Consulting Agreement

CONSULTING AGREEMENT

This Consulting Agreement is made on ${input_61_3} (the “Effective Date”), by and between ${input_61_5} , of ${input_61_7_1} , ${input_61_7_3} ${input_61_7_4} ${input_61_7_5} (the “Client”) and ${input_61_7_6} of ${input_61_12_1} , ${input_61_12_3} , ${input_61_12_4} ${input_61_12_5} (the “Consultant”). Client and Consultant may be referred to individually as the “Party”, or collectively, the “Parties”.

RECITALS

WHEREAS, Consultant has a background of _________________.

WHEREAS, Consultant desires to provide consulting services to Client.

WHEREAS, Client desires for Consultant to provide consulting services to Client.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I
TERMS OF SERVICE

1.1    DESCRIPTION OF SERVICES
Beginning on ${input_61_19} , shall provide to ${input_61_6} the following services (collectively the “Services”):

1.2    RELATIONSHIP OF PARTIES
The relationship of the Parties is determined solely by the provisions of this Agreement. The Parties do not intend to create any partnership, joint venture, trust, fiduciary or employment relationship. Consultant is an independent contractor and not an employee of the Client. As an independent contractor, the exact number of hours and the manner in which the Consultant shall provide the Services shall be determined and set by the Consultant.

1.3    HIGHEST INDUSTRY STANDARDS
Consultant covenants that it shall follow the highest professional standards in performing the services provided by Consultant under this Agreement. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. The Consultant agrees that if the services are not satisfactorily performed, in addition to all of its obligations contained under this Agreement and at law, the Consultant shall re-perform or replace unsatisfactory services at no additional expense to the Client.

1.4    QUALIFIED
The Consultant represents that Consultant, its officers, directors, employees, agents, representatives, and subcontractors are qualified to perform the services and that they possess the necessary licenses and/or permits as may be required.

1.5    WRITTEN ASSURANCES
If at any time the Client believes that the Consultant may not be adequately performing their obligations under this Agreement or may be likely to fail to complete their work/services on time as required by this Agreement, then the Client may request from the Consultant written assurances of performance and a written plan to correct observed deficiencies in the Consultant’s performance. Any failure to provide such written assurances constitutes grounds to declare a default under this Agreement.

ARTICLE II
PAYMENT TERMS

ARTICLE III
TERM AND TERMINATION

3.1    TERM
The term of this Agreement (the “Term”) shall commence upon the Effective Date and remain in effect until terminated pursuant to the conditions set forth this Article.

3.2    TERMINATION OF AGREEMENT

(a)    Generally
This Agreement shall immediately terminate ________________ provided by the Consultant and as required by this Agreement

(b)    For Cause
This Agreement may be terminated for cause. For the purposes of this Agreement, “For Cause” is defined as (i) fraud, misappropriation or embezzlement, (ii) breach of the provisions of this Agreement, (iii) repeated failure to perform services hereunder, or (iv) Consultant’s incapacity.

(c)    For Convenience
The Client may terminate performance of the Consultant’s work and/or services under the Agreement, in whole or in part, whenever the Client shall determine that termination is in its best interest. Termination shall be effected by delivery of notice to the Consultant of termination specifying the extent to which performance of the work and/or services under this Agreement is terminated, and the date upon which termination becomes effective, which shall be no less than twenty-one (21) calendar days from the date the notice of termination is delivered. The Consultant shall then be entitled to recover any costs expended up to that point plus a reasonable profit, but not other loss, damage, expense, or liability may be claimed, requested or recovered. Except as provided in this Agreement, in no event shall the Client be liable for any costs incurred by or on behalf of the Consultant after the effective date of a notice of termination.

(d)    Right to Cure
In the event that Consultant commits a breach of this Agreement, Consultant will be provided with the right to cure the breach prior to Client exercising Client’s right to terminate this Agreement. Consultant shall cure such breach within ten (10) calendar days of the date of notice from the Client demanding such cure; or if such failure is curable but not within the ten (10) day period required, within such period of time as is reasonably necessary to accomplish such cure. In addition, in order for the Consultant to avail itself of a time period in excess of ten (10) calendar days from the date of the notice, the Consultant must provide the Client a written plan acceptable to the Client to cure said breach, and then diligently commence and continue such cure in accordance with the written plan provided.

(e)    Wrongful Termination
In the event a termination for cause is determined to have been made wrongfully or without cause, then the termination shall be treated as a termination for convenience, and the Consultant shall have no greater rights than it would have had if a termination for convenience had been effected in the first instance. No other loss, cost, damage, expense, or liability may be claimed, requested, or recovered.

3.3    EFFECT OF TERMINATION

(a)    Termination of Rights
Upon termination of this Agreement, the rights granted by each Party to the other will cease immediately.

(b)    Compensation
Upon termination of this Agreement, Consultant shall be entitled to receive any compensation which is accrued and payable under the terms of this Agreement, but unpaid as of the date of said termination.

(c)    Survival
Upon termination of this Agreement, the obligations intended to survive the termination of this Agreement shall survive.

(d)    Return of Materials
Upon termination, Consultant agrees to return to the Client all documents, drawings, photographs, and any other written or graphic material, however produced, that it may have received through the course of its work and/or services provided, from the Client, its employees, contractors, or agents, in connection with the performance of its Services under this Agreement. All materials shall be returned in the same condition as received.

ARTICLE IV
WORK PRODUCT AND OTHER IP RIGHTS

4.1    OWNERSHIP OF WORK PRODUCT
Any interest of the Consultant or its directors, officers, partners, representatives, employees, consultants, subconsultants, and agents, in studies, reports, memoranda, computational sheets, or other documents prepared by the Consultant or its directors, officers, partners, representatives, employees, consultants, subconsultants, and agents in connection with the work and/or services to be performed under this Agreement, shall become the sole property of the Client.

Any and all work, artwork, copies, posters, billboards, photographs, videotapes, audiotapes, systems designs, software, reports, designs, specifications, drawings, diagrams, surveys, source codes, or any original works of authorship created by Consultant or its directors, officers, partners, representatives, employees, consultants, subconsultants, and agents in connection with services performed under this Agreement shall be works for hire pursuant to Title 17 Chapter 3 §302 of the United States Code, and all copyrights of such work or services shall remain the property of the Client. However, in the event that it should be determined that any such works or services created by the Consultant or its directors, officers, partners, representatives, employees, consultants, Subconsultants, and agents under this Agreement are not deemed as works for hire in accordance with U.S. law, the Consultant hereby assigns all copyrights to such works to the Client. The Consultant may retain and use copies of such works for reference and as documentation of its experience and capabilities only with prior written approval from the Client.

4.2    OWNERSHIP OF SOCIAL MEDIA
The Client has sole ownership over any social medial contacts acquired before and/or throughout the Consultant’s term of service, including, but not limited to, “followers” or “friends” which may be or have been acquired through such accounts as email addresses, blogs, Twitter, Facebook, YouTube or any other social media network, that has been used or created on behalf of the Company.

ARTICLE V
CONFIDENTIALITY, NON-DISCLOSURE

5.1    CONFIDENTIAL INFORMATION DEFINED
For purposes of this Agreement, “Confidential Information” shall include all information or material that has or could have commercial value or other utility in the business in which disclosing party is engaged. Confidential Information includes, but is not limited to all non-public information regarding both Parties products or services, the terms of this Agreement, confidential and proprietary data, whether or not designated or marked “confidential,” materials, products, technology, manuals, business and marketing plans, financial information, patient health information and any other information disclosed or submitted, orally, in writing, or by any other media.

5.2    EXCLUSIONS FROM CONFIDENTIAL INFORMATION
Confidential Information does not include information that:

(a)     The recipient of the Confidential Information already knew, but only if tangibly documented;

(b)     Becomes public through no fault of the recipient;

(c)     Was independently developed by the recipient with no reference to the documented formulations of the disclosing Party, including, without limitation, designs, processes, formulas, statistics provided by third parties as compiled by the disclosing Party, products, algorithms, source code, firmware, and middleware;

(d)     Was rightfully given to the recipient by another party.

5.3    OBLIGATIONS OF RECEIVING PARTY
Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the disclosing party. Receiving party shall carefully restrict access to Confidential Information to employees, contractors, and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement. Receiving party shall not, without prior written approval of disclosing party, use for receiving party’s own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of disclosing party, any Confidential Information. Receiving party shall return to disclosing party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if disclosing party makes a written request for such.

5.4    TIME PERIOD
The nondisclosure provisions of this Article shall survive the expiration or termination of this Agreement and receiving Party’s duty to hold Confidential Information in confidence shall remain in effect for five (5) years following the expiration or termination of this Agreement.

5.5    OTHER

ARTICLE VI
MISCELLANEOUS

6.1    AUDIT AND INSPECTION OF RECORDS
The Consultant shall maintain all drawings, specifications, calculations, cost estimates, quantity, takeoffs, cost statements with complete dates, schedules, correspondence, memoranda, papers, writings, as well as any and all documents of any nature prepared by or furnished to the Consultant during the course of performing the work and/or services with respect to the provisions of this Agreement, for a period of at least three (3) years following the completion or termination of this Agreement, except that all such items pertaining to hazardous materials shall be maintained for at least thirty (30) years. All such records shall be available to the Client upon request at reasonable times and places. Monthly records of Consultant’s personnel costs, consultant costs, and reimbursable expenses shall be kept on a generally recognizable accounting basis, and shall be available to the Client upon request at any reasonable time or place. The Consultant shall not destroy any work records until after advising the Client and thus allowing the Client the opportunity to accept and store the records themselves.

The Consultant agrees to maintain and make available to the Client, during business hours, accurate books and accounting records relative to their activities under this Agreement. The Consultant shall permit the Client to audit, examine, and make any copies, excerpts, and transcripts for such books and records as deemed necessary, and to make audits of all invoices, materials, payrolls, records, or personnel and other data related to all other matters covered by and under this Agreement, whether funded in whole or in part under this Agreement. The Consultant shall maintain such data and records in an accessible location and conditions for a period of not less than five (5) years after final payment under this Agreement or until after the final audit has been resolved, whichever is later. The State of _____________ or any federal agency having an interest in the subject of this Agreement shall have the same rights conferred upon the Client by this paragraph.

All rights and obligations established and executed pursuant to the paragraph shall be specifically enforceable and survive termination of this Agreement.

6.2    DISPUTES
In the event that any question should arise with regards to the meaning and intent of this Agreement, the question shall, prior to any other action or legal remedy being taken, be referred to the Client and a principal of the Consultant who shall decide the true meaning and intent of this Agreement. Such referral may be initiated through a written request from either party, and then a meeting between the Client and principal of the Consultant shall take place within five (5) days of the written request.

The Consultant shall continue its work and/or services performed throughout the course of any and all disputes, and the Consultant’s failure to continue said work and/or services during any and all disputes shall be considered a material breach of this Agreement, provided the Client continues to make payments to the Consultant for undisputed work completed by the Consultant. The Consultant further agrees that should they stop work due to a dispute or disputes, any and all claims, whether in law or in equity that the Consultant may have against the Client, their officers, agents, Representatives, and employees, whether such claims are pending, anticipated or otherwise, shall be deemed to have been waived and forever barred.

6.3    CONFORMITY WITH LAW AND SAFETY REQUIREMENTS
The Consultant shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, state, municipal, and local governing bodies having jurisdiction over any or all of the scope of services, including all provisions of the Occupational Safety and Health Act of 1979 as amended, all state Occupational Health and Safety Regulations, the American Disabilities Act, any copyright, patent, or trademark law, and all other applicable federal, state, municipal, and local safety regulations. Any and all services performed by the Consultant must be in accordance with these laws, ordinances, codes, and regulations. The Consultant’s failure to comply with any laws, ordinances, codes, or regulations applicable to the performance of the work hereunder shall constitute a breach of Agreement.

Should a death, serious personal injury, or substantial property damage occur in connection with the performance of this Agreement, the Consultant shall immediately notify the Client by telephone. If any accident should occur in connection with this Agreement, the Consultant shall promptly submit a written report to the Client, in such form as the Client may require. This report shall include, but is not limited to, the following information:

(a)     Name and address of the injured or deceased individual(s);

(b)     Name and address of the Consultant’s Subconsultant or Subcontractor, if any;

(d)     Name and address of the Consultant’s liability insurance carrier; and

(e)     A detailed description of the accident, including whether any of the Client’s equipment, tools, or materials were involved.

6.4    HAZARDOUS MATERIALS

(a)    Notice
If a release of hazardous material or hazardous waste that cannot be controlled occurs in connection with the performance of this Agreement, the Consultant shall immediately notify the Client.

(b)    Storing of Hazardous Materials
The Consultant shall not store hazardous materials or hazardous waste without a proper permit from the City or Municipality.

6.5    BUSINESS LICENSE AND OTHER REQUIREMENTS
The Consultant represents that they have complied with all Federal, State, and local laws regarding business permits, licenses, reporting requirements, tax withholding requirements, and other legal requirements of any kind that may be required to carry out said business and the scope of work which is to be performed as a Consultant pursuant to this Agreement.

6.6    TAX ID NUMBER
Consultant’s Tax ID Number is _____________. The Consultant certifies that the taxpayer identification number written above is correct.

6.7    LIMITATION OF LIABILITY
In no event will either Party or any of its officers, directors, employees, stockholders, agents, or representatives be liable for any special, indirect, incidental, exemplary, or consequential damages or loss of goodwill in any way relating to or arising from this Agreement, or from the performance or non-performance of any services, even if the Party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on contract, tort, negligence, strict liability, products liability, or otherwise. The limitations of this Section will apply notwithstanding any failure of essential purpose of any limited remedy.

6.8    INDEMNICATION
To the fullest extent permitted by law, the Consultant shall defend, indemnify, and hold harmless the Client, its directors, officers, partners, representatives, employees, consultants, subconsultants, and agents (herein referred to collectively as “Indemnitee”) from and against any and all claims, loss, cost, damage, injury, including, without limitation, injury to or death of an employee, partner, representative, consultant, subconsultant, or agent of the Consultant, expense and liability of every kind, nature, and description that arise out of, may pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, its directors, officers, partners, representatives, employees, consultants, subconsultants, and agents, or anyone directly or indirectly employed by the Consultant, or anyone under the control of the Consultant (collectively known as “Liabilities”). Such obligations to defend, hold harmless, and indemnify any Indemnitee shall not apply to the extent that such Liabilities are caused in whole or in part by the sole negligence, active negligence, or willful misconduct of such Indemnitee, but shall apply to all other Liabilities. With respect to third party claims against the Consultant, the Consultant shall waive any and all rights of any type of express or implied indemnity against the Indemnitee other than for Liabilities that are caused in whole or in part by the sole negligence, active negligence, or willful misconduct of such Indemnitee.

6.9    NOTICES
Any and all notices that may be deemed necessary, permitted, and/or required under this Agreement shall be made in writing and shall be deemed delivered when said notice is delivered in person or deposited in the United States mail, postage prepaid and addressed to either party at the address provided herein. Said address may be changed from time to time by either Party by written notice to the other Party in the manner set for above. Initial notification addresses shall be:

Client Name & Address:
${input_61_5} ${input_61_7_1}
_ ${input_61_7_3} , ${input_61_7_4} ${input_61_7_5}

Consultant Name & Address:
${input_61_12_1}
${input_61_12_3} , ${input_61_12_4} ${input_61_12_5}

6.10    ENTIRE AGREEMENT
This Consulting Agreement contains the entire agreement of all Parties, and there shall be no other promises or conditions contained within any other agreement, whether oral or written. This Agreement shall supersede any other prior oral or written agreement between the parties.

6.11    AMENDMENT
This Agreement may be altered or modified only if said amendment is done so in writing, mutually agreed upon and signed by both Parties.

6.12    SEVERABILITY
Client and Consultant acknowledge that this Agreement is reasonable, valid and enforceable. However, if any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the Parties’ intent that such provision be changed in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.

6.13    WAIVER
The waiver of any breach or violation of any term or condition hereof shall not affect the validity or enforceability of any other term or condition, nor shall it be deemed a waiver of any subsequent breach or violation of the same term or condition. No waiver of any right or remedy under this Agreement shall be effective unless made in writing and executed by the Party so to be charged. The rights and remedies of the Parties to this Agreement are cumulative and not alternative.

6.14    GOVERNING LAW

(a)     To the extent not preempted by federal law, the provisions of this Agreement shall be construed and enforced in accordance with the laws of the State of _______________, notwithstanding any choice-of-law or conflicts-of-law rules to the contrary.

(b)     The parties agree that any legal action relating to this Agreement shall be commenced and maintained exclusively before any appropriate state court of record in the State of ________________, and in the County of ________________.

6.15    COUNTERPARTS
This Agreement may be executed in counterparts. Facsimile signatures are binding and are considered to be original signatures.

6.16    EFFECT OF TITLE AND HEADINGS
The title of this Agreement and the headings of its Sections are included for convenience and shall not affect the meaning of the Agreement or the Section.

6.17    ATTORNEYS FEES
If any legal proceeding is brought for the enforcement of this Agreement, or because of an alleged breach, default or misrepresentation in connection with any provision of this Agreement or other dispute concerning this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney’s fees incurred in connection with such arbitration or legal proceeding. The term “prevailing party” shall mean the party that is entitled to recover its costs in the proceeding under applicable law, or the party designated as such by the court.

6.18    SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Agreement, this Agreement is binding upon, and inures to the benefit of, the Parties and their respective successors and assigns.

6.19    INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.

IN WITNESS WHEREOF, the undersigned have read, understand and accept this agreement, and by signing this Agreement, all parties agree to all of the aforementioned terms, conditions, and provisions contained within this Agreement.

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EXHIBIT – Consultant’s Intellectual Property

List below any and all interests that the Consultant may have in any Intellectual Property:

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RETAINER
The Client shall be responsible to pay to the Consultant a retainer for Services in the amount of The retainer shall be payable in advance and due and payable upon the signing of this Agreement, and is non-refundable.

PAYMENT
Consultant services shall bill first to the retainer provided and upon depletion of said retainer, the Client shall be invoiced for additional services/fees, if any. The Client, upon receipt of the invoice, shall make prompt and immediate payment by way of ${input_61_26} within ${input_61_27} days after receipt of invoice.

At the expiration of the initial term of this Agreement, both parties, by mutual written consent, can renew this Agreement for a time period of days prior to the expiration of the then current term.

TERM and TERMINATION OF AGREEMENT
This Agreement shall immediately terminate ${input_61_47} provided by the Consultant and as required by this Agreement or from the effective date of this agreement.

SUSPENSION OF WORK
At any time, the Client may, without cause, order the Consultant, by way providing ${input_61_51} days prior written notice, to suspend, delay or interrupt work or services pursuant to this Agreement, in whole or in part, for such periods of time as the Client, at its sole discretion, may deem fit or necessary. Any such suspension shall be affected by the delivery of a written notice to the Client of said suspension specifying the extent to which the performance of the work or services under this Agreement is suspended, and the date upon which the suspension becomes effective, which shall be no less than seven (7) calendar days from the date of the notice of suspension is delivered. The suspension of work and/or services shall be treated as an excusable delay.

NON-COMPETE, NON-SOLICIATION, NON-RECRUIT
Non-Solicitation Clause
The Consultant shall not, throughout the duration of this Agreement and for a period of ${input_61_82} year(s) immediately following the termination of this Agreement, either directly or indirectly, call on, solicit, take away or attempt to do any of the such that which pertains to any of the customers or clients of the Client on whom the Consultant called, contacted or may have become acquainted with during the fulfillment of the terms of this Agreement, either for their own benefit or for the benefit of any other individual, firm, corporation or organization.

Non-Recruit Clause
The Consultant shall not throughout the duration of this Agreement and for a period of ${input_61_96} year(s) immediately following the termination of this Agreement, either directly or indirectly, recruit any of the Client’s employees, customers, clients or management for the purpose of any outside business.