This is an agreement between a software consultant and a company for training services. The consultant agrees to train the company’s employees on how to properly use the software in return for a fee. This document provides that if the company finds any of the consultants to be unacceptable, they can have the consultant changed. This agreement should be entered into between small businesses and other entities that want to provide software training services to their employees.
This is an agreement between a software consultant and a company for training services. The consultant agrees to train the company’s employees on how to properly use the software in return for a fee. This document provides that if the company finds any of the consultants to be unacceptable, they can have the consultant changed. This agreement should be entered into between small businesses and other entities that want to provide software training services to their employees. 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.] ("Consultant"). WITNESSETH: WHEREAS, Consultant is recognized as having expertise in training persons with respect to certain software developed, installed or utilized by Company; 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.] 2. The Consultant will _____ [Instruction: Insert broad details of what consultant will do, e.g., conduct training of all Company personnel on XYZ program.]. Consultant will provide adequate staff to render the services as set forth in this Agreement. In the event that any Consultant staff member(s) is found to be unacceptable to Company, Company shall notify Consultant of such fact and Consultant shall work with Company to resolve the problem including removal of such staff member(s) and providing a replacement acceptable to Company. 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. Consultant shall determine the time, place, method, details, and means of performing the services. Customer agrees to furnish any facilities, personnel and equipment necessary to facilitate Consultant's providing the services. 5. 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 $_____, payable within thirty calendar days of an invoice from Consultant. [Instruction: Insert applicable payment agreement, including any revision to the hours/days of services. Parties may also wish to consider whether or not such payment includes work for any of Company’s subsidiaries or affiliates, or © Copyright 2012 Docstoc Inc. 2 just Company and make necessary appropriate changes.] 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. Company shall designate a project manager, who shall act as a liaison between Consultant and Company, and shall advise Consultant from time to time of the name and contact information of such person. 7. The parties acknowledge that Company and Consultant each own valuable trade secrets, and other confidential information. Such information may include software code, routines, data, know-how, designs, inventions and other tangible and intangible items. Any or all such information, independently and/or collectively, owned by either of the parties is defined as “Confidential Information”. This provision does not apply to Confidential Information that is 1) in the public domain through no fault of the receiving party, 2) was independently developed as shown by documentation, 3) is disclosed to others without similar restrictions, or 4) was already known by the receiving party. The parties agree that they will not, at any time during or after the term of this Agreement, disclose any Confidential Information to any person, and that upon termination of this Agreement, each party will return any tangible representation of Confidential Information that belongs to the other party. All services provided under this agreement and all materials, products, inventions, works, and deliverables developed or prepared by Consultant under this Agreement are the property of Consultant and all title and interest therein shall vest in Consultant. These rights include patent rights, copyright, derivative rights, trade secrets, and trademarks. All intellectual property owned by Customer shall belong to Customer. Consultant grants Customer a non-exclusive, worldwide, perpetual, royalty free license to make, use, or sublicense any of Consultant's intellectual property developed or prepared under this Agreement. 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, 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. © Copyright 2012 Docstoc Inc. 3 8. 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 position in the marketplace. Any such reference shall be deemed a material breach of this Agreement. 9. 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. 10. Consultant warrants that each of its employees assigned to perform services under this agreement shall have the proper skill, training and background to perform in a competent and professional manner. Company acknowledges that the services include unknown and unforeseen problems and Consultant shall attempt to solve such problems. Company acknowledges that Consultant does not warrant that there will be a satisfactory solution to all problems. COMPANY AGREES THAT CONSULTANT WARRANTS ITS SERVICES 'AS IS' AND THAT CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. 11. Optional language: This Agreement shall terminate in the event Consultant voluntarily ceases performing his/her duties and such cessation continues for a period of more than thirty (30) days after notice from Company, if Consultant becomes physically or mentally unable to perform his/her duties. In such event, the termination date shall be deemed to be the date on which such services ceased to be performed. 12. 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. 13. 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. 14. 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 2012 Docstoc Inc. 4 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. [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. 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 © Copyright 2012 Docstoc Inc. 5 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 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. © Copyright 2012 Docstoc Inc. 6 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. _________________________ Consultant _________________________ [Instruction: Insert Company signature block.] © Copyright 2012 Docstoc Inc. 7
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