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Consulting Agreement - Revenue Sharing

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Consulting Agreement - Revenue Sharing Powered By Docstoc
					This Consulting Agreement with a provision for revenue sharing may be used by a
consultant or a business, in situations where both parties are considering entering into a
business relationship. This contract is in column form, and it contains terms and
conditions that are standard for this type of agreement. This form should be used when
the user wishes to enter into a consulting agreement with a consultant with a profit
sharing provision, or if one is a consultant entering into an agreement where there will
be a profit sharing arrangement.
                                           _________________________
                                    CONSULTING AGREEMENT

         This           ___________________                      prior to the expiration of the then existing
Consulting Agreement (this “Agreement”) is                       Term.        Notwithstanding the above,
entered       into     by      and     between                   Company shall have the right to terminate
_______________________________                                  this Agreement, for any reason, at any time
(“Company”),         and     _______________                     upon ____ (__) days’ written notice and
(“Consultant”), as of this __ day of                             Consultant shall have the right to terminate
__________ _______ (the “Effective                               this Agreement, for any reason, at any time
Date”). Each of Company and Consultant is                        upon ____ (__) days’ written notice. In the
sometimes referred to in this Agreement as a                     event of such termination, Consultant shall
“Party,” and together as the “Parties.”                          be paid for any portion of the Services that
         1.      Consulting       Relationship.                  have been performed prior to such
During the term of this Agreement,                               termination.
Consultant will provide consulting services                               5.      Independent Contractor;
(the “Services”) to Company as described in                      Work for Hire. It is the express intention
Exhibit “A” attached to this Agreement.                          of the Parties that Consultant’s relationship
Consultant hereby represents and warrants                        to Company will be that of an independent
to Company that Consultant has the                               contractor and not that of an employee, joint
qualifications, experience, and ability to                       venturer, or partner of Company. Nothing
competently perform the Services.                                in this Agreement shall be interpreted or
         2.      Fees. As consideration for                      construed as creating or establishing the
the Services to be provided by Consultant                        relationship of employer and employee
and Consultant’s other obligations set forth                     between Company and Consultant. Each of
in this Agreement, Company shall pay to                          Company         and     Consultant     hereby
Consultant the amounts specified in Exhibit                      acknowledges and agrees that all
“A” at the times specified therein.                              Consultant’s work product in connection
                                                                 with performing the Services (hereinafter
         3.      Expenses. Consultant shall
                                                                 “Work Product”) will be deemed a
not be authorized to incur on behalf of
                                                                 commissioned “work for hire” owned by
Company any expenses without the prior
                                                                 Company. In the event Consultant’s Work
written consent of Company. As a condition
                                                                 Product is determined not to be a “work for
to receipt of reimbursement, Consultant
                                                                 hire” or in the event such doctrine is not
shall be required to submit to Company
                                                                 effective,     then     Consultant     hereby
reasonable evidence that the amount
                                                                 irrevocably assigns, conveys, and otherwise
involved was expended and related to the
                                                                 transfers to Company, and its respective
Services provided under this Agreement.
                                                                 successors, licensees, and assigns, all right,
         4.      Term and Termination.                           title, and interest worldwide in and to such
Consultant shall serve as a consultant to                        Work Product and all proprietary rights
Company for a term commencing on the                             therein, including, but not limited to, all
Effective Date of this Agreement and                             copyrights, trademarks, design patents, trade
continuing         for     a      period     of                  secret rights, moral rights, and all contract
___________________            (__)      months                  and licensing rights, and all claims and
(hereinafter the “Term”). Thereafter, the                        causes of action with respect to any of the
Term of this Agreement shall automatically                       foregoing, whether now known or hereafter
renew       for     successive    periods    of                  to become known. In the event Consultant
_____________________ (__) months,                               has any right in the Work Product that
unless either Party provides written notice of                   cannot be assigned, Consultant agrees to
its intent not to renew, at least ___ (__) days
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                                      _________________________
                                CONSULTING AGREEMENT
waive enforcement worldwide of such right                       organization, and Consultant’s partners,
against Company, its distributors, and its                      agents, and employees, including state
customers or, if necessary, to exclusively                      workers’ compensation insurance coverage
license such right worldwide to Company                         requirements and any U.S. immigration visa
with the right to sublicense through multiple                   requirements. Consultant hereby agrees to
tiers of sublicensees. The rights set forth                     indemnify, defend, and hold Company
above in this Section 5 are assignable by                       harmless from any liability for, or
Company.                                                        assessment of, any claims or penalties with
                (a)      Method of Provision                    respect to such withholding taxes, labor, or
of Services. Consultant shall be solely                         employment requirements, including any
responsible for determining the method,                         liability for, or assessment of, withholding
details, and means of performing the                            taxes imposed on Company by the relevant
Services. Company shall retain the right,                       taxing authorities with respect to any
however, to ensure that the project is being                    compensation paid to Consultant or
performed according to agreed upon                              Consultant’s assistants, partners, agents, or
specifications.                                                 employees.
                (b)      No Authority to                                 6.     Supervision of Consultant’s
Bind Company. Neither Consultant, nor                           Services.      All of the Services to be
any assistant, partner, agent or employee of                    performed by Consultant, including but not
Consultant, has authority to enter into                         limited to the Services outlined in Exhibit A,
contracts that bind Company or create                           will be as agreed between Consultant and
obligations on the part of Company without                      Company’s principals. Consultant will be
the prior written authorization of Company.                     required to report to Company’s principals
                                                                (or their designees), concerning the Services
                (c)      No          Benefits.
                                                                performed under this Agreement.           The
Consultant acknowledges and agrees that,
                                                                nature and frequency of these reports will be
consistent with his or her relationship as an
                                                                left to the discretion of Company’s
independent contractor, Consultant (or
                                                                principals (or their designees).
Consultant’s employees, if Consultant is an
entity) will not be eligible for any Company                             7.     Policies and Procedures.
employee benefits during the Term of this                       Consultant agrees to comply with any
Agreement and, to the extent Consultant (or                     applicable Company policies or procedures,
Consultant’s employees, if Consultant is an                     as well as the standard operating procedures
entity) otherwise would be eligible for any                     and/or policies of any of Company’s clients.
Company employee benefits but for the                           Consultant agrees to receive training on (at
express terms of this Agreement, Consultant                     Consultant’s expense) and comply with
(on behalf of itself and its employees)                         Company’s compliance policy. Consultant
hereby expressly declines to participate in                     shall abide by any reasonable instructions or
such Company employee benefits.                                 directions provided by Company regarding
                                                                communication with any of Company’s
                (d)      Withholding;
                                                                clients, including but not limited to the
Indemnification. Consultant shall have full
                                                                manner in which phone calls received from
responsibility for applicable withholding
                                                                clients are answered by Consultant.
taxes for all compensation paid to
Consultant, its partners, agents or its                                  8.     Confidentiality Obligations.
employees under this Agreement, and for                         Consultant hereby agrees to hold in
compliance with all applicable labor and                        confidence and not directly or indirectly use
employment requirements with respect to                         or disclose, during the consulting
Consultant’s        self-employment,         sole               relationship with Company and for a period
proprietorship, or other form of business                       of___________ (__) years after its
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                                       _________________________
                                 CONSULTING AGREEMENT
termination (regardless of the reason for                       supplier lists, budgets, cost or price lists,
such      termination),     any      Proprietary                compilations or computer programs, or may
Information that Consultant obtains or                          be in the nature of unwritten knowledge or
creates during the period of the consulting                     know-how.
relationship, except to the extent authorized                            9.     Conflicts        with       this
by Company, until such Proprietary                              Agreement. Consultant hereby represents
Information becomes generally known.                            and warrants to Company that neither
Consultant agrees not to make copies of                         Consultant nor any of Consultant’s
such Proprietary Information except as                          assistants, partners, employees, or agents is
authorized by Company. Upon termination                         under any obligation in conflict or in any
of the consulting relationship or upon an                       way inconsistent with the provisions of this
earlier request of Company, Consultant will                     Agreement. Consultant hereby represents
return or deliver to Company all tangible                       and warrants to Company that Consultant’s
forms of such Proprietary Information in                        performance of all the terms of this
Consultant’s      possession     or     control,                Agreement will not breach any agreement to
including but not limited to drawings,                          keep in confidence Proprietary Information
specifications, documents, records, devices,                    acquired by Consultant in confidence or in
models, or any other material and copies or                     trust prior to commencement of this
reproductions thereof. As used in this                          Agreement. Consultant hereby represents
Agreement,       the     term      “Proprietary                 and warrants to Company that Consultant
Information” means information or physical                      has the right to disclose and/or or use all
material not generally known or available                       ideas, processes, techniques, and other
outside Company or information or physical                      information, if any, which Consultant has
material entrusted to Company by third                          gained from third parties, and which
parties. This includes, but is not limited to                   Consultant discloses to Company or uses in
discoveries,      developments,        concepts,                the course of performance of this
designs, ideas, know-how, improvements,                         Agreement, without liability to such third
inventions, trade secrets, original works of                    parties.     Notwithstanding the foregoing,
authorship,      confidential       knowledge,                  Consultant hereby agrees that Consultant
copyrights, product ideas, techniques,                          shall not bundle with or incorporate into any
processes, formulas, object codes, biological                   deliveries provided to Company herewith
materials, mask works and/or any other                          any third-party products, ideas, processes, or
information of any type relating to                             other techniques, without the express,
documentation, laboratory notebooks, data,                      written prior approval of Company.
schematics, algorithms, flow charts,                            Consultant hereby represents and warrants
mechanisms,        research,      manufacture,                  to Company that Consultant has not granted
improvements,       assembly,       installation,               and will not grant any rights or licenses to
marketing,     forecasts,     sales,    pricing,                any intellectual property or technology that
customers, customer lists, customer data,                       would conflict with Consultant’s obligations
including but not limited to customers’                         under this Agreement. Consultant will not
personally identifiable information, the                        knowingly infringe upon any copyright,
salaries, duties, qualifications, performance                   patent, trade secret, or other proprietary right
levels and terms of compensation of other                       of any former client, employer, or third
employees, and/or cost or other financial                       party in the performance of the services
data concerning any of the foregoing or                         required by this Agreement.
Company and its operations. Proprietary                                  10.    Miscellaneous.
Information may be contained in material
such as drawings, samples, procedures,                                          (a)      Amendments         and
specifications, reports, studies, customer or                   Waivers. Any term of this Agreement may
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                                           _________________________
                                    CONSULTING AGREEMENT
be amended or waived only with the written                                       (g)     Arbitration.       Any
consent of the Parties.                                          dispute or claim arising out of or in
                (b)     Sole      Agreement.                     connection with any provision of this
This Agreement, including any Exhibits                           Agreement will be finally settled by binding
hereto, constitutes the sole agreement of the                    arbitration                                  in
Parties and supersedes all oral negotiations                     _________________________,
and prior writings with respect to the subject                   _______________ in accordance with the
matter hereof.                                                   rules of the American Arbitration
                                                                 Association by one arbitrator appointed in
                (c)     Notices. Any notice
                                                                 accordance with said rules. The arbitrator
required or permitted by this Agreement
                                                                 shall apply ___________ law, without
shall be in writing and shall be deemed
                                                                 reference to rules of conflicts of law or rules
sufficient upon receipt, when delivered
                                                                 of statutory arbitration, to the resolution of
personally or by courier, overnight delivery
                                                                 any dispute.       Judgment on the award
service, confirmed facsimile, confirmed
                                                                 rendered by the arbitrator may be entered in
email, or ____ (__) hours after being
                                                                 any court having jurisdiction thereof.
deposited in the regular mail as certified or
                                                                 Notwithstanding the foregoing, the Parties
registered     mail     (airmail     if    sent
                                                                 may apply to any court of competent
internationally) with postage prepaid, if such
                                                                 jurisdiction for preliminary or interim
notice is addressed to the Party to be notified
                                                                 equitable relief, or to compel arbitration in
at such Party’s address or facsimile number
                                                                 accordance with this paragraph, without
as set forth below, or as subsequently
                                                                 breach of this arbitration provision.
modified by written notice.
                                                                                 (h)     Advice of Counsel.
                (d)     Choice of Law. The
                                                                 EACH PARTY ACKNOWLEDGES THAT,
validity, interpretation, construction, and
                                                                 IN EXECUTING THIS AGREEMENT,
performance of this Agreement shall be
                                                                 SUCH PARTY HAS HAD THE
governed by the laws of the State of
                                                                 OPPORTUNITY TO SEEK THE ADVICE
______________, without giving effect to
                                                                 OF INDEPENDENT LEGAL COUNSEL,
the principles of conflict of laws.
                                                                 AND HAS READ AND UNDERSTOOD
                (e)     Severability. If one                     ALL OF THE TERMS AND PROVISIONS
or more provisions of this Agreement are                         OF THIS AGREEMENT.                       THIS
held to be unenforceable under applicable                        AGREEMENT            SHALL        NOT       BE
law, the Parties hereby agree to renegotiate                     CONSTRUED AGAINST ANY PARTY
such provision in good faith. In the event                       BY REASON OF THE DRAFTING OR
that the Parties cannot reach a mutually                         PREPARATION HEREOF.
agreeable and enforceable replacement for
                                                                           [Signature Page Follows]
such provision, then (i) such provision shall
be excluded from this Agreement, (ii) the
balance of the Agreement shall be
interpreted as if such provision were so
excluded, and (iii) the balance of the
Agreement shall be enforceable in
accordance with its terms.
                (f)     Counterparts. This
Agreement may be executed in counterparts,
each of which shall be deemed an original,
but all of which together will constitute one
and the same instrument.

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The Parties have executed this Agreement on the respective dates set forth below.


                                                        “COMPANY”

                                                        ________________________,
                                                        a______________ corporation

                                                        By:
                                                        Name: ______________________________
                                                        Title: _______________________________
                                                        Address: _____________________________
                                                                  ________________



                                                        “CONSULTANT”

                                                        _____________________________
                                                        Signature


                                                        Address: _____________________
                                                                 _____________________




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                                                    EXHIBIT A


DESCRIPTION OF CONSULTING SERVICES


Description of Services                                          Schedule/Deadline
      Perform various tasks and duties, in                               As reasonably determined by
each case as reasonably determined by                            Consultant and Company’s principals. It
Company’s principals.     [OR INSERT                             is anticipated that Company will request
DESCRIPTION OF SERVICES OR                                       Consultant’s services for approximately
SPECIFIC     PROJECTS         TO      BE                         ____ (__) hours per month, on average,
PERFORMED]                                                       although this figure may vary based upon
                                                                 Company’s needs. [OR INCLUDE
                                                                 HOURS          EXPECTATIONS          BY
                                                                 PROJECT]

COMPENSATION
       For Services rendered by Consultant under this Agreement, Company shall pay
Consultant [at the rate of _________ dollars ($__) per month] [OR INSERT ALTERNATIVE
FEE ARRANGEMENTS OR OTHER PAYMENT TERMS, SUCH AS PROJECT FEES,
BONUSES, REVENUE SHARE, ETC.] (in aggregate the “Consultant Fees”). Payment of the
Consultant Fees will constitute adequate consideration in connection with this Agreement.
Consultant shall submit a detailed invoice with a description of the Service performed on a
monthly basis. Company shall pay all undisputed invoices within ____ (__) days of receipt of
invoice.




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Description: This Consulting Agreement with a provision for revenue sharing may be used by a consultant or a business, in situations where both parties are considering entering into a business relationship.  This contract is in column form, and it contains terms and conditions that are standard for this type of agreement.  This form should be used when the user wishes to enter into a consulting agreement with a consultant with a profit sharing provision, or if one is a consultant entering into an agreement where there will be a profit sharing arrangement.