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https://github.com/SixArm/consulting-agreement

Consulting agreement template that is free open source. Also known as a general consultant agreement (GCA), professional services agreement (PSA), master services agreement (MSA).
https://github.com/SixArm/consulting-agreement

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Consulting agreement template that is free open source. Also known as a general consultant agreement (GCA), professional services agreement (PSA), master services agreement (MSA).

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README 

        
# Consulting agreement



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").



The purpose of this document is to have a free open source consulting agreement

that is easy to understand, easy to customize for your own goals, and easy to

see is fair and balanced for everyone.  The free open source license is your

choice of [CC-BY-SA-4.0]((https://creativecommons.org/licenses/by-sa/4.0/) or

[GPL-2.0](https://www.gnu.org/licenses/old-licenses/gpl-2.0.en.html) or

[GPL-3.0](https://www.gnu.org/licenses/gpl-3.0.en.html) or contact us for custom

license.



Feedback is welcome. Improvements are welcome.



## 1. Introduction



This Agreement is made by and between the following...



### 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:



```

_____________________________________________________________________

```



Organization's type, if any, such as "a California corporation":



```

_____________________________________________________________________

```



Hereafter referred to as the "Consultant".



### Consultee



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:



```

_____________________________________________________________________

```



Organization's type, if any, such as "a California corporation":



```

_____________________________________________________________________

```



Hereafter referred to as the "Consultee".



### Date



This Agreement is dated and in effect as of:



Date:



```

_____________________________________________________________________

```



Hereafter referred to as the "Effective Date".



### Place



This Agreement is governed by and construed in accordance with the laws of:



City or Town, State or Province, Country or Nation:



```

_____________________________________________________________________

```



Hereafter referred to as the "Place".



### Consultant Contact Person (optional)



Person's name:



```

_____________________________________________________________________

```



Person's title, or position, or role:



```

_____________________________________________________________________

```



Person's postal address:



```

_____________________________________________________________________

```



Person's email address:



```

_____________________________________________________________________

```



Hereafter referred to as the "Consultant Contact Person".



### Consultee Contact Person (optional)



Person's name:



```

_____________________________________________________________________

```



Person's title, or position, or role:



```

_____________________________________________________________________

```



Person's postal address:



```

_____________________________________________________________________

```



Person's email address:



```

_____________________________________________________________________

```



Hereafter referred to as the "Consultee Contact Person".



### Purpose



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.



### Party & Parties



Consultant and Consultee are hereafter referred to as the "Party" individually,

and referred to as the "Parties" collectively.



### Compatibility



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.



### Jurisdiction



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.



### Forum non conveniens



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.



## 2. Definitions



### Headings



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.



### Adjuncts



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.



### Technology



The expression "Technology" shall mean designs, methods, processes, formulas,

algorithms, discoveries, inventions, technical information, drawings,

modifications, enhancements, improvements, and other technologies.



### Background Technology



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.



### Independent Technology



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.



### Ethics Wall



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.



### Prior Invention



The expression "Prior Invention" shall mean an idea, invention, product, service,

patent, copyright, trademark, service mark, source code, documentation, design,

or work that an individual or entity created before entering into the Agreement,

whether explicitly enumerated or not.



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.



Note: Some companies try to suggest a "Prior Invention" clause that forces

explicit enumeration, such as by stating "List all of your prior inventions

here". In our experience, this kind of clause can be a show-stopper for

consulting services, because many consultants have projects that they are not

permitted to disclose. If this is a show-stopper, then one way we've seen

succeed is a reasonable compromise: asking a mediator to assess each party's

list of prior inventions, without disclosing to the other party, to discover any

potential conflicts, and inform the respective party so they can decide what to

do next.



### Prior Invention Positive Verification



The expression "Prior Invention Positive Verification" shall mean a decision

process that the parties agree to use in order to determine whether a work is a

Prior Invention. If the decision process results in a true output, then the

process is a prior invention; if the decision process has a false output or any

other output or cannot be completed, then the process is not used in the

determination.



When the process has a true output then a work is a prior invention. When the

process has any other output then there is not enough information to make a

determinination.



Example: Suppose a party publishes a project before the Agreement, such as

publishing a product on Amazon.com, website on Wix.com, artwork on Dribble.com,

mockups on Figma.com, programs on GitHub.com, patents on USPTO.gov, then the

parties agree the project is a prior invention.



Note: This clause will likely be new to many lawyers. The purpose is to have

mutual reference to publicly available information. This typically makes it

easier for parties to review each others' prior inventions.



### Include Without Limitation



The expressions "include", "included", "includes", "including" shall mean

without limitation.



Example: The phrase "A shall include B" shall mean "A shall include without

limitation B".



### Responsibility Standards



The expression "Responsibility Standards" shall mean the following:



* The ability to provide adequate and sufficient financial resources to perform

  contracts.



* Having the ability to comply with proposed delivery schedules for project

  work.



* Demonstrating a satisfactory record of contract performance (also see the

  requirements for neutral ratings).



* Demonstrating a satisfactory record of business ethics and integrity.



* Having the necessary organization, experience, accounting systems, and

  operating controls to effectively regulate processes and assure quality.



* Having the required resources to perform government contract



* 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.



### Debar



The expression "Debar" shall mean to officially bar, ban, or exclude someone from

doing something. The expression "Debarred" is the past tense. The expression

"Debarment" shall mean the process of being debarred.



Reasons for Debarment include, but are not limited to:



* Violations of, or noncompliance with, laws, regulations, certifications or

  credentials.



* Criminal activities, such as corruption, fraud, gross negligence, or illegal

  discrimination.



* 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 shall mean 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.



### Gendered Names and Pronouns



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".



### Numbered Names and Pronouns



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".



### Business Day



The expression "business day" shall mean any day in which normal business

operations are conducted. Unless otherwise specified, a business day lasts eight

hours from 09:00 to 17:00 local time.



### Calendar Day



The expression "calendar day" shall mean any calendar day. Unless otherwise

specified, a calendar day lasts twenty-four hours from 00:00 to 23:59 local

time.



### Day



The expression "day" absent any specific scope, such as "busines day" or

"calendar day", etc. shall mean a calendar day.



### Retainer fee



The expression "retainer fee" shall mean the upfront cost of a service before the service has been performed. Unless otherwise specified, a retainer fee is non-refundable.



Note: A deposit is a partial payment that is usually refundable, while a

retainer is an upfront payment that is usually non-refundable. The United States

Internal Revenue Service (IRS) and  Generally Accepted Accounting Principles

(GAAP) have distinguished between a deposit and a retainer fee.



### Draw-down retainer fee



The expression "draw-down retainer fee" shall mean a retainer fee that is used for gradual payment as work is completed.



Example draw-down retainer fee: Consultant wants to ensure that Consultee has enough money to pay, so estimates the total cost, then asks for the money up front as a draw-down retainer. As work progresses, the Consultant gradually recognizes revenue from the retainer fee. 



### Time-slot retainer fee



The expression "time-slot retainer fee" shall mean a retainer fee that reserves a specific time slot.

 

Example time-slot retainer fee: Consultee wants to ensure that Consultant will be available during certain time slots, such as "20 hours per week" because of predicted workload, or "Every Friday 9:00 a.m. to 10:00 a.m." because of predicted recurring status meetings, or "Last business day of each month" because of predicted monthly reporting needs, etc.



### Force Majeure



The expression "force majeure" shall mean as a supervening cause or force,

including but not limited to war, terrorism, major security threat, major

destabilizing act of government such as martial law or state of emergency or

sanctions, major labor disruption such as severe strike or severe walkout, major

economic upheaval such as severe stock market suspension or severe banking

industry failures, major climate disaster such as severe heat wave or severe

water shortage, major health threats such as severe pandemics or severe

contaminations, major natural disasters such as severe fires or severe storms,

major technological failures such as severe electricity failure or severe

internet outage or severe cyber-attack, or major catastrophe beyond control of

the Parties.



### Force Majeure Excuse



The expression "force majeure excuse" shall mean a force majeure event that

renders performance by one or more of the parties impracticable or impossible

because the event is the effective cause of the non-performance.



The expression "force majeure excuse" shall not mean anything that merely delays

or hinders fulfillment of the Agreement, and shall not mean exemption from

liability for violation of monetary payment obligations of the Agreement.



## 3. Documents



### Consulting Agreement



This document.



### Statement of Work



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").



### Work Order



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").



### Fees and Payments Agreement



A separate Fees And Payments Agreement ("FPA") may describe any fees and

payments, such as any estimates, retainers, rates, compensation, etc.



### Confidentiality Agreement



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").



### Subcontractor Agreement



A separate Subcontractor Agreement may describe any extra-organization

assignment, work delegations, adjunct team members, etc.



Otherwise, Parties agree to the following:



Parties shall not assign subcontractors without prior written approval by all

Parties.



Note: If subcontractors are desirable, then we recommend enumerating a list. For

example, stating which specific subcontrator organizations and/or subcontractor

persons are allowable.



### Non-Solicitation Agreement



A separate Non-Solicitation Agreement may describe any aspects relating to any

inter-organization staff solicitation, recruiting, hiring practices, etc.



Otherwise, Parties agree to the following:



Parties shall not knowingly directly solicit an employee of another Party.



The expression "knowingly" shall mean with knowledge. This excludes unknowing

solicitation, which includes but is not limited to reasonable lack of knowledge

of the employee's employment history, or reasonable mistake in an application

tracking system, or reasonable accidental miscommunication.



The expression "directly" shall mean targeting a specific person. This excludes

indirect solicitation, which includes public job postings, or social media

announcements, or impersonal advertisements, or legally-required notifications.



The non-solication lasts during this Agreement, and for a period of 1 year after

this Agreement.



Note: In practice, some Parties like to have inter-organization solicitation,

with agreed-upon payments for successful inter-organization transfers. For

example, if a Consultant employee is working especially well with a Consultee

employee, and one of the employees wants to move from one Party to the other

Party, then Parties agree to a transfer fee of 20% of the first year salary.



### Non-Compete Agreement



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.



### 4. Work



### Priority



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:



1. The provisions of this Consulting Agreement a.k.a. General Consulting

Agreement ("GSA"), Professional Services Agreement ("PSA"), or Master Services

Agreement ("MSA").



2. The provisions of any Confidentiality Agreement.



3. The provisions of any Fees And Payments Agreement.



4. The provisions of any Statement of Work.



5. The provisions of any Work Order.



6. The provisions of any schedules.

 

7. Any other documents incorporated or referenced herein.



### Work Order



All work performed by Consultant shall be documented in a Work Order ("WO"), and

signed by authorized representatives of both parties.



### Work Order Acceptance



Consultant shall have the right to accept or decline any proposed Work Order.



### Work Order Communications



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.



### Work Order Furnishing



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.



## 5. Relationship



### Independence



The Consultee and Consultant are independent parties.



There is no dependency, such as employer, principal of, partner of, or joint

venture.



### Independent Contractor



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.



### Authority



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.



### Access



Consultee authorizes Consultant to access the Work's related aspects, such as any

content, technology, etc.



### Non-provider changes



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.



### Reservation of rights



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.



### Permissions and releases



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 and license for the Work



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.



## 6. Limits



### Modification



This Agreement can only be modified by a written amendment signed by the Party

against whom enforcement of such modification is sought.



### Change order



Any agreements not specified in this contract must be mutually authorized by a

written change order.



### Term



The initial term of this Agreement is one calendar week. After that, this

Agreement automatically renews for successive one calendar week periods, unless

any Party terminates this Agreement.



### Termination



Any Party may terminate this Agreement by giving one calendar Week written

notice to the other Parties 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 one calendar week 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.



### Limitation of liability



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.



### Laws affecting electronic commerce



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.



### Debarment



Parties warrant and represent that they have never been, are not currently, and,

during the term of this Agreement, will not become Debarred.



## 7. Mutual Resolution



All aspects of this section are mutual i.e. apply equally to each Party.



### Agreement to resolve claims



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.



### Non-Binding Mediation



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.



### Non-Binding Arbitration



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.



### Recovery



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.



### Integrity



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.



## 8. Mutual Alignment



All aspects of this section are mutual i.e. apply equally to each Party.



### Sole agreement



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.



### Referenceability



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.



### Displayability



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.



### Linkability



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.



### Communications



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.



### Law Enforcement Reporting



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.



### Transfer



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.



### Warranties & Guarantees



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.



### Protection



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.



### Release



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.



## 9. Signatures



IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the

date first above written.



### Consultant



On behalf of Consultant:



Print person's name:



```

_____________________________________________________________________

```



Sign person's name:



```

_____________________________________________________________________

```



Date:



```

_____________________________________________________________________

```



### Consultee



On behalf of Consultee:



Print person's name:



```

_____________________________________________________________________

```



Sign person's name:



```

_____________________________________________________________________

```



Date:



```

_____________________________________________________________________

```