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

SixArm.com → Company consulting agreement
https://github.com/SixArm/sixarm-company-consulting-agreement

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SixArm.com → Company consulting agreement

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README 

        
# Consulting agreement



This is a Consulting Agreement (“Agreement”) for professional services.



## 1. Introduction



### 1.1. Parties



This Agreement is made by and between:



  * Person's name:



  * Person's title/role/position:



  * Organization's name:



  * Organization's postal address:



hereafter referred to as "CLIENT" 



and:



  * Person's name:



  * Person's title/role/position:



  * Organization's name:



  * Organization's postal address:



hereafter referred to as "PROVIDER".



Hereafter referred to as a "Party" individually.



Hereafter referred to as the "Parties" collectively.



### 1.2. Date



This agreement is dated and in effect as of:



  * Date:



### 1.3. Purpose



This agreement is with respect to consulting professional services for CLIENT's

business, hereinafter referred to as the "Work".



Whereas, PROVIDER is a business consultant technology developer;



Whereas, CLIENT wishes PROVIDER to create certain Work described more fully

herein; 



Whereas, PROVIDER wishes to create such Work;



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.



### 1.4. Place



This Agreement shall be governed by and construed in accordance with the laws

of:



  * State/Province:



  * Country/Nation:



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 such place, without giving effect to any conflict of

laws provisions thereof.



The country courts and state 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 mostly common law 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. -- Wikipedia.



Reference: https://wikipedia.org/wiki/Forum_non_conveniens



### 1.5 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. These terms and conditions.



2. The provisions of any Work Order.



3. The provisions of any schedules.



4. Any other documents incorporated or referenced herein.



### 1.6. Work Order



All work performed by PROVIDER shall be documented in a Work Order ("WO") signed

by authorized representatives of both parties. 



Each Work Order shall set forth, at a minimum, the details set forth on

Attachment 1. 



PROVIDER 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 CLIENT shall be made through the

representative set forth on the Work Order. 



Except, as expressly set forth in the Work Order or in this Agreement, PROVIDER

shall furnish all labor, materials, equipment, supervision and insurance need to

perform the work.



### 1.7. References



Areas marked "Reference:", "Note:", or "Example:", used in this Agreement are

for reference only and shall not be used or relied upon in the interpretation of

this Agreement.



Headings used in this Agreement are for reference only and shall not be used or

relied upon in the interpretation of this Agreement.

s



## 2. Definitions



### 2.1. Technology



Technology shall mean designs, methods, processes, formulas,

algorithms, discoveries, inventions, technical information, drawings,

modifications, enhancements, improvements, and other technologies.



### 2.2. Background Technology



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.



### 2.3. Independent Technology



Independent Technology shall mean all Technology that: (i) is developed,

conceived or reduced to practice by PROVIDER, 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: PROVIDER 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.



## 3. Documents



### 3.1. Consulting Agreement



This document.



### 3.2. Work Order



A separate Work Order ("WO") may describe the Work, such as any plans,

deliverables, milestones, specifications, work breakdown structures, etc.



### 3.3. 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.



### 3.4. 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).



### 3.5. 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. Content



### 4.1 Independence



The CLIENT and PROVIDER are independent parties. 



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

venture.



### 4.2 Authority



The CLIENT and PROVIDER 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 CLIENT and PROVIDER. Each party must sign; one party

cannot sign for the other party.



### 4.3 Access



CLIENT authorizes PROVIDER to access the Work's related aspects, such as any

content, technology, etc.



### 4.4 Assignments



Unless otherwise specified in a Work Order, PROVIDER reserves the right to

assign subcontractors to the Work to ensure quality and on-time completion.



### 4.5 Non-provider changes



PROVIDER is not responsible for any changes made by anyone other than consultant

or consultant's authorized agent(s).



Example of authorized agents: CLIENT and PROVIDER 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

PROVIDER 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 CLIENT and PROVIDER

want to get help from an expert or vendor, and want the resulting changes to

become part of the Work.



### 4.6 Reservation of rights



All rights not expressly granted hereunder are reserved to PROVIDER.



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 PROVIDER.



### 4.7 Permissions and releases



CLIENT agrees to indemnify and hold harmless PROVIDER against any and all

claims, costs, and expenses, including attorney's fees, due to materials

included in the Work at the request of CLIENT for which no copyright permission

or previous release was requested or uses which exceed the uses allowed pursuant

to a permission or release.



### 4.8 Referenceability



CLIENT agrees to be generally available as a reference for PROVIDER, and that

PROVIDER may display non-confidential results of Work in PROVIDER's portfolio.



### 4.9 Copyright and license for the Work



Copyright for the Work is in PROVIDER's name unless otherwise specified.



License for the Work is in PROVIDER's name unless otherwise specified.



Upon completion of Work, and only upon receiving payment of balance due,

PROVIDER will sign a Release of Copyright that releases the copyright to CLIENT.



Upon completion of Work, and only upon receiving payment of balance due,and

PROVIDER will grant CLIENT a perpetual, irrovocable, 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.



### 4.10 Copyright and license for Technology



While performing the Work, PROVIDER may from time to time work with Background

Technologies and/or Independent Technologies.



Example: PROVIDER 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.



PROVIDER may from time to time modify these works, or create derivative works. 



Example: PROVIDER 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 PROVIDER.



License for Background Technology remains the property of respective owners. 



License for Independent Technology is the property of PROVIDER.



Note: Background Technology and Independent Technology may include many kinds of

copyrights and licenses. 



Example: open source software toolkits may include the GNU Public License (GPL),

graphic diagrams may include the Creative Commons (CC) icense, template

documents may include the Apache License, etc. 



In all cases it is CLIENT's responsibility to vet any and all legal aspects, to

CLIENT's satisfaction. In all cases it is not PROVIDER's responsibility to vet

legal aspects.



Unless otherwise specified, PROVIDER's modifications of Background Technology,

and/or derivatives of Background Technology, belong to the Background Technology

respective owners. 



Example: PROVIDER 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 CLIENT.



## 5. Resolution



### 5.1. Agreement to resolve claims



We use the American Arbitration Association (AAA) standard procedures for

mediation and non-binding arbitration.



### 5.2. Mediation



If any controversy or claim arises out of or relating to this contract, or the

breach thereof, and cannot be settled through negotiation, then the parties

agree to try in good faith to settle the dispute by mediation administered by

the American Arbitration Association under its mediation procedures before

resorting to arbitration, litigation or some other dispute resolution procedure.



### 5.3. Non-Binding Arbitration



If any controversy or claim arises out of or relating to this contract, or the

breach thereof, which cannot be settled by mediation as described above, then

the parties agree to submit to non-binding arbitration administered by the

American Arbitration Association under its Non-Binding Arbitration Rules before

the parties may initiate binding arbitration, litigation, or some other type of

dispute resolution process.



### 5.4. Recovery



In the event of litigation relating to this Agreement, the prevailing party

shall be entitled to recover its reasonable attorney’s fees and expenses.



### 5.5. 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 either party to enforce the other 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.



## 6. Limits



### 6.1. Sole agreement



This Agreement constitutes the entire understanding between the parties and

supersedes any and all prior or contemporaneous understandings and agreements,

whether oral or written, between the parties, with respect to the subject matter

hereof. 



### 6.2. Modification



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

against whom enforcement of such modification is sought.



### 6.3. Change order



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

written change order.



### 6.4. Warranties and guarantees



There are no warranties or guarantees, either express or implied.



NO WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT WHATSOEVER.



NO GUARANTEES ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT WHATSOEVER.



### 6.5. 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.



### 6.6. Transfer



This Agreement is personal in nature, and neither party may directly or

indirectly assign or transfer it by operation of law or otherwise without the

prior written consent of the other party, 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.



### 6.6. Termination



Either party may terminate this Agreement by giving 30 days written notice to

the other of such termination. In the event that Work is postponed or terminated

at the request of CLIENT, PROVIDER 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 10 days of CLIENT's

written notification to stop work. In the event of termination, CLIENT shall

also pay any expenses incurred by PROVIDER and PROVIDER shall own all rights to

the Work. CLIENT shall assume responsibility for all collection of legal fees

necessitated by delay and/or default in payment.



### 6.7. Limitation of liability



PROVIDER'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, PROVIDER'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.



### 6.7. Laws affecting electronic commerce



From time to time governments enact laws and levy taxes and tariffs affecting

Internet electronic commerce. CLIENT agrees that CLIENT 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 CLIENT's exercise of Internet electronic

commerce.



### 6.8. Consequential damages



IN NO EVENT SHALL PROVIDER, ITS PARENT CORPORATION, OR 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

PROVIDER.



### 6.9. Indemnification



CLIENT DOES RELEASE, INDEMNIFY, AND HOLD HARMLESS PROVIDER, ITS PARENT

CORPORATION 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 i) CLAIMS BY CLIENT THAT EXCEED THE LIMITATION OF

LIABILITY SET OUT IN SECTION 10 ABOVE, AND ii) ANY CLAIMS BY THIRD PARTIES

ARISING IN CONNECTION WITH ANY WORK PRODUCT OR SERVICES PROVIDED HEREUNDER, EVEN

IF CAUSED BY THE SOLE OR CONCURRENT OR ACTIVE OR PASSIVE NEGLIGENCE, STRICT

LIABILITY OR OTHER LEGAL FAULT OF PROVIDER. THIS PARAGRAPH SHALL SURVIVE

EXPIRATION OR TERMINATION OF THIS AGREEMENT.



## 7. Signatures



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

date first above written.



On behalf of CLIENT:



  * Sign name:



  * Print name:



  * Date:



On behalf of PROVIDER:



  * Sign name:



  * Print name:



  * Date: