SAMPLE CONSULTING SERVICES AGREEMENT
This consulting services agreement is between COMPANY NAME, IN CAPITAL LETTERS, a[n] State of Organization [corporation] [general partnership][individual][limited liability company][limited liability partnership][limited partnership][sole proprietorship][other] (the “Company”) and AFFORDABLE CONTRACTS LLC, a Missouri limited liability company (the “Consultant”).
The Company is in the business of describe the Company’s business generally and wants to engage the Consultant to review, construct and/or negotiate contracts on behalf of Company.
The Consultant has performed the same or similar activities for others.
The parties therefore agree as follows:
1. ENGAGEMENT; SERVICES.
(a) Engagement. The Company retains the Consultant to provide, and the Consultant shall provide, the services described in an attached Exhibit (the “Services”).
(b) Services. Without limiting the scope of Services described in an Exhibit, the Consultant shall:
(i) perform the Services set forth in an Exhibit. However, if a conflict exists between this agreement and any term in an Exhibit, the terms in the Exhibit will control;
(ii) devote as much productive time, energy, and ability to the performance of his duties under this agreement as may be necessary to provide the required Services in a timely and productive manner;
(iii) perform the Services in a safe, good, and workmanlike manner by trained, skilled, competent, and experienced personnel using at all times adequate equipment in good working order;
(iv) communicate with the Company about progress the Consultant has made in performing the Services;
(v) supply all tools, equipment, and supplies required to perform the Services, except if the Consultant’s work must be performed on or with the Company’s equipment;
(vi) if Services are performed on Company's premises Company will provide a safe, secure and reasonable workspace and equipment in which to perform such Services including telephone, copier and access to other reasonably required equipment and supplies as needed.
(vii) provide services that are reasonably satisfactory and conform to customary industry standards to the Company; and
(viii) remove, replace, or correct all or any portion of the work or end products found defective or unsuitable, without additional cost or risk to the Company.
(c) Legal Compliance. The Consultant shall perform the Services in accordance with standards prevailing in the Company’s industry, and in accordance with applicable laws, rules, or regulations.
(d) Company’s Obligations. The Company shall make timely payments of amounts earned by the Consultant under this agreement and notify the Consultant of any changes to its procedures affecting the Consultant’s obligations under this agreement at least 30 days before implementing those changes.
2. TERM AND TERMINATION.
(a) Term. This agreement will become effective as described in section 21. Unless it is terminated earlier in accordance with subsection 2(b), this agreement will continue until the Services have been satisfactorily completed and the Consultant has been paid in full for those Services (the “Term”). However, this agreement may not remain effective for more than two (2) years unless renewed in writing by the parties.
(b) Termination for Cause. It is agreed that either party may terminate this Agreement immediately upon written notice to the other party in the event that such other party:
(i) becomes insolvent or makes assignment for the benefit of creditors;
(ii) files or has filed against it any petition under any Title of the United States Code or under any applicable bankruptcy, insolvency, reorganization or similar debtor relief law which is not discharged within thirty (30) days of said filing;
(iii)requests or suffers the appointment of a trustee or receiver, or the entry of an attachment or execution as to a substantial part of its business or assets.
party may terminate this Agreement in the event the other party materially
breaches any of its other obligations under any provision of this Agreement,
which breach is not remedied within thirty (30) days after written notice
thereof by the other party.
(c) Effect of Termination. Termination of this Agreement or any Exhibit shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Company of its obligation to pay all fees that have accrued or are otherwise owed by Company under any Exhibit. All provisions of this Agreement which by their nature must survive termination in order to achieve the fundamental purposes of this Agreement shall survive any termination of this Agreement.
(a) Terms and Conditions. The Company shall pay the Consultant Net 30 following Company's receipt of Consultants invoice unless otherwise set forth in an Exhibit. Company must notify Consultant of any dispute as to the amount of any invoice with thirty (30) days from the date of Consultant's invoice or the invoice will be deemed undisputed and accepted by Company. Any amount in dispute shall not be payable until resolution of such dispute. Billing will be in 15 minute increments.
(b) No Payments in Certain Circumstances. No payment will be payable to the Consultant under any of the following circumstances:
(i) if prohibited under applicable government law, regulation, or policy;
(ii) if the Consultant did not directly perform or complete the Services described in an Exhibit;
(iii)if the Consultant did not perform the Services to the reasonable satisfaction of the Company; or
(iv)if the Services performed occurred after the expiration or termination of the Term, unless otherwise agreed in writing between the parties.
(c) No Other Compensation. The compensation set out in an Exhibit will be the Consultant’s sole compensation under this agreement unless otherwise agreed upon in writing between the parties.
(d) Expenses. Any ordinary and necessary expenses incurred by the Consultant or his staff in the performance of this agreement will be the Consultant’s sole responsibility unless otherwise agreed upon between the parties in writing.
(e) Taxes. The Consultant is solely responsible for the payment of all income, social security or employment-related taxes incurred as a result of the performance of the Services by the Consultant under this agreement, and for all obligations, reports, and timely notifications relating to those taxes. The Company has no obligation to pay or withhold any sums for those taxes. The fees specified in an Exhibit do not include taxes, duties or other fees. If Consultant is required to pay (i) sales, use, property, value-added or other taxes, (ii) any customs or other duties, or (iii) any import, warehouse or other fees, associated with the importation or delivery based on services provided in this Agreement or on Company's use of such services, then such taxes, duties or fees shall be billed to and paid by Company. If Company is permitted to declare any such taxes, Company shall declare and pay such taxes and Consultant shall not be required to invoice Company. This Section shall not apply to taxes based on Company's net income or payroll taxes.
(f) Other Benefits. The Consultant has no claim against the Company under this agreement or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
4. NATURE OF RELATIONSHIP; WARRANTIES.
(a) Independent Contractor Status.
(i) The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party’s behalf, and neither party may take any action that creates the appearance of such authority.
(ii) The Consultant has the sole right to control and direct the means, details, manner, and method by which the Services will be performed, and the right to perform the Services at any time, place, or location. The Consultant or the Consultant’s staff shall perform the Services, and the Company is not required to hire, supervise, or pay any assistants to help the Consultant perform those Services. The Consultant shall provide insurance coverage for himself and his staff.
(b) Warranty, Indemnification and Liabilities. Company warrants to Consultant that neither the performance of Consultant's duties for Company under this Agreement or the use thereof, will infringe any patent, copyright, trade secret or other proprietary right of any third party. Consultant warrants that no deliverable shall contain any material owned by any third party, except as disclosed to Company in writing prior to Consultant's incorporating such material into any deliverable, and that as to any such material, Consultant shall have all rights necessary to provide to Company the full, unrestricted benefits to such material as incorporated into the deliverable, including without limitation the right to use, market, distribute and copy, and to provide such rights to others.
(c) General Indemnity. Each party (an "indemnitor") shall defend and indemnify the other party and its employees, officers, directors and agents (the "Indemnitee") against all damages for bodily injury, death or damage to real or tangible personal property proximately caused by the Indemnitor in the course of performing this Agreement; provided that (i) the Indemnitor receives prompt written notice of the claim from the Indemnitee under this Section, (ii) the Indemnitor has the right to control the defense of such claim and any related settlement negotiations, and (iii) the Indemnitee provides to the Indemnitor, at the Indemnitor's request and expense with the assistance, information and authority necessary to perform the Indemnitor's obligations under this Section.
(d) Limitation of Liability. IN NO EVENT SHALL COMPANY, ITS SUPPLIERS, OR CONSULTANT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except as provided for herein and instances of bodily injury, property damage and third party claims, the aggregate and cumulative liability of Company, its suppliers and Consultant for direct and proven damages hereunder shall in no event exceed the amount of fees paid by Company under this Agreement
5. USE OF TRADEMARKS.
The Consultant may use, reproduce, and distribute the Company’s service marks, trademarks, and trade names (if any) (collectively, the “Company Marks”) in connection with the performance of the Services. Any goodwill received from this use will accrue to the Company, which will remain the sole owner of the Company Marks. The Consultant may not engage in activities or commit acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company’s interest in the Company Marks. The Consultant may not cause reduction of value of the Company Marks through any act or representation. The Consultant may not apply for, acquire, or claim any interest in any Company Marks, or others that may be confusingly similar to any of them, through advertising or otherwise. At the expiration or earlier termination of this agreement, the Consultant will have no further right to use the Company Marks, unless the Company provides written approval for each such use. Consultant may use Company Marks and Company name in advertising materials used by Consultant listing Company as a customer of Consultant.
6. CONFIDENTIAL INFORMATION.
(a) Confidentiality. During the Term, either party may have access to or receive certain information of or about the other party ("Confidential Information"). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Confidential Information includes, but is not to be limited to, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, and the terms and pricing under this Agreement, regardless of whether such information is identified as confidential. Confidential Information includes all information received from third parties that either party is obligated to treat as confidential and oral information that is identified by either party as confidential. The Consultant will treat the Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill his obligations in this Agreement. In addition, the Consultant shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
(b) Exceptions. The obligations and restrictions in subsection (a) do not apply to that part of the Confidential Information that:
(i) is or becomes a part of the public domain through no act or omission of the other party;
(ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;
(iii)is lawfully disclosed to the other party by a third party without restriction on disclosure; or
(iv) is independently developed by the other party without use of or reference to the other party's Confidential Information.
A. In addition, this Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
B. The parties agree, unless required by law, not to make each other's Confidential Information available in any form to any third party (except to a party's directors, officers, employees, agents, or representatives, including, without limitation, its attorneys, accountants, consultants, advisors, auditors, banks and financial advisors being bound to a similar duty of confidentiality) or to use each other's Confidential Information for any purpose other than in the performance of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its directors, officers, employees,. agents, representatives, attorneys, accountants, consultants, advisors, auditors, banks and financial advisors in breach of this Agreement. The parties agree to hold each other's Confidential Information in confidence during the term of this Agreement and for a period of three (3) years thereafter. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.
The Consultant shall report to Name or such other officer or employee as may be designated by the Company. The Contractor may provide a verbal or written summary report weekly to the Company on his progress. Reports shall consist of an update on the progress of contract review/construction/negotiations.
8. OTHER ACTIVITIES.
During the Term, the Consultant is free to engage in other independent contracting activities,
9. RETURN OF PROPERTY.
Within 60 days of the expiration or earlier termination of this agreement, the Consultant shall return to the Company, retaining no copies or notes, all Company products, samples, models, property, and documents relating to the Company’s business including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials and copies of those materials obtained by the Consultant during and in connection with his work with the Company. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork or creative work, notebooks, and similar items relating to the Company’s business, whether prepared by the Consultant or by others, remain the Company’s exclusive property.
10. FORCE MAJEURE.
A party will be not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this agreement (except for payment due under an Exhibit) by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party’s reasonable control (each a “Force Majeure Event”). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable:
(a) notify the other party of the Force Majeure Event and its impact on performance under this agreement; and
(b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this agreement.
11. GOVERNING LAW.
(a) Choice of Law. The laws of the state of Missouri govern this agreement (without giving effect to its conflicts of law principles).
(b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in Vernon County, Missouri.
(c) Attorneys’ Fees. If either party employs attorneys to enforce any rights arising out of or relating to this agreement, the losing party shall reimburse the prevailing party for its reasonable attorneys’ fees.
No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
13. ASSIGNMENT AND DELEGATION.
(a) Assignment. Neither party may assign any of its rights under this agreement, in whole or in part, by either party, and any such attempted assignment shall be void and of no effect except with the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that such consent shall not be required if (i) either party assigns this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets, unless the surviving entity is a direct competitor of the other party, or (ii) Consultant assigns its right to receive and collect payments hereunder.
(b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party, which consent shall not be unreasonably withheld.
(c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section 14, it is void.
14. COUNTERPARTS; ELECTRONIC SIGNATURES.
(a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
(b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party’s signature is delivered in person, by mail, courier, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
(a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (certified mail, postage prepaid, return-receipt requested) or nationally recognized overnight courier (fees prepaid).
(b) Addresses. A party shall address notices under this section 17 to a party at the following addresses:
If to the Company:
City, State Zip Code
If to the Consultant:
Alvin Dunn, President
Affordable Contracts LLC
20650 S 1700 Rd
Nevada, MO 64772
(c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
18. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties’ agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement’s effectiveness.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement’s construction or interpretation.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the date of this agreement.
21. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
23. Successors and Assigns.
All provisions of the Agreement, Addendums or Exhibits, if any, of the Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and permitted assigns of the parties.
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Each party is signing this agreement on the date stated opposite that party’s signature.
Affordable Contracts LLC