This document is for an agreement entered into between a consultant and a company for the provision of consulting services to ensure the company maximizes productivity while respecting cultural diversity and ensuring a socially inclusive work environment. The draft form contains numerous standard provisions and optional language to ensure many common issues between parties are addressed. The document contains the material terms of the agreement including the services to be provided, the term of the agreement and payment details. This agreement should be used by a company when engaging the services of a consultant regarding workplace diversity.
This document is for an agreement entered into between a consultant and a company for the provision of consulting services to ensure the company maximizes productivity while respecting cultural diversity and ensuring a socially inclusive work environment. The draft form contains numerous standard provisions and optional language to ensure many common issues between parties are addressed. The document contains the material terms of the agreement including the services to be provided, the term of the agreement and payment details. This agreement should be used by a company when engaging the services of a consultant regarding workplace diversity. CONSULTING AGREEMENT 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.] ("Company"), and _____ [Instruction: Insert consultant’s name or consultant firm name. If it will be a consulting firm, insert firm formation information.] ("Consultant"). WITNESSETH: 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 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, e.g., assess Company’s current diversity metrics and initiatives, suggest alternative or additional diversity initiatives, and provide diversity training.] 2. The Consultant will _____ [Instruction: Insert broad details of what consultant will do, e.g., develop marketing strategy.]. 3. 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.]. 4. For all services that Consultant renders to the Company or any of its subsidiaries or affiliates during the term hereof, the Company will pay Consultant a retainer of $_____ per month, payable on the first day of the month. If this agreement terminates on a date other than the first of a month, a prorated share of the minimum fee will be due for the final month. 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 any requested hours for training sessions to be held during the applicable period of time. Otherwise, Company and Consultant shall make best efforts to permit Consultant to perform its services hereunder at mutually agreeable times. [Instruction: Insert applicable payment agreement, including any revision to the hours/days of services. Parties may also wish to consider whether or not © Copyright 2012 Docstoc Inc. 2 such payment includes work for any of Company’s subsidiaries or affiliates, or just Company and make necessary appropriate changes. This fee language will likely change based on the work Consultant will perform hereunder. If providing seminars, likely the fee structure will be that of a deposit upon signing the Agreement, the remainder to be paid upon completion of the seminar. If providing services to review current diversity practices and the like, the retainer set up is more likely.] Any deposit paid pursuant to this Agreement, if any, shall be non-refundable. 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. 5. [Optional: Parties may wish to consider including additional language setting forth any obligation between the parties to review the effectiveness of any Consultant recommendations at pre-determined times after Agreement termination. In doing so, consideration should be given to how many such reviews will be provided, at what intervals and whether same shall be in person, telephonic or by video chat, or otherwise.] 6. [Optional: If Consultant is to provide any training or seminar type services, please state any requirements regarding training space, audiovisual equipment, etc., or in the alternative, if Consultant is to provide same, please state such requirements.] 7. [Optional: If Consultant is a firm, and Client is to be assigned a specific Consultant, please state same here.] 8. [Optional: If expenses are to be paid, same should be carefully set forth in this paragraph.] Company also agrees to pay Consultant’s fees for all third party charges incurred on Company’s behalf for the production and purchase of items necessary to perform the services hereunder including but not limited to printing, photographs, artwork, research, film, video tapes, editing, musical compositions and arrangements, talent, scenery, sound and lighting effects, rights, royalties, producers' or packagers' fees, at our net cost. 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. 9. Company hereby agrees it shall make all known personnel files (including those of any former employees) reasonably available to Consultant as necessary for Consultant to perform its services under this Agreement. 10. The parties hereto agree this Agreement is for consulting services to be provided at Company’s location as follows _____. [Instruction: Insert specific location. If more than one, state so.] 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. 11. 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 © Copyright 2012 Docstoc Inc. 3 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. For purposes regarding Company’s Confidential Business Information and Intellectual Property rights, "Company" shall include the Company and all of its direct and indirect subsidiaries and any predecessors of the Company. [Comment: Parties may wish to consider include predecessors of Company’s direct and indirect subsidiaries for fuller protection. Consideration should also be taken with respect to inclusion of any assigns of any of the above.] 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 [Comment: Parties may wish to also further specify here which persons at Company shall have the right to any information or metrics (including personnel information) obtained by Consultant during this Agreement. Any such discussion should include whether such person(s) may obtain such information verbally and/or in written form.]. 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. 12. "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) oral and written information concerning the Company's financial positions and results of operations (revenues, margins, assets, net income, etc.)), © Copyright 2012 Docstoc Inc. 4 annual and long-range business plans, marketing plans and methods, account invoices, oral or written customer information, and personnel information. (b) All original works of authorship resulting from Consultant’s performance of his duties hereunder, are deemed to be "works made for hire" under the copyright laws of the United States, and will be and will remain the sole and exclusive property of the Company. Consultant, at the Company's request and sole expense, will assign to the Company in perpetuity all proprietary rights that he may have in such works of authorship. Such assignment shall be done by documents as prepared by the Company. Should the Company elect to register claims of copyright to any such works of authorship, Consultant will, at the expense of the Company, do such things, sign such documents and provide such reasonable cooperation as is necessary for the Company to register such claims, and obtain, protect, defend and enforce such proprietary rights. Consultant shall have no right to use any trademarks or proprietary marks of the Company without the express, prior written consent of the Company regarding each use, except as otherwise set forth herein. 13. 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 action. 14. Consultant shall at all times refer to Company and its operating units, if any, in terms that further its business objectives. Consultant shall not at any time refer to Company or its operating units, if any, in a manner that damages Company's © Copyright 2012 Docstoc Inc. 5 position in the marketplace. Any such reference shall be deemed a material breach of this Agreement. 15. 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. 16. Consultant makes no representations or warranties that Company will meet any necessary or applicable statutory diversity requirements or benchmarks at the termination of this Agreement. 17. Consultant shall make reasonable efforts to inform Company of changes in applicable diversity or similar law or regulation applicable to this Agreement, and shall notify Company in the event any of Company’s practices shall become illegal during the term of this Agreement. Consultant shall not be required to knowingly perform any services hereunder which are or become illegal during the term of this Agreement. Any such failure to perform such illegal services by Consultant shall not be considered a breach or default hereunder and shall not give rise to a right of termination for cause by Company. 18. 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. 19. 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. 20. 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. 21. 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 © Copyright 2012 Docstoc Inc. 6 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. 22. 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. 23. 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. 24. 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. 25. 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 taxes. 26. [Comment: This language is optional, but also should be carefully reviewed if used to ensure the drafter language is correct as applied to the particular situation of the parties.] The Company acknowledges that this Agreement was prepared by counsel for the Consultant and that it may contain terms and conditions onerous to Company. The Company expressly acknowledges that Consultant has given it adequate time to review this agreement and to seek and obtain independent legal advice, and represents to Consultant that it has in fact sought and obtained independent legal advice and is satisfied with the terms and conditions of this Agreement. Any terms herein which may be determined to be ambiguous shall not be construed against the Consultant. Rather, the parties shall be deemed to have equal bargaining power and such terms shall be deemed to have been negotiated by and between the parties. 27. 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.] © Copyright 2012 Docstoc Inc. 7 If to the Consultant: [Instruction: Insert Consultant notice information here.] 28. 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 circumstances. 29. 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.] 30. 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. 31. The pronouns used herein shall include, where appropriate, either gender or both, singular and plural. 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. © Copyright 2012 Docstoc Inc. 8 _________________________ Consultant _________________________ [Instruction: Insert Company signature block] © Copyright 2012 Docstoc Inc. 9
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