Entrepreneurship or Small Business Start up Consulting Agreement


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									This document sets forth a template contract to be entered into between a consultant
and a company for the provision of consulting services with respect to an
entrepreneurship and/or small-business start-up. This agreement contains clauses that
describe the scope of work to be performed by the consultant and further contains a
confidentiality provision that prevents the consultant from disclosing the company’s
confidential information and trade secrets. The draft form contains numerous comments
and optional language to ensure that many common issues between the parties are
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.] (“Consultant”).
WHEREAS, Consultant is recognized as _____ [Instruction: Insert area of expertise.]; and
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 the entrepreneurship and small business start-ups, 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
   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.].
   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. [Instruction: Insert 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, they 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.

© Copyright 2013 Docstoc Inc.                                                              2
   7. Confidential Information and Intellectual Property.
          A. 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.
          B. 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.
          C. 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.
   8. “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 (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.
   9. 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.
          A. 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,

© Copyright 2013 Docstoc Inc.                                                             3
              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.
          B. 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 action.
   10. 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.
   11. 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, 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.
   12. Consultant makes no warranty or guarantee that any entrepreneurial venture entered into
       by Company or start-up business formed by Company (either shall be referred to herein
       as a “Business”), as the case may be will be successful nor that such Business will
       achieve the results intended or desired by Company in forming such business. Company
       hereby understands, acknowledges and agrees that Consultant shall not be liable for any
       such failure of Business, even if such business or a similar business is successful in other
       areas or regions, and even if Consultant also performed services for such other business.
   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.

© Copyright 2013 Docstoc Inc.                                                              4
   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 other 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 Company’s payments to the
       Consultant under this Agreement for the purposes of income tax or any other applicable
   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

© Copyright 2013 Docstoc Inc.                                                             5
      shall not constitute a waiver of such party's right to assert all other legal remedies
      available to him or it under the circumstances.
   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 thereto.
   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
       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 2013 Docstoc Inc.                                                              6

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