Consulting Contract Template
This Consulting Contract (this “Agreement” or this “Consulting Contract”), effective as of [Effective Date] (“Effective Date”), is made by and between [Client.Company], a company organized and existing in [Client.Location] with offices located at [Client.Address] (“Company”), and [Consultant.Company], a company organized and existing in [Consultant.Location] with offices located at [Consultant.Address] (“Consultant”).
WHEREAS, the Company wishes to retain the Consultant to [Description of services] as more specifically set forth in Attachment 1; and
WHEREAS, the Consultant agrees to perform the services set forth in this Agreement and Attachment 1;
NOW, THEREFORE, in consideration of the foregoing recitals and the terms, conditions, and covenants contained herein, it is hereby agreed as follows:
The Company hereby engages the Consultant to render independent consulting services (“Services”) as set forth in the Statement of Work in Attachment 1 and other statements of work that may be added by way of modification to this Agreement (“Statement of Work”), all of which are incorporated in and form a part of this Agreement. Services shall be ordered when the Company issues purchase orders and/or statements of work that include this Agreement by reference or are otherwise added by modifications to this Agreement as defined herein. The Consultant shall provide the Services as requested and by the scheduled completion dates set forth in the Statement of Work or the terms of any purchase order. Time is of the essence for this Agreement and any purchase orders and/or statements of work issued hereunder.
The term of this Agreement shall commence on the Effective Date and continue until [Effective Date] unless otherwise modified by mutual, written agreement of the parties or terminated as set forth herein.
3. Compensation & Payment
In consideration for Services rendered and upon the submission and approval of monthly invoices, the Company shall pay the Consultant at the rates or in accordance with the milestone payment schedule set forth on purchase order(s) issued by the Company or in the Statement of Work. In no event, however, shall the Consultant perform or receive compensation for: (a) additional services not set forth in the Statement of Work without a formal, bilateral modification to the Statement of Work encompassing such additional services; (b) services involving contingency payments prohibited by any applicable law, regulation, or the Company’s contract; or (c) services rendered that result in billings to the Company that are in excess of [Dollar amount] which is the total ceiling value or not-to-exceed (NTE) value for this Agreement.
If expressly provided for in the Statement of Work, the Company shall reimburse the Consultant for out-of-pocket travel and other miscellaneous expenses are incurred in the execution of and in relation to this Agreement. Such travel expenses include but are not limited to air/rail travel, taxis, auto rentals, meals, and lodging, provided that such reimbursement is not already included elsewhere in this Agreement, will not be in excess of that allowed in the paragraph above, and will not include reimbursement for the Consultant’s commuting to facilities within a fifty-mile radius of the Consultant’s home or place of business.
All reimbursable expenses must be pre-authorized by the Company in writing. Reimbursement for reasonable and actual expenses shall be made in accordance with the following rates:
- Air travel – Lowest unrestricted coach fare
- Rented Automobile – Compact type, unless not practical
- Meals, Incidentals, Lodging (Accommodations), and Private Vehicle Usage – Actual and reasonable costs supported by original receipts
- Miscellaneous Expense – Actual and reasonable pre-approved costs that are directly and reasonably required for the performance of the Services
- Alcohol and most entertainment costs are NOT allowable expenses, will not be reimbursed by the Company, and shall not be included in any manner in any invoice submitted hereunder.
All invoices shall include a breakout and description of the Services rendered, along with the actual hours and expenses incurred (for T&M type services), milestone descriptions (for FFP type services), and receipts (if required), and shall be submitted in a format prescribed by the Company and indicating the applicable purchase order number issued by the Company or Statement of Work for which the invoice relates.
The Company shall submit payment within forty-five (45) days after receipt of an invoice that complies with the requirements of this Agreement. The Company may withhold any amounts in an invoice that are in dispute, are contrary to the requirements of this Section 3, or are not substantiated by proper receipts.
Payments made to the Consultant shall not constitute or be construed as acceptance of any of the Services performed by the Consultant under this Agreement.
4. Independent Contractor
The Consultant is an independent contractor, and nothing herein shall be construed to create or imply that there exists between the parties a partnership, joint venture, or other combined business organization. The Consultant shall hold no authority, express or implied, to commit, obligate, or make representations on behalf of the Company and shall make no representation to others to the contrary. Nothing herein is intended or shall be construed for creating the relation of employer and employee or agent and principal between the parties. Except as otherwise specified herein, the Consultant retains the right to direct, control, or supervise the details and means by which the consulting services are provided. The Consultant’s employees shall not be eligible for or participate in any insurance, pension, workers’ compensation insurance, profit-sharing, or other plans established for the benefit of the Company's employees.
The Consultant shall be responsible for payment of all foreign and domestic taxes arising out of the Consultant’s activities in connection with this Agreement, including without limitation, sales, goods and services, excise, value-added, or similar taxes, whether of federal or other jurisdictional level, social security taxes, unemployment insurance taxes, and any other taxes or business license fees as required. The Company shall not be responsible for withholding any income or employment taxes whatsoever on behalf of the Consultant, and the Consultant further agrees to indemnify, defend, and hold the Company harmless from and against any claims or action arising out of or relating to the Consultant’s failure to withhold such taxes on behalf of the Consultant or the Consultant’s employees.
The Consultant shall retain all books, records, documents, and other evidence pertaining to its Services rendered and billings made under this Agreement (“the Records”). The Records shall be subject to inspection and audit by the Company and the Government at all reasonable times and upon reasonable notice for a period of three (3) years after final payment under this Agreement. If any audit of the Consultant’s invoiced charges demonstrates that these charges exceed the correct charges, the Consultant shall immediately pay or refund such excess charges to the Company’s account, and if such excess charges exceed the correct charges by more than five percent (5%), the Consultant shall also pay or reimburse the Company for all reasonable costs of such audit, to include any attorney fees and costs incurred by the Company in collecting such charges from the Consultant.
Each party shall receive in confidence (“receiving party”) from the other party (“disclosing party”) and treat as confidential all technical information, business/financial information, management information, and documentation that (i) is stamped or otherwise marked as being confidential or proprietary, whether in written or electronic form; (ii) pertains in any way to such party’s (or its affiliates’) business plans or methods; or (iii) otherwise is not generally known by others and, under the circumstances of the disclosure, the disclosing party had a reasonable expectation that the receiving party would know the information is confidential or proprietary (collectively, “Proprietary Information”). Information that is disclosed orally or visually to a receiving party shall also be deemed Proprietary Information if the disclosing party identifies such information as proprietary at the time of disclosure and, within thirty (30) days after such disclosure, reduces the subject matter of the disclosure to writing and submits it to the receiving party.
A receiving party shall hold Proprietary Information received from the disclosing party in confidence, shall use such information only for the purpose of and in accordance with this Agreement, and shall not further disclose such information to any third party without the prior written approval of the original disclosing party. The obligation to protect the confidentiality of Proprietary Information shall extend for a period of five (5) years following a party’s receipt of Proprietary Information.
The restrictions of this Section shall not apply to any information (i) lawfully received from another source free of restriction and without breach of this Agreement; (ii) that is published or becomes generally available to the public without breach of this Agreement; (iii) known by the receiving party prior to the time of disclosure; (iv) independently developed by the receiving party without resort or access to the Proprietary Information; or (v) that the disclosing party has approved for further release by the receiving party.
Proprietary Information shall remain the property of the disclosing party and shall be returned to that party or destroyed by the receiving party upon written request or termination or expiration of this Agreement. The receiving party may retain one copy of all written Proprietary Information in the files of its legal counsel and for archival purposes only.
7. Intellectual Property Rights
- The Consultant shall promptly disclose to the Company all inventions, software, development, improvements, and contrivances (hereinafter “Inventions”) in the Consultant’s field of endeavor in the line of the Company’s present or future business that are made, conceived, or actually or constructively reduced to practice by the Consultant, with the Consultant’s assistance, or under the Consultant’s direction in the course of performance during the term and any extension of the term of this Agreement, whether or not patentable and whether made by any of the Consultant’s employees solely or jointly with others, which relate to, are suggested by, or result from any Services that the Consultant may perform pursuant to this Agreement or from any information obtained by the Consultant in any discussions or meetings with employees of the Company.
- The Consultant shall assign and does hereby assign all of the Consultant’s rights, title, and interest in and to said Inventions to the Company, and shall assist the Company in every way to protect, at the Company’s expense, said Inventions, including but not limited to, the signing of patent applications, oaths, and assignments in favor of the Company and relating to the said Inventions, respecting such applications in the United States and in any and all foreign countries, and shall assist in any interference proceedings or litigation involving any patents that may be obtained for such Inventions.
- The Consultant shall make no applications for patents on any such Inventions except for the Company’s benefit as herein provided.
- “Intellectual Property Rights” shall mean all intellectual and industrial rights, including those to inventions and patents for inventions, any re-issues thereof and continuations in part, copyright, designs, trademarks, know-how, trade secrets, confidential information, and other proprietary rights. The Consultant hereby agrees to cause itself and any individuals contracted or employed by it to perform work hereunder to waive all moral rights and rights to all intellectual property, including Inventions and copyrightable materials, created by such individuals in their performance of this Agreement. The Consultant further agrees that, during and after the term of this Agreement, they shall execute any documents necessary to vest full title to any such intellectual property to the Company and will otherwise assist them in obtaining, either for the Company or its assigns and at the Company’s expense, all advantages and benefits that may be derived from any such intellectual property during and subsequent to this Agreement, including the securing of all Intellectual Property Rights.
- The Consultant agrees that with respect to all copyrightable materials that were not first produced, programmed, or designed by the Consultant but were incorporated into Services performed and delivered to the Company in connection with this Agreement, the Consultant shall grant a royalty-free, non-exclusive, and irrevocable license to the Company to use, reproduce, dispose of, translate, publish, and to authorize others of the Company’s choosing to do the same with respect to any and all said materials, provided this license shall be only to the extent that the Consultant has the right or in the future acquires the right to grant such licenses without becoming liable for any compensation to others solely because of such grant. In this regard, the Consultant further agrees to promptly notify the Company of any such limitation of which the Consultant is aware concerning said materials.
- All notes, drawings, designs, and technical data developed in connection with or pursuant to the terms of this Agreement shall become and/or remain the exclusive property of the Company, and they shall have the exclusive right to use and disclose them for any purpose. Upon completion of the Services or earlier termination of this Agreement, the Consultant agrees to promptly deliver to the Company all materials, including all copies thereof, that are in the Consultant’s possession or under their control and that were developed in connection with this Agreement.
8. Representations & Warranties
The Consultant hereby agrees:
- To perform the Services in accordance with the highest standards of professional skill and that for a period of six (6) months from the completion date of the Services, the Consultant shall, at no charge to the Company, furnish such materials and services as may be necessary to correct any defects in the materials or deliverables developed under the applicable Statement of Work;
- To comply with all applicable federal and other jurisdictional laws, including local laws, in performing the Services;
- That they have a legal right to remain and work in [Country], and the Consultant shall indemnify, defend, and hold the Company harmless against any claims, penalties, fees, or charges of any kind whatsoever arising out of or as a result of the Consultant’s failure to comply with applicable immigration laws;
- That it has the authority and capacity to enter into this Agreement and is not subject to any restrictive covenant or other legal obligation that prohibits the Consultant from performing the Services;
- It hasn’t any relationship with any third party with whom the Company has contracted that would cause such person to have a conflict of interest in relation to this Agreement or in regard to the Services. Should any such conflict of interest arise during the term of this Agreement, the Consultant covenants and agrees to immediately notify the Company.
The Consultant agrees to procure and maintain during the term of this Agreement, at their own cost and expense, liability and property damage insurance, including automobile and contractual liability, with the following minimum liability limits:
1. $1,000,000 for injuries or death to any one person;
2. $1,000,000 for injuries or death(s) from any one accident; and
3. $1,000,000 for damage to property.
The Consultant agrees to provide appropriate certificates or other evidence of such insurance coverage as may be requested by the Company. The Consultant agrees that the procurement and maintenance of the above insurance coverage shall not limit or affect any liability that the Consultant may incur under this Agreement or otherwise.
The Consultant agrees to comply with all [State and/or Country] occupational health and safety laws, regulations and standards, and all of the Company’s safety rules of which the Consultant has been notified in the performance of Services under this Agreement. The Consultant agrees to communicate the Company’s safety rules to the Consultant’s contractors and employees. The Consultant is responsible for maintaining a safe workplace by following commercially accepted safety and health rules and practices. The Consultant is responsible for immediately reporting accidents, injuries, and unsafe equipment, practices, and conditions related to the Consultant’s performance of work for the Company to the Authorized Representative of the Company identified herein. The Company is committed to keeping its workplaces free from hazards.
The Consultant authorizes the Company to provide minor first aid to those individuals performing Services on behalf of the Consultant hereunder, with the consent of the injured person and for injuries sustained on the Company’s property. If the Company believes immediate emergency care is necessary for an illness or injury to the Consultant’s employees, the Consultant authorizes the Company to call for ambulance service.
The Consultant shall defend, indemnify, and hold the Company and its officers, directors, and employees harmless from and against all expenses, costs, damages, liabilities, and losses incurred by the Company in connection with any claim, investigation, demand, action, suit, or proceeding arising out of or resulting from the provision of any medical care, transportation, or treatment to those individuals performing Services on behalf of the Consultant hereunder.
Except as required by law, the Consultant shall not issue any press release or make any other public statement relating to this Agreement, any Services performed under this Agreement, or any of the transactions contemplated by this Agreement without obtaining the prior written approval of the Company.
If the Company is not reasonably satisfied with any Service, it will notify the Consultant with a written explanation of the deficiency. The Consultant will, at their own expense, re-perform the Service within fifteen (15) days of receipt of the Company’s notice of deficiency. The foregoing procedure will be repeated until the Company accepts or finally rejects the Service.
This Agreement may be terminated by either party in the event the other party fails to perform its obligations hereunder on time, fails to assure timely performance, or otherwise fails to perform its material obligations; provided, however, that prior to such termination the terminating party notifies the defaulting party in writing at least ten (10) days in advance, states the reasons why the Agreement should be terminated and affords the defaulting party an opportunity to cure any alleged default during such ten (10) day notice period.
Either party may terminate this Agreement, upon notice and without liability, in the event that the other party: (a) files a petition in bankruptcy; (b) has filed against it an involuntary petition in bankruptcy not dismissed within sixty (60) days; (c) consents to the appointment of a receiver, custodian, trustee, or liquidator; or (d) dissolves, liquidates, or makes a general assignment for the benefit of creditors.
The Company may terminate this Agreement, or any Services to be performed hereunder, in whole or in part, without cause and for its own convenience, by providing the Consultant with written notice of termination at least seven (7) days in advance, specifying the extent to which the Agreement is so terminated and the date upon which such termination becomes effective. The Company shall have no liability for such termination except for liability for Services rendered or expenses incurred by the Consultant in accordance with this Agreement prior to the effective date of such termination and for which payment has not been made.
Upon termination of this Agreement, the Consultant shall return to the Company all copies of any Company data, records, or materials of whatever nature and regardless of media format. The Consultant shall also furnish the Company with all work in progress or portions thereof. Within thirty (30) days following the termination or expiration of this Agreement, the Consultant shall submit to the Company a termination proposal detailing the work completed and accepted by the Company and the proposed value of such work.
The amount due to the Consultant as a result of any termination hereunder will be as follows:
- For Services performed on a firm-fixed-price (FFP) basis: The lesser of 1) a prorated portion of the overall Statement of Work price based on the percent of the work completed and accepted up to the date of termination or 2) actual hours expended under the Statement of Work at the Consultant’s most favored rate for such consulting services and supported with suitable records.
- For Services performed on a time-and-materials (T&M) basis: Actual hours expended under the Statement of Work for accepted Services at the hourly rates set forth in the Statement of Work.
Upon payment of the agreed to termination settlement amount, the Company shall thereafter have no liability or obligation to the Consultant for any further compensation, fees, expenses, or other payments related to this Agreement.
14. Liability and Indemnification
Neither the Company nor its officers, directors, employees, affiliates, or parent companies shall be liable for any injury to the person or property of the Consultant or its employees or contractors, except to the extent that such injury was directly caused by the fault or negligence of the Company or its employees acting within the scope of their employment.
In addition to any other indemnification obligation herein, the Consultant shall indemnify, defend, and hold the Company and its officers, directors, and employees, harmless from and against all expenses, costs, damages, liabilities, and losses (including without limitation, reasonable attorneys fees) incurred by the Company in connection with any claim, investigation, demand, action, suit, or proceeding (whether civil, criminal, administrative, or investigative) arising out of or resulting from the Consultant’s performance of the Services, including but not limited to, the following:
- The Consultant’s failure to deduct and pay taxes required by law on compensation the Consultant is obligated to pay to its officers, employees, or independent contractors; and
- Personal injury or death, as well as loss or damage to property, caused directly or indirectly by the acts, omissions, or negligence of the Consultant or any of the Consultant’s agents, employees, officers, or independent contractors engaged in the performance of the Services under this Agreement.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT, OR BASED UPON A WARRANTY, EVEN IF THE OTHER PARTY OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE THE SUM OF THE STATEMENT OF WORK AND/OR PURCHASE ORDER TOTAL VALUES, LESS ANY PAYMENT MADE TO THE CONSULTANT HEREUNDER.
- Severability. If any provision of this Agreement shall be held to be invalid or unenforceable, such provision shall be stricken, and the remainder of the Agreement shall remain in full force and effect to accomplish the intent and purpose of the parties. The parties agree to negotiate the severed provision to bring the same within the applicable legal requirements to the extent possible.
- Governing Law. The validity, interpretation, and/or enforcement of this Agreement shall be governed by the laws of the state of [State], including its recognition of applicable federal law but excluding such jurisdiction’s choice of law rules.
- No Waiver. Any failure or delay by either party to exercise any right, power, or privilege hereunder or to insist upon observance or performance by the other party of the provisions of this Agreement shall not operate or be construed as a waiver thereof. No waiver shall be binding on either party unless it is in writing and signed by an authorized representative of the party to be bound.
- Survival. The obligations in this Agreement that by their terms naturally survive the expiration or termination of this Agreement shall so survive, including without limitation Sections 5, 6, 7, 8, 13, 14, 15, 18, and 20.
- Contradictory Terms. Notwithstanding any provisions on any form supplied by the Company or the Consultant, all purchase orders or requests for service issued pursuant to this Agreement or in connection with the Services to be provided hereunder shall be subject to and governed by the terms and conditions of this Agreement and the attachments hereto. No provision that alters, revises, or supplements the terms of this Agreement, which may appear on any purchase order or other form provided by the parties, shall have any force or effect unless such provision(s) are agreed to in writing by the Company and the Consultant and are expressly incorporated herein.
- Anti-Assignment. Neither party may assign, subcontract, or otherwise transfer its rights or obligations under this without the prior written consent of the other party, which shall not be unreasonably withheld.
- Integration/Modification. This document and any exhibits or attachments hereto embody the entire Agreement of the parties with respect to the subject matter hereof and supersede and cancel all previous negotiations, agreements, or commitments by the parties, whether oral or written. This Agreement may not be released, canceled, abandoned, amended, or modified in any manner except by an instrument in writing duly signed by each of the parties.
- Disputes. The parties agree that prior to bringing any legal action upon any dispute or controversy between the parties arising under or in connection with this Agreement (“Dispute”), they will attempt to settle such matters through good faith negotiations. Failing such efforts, the parties agree and consent to exclusive venue and jurisdiction in the State and Federal courts of [State], and each party waives any defense of inconvenient forum in connection with such proceedings. The parties acknowledge and agree that the foregoing shall not prevent a party from seeking or obtaining injunctive, preliminary, or provisional relief to enforce a party’s rights or to prevent immediate or irreparable harm to a party, including but not limited to the rights set forth in Sections 6 and 7 of this Agreement.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be original and all of which taken together shall constitute one agreement. To evidence the fact that it has executed this Agreement, a party may send a copy of its executed counterpart to the other party by electronic transmission and the signature transmitted by such transmission shall be deemed to be that party’s original signature for all purposes.
- Acknowledgement. The parties acknowledge that they have read and understand this Agreement, and agree to be bound by its terms and conditions in their entirety.
This Agreement is duly executed by the authorized representatives of the parties as set forth below:
MM / DD / YYYY
MM / DD / YYYY