This is a Consulting Agreement (“Agreement”) for a Consultant and Consultee to read, review, edit as desired, then choose to sign.
This kind of agreement may also be known as a General Consulting Agreement ("GSA"), Professional Services Agreement ("PSA"), or Master Services Agreement ("MSA").
Note: The purpose of this document is to have a free open source template that is easy to understand, easy to customize, and fair and balanced for everyone involved. Feedback is welcome. Improvements are welcome.
This Agreement is made by and between the following...
Person's name:
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Person's title, or position, or role:
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Person's postal address:
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Person's email address:
_____________________________________________________________________
Organization's name, if any:
_____________________________________________________________________
Organization's postal address, if any:
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Organization's email address, if any:
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Hereafter referred to as the "Consultant".
Person's name:
_____________________________________________________________________
Person's title, or position, or role:
_____________________________________________________________________
Person's postal address:
_____________________________________________________________________
Person's email address:
_____________________________________________________________________
Organization's name, if any:
_____________________________________________________________________
Organization's postal address, if any:
_____________________________________________________________________
Organization's email address, if any:
_____________________________________________________________________
Hereafter referred to as the "Consultee".
Hereafter referred to as a "Party" individually.
Hereafter referred to as the "Parties" collectively.
This Agreement is dated and in effect as of:
Date:
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Hereafter referred to as the "Effective Date".
This Agreement is governed by and construed in accordance with the laws of:
City or Town, State or Province, Country or Nation:
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Hereafter referred to as the "Place".
Whereas, Consultant provides professional consulting services;
Whereas, Consultee wants to engage Consultant to provide professional consulting services, on behalf of Consultee, and on the terms and conditions set forth herein;
Now, therefore, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the Parties hereto agree as follows.
Parties represent and warrant that at the time of execution of this Agreement, the terms of this Agreement are compatible with, and not inconsistent with, any other contractual or legal obligations Parties may have or with the policies of any institution or company with which Parties associated.
The validity, construction and performance of this Agreement shall be governed and construed in accordance with the laws applicable to contracts made and to be wholly performed within the Place, without giving effect to any conflict of laws provisions thereof.
The courts located in the Place shall have sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement.
This Agreement includes the right of forum non conveniens.
Note: Forum non conveniens is a legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and transfers the case to such a forum.
See: https://wikipedia.org/wiki/Forum_non_conveniens
Example: Suppose the parties are both Delaware companies, yet the key people involved all live in San Francisco. If something must go to court, both parties may prefer to transfer the legal case from Delaware to San Francisco, to make it more convenient for the key people involved.
The expresion "headings" in this Agreement shall mean the bigger bolder titles. The headings are for reference purposes only. They shall not be used or relied upon in the interpretation of this Agreement.
The "adjuncts" in this Agreement shall mean the paragraphs that start with "See:", "Note:", and "Example:". The adjuncts are for reference purposes only. They shall not be used or relied upon in the interpretation of this Agreement.
The expression "Technology" shall mean designs, methods, processes, formulas, algorithms, discoveries, inventions, technical information, drawings, modifications, enhancements, improvements, and other technologies.
The expression "Background Technology" shall mean all Technology that: (i) was developed, conceived or owned by a Party prior to the Effective Date; or (ii) is conceived or reduced to practice by a Party outside its performance under this Agreement.
The expression "Independent Technology" shall mean all Technology that: (i) is developed, conceived or reduced to practice by Consultant, at any time, including during this Agreement, and (ii) where the technology is generic enough that it may be useful for unrelated projects, practices, or purposes.
Independent Technology may be used during the course of the Work, and also may be among the deliverables.
Example: Independent Technologies include technologies such as open source code, or public packages, or demonstrations, or tutorials.
Example: Consultant may (i) write a text parser that is generic and generally useful; or (ii) a testing tool that is suitable for becoming a shared library usable by multiple projects, or (iii) a data calculation application that can be published as open source code, or (iv) a system utility that can become a public package, or (v) a demonstration of how to use or implement an idea, or (vi) a tutorial that teaches a process.
The expression "Ethics Wall" shall mean an information barrier protocol within an organization designed to prevent exchange of information or communication that could lead to conflicts of interest.
See: https://wikipedia.org/wiki/ethics_wall
Example: Consultant and Consultee may want to negotiate an ethics wall that separates the Consultant-Consultee relationship from any other relationships, such as from any other Consultant relationships. We suggest describing any ethics wall within a separate Confidentiality Agreement ("CA").
Note: "Screen", or the verb "to screen", is the preferred term of the American Bar Association Model Rules of Professional Conduct. The ABA Model Rules define screening as "the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law", and suitable "screening procedures" have been approved where paralegals have moved from one law firm to another and have worked on cases for their former employer which may conflict with the interests of their current employer and the clients they represent.
The expression "Prior Inventions" means all ideas, inventions, or works that an individual or entity created before entering into the Agreement.
Note: This expression is often used in employment or intellectual property agreements. The purpose of acknowledging prior inventions in a legal contract is to ensure that a party does not claim ownership of another party's prior invention, either intentionally or accidentally.
The expressions "include", "included", "includes", "including" shall mean without limitation.
Example: The phrase "A shall include B" means "A shall include without limitation B".
The expression "Responsibility Standards" shall mean the following:
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The ability to provide adequate and sufficient financial resources to perform contracts.
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Having the ability to comply with proposed delivery schedules for project work.
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Demonstrating a satisfactory record of contract performance (also see the requirements for neutral ratings).
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Demonstrating a satisfactory record of business ethics and integrity.
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Having the necessary organization, experience, accounting systems, and operating controls to effectively regulate processes and assure quality.
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Having the required resources to perform government contract
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Having the necessary licensing and qualifications to perform the contract in compliance with local laws and regulations.
Example: The United States (US) Government Publishing Office (GPO) is a government agency that requires these Responsibility Standards for all government contractors.
The expression "Debar" means to officially bar, ban, or exclude someone from doing something. The expression "Debarred" is the past tense. The expression "Debarment" means the process of being debarred.
Reasons for Debarment include, but are not limited to:
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Violations of, or noncompliance with, laws, regulations, certifications or credentials.
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Criminal activities, such as corruption, fraud, gross negligence, or illegal discrimination.
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Unfair trade practices, such as antitrust, price-fixing, bribery, willful misrepresentation, or excessive pass-through charges.
Example: The United States (US) Government Publishing Office (GPO) is a government agency with the authority to debar contractors from participating in government contracts. Being debarred from government contracts also means the disqualification of a person or contractor from getting invitations for bids, requests for proposals, or the award of a contract by the federal government.
The expressions of any names and pronouns shall include all gendered forms, such as masculine forms, feminine forms, and gender-neutral forms.
Example: the word "he" includes "she".
The expressions of any names and pronouns shall include all numbered forms, such as singular forms, plural forms, and number-neutral forms.
Example: the word "he" includes "they".
This document.
A separate Statement of Work ("SOW") may describe the Work, such as any plans, deliverables, milestones, specifications, work breakdown structures, etc.
Note: We suggest using a Statement of Work for longer-range planning, or larger-scope projects, or more-complex engagements.
Note: In practice, a Statement of Work may to refer to a higher-level Consulting Agreement, General Consulting Agreement ("GSA"), Professional Services Agreement ("PSA"), or Master Services Agreement ("MSA").
A separate Work Order ("WO") may describe the Work, such as any plans, deliverables, milestones, specifications, work breakdown structures, etc.
Note: We suggest using a Work Order for shorter-range planning, or smaller-scope projects, or less-complex engagements.
Note: In practice, a Work Order may refer to a higher-level Consulting Agreement, General Consulting Agreement ("GSA"), Professional Services Agreement ("PSA"), Master Services Agreement ("MSA").
A separate Fees And Payments Agreement ("FPA") may describe any fees and payments, such as any estimates, retainers, rates, compensation, etc.
A separate Confidentiality Agreement ("CA") may describe any confidentiality areas, such as for trade secrets, private security, non-public documents, etc.
Note: In general, a confidentiality agreement may be also known as a non-disclosure agreement ("NDA"), confidential disclosure agreement ("CDA"), proprietary information agreement ("PIA") or secrecy agreement ("SA").
The Parties have no non-compete agreement ("NCA").
Note: California law voids non-compete agreements for consulting and professional services. This comes from California Business and Professions Code Section 16600 which provides: "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." California law doesn't allow non-compete agreements for employees, consultants, or contractors. The enumerated exceptions are for sale of a business, partnership dissolution, and disassociation of a partner.
If there is any ambiguity, inconsistency or conflict between the terms and conditions contained in any of the documents forming a part of this Agreement, then the Agreement shall be construed in the following order of priority, i.e. 1 takes precedence over 2 and so on:
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These terms and conditions.
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The provisions of any Statement of Work.
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The provisions of any Work Order.
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The provisions of any schedules.
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Any other documents incorporated or referenced herein.
All work performed by Consultant shall be documented in a Work Order ("WO"), and signed by authorized representatives of both parties.
Consultant shall have the right to accept or decline any proposed Work Order.
All instructions, approvals, submissions, notices and any other communications or transactions that must be made to Consultee shall be made through the representative set forth on the Work Order.
Except, as expressly set forth in the Work Order, or Statement of Work, or in this Agreement, Consultant shall furnish all labor, materials, equipment, supervision and insurance need to perform the work.
The Consultee and Consultant are independent parties.
There is no dependency, such as employer, principal of, partner of, or joint venture.
The Consultant is an independent contractor, and not an employee of Consultee.
Note: An independent contractor is A. free from the control and direction of the hiring entity in the performance of the work, both under the contract for the performance of the work and in fact; B. performing work that is outside the usual course of the hiring entity’s business; C. customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
The Consultant is solely responsible for all the Consultant's tax-related areas, such as tax withholding, income tax, sales tax, or self-employment tax.
The Consultant is not eligible for any Consultee employee benefits, such as employee stock purchasing, employee profit sharing, employee health insurance, employee life insurance, employee disability insurance, employee retirement plans, or employee welfare plans.
The Consultee and Consultant have no authority to make any promise, guarantee, warranty, or representation, or to assume, create, or incur any liability or other obligation of any kind, either express or implied, against or in the name of, or on behalf of, the other.
Note: For example suppose a vendor wants a legal confidentiality agreement, and wants it to include the Consultee and Consultant. All parties must sign. No party can sign for another party.
Consultee authorizes Consultant to access the Work's related aspects, such as any content, technology, etc.
Unless otherwise specified in a Work Order, Consultant reserves the right to assign subcontractors to the Work to ensure quality and on-time completion.
Consultant is not responsible for any changes made by anyone other than consultant or consultant's authorized agent(s).
Example of authorized agents: Consultee and Consultant may want to work with a third-party who is fully qualified, such as an expert or vendor. The Parties may mutually agree to authorize that third-party to make changes such that the Consultant continues to be responsible for the changes. An area where this kind of effect can come up in practice is with high performance systems such as high-security servers or high-optimization databases, when Consultee and Consultant want to get help from an expert or vendor, and want the resulting changes to become part of the Work.
All rights not expressly granted hereunder are reserved to Consultant.
This includes and is not limited to all rights in sketches, comps, demos, prototypes, other preliminary materials, etc.
Moral rights, as described in the international Berne Convention for the Protection of Literary and Artistic Works, are reserved to Consultant.
Consultee agrees to indemnify and hold harmless Consultant against any and all claims, costs, and expenses, including attorney's fees, due to materials included in the Work at the request of Consultee for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release.
Copyright for the Work is in Consultant's name unless otherwise specified.
License for the Work is in Consultant's name unless otherwise specified.
Upon completion of Work, and only upon receiving payment of balance due, Consultant will sign a Release of Copyright that releases the copyright to Consultee.
Upon completion of Work, and only upon receiving payment of balance due,and Consultant will grant Consultee a perpetual, irrevocable, worldwide license to use and modify the Work.
Unless otherwise specified, this license does not include the right to redistribute, resell, or relicense the Work, or the Background Technology, or the Independent Technology.
###. Copyright and license for other technologies
While performing the Work, Consultant may from time to time work with Background Technologies and/or Independent Technologies.
Example: Consultant may use or create open source software, demonstrations and/or tutorials, stock photos and/or stock media, freely-available graphic diagrams, published template documents, pre-packaged applications, commercial off the shelf software, etc.
While performing the Work, Consultant may from time to time modify Background Technologies and/or Independent Technologies, thus creating derivative works.
Example: Consultant may modify open source code, edit stock photos, augment graphic diagrams, fill in template documents, extend pre-packaged applications, create plugins for commercial off the shelf software, create demonstrations or tutorials, etc.
These modifications and/or derivative works may be used during the course of the Work and may be among the deliverables.
Copyright for Background Technology remains the property of respective owners.
Copyright for Independent Technology is the property of Consultant.
License for Background Technology remains the property of respective owners.
License for Independent Technology is the property of Consultant.
Note: Background Technology and Independent Technology may include many kinds of copyrights and licenses.
Example: open source software tool-kits may include the GNU Public License ("GPL"), graphic diagrams may include the Creative Commons ("CC") license, template documents may include the Apache License, etc.
In all cases it is Consultee's responsibility to vet any and all legal aspects, to Consultee's satisfaction. In all cases it is not Consultant's responsibility to vet legal aspects.
Unless otherwise specified, Consultant's modifications of Background Technology, and/or derivatives of Background Technology, belong to the Background Technology respective owners.
Example: Consultant may develop a software bug fix for Background Technology source code, in which case the bug fix belongs to the Background Technology respective owner, not the Consultee.
This Agreement can only be modified by a written amendment signed by the Party against whom enforcement of such modification is sought.
Any agreements not specified in this contract must be mutually authorized by a written change order.
Any Party may terminate this Agreement by giving 14 calendar days written notice to the other of such termination. In the event that Work is postponed or terminated at the request of Consultee, Consultant shall have the right to bill pro rata for work completed through the date of that request, while reserving all rights under this Agreement.
If additional payment is due, this shall be payable within 14 calendar days of Consultee's written notification to stop work. In the event of termination, Consultee shall also pay any expenses incurred by Consultant and Consultant shall own all rights to the Work. Consultee shall assume responsibility for all collection of legal fees necessitated by delay and/or default in payment.
Consultant's total aggregate liability for damages under this agreement shall be limited to one hundred percent (100%) of the amount of fees received for services by consultant under this agreement.
In the case of per project pricing, or per work order pricing, Consultant's total aggregate liability for damages under this agreement shall be limited to one hundred percent (100%) of the amount of fees received for services by consultant under this agreement for the project at issue.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Consultee agrees that Consultee is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend consultant and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Consultee's exercise of Internet electronic commerce.
Parties warrant and represent that they have never been, are not currently, and, during the term of this Agreement, will not become Debarred.
All aspects of this section are mutual i.e. apply equally to each Party.
If any controversy or claim arises out of or relating to this Agreement , or the breach thereof, and cannot be settled through negotiation, then the Parties agree to try in good faith to settle the dispute first by non-binding mediation, and if that fails then second via non-binding arbitration, and if that fails then via litigation or some other type of dispute resolution process.
Note: The purpose of this multi-step process is to save time and money for everyone involved, and to try multiple ways to find solutions, without needing to involve litigation. We're generally aware that some lawyers recommend binding arbitration, yet in our experience the binding causes more problems than it solves.
If non-binding mediation is needed, then the Parties will use the American Arbitration Association ("AAA") standard procedures for Non-Binding Mediation Rules.
The Parties agree to do this before the Parties may initiate non-binding arbitration, binding-arbitration, litigation, or some other type of dispute resolution process.
If non-binding arbitration is necessary, then the Parties agree to submit to non-binding arbitration administered by the American Arbitration Association under its Non-Binding Arbitration Rules.
The Parties agree to do this before the Parties may initiate binding arbitration, litigation, or some other type of dispute resolution process.
In the event of non-binding mediation relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable mediators’s fees and expenses.
In the event of non-binding arbitration relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable arbitrator’s fees and expenses.
In the event of litigation relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and expenses.
If any provision of this Agreement, or restriction of this Agreement, is found by a court of competent jurisdiction to be unlawful, or unenforceable, or void, such provision will be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Agreement will be enforced as if such provision was not included.
Any failure by a Party to enforce another Party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
All aspects of this section are mutual i.e. apply equally to each Party.
With respect to the subject matter hereof, this Agreement constitutes the entire understanding of the Parties, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, of the Parties.
Parties agree to be generally available as a reference for each other.
Example: A Party may provide a reference to a third-party, such as a client, customer, prospect, partner, investor, or vendor.
Parties agree they may display non-confidential results of Work.
Example: A Party may have a portfolio web page, or a vendor list web page, and may include non-confidential information, logos, screenshots, case studies, result analytics, etc.
Parties agree their organizations and people may link to non-confidential information about each other.
Example: A Party employee may link to another Party employee via a social network such as LinkedIn, or a professional directory such as Upwork, or a hosting service such as GitHub.
Any notices or communications required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other Party first indicated above (or such other addressee as may be furnished by a Party in accordance with this paragraph).
All such notices or communications shall be deemed to have been given and received (a) in the case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by a nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case of mailing, on the seventh business day following such mailing.
Nothing in this Agreement is intended to interfere with, or restrain, or prohibit law enforcement reporting.
This includes but is not limited to the purpose of reporting a suspected violation of the law to authorized law enforcement officers, or for the purpose of a legally-mandated sealed filing in court or other authorized law enforcement proceeding, or for the purpose of whistleblower provisions of government laws or regulations or requirements.
In the United States, law enforcement agencies include but are not limited to police, the U.S. Department of Justice ("DOJ"), the U.S. Federal Bureau of Investigation ("FBI"), the U.S. Securities and Exchange Commission ("SEC"), the U.S. Congress, and any U.S. Government Inspector General.
When doing law enforcement reporting, a Party does not need the prior authorization of any other Party, and a Party is not required to notify another Party.
This Agreement is personal in nature, and no Party may directly or indirectly assign or transfer it by operation of law or otherwise without the prior written consent of all other Parties, whose consent will not be unreasonably withheld. All obligations contained in this Agreement shall extend to and be binding upon the parties to this Agreement and their respective successors, assigns and designees.
There are no warranties or guarantees, either express or implied.
NO WARRANTIES ARE MADE BY ANY PARTIES UNDER THIS AGREEMENT WHATSOEVER.
NO GUARANTEES ARE MADE BY ANY PARTIES UNDER THIS AGREEMENT WHATSOEVER.
IN NO EVENT SHALL ANY PARTY, THEIR PARENT CORPORATIONS AND THEIR AFFILIATES, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION LOSSES, OR CUSTOMER CLAIMS, WHETHER ARISING UNDER CONTRACT, WARRANTY, EXPRESS OR IMPLIED, TORT, INCLUDING NEGLIGENCE, OR STRICT LIABILITY, ARISING AT ANY TIME FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR PERFORMANCE HEREUNDER, EVEN IF CAUSED BY THE SOLE OR CONCURRENT OR ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL FAULT OF ANY PARTY.
ALL PARTIES DO RELEASE, INDEMNIFY, AND HOLD HARMLESS ALL PARTIES, THEIR PARENT CORPORATIONS AND THEIR AFFILIATES, AGENTS, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, COSTS, FEES AND EXPENSES, AS WELL AS COSTS OF DEFENSE, SETTLEMENT, AND REASONABLE ATTORNEY'S FEES, ARISING AT ANY TIME IN CONNECTION WITH 1) CLAIMS BY ANY PARTY THAT EXCEEDS THE LIMITATION OF LIABILITY SET OUT ABOVE, AND 2) ANY CLAIMS BY THIRD PARTIES ARISING IN CONNECTION WITH ANY WORK PRODUCT OR WORK SERVICES PROVIDED HEREUNDER, EVEN IF CAUSED BY THE SOLE OR CONCURRENT OR ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF ANY PARTY. THIS PARAGRAPH SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.
On behalf of Consultant:
Print person's name:
_____________________________________________________________________
Sign person's name:
_____________________________________________________________________
Date:
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On behalf of Consultee:
Print person's name:
_____________________________________________________________________
Sign person's name:
_____________________________________________________________________
Date:
_____________________________________________________________________