Business Plan Start Up Analysis Consulting Agreement


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									This document sets forth an agreement that is entered into between a consultant and a
company, whereby the consultant will provides services with respect to business plan
development or start-up business analysis. The draft form contains numerous
comments and optional language to allow the contracting parties to address common
issues between them, based on their unique needs. The form is designed for use by an
individual consultant when providing services, by a company when hiring consultants, or
their legal representatives.
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as of
the ___ day of _____, 20__, [Instruction: Insert date.] by and among _____
[Instruction: Insert company name.], a _____ [Instruction: Insert company
formation information. Please note, if this agreement is being entered into between
and individual intending to form a company, please revise this language to reflect
same.] ("Company"), and _____ [Instruction: Insert consultant’s name.]
WHEREAS, Consultant is recognized as _____ [Instruction: Insert area of expertise.];
WHEREAS, the Company desires to retain Consultant to provide services related to and
in support of efforts in which Consultant has expertise; and
WHEREAS, Consultant is in the business of providing such consulting services with
respect to business planning and business-start up analysis, and has agreed to provide the
services in accordance with the terms and conditions set forth in this agreement.
NOW, THEREFORE, in consideration of this Agreement and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
   1. Consultant shall furnish the Company with his best advice, information, judgment
      and knowledge with respect to the services related to and in support of efforts in
      which Consultant has expertise which is to be provided in accordance with this
      Agreement. Specifically, Consultant shall _____. [Comment: Insert specific
      duties Consultant shall have under Agreement.]
   2. Company shall retain Consultant as set forth in this Agreement with respect to
      _____ [Instruction: Insert what Consultant will do for Company.] of
      Company’s _____ [Instruction: Insert Company’s products and services to be
      advertised.] (“Products and Services”).
   3. The Consultant will _____ [Instruction: Insert broad details of what
      consultant will do, e.g., develop marketing strategy.]
   4. The term of this Agreement shall begin on _____ [Instruction: Insert
      commencement date.] and shall, subject to the provisions for termination set
      forth herein, continue until and terminate on _____ [Instruction: Insert
      termination date.].
   5. For all services that Consultant renders to the Company during the term hereof,
      the Company will pay Consultant $_____, payable within thirty (30) days of the
      date of Consultant’s invoice for such services. Consultant agrees that during the
      term he/she will devote up to ____ (__) days per month to his/her Duties. The
      Company will periodically provide the Consultant with a schedule of the
      requested hours, responsibilities and deliverables for the applicable period of
      time. The duties will be scheduled on an as-needed basis. [Instruction: Insert

© Copyright 2012 Docstoc Inc.                                                             2
      applicable payment agreement, including any revision to the hours/days of
      services.] Late payments by Company shall be subject to late penalty fees of
      _____% [Instruction: insert number] per month from the due date until the
      amount is paid.
   6. [Optional: If expenses are to be paid, same should be carefully set forth in
      this paragraph.] Company shall reimburse Consultant for all travel expenses,
      including but not limited to hotels, meals, etc., in connection with servicing
      Company’s account. Such reimbursement shall not be limited to the above, and
      may include special services and charges originated on Company’s behalf by
      Consultant, incurred in servicing Company’s account.
   7. The parties hereto agree this Agreement is for consulting services within _____.
      [Instruction: Insert geographical region, for example, the United States.] Any
      services to be performed by Consultant on Company’s behalf for any area outside
      the foregoing shall be pursuant to a separate agreement, or a modification or
      amendment of this Agreement.
   8. Confidential Information and Intellectual Property.
          1. Consultant shall maintain in strict confidence, and not use or disclose
             except pursuant to written instructions from the Company, any Company
             Trade Secret (as defined below), for so long as the pertinent data or
             information remains a Trade Secret, provided that the obligation to protect
             the confidentiality of any such information or data shall not be excused if
             such information or data ceases to qualify as such as a result of the acts or
             omissions of Consultant.
          2. Consultant shall maintain in strict confidence and, except as necessary to
             perform his duties hereunder, not to use or disclose any Company
             Confidential Business Information (as hereinafter defined) during the term
             of this Agreement and for a period of one (1) year thereafter, so long as
             such Confidential Business Information remains Confidential Business
             Information during such term. The obligation to protect the
             confidentiality of such Confidential Business Information shall not be
             excused if such Confidential Business Information ceases to qualify as
             such as a result of the acts or omissions of Consultant.

          3. Consultant may disclose Trade Secrets or Confidential Business
             Information pursuant to any order or legal process requiring the disclosing
             party (in its legal counsel's reasonable opinion) to do so, provided that the
             request or order to so disclose the Trade Secrets or Confidential Business
             Information is provided to Company pursuant to the notice provisions of
             this Agreement in sufficient time to allow the Company to seek an
             appropriate protective order.
   9. "Trade Secret" shall mean any information, including, but not limited to, technical
      or non-technical data, a formula, a pattern, a compilation, a program, a plan, a
      device, a method, a technique, a drawing, a process, financial data, financial
      plans, product plans, or a list of actual or potential customers or suppliers which

© Copyright 2012 Docstoc Inc.                                                            3
      (i) derives economic value, actual or potential, from not being generally known
      to, and not being readily ascertainable by proper means by, other persons who can
      obtain economic value from its disclosure or use, and (ii) is the subject of efforts
      that are reasonable under the circumstances to maintain its secrecy. "Confidential
      Business Information" shall mean any nonpublic information of a competitively
      sensitive or personal nature, other than Trade Secrets, acquired by Consultant in
      connection with performing services for the Company, including (without
      limitation) long-range business plans, marketing plans and methods, oral or
      written customer information, and personnel information.
   10. Any material or ideas prepared or submitted to Company, which Company has
       chosen not to produce will remain Consultant’s property (regardless of whether
       the physical embodiment of creative work is in your possession in the form of
       copy, artwork, plates, recordings, films, tapes, etc.) and may be submitted to other
       clients for their use, provided that such submission or use does not involve the
       release of any Confidential Business Information. For purposes hereof, "produce'
       shall be defined as any material which is created in tangible form pursuant to a
       signed production estimate.
                  1. In the event Consultant shall violate or threaten to violate the
                     Confidential Business Information and Intellectual Property
                     provisions of this Agreement, damages at law will be an
                     insufficient remedy and the Company shall be entitled to equitable
                     relief including but not limited to injunction, monetary damages,
                     punitive damages, and specific liquidated damages in the amount
                     of $_____ [Instruction: Insert dollar amount.] for disclosure of
                     such information and/or for unauthorized use of such information.
                     In addition, other remedies or rights available to the Company and
                     no bond or security will be required in connection with such
                     equitable relief.
                  2. The existence of any claim or cause of action that Consultant may
                     have against the Company will not at any time constitute a defense
                     to the enforcement by the Company of the restrictions or rights
                     provided herein, but the failure to assert such claim or cause of
                     action shall not be deemed to be a waiver of such claim or cause of
   11. Consultant shall at all times refer to Company in terms that further its business
       objectives. Consultant shall not at any time refer to Company in a manner that
       damages Company's actual or potential position in the marketplace. Any such
       reference shall be deemed a material breach of this Agreement.
   12. In no event shall Consultant be liable to Company for Company’s lost profits, or
       special, incidental or consequential damages (even if Consultant has been advised
       of the possibility of such damages). Consultant's total liability under this
       Agreement for damages, costs and expenses, regardless of cause, shall not exceed
       the total amount of fees paid to Consultant by Company under this Agreement.
       Company shall indemnify Consultant against all claims, liabilities and costs,
       including reasonable attorney fees, of defending any third party claim or suit,

© Copyright 2012 Docstoc Inc.                                                              4
      other than for infringement of intellectual property rights, arising out of or in
      connection with Company’s performance under this Agreement. Consultant shall
      promptly notify Company in writing of such claim or suit and Company shall
      have the right to fully control the defense and any settlement of the claim or suit.
   13. In the event of a breach hereunder and a failure to cure such breach within thirty
       (30) days of written notice of such breach, this Agreement may be terminated by
       either party upon written notice.
   14. The provisions of this Agreement are severable, and if any one or more provisions
       may be determined to be illegal or otherwise unenforceable, in whole or in part,
       the remaining provisions, and any partially enforceable provision to the extent
       enforceable in any jurisdiction, shall nevertheless be binding and enforceable.
   15. The rights and obligations of the Company under this Agreement shall inure to
       the benefit of and shall be binding upon the successors and assigns of the
       Company. The rights, obligations and duties of Consultant hereunder may not be
       assigned or delegated without the Company's prior written consent except that
       Consultant may assign its interest to a company formed by Consultant for the
       purpose of providing such services.
   16. The Company and Consultant are independent contractors. Both parties
       acknowledge and agree that Consultant's engagement hereunder is not exclusive
       and that either party may provide to, or retain from others similar services to those
       provided hereunder by Consultant, provided that it does so in a manner that does
       not otherwise breach this Agreement. Neither party is, nor shall claim to be, a
       legal agent, representative, partner or employee of the other, and neither shall
       have the right or authority to contract in the name of the other nor shall it assume
       or create any obligations, debts, accounts or liabilities for the other.
   17. The Consultant represents and warrants to the Company that he/she is under no
       contractual or other restrictions or obligations which are inconsistent with the
       execution of this Agreement, or which will interfere with the performance of
       his/her duties or provision of services hereunder. Consultant represents and
       warrants that the execution and performance of this Agreement will not violate
       any policies or procedures of any other person or entity for which he/she performs
       services concurrently with those performed herein.
   18. In performing the services, Consultant shall comply, to the best of his/her
       knowledge, with all business conduct, regulatory and health and safety guidelines
       established by the Company for any governmental authority with respect to the
       Company’s business.
   19. Pursuant to this Agreement, Consultant shall have no right to receive any
       Company employee benefits including, but not limited to, health and accident
       insurance, life insurance, sick leave and/or vacation.
   20. The Consultant acknowledges and agrees that it shall be solely responsible to pay
       any and all incomes taxes on any moneys earned from Company while
       performing services contemplated under this Agreement. The Consultant further
       acknowledges that the Company will not at any time withhold any taxes from the

© Copyright 2012 Docstoc Inc.                                                               5
      Company’s payments to the Consultant under this Agreement for the purposes of
      income tax or any other applicable taxes.
   21. Any notices or other communications required or permitted under this Agreement
       shall be in writing and shall be deemed to have been duly given and delivered
       when delivered in person, two (2) days after being mailed postage prepaid by
       certified or registered mail with return receipt requested, or when delivered by
       overnight delivery service or by facsimile to the recipient at the following address
       or facsimile number, or to such other address or facsimile number as to which the
       other party subsequently shall have been notified in writing by such recipient:
          If to the Company:
                  [Instruction: Insert Company notice information here.]
          If to the Consultant:
                  [Instruction: Insert Consultant notice information here.]
   22. Either party's failure to enforce any provision or provisions of this Agreement
       shall not in any way be construed as a waiver of any such provision or provisions
       as to prior or future violations thereof or of any other provision of this Agreement,
       nor prevent that party thereafter from enforcing each and every other provision of
       this Agreement. The rights granted the parties herein are cumulative and the
       waiver by a party of any single remedy shall not constitute a waiver of such
       party's right to assert all other legal remedies available to him or it under the
   23. This Agreement will be governed by and interpreted in accordance with the
       substantive laws of the State of _____ [Instruction: Insert state.] without
       reference to conflicts of law. [Comment: Parties may wish to consider
       including alternative dispute resolution provisions.]
   24. The various captions and section headings contained in this Agreement are
       inserted only as a matter of convenience and in no way define, limit or extend the
       scope or intent of any of the provisions of this Agreement.
   25. The pronouns used herein shall include, where appropriate, either gender or both,
       singular and plural.
   26. The terms of this Agreement are confidential and no press release or other written
       or oral disclosure of any nature regarding the terms of this Agreement shall be
       made by either party without the other party’s prior written approval; however,
       approval for such disclosure shall be deemed given to the extent such disclosure is
       required to comply with governmental rules or a valid court order.
   27. With respect to its subject matter, this Agreement constitutes the entire
       understanding of the parties superseding all prior agreements, understandings,
       negotiations and discussions between them whether written or oral, and there are
       no other understandings, representations, warranties or commitments with respect
   28. This Agreement may be signed in one or more counterparts, each of which when
       exchanged will be deemed to be an original, binding upon the parties as if a single

© Copyright 2012 Docstoc Inc.                                                             6
      document had been signed by all, and all of which when taken together will
      constitute the same agreement. Any true and correct copy of this Agreement
      made by customary, reliable means (e.g., photocopy or facsimile) shall be treated
      as an original.
   29. No modification to this Agreement, nor any waiver of any rights, will be effective
       unless assented to in writing by the party to be charged.
   30. The person(s) executing this agreement hereby represent and warrant that each
       respectively has the authority to execute this agreement on behalf of the party for
       which he is executing.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first written above.


[Instruction: Insert Company signature block]

© Copyright 2012 Docstoc Inc.                                                                7

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