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF Company AND
Consultant HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. PROPRIETARY INFORMATION.
Consultant hereby agrees that all knowledge and information that it learns or gains from
Company or its subsidiaries in the course of its engagement hereunder, which knowledge and/or
information (whether presently existing or hereafter developed) is not publicly known and which
was not known by Consultant without restriction prior to this engagement or any previous
engagement or employment by Company, regardless of the form in which such information may
be contained or communicated (including, but not limited to, documents, drawings, tangible
items, and photographs), is the exclusive, confidential and proprietary information of Company
or its subsidiaries, or in some cases, of its or their vendors or customers who have entrusted the
same to Company or its subsidiaries (said knowledge and information hereinafter being referred
to collectively as "Proprietary Information") and shall be protected pursuant to the parties
Non - Disclosure Agreement dated ____________ .
12. INSURANCE.
Consultant shall obtain and maintain in force, at its own expense, throughout the
performance of its obligations under this Agreement, insurance coverage against claims,
regardless of when asserted, that may arise out of, or result from, Consultant's operations, the
operations of Consultant's subcontractors and of any other entity directly or indirectly engaged
by Consultant in connection with the Services as described in Appendix A. This insurance shall
include the following coverage with limits no less than those set forth below:
- 6 -
Comprehensive General Liability: Combined Single Limit (CSL) including broad form
contractual liability and personal injury endorsements, providing coverage against liability for
bodily injury, death, and property damages in the minimum amount of $ _____________ CSL.
Workers Compensation and Employer's Liability: Workers Compensation Insurance at
maximum limits statutorily required for each state in which Consultant will operate under the
terms of this Agreement, and Employer's Liability coverage in the minimum amount of
$ _____________ .
Comprehensive Automobile Liability: Comprehensive Automobile Liability in the
minimum amount of $ _____________ CSL per occurrence for bodily injury and property
damage (covering owned and non - owned vehicles).
Fidelity coverage for losses incurred as a result of dishonesty on the part of Consultant's
employees, agents or subcontractors in the amount of $ _____________ .
None of the requirements contained herein as to types, limits and approval of insurance
coverage to be maintained by the Consultant are intended to and shall not in any manner limit the
liabilities and obligations assumed by the Consultant under this Agreement. The aforementioned
coverage may be provided in the form of a blanket policy.
13. TAXES.
(a) The fees and charges reflected in Appendix A hereof are exclusive of any sales,
use, personal property, value added and goods/services taxes. Where applicable,
such taxes shall appear as a separate item on Consultant's invoice and Company
shall be liable for the payment of such taxes to Consultant.
(b) Notwithstanding the foregoing, Company shall not be responsible for any foreign,
federal, state or local taxes based on Consultant's net income or receipts, or such
other taxes based on Consultant doing business in any particular jurisdiction.
14. REPRESENTATIONS AND WARRANTIES.
(a) Consultant represents and warrants that the Services performed pursuant to this
Agreement shall be performed in a professional manner by individuals well
qualified to perform such work, and agrees to provide Company, on request, with
information concerning the individuals' experience which affirms these
qualifications.
(b) Consultant hereby represents and warrants that the Services, the Deliverables, the
Inventions, and any information, material, products, designs, specifications or
instructions provided by Consultant, or the use of any of the foregoing, do not
infringe any patent, utility model, industrial design, copyright, trade secret,
trademark or any other third party intellectual property right or right of
- 7 -
confidentiality in any country where Consultant performs Services or delivers
Deliverables or Inventions.
(c) Consultant further represents and warrants that any software developed or created
pursuant to this Agreement, at the time of delivery to Company and all subsequent
versions, releases, updates or revisions of any kind developed or created pursuant
to this Agreement, is and shall be capable of performing all functions specified in
this Article and in the applicable related specifications, user requirements and/or
documentation included in Appendix A ("Specifications") both prior to and
following January 1, 2000. Company shall not experience software ending and/or
invalid and/or incorrect results from the software in the operation of Company's
business. The software programming design and performance capabilities to
ensure year 2000 compatibility shall include, but shall not be limited to, date data
century recognition, calculations which accommodate same century and
multi - century formulas and date values, and date data interface values which
reflect the correct century. In the event that at any time the software is found by
Company not to function as specified in this Article and in the Specifications as a
result of the date change from ( insert month and day , 2000 to ( insert month and
day ), 2000 notwithstanding any other Consultant obligation contained in this
Agreement or any Company remedy for breach thereof, at no additional charge to
Company, Consultant shall immediately upon receipt of a report of defect from
Company, correct any such defect so as to enable the software to fully function in
accordance with this Article and the Specifications. In doing so, Consultant shall
not require Company to make any changes to the software except to install such
changes provided by Consultant. In addition, Consultant shall not require
Company to make any changes to software provided by any other party which
Company uses in its business operations. Consultant shall indemnify and hold
Company harmless from and against any cost, loss, damage or expense (including
reasonable attorney's fees) incurred by Company as a result of a breach of the
foregoing warranty.
15. PROJECT MANAGEMENT AND REVIEW MEETINGS.
(a) Company shall assign a Company employee (the "Project Manager") to manage
the assignment and oversee the Consultant. The "Project Manager" is responsible
for monitoring the Consultant's work, for review and approval of invoice
documentation and shall act as the agent for the purpose of any notices required or
given under this Agreement. Consultant's direct interface with Company shall be
the assigned Company Project Manager. The assigned Project Manager for this
Project is:
Company Project Manager:
Telephone Number:
(b) Unless otherwise provided, Consultant shall attend review meetings with
Company personnel every two weeks during the term of the Agreement to discuss
- 8 -
the progress of the Services and to report on and deliver work completed and in
progress during the preceding two weeks.
16. PUBLICITY.
Both parties agree not to use the name of the other party or any of its affiliated companies
in any sales or marketing publication or advertisement or make any public disclosure except as
may be legally required, relating to this Agreement or the other party or any of its affiliated
companies, without obtaining the prior written consent of the other party.
17. NON-SOLICITATION.
During and for a period of _____ year(s) following termination of this Agreement, each
party will not, without prior written consent of the other party, hire or attempt to hire any
employee of the other party or its subsidiaries or affiliates, who were involved in the
performance of services hereunder.
18. NON-DISCRIMINATION.
Consultant agrees to comply and to cause its agent(s) and/or subcontractors to comply
with the provisions of all applicable federal, state, and local laws, regulations and executive
orders relating to equal opportunity and nondiscrimination in employment, and the use of
minority business enterprises, to the extent that any such laws, orders and regulations are
applicable in the performance of their work hereunder. For the purpose of this Agreement, the
provisions of such laws, orders and regulations shall be deemed an integral part of this
Agreement to the same extent as if they were written at length herein.
19. NON-SUBORNATION.
Each Party agrees that in performance of its obligations under this Agreement, it will not
make or offer to make any payments to, or confer, or offer to confer any benefit upon any
employee, agent or fiduciary of any third party, with the intent to influence the conduct of such
employee, agent or fiduciary in relation to the business of such third party, in connection with
this Agreement.
20. WORK POLICY.
(a) Consultant agrees to observe the working hours, work rules, building security
measures and holiday schedule of Company when on Company premises, which
will be provided to Consultant upon request; provided, however, that adherence to
such working hours and schedules shall not constitute justification for non -
accomplishment of agreed upon schedules and deadlines.
(b) Consultant further agrees to employ all reasonable efforts to meet Company's
assignment deadlines and documentation standards, as applicable. Unless
- 9 -
otherwise agreed upon, Consultant shall meet with Company personnel to discuss
and review the progress of the current assignment on a regular basis.
21. GENERAL PROVISIONS.
(a) Paragraph Headings. Paragraph headings are for convenience only and shall not
be a part of the Terms and Conditions of this Agreement.
(b) Waiver. Failure by either party at any time to enforce any obligation by the other
party, to claim a breach of any term of this Agreement or to exercise any power
agreed to hereunder will not be construed as a waiver of any right, power or
obligation under this Agreement, will not affect any subsequent breach, and will
not prejudice either party as regards any subsequent action.
(c) Severability. If any term or provision of this Agreement should be declared
invalid by a court of competent jurisdiction, the remaining terms and provisions
of this Agreement shall remain unimpaired and in full force and effect.
(d) Subcontractors. Company reserves the right of approval of all subcontractors,
which approval will not be unreasonably withheld by Company. Approval of any
subcontractor by Company shall not constitute the superseding or waiver of any
right of Company to reject work which is not in conformance with its standards or
this Agreement. Consultant shall be fully responsible for its subcontractors.
Nothing in this Agreement shall be construed to create any contractual
relationship between Company and any subcontractor, nor any obligation on the
part of Company to pay or to see to the payment of any money due any
subcontractor as may otherwise be required by law.
(e) Record Retention. Consultant agrees to maintain complete and accurate
accounting records in accordance with sound accounting practices to substantiate
Consultant's charges hereunder. Consultant shall preserve such records for a
period of not less than _____ years after completion of the pertinent Services.
Company shall have access to such records for purposes of audit through an
accounting firm selected and paid by Company, provided Company shall be
limited to one audit. Any such review of Consultant's records shall be conducted
upon not less than seven (7) calendar days prior written notice at a place where
Consultant's records are customarily maintained at reasonable times during
normal business hours.
(f) Assignment. Neither party may assign any rights or obligations under this
Agreement without the prior consent of the other; provided, however, that
Company may assign any rights or obligations to a subsidiary or affiliate or to any
third party assuming all or part of the business function of the Company unit
which will receive the Services and Deliverables provided hereunder upon notice
to Consultant.
- 10 -
(g) Modification. No modification, waiver or amendment of any term or conditions
of this Agreement shall be effective unless and until it shall be reduced to writing
and signed by both of the parties hereto or their legal representatives. All legally
required amendments will automatically become part of this Agreement _____
days after notification to both parties.
(h) Survival. The provisions of this Agreement that by their nature and content are
intended to survive the performance hereof, shall so survive the completion and
termination of this Agreement. Without limiting the generality of the foregoing,
Articles 8, 9, 10, 11, 13, 14, 16, and 21 of this Agreement shall so survive.
(i) Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the substantive laws of the State of _______ as if the
Agreement were made in __________ for performance entirely within the State of
__________ . Both parties consent to jurisdiction and venue in the state and
federal courts of the State of ___________________ .
(j) Complete Agreement. This Agreement together with Appendix A constitutes the
entire agreement of the parties with respect to its subject matter and may not be
modified in any way except by written agreement signed by both parties. There
are no other agreements either express of implied with regard to this subject
matter.
IN WITNESS WHEREOF, the parties hereto, through their duly authorized officers, have
executed this Agreement as of the day and year first set forth below.
Company Consultant
By: By:
Print Name: Print Name:
Title: Title:
Date: Date:
- 11 -
APPENDIX A
Consultant will assist Company in the procurement and development of the new systems,
including the requirements, specifications, package selection and outsourcing of the
implementation. Deliverables will consist of findings and recommendations, delivered in a
timely manner and in a format requested by Company. Consultant shall also prepare and assist
in preparing specifications for RFPs and similar documents.
Services will be provided by Consultant on a time and materials basis in an amount not to
exceed $ _______________ in accordance with the following hourly labor rates:
Title Hourly Labor Rate
Managing Vice $
President $
Director $
Senior Consultant II $
Research Analyst $
- 12 -
