This Consultancy Agreement (the “Agreement”) is made and entered into
this [insert date] (the “Effective Date”) by and
between [insert name] with its principal place
of business located at [insert address] (the
“Company”) and [insert name] with its principal
place of business located at [insert address]
(the “Consultant”) (hereinafter referred to individually as a “Party” and
collectively as “the
Parties”).
WHEREAS,
the Company is in the business of [insert description of business];
WHEREAS,
the Consultant has expertise in the area of [insert
description of area of expertise];
WHEREAS,
the Company desires to engage the Consultant to provide certain services in the
area of Consultant’s
expertise and the Consultant is willing to provide such
services to the Company;
NOW,
THEREFORE, the Parties hereby agree as follows:
1. Engagement and Services
(a) Engagement.
The Company hereby engages the Consultant to provide and perform the services set forth in
Exhibit A attached hereto (the “Services”), and the Consultant hereby accepts
the engagement.
(b) Standard
of Services. All Services to be provided by Consultant shall be performed
with promptness and diligence in a workmanlike manner and at a level of
proficiency to be expected of a consultant with the background and experience that Consultant
has represented it has. The Company shall provide such access to its
information, property and personnel as may be reasonably required in order to
permit the Consultant to perform the Services.
(c) Tools,
Instruments and Equipment. Consultant shall provide Consultant’s own tools,
instruments and equipment and place of performing the Services , unless
otherwise agreed between the Parties.
(d) Representation
and Warranty. Consultant represents and warrants to the Company that it 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 the
Services.
2. Consultancy Period
(a) Commencement.
This Agreement shall commence on the Effective Date and shall remain in effect
until the completion of the
Services or the earlier termination of this Agreement as provided
in Article 2 (b) (the “Consultancy Period”).
(b) Termination.
This Agreement may be terminated by the Company, without cause and without
liability, by giving [insert number in words] ([insert number]) calendar days written notice of such
termination to the Consultant. This Agreement may be terminated by either Party
by giving [insert number in words] ([insert number])
calendar days written notice of such termination to the other Party in the
event of a material breach by the other Party. “Material breach” shall include:
(i) any violation of the terms of Articles 1 (d), 3, 4, 5, 6, 8, 10 and 11,
(ii) any other breach that a Party has failed to cure within [insert number in words] ([insert number]) calendar days after receipt of written
notice by the other Party, (iii) the death or physical or mental incapacity of
Consultant or any key person performing the Services on its behalf as a result of which the
Consultant or such key person becomes unable to continue the proper performance
of the Services ,
(iv) an act of gross negligence or wilful misconduct of a Party, and (v) the
insolvency, liquidation or bankruptcy of a Party.
(c) Effect
of Termination. Upon the effective date of termination of this Agreement,
all legal obligations, rights and duties arising out of this Agreement shall
terminate except for such legal obligations, rights and duties as shall have
accrued prior to the effective date of termination and except as otherwise
expressly provided in this Agreement.
3. Consultancy Fee and Expenses
(a) Consultancy
Fee. In consideration of the
Services to be rendered hereunder, the Company shall pay
Consultant a Consultancy fee [alternative 1: of
[insert number in words] ([insert number]) [insert
currency] for each hour of Services provided to the Company]
[alternative 2: at the rates and payable at
the time and pursuant to the procedures set forth in Exhibit A] (the “Consultancy
Fee").
(b) Expenses.
Consultant shall be entitled to reimbursement for all pre-approved expenses
reasonably incurred in the performance of the Services , upon
submission and approval of written statements and receipts in accordance with the then regular
procedures of the Company.
(c) Payment.
The Consultant shall submit to the Company a monthly invoice detailing the Services performed
during the preceding month and the amount due. All such invoices shall be due
and payable within [insert number in words] ([insert number])
calendar days after receipt thereof by the Company.
4. Work Product and License
(a) Defined.
In this Agreement the term "Work Product" shall mean all work product
generated by Consultant solely or jointly with others in the performance of the Services , including,
but not limited to, any and all information, notes, material, drawings,
records, diagrams, formulae, processes, technology, firmware, software,
know-how, designs, ideas, discoveries, inventions, improvements, copyrights,
trademarks and trade secrets.
(b) Ownership.
Consultant agrees to assign and does hereby assign to Company all right, title
and interest in and to the Work Product. All Work Product shall be the sole and
exclusive property of the Company and Consultant will not have any rights of
any kind whatsoever in such Work Product.
Consultant agrees, at the request and cost of Company, to promptly sign,
execute, make and do all such deeds, documents, acts and things as Company may
reasonably require or desire to perfect Company's entire right, title, and
interest in and to any Work Product.
Consultant will not make any use of any of the Work Product in any
manner whatsoever without the Company’s prior written consent. All Work Product
shall be promptly communicated to Company.
(c) License.
In the event that Consultant integrates any work that was previously created by
the Consultant into any Work Product, the Consultant shall grant to, and
Company is hereby granted, a worldwide, royalty-free, perpetual, irrevocable
license to exploit the incorporated items, including, but not limited to, any
and all copyrights, patents, designs, trade secrets, trademarks or other
intellectual property rights, in connection with the Work Product in any manner that Company
deems appropriate. Consultant warrants that it shall not knowingly incorporate
into any Work Product any material that would infringe any intellectual
property rights of any third party.
5. Confidential Information
(a) Defined.
In this Agreement the term “Confidential Information” shall mean the Work
Product and any and all information relating to the Company’s business,
including, but not limited to, research, developments, product plans, products,
services, diagrams, formulae, processes, techniques, technology, firmware,
software, know-how, designs, ideas, discoveries, inventions, improvements,
copyrights, trademarks, trade secrets, customers, suppliers, markets,
marketing, finances disclosed by Company either directly or indirectly in
writing, orally or visually, to Consultant. Confidential Information does not
include information which:
(i) is in or comes into the public domain without breach of this
Agreement by the Consultant,
(ii) was in the possession of the Consultant prior to receipt from the
Company and was not acquired by the Consultant from the Company under an
obligation of confidentiality or non-use,
(iii) is acquired by the Consultant from a third party not under an
obligation of confidentiality or non-use to the Company, or
(iv) is independently developed by the Consultant without use of any
Confidential Information of the Company.
(b) Obligations of Non-Disclosure and Non-Use. Unless otherwise
agreed to in advance and in writing by the Company, Consultant will not, except
as required by law or court order, use the Confidential Information for any
purpose whatsoever other than the performance of the Services or disclose
the Confidential Information to any third party.
Consultant may disclose the Confidential Information only to those of
its employees who need to know such information. In addition, prior to any
disclosure of such Confidential Information to any such employee, such employee
shall be made aware of the confidential nature of the Confidential Information
and shall execute, or shall already be bound by, a non-disclosure agreement
containing terms and conditions consistent with the terms and conditions of this Agreement. In
any event, Consultant shall be responsible for any breach of the terms and
conditions of this Agreement by any of its employees. Consultant shall use the
same degree of care to avoid disclosure of the Confidential Information as it employs
with respect to its own Confidential Information of like importance, but not
less than a reasonable degree of care.
(c) Return of Confidential Information. Upon the termination or
expiration of this Agreement for any reason, or upon Company’s earlier request,
Consultant will deliver to Company all of Company’s property or Confidential
Information in tangible form that Consultant may have in its possession or
control. The Consultant may retain one copy of the Confidential Information in
its legal files.
6. Interference with Business
(a) Non-Competition.
During the term of this Agreement, Consultant will engage in no business or
other activities which are, directly or indirectly, competitive with the
business activities of the Company without obtaining the prior written consent
of the Company.
(b) Non-Solicitation.
Consultant agrees that for a period of one (1) year after termination of this
Agreement, Consultant shall not:
(i) divert or attempt to divert from the Company any business of any
kind in which it is engaged, including, without limitation, the solicitation of
or interference with any of its suppliers or customers, or
(ii) employ, solicit for employment, or recommend for employment any
person employed by the Company, during the Consultancy Period and for a period
of one (1) year thereafter.
7. Insurance
Consultant shall maintain at its sole expense liability insurance
covering the performance of the Services by Consultant. Such insurance coverage
shall have limits and terms reasonably satisfactory to Company, and Company may
require Consultant to provide to Company a certificate of insurance evidencing
such coverage.
8. Independent Contractor
The Consultant agrees that all Services will be rendered by it as an
independent contractor and that this Agreement does not create an
employer-employee relationship between the Consultant and the Company. The
Consultant shall have no right to receive any employee benefits provided by the
Company to its employees. Consultant agrees to pay all taxes due in respect of
the Consultancy Fee and to indemnify the Company in respect of any obligation
that may be imposed on the Company to pay any such taxes or resulting from
Consultant’s being determined not to be an independent contractor. This
Agreement does not authorize the Consultant to act for the Company as its agent
or to make commitments on behalf of the Company.
9. Force Majeure
Either Party shall be excused from any delay or failure in performance
required hereunder if caused by reason of any occurrence or contingency beyond
its reasonable control, including, but not limited to, acts of God, acts of
war, fire, insurrection, strikes, lock-outs or other serious labor disputes,
riots, earthquakes, floods, explosions or other acts of nature.
The obligations and rights of the Party so excused shall be extended on
a day-to-day basis for the time period equal to the period of such excusable
interruption. When such events have abated, the Parties’ respective obligations
hereunder shall resume.
In the event the interruption of the excused Party’s obligations
continues for a period in excess of [insert number in
words] ([insert number]) calendar days,
either Party shall have the right to terminate this Agreement upon [insert number in words] ([insert number]) calendar days’ prior written notice to
the other Party.
10. Non-Publicity
Each of Company and Consultant agree not to disclose the existence or
contents of this Agreement to any third party without the prior written consent
of the other Party except: (i) to its advisors, attorneys or auditors who have
a need to know such information, (ii) as required by law or court order, (iii)
as required in connection with the reorganization of a Party, or its merger
into any other corporation, or the sale by a Party of all or substantially all
of its properties or assets, or (iv) as
may be required in connection with the enforcement of this Agreement.
11. Assignment
The Services to be performed by Consultant hereunder are personal in
nature, and Company has engaged Consultant as a result of Consultant’s
expertise relating to such Services. Consultant, therefore, agrees that it will
not assign, sell, transfer, delegate or otherwise dispose of this Agreement or
any right, duty or obligation under this Agreement without the Company’s prior
written consent. Nothing in this Agreement shall prevent the assignment by the
Company of this Agreement or any right, duty or obligation hereunder to any
third party.
12. Injunctive Relief
Consultant acknowledges that a violation of Article 5 or 6 would cause
immediate and irreparable harm to the Company for which money damages would be
inadequate. Therefore, the Company will be entitled to injunctive relief for
Consultant’s breach of any of its obligations under the said Articles without
proof of actual damages and without the posting of bond or other security. Such
remedy shall not be deemed to be the exclusive remedy for such violation, but
shall be in addition to all other remedies available at law or in equity.
13. Governing Law and Dispute Resolution
This Agreement shall be governed by and construed in accordance with the
laws of [insert name of country], without giving
effect to any choice of law or conflict of law provisions. The Parties consent
to the [insert “exclusive” or “non-exclusive”]
jurisdiction and venue in the courts of [insert name of
courts] in the city of [insert name of city].
14. General
This Agreement constitutes the entire agreement of the Parties on the
subject hereof and supersedes all prior understandings and instruments on such
subject. This Agreement may not be modified other than by a written instrument
executed by duly authorized representatives of the Parties.
No waiver of any provision of this Agreement shall constitute a waiver
of any other provision(s) or of the same provision on another occasion. Failure
of either Party to enforce any provision of this Agreement shall not constitute
a waiver of such provision or any other provision(s) of this Agreement.
Should any provision of this Agreement be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, such provision may be
modified by such court in compliance with the law giving effect to the intent
of the Parties and enforced as modified. All other terms and conditions of this
Agreement shall remain in full force and effect and shall be construed in
accordance with the modified provision.
15. Survival of Provisions
The following provision of this Agreement shall survive the termination
of this Agreement: Articles 2 (c), 3, 4, 5, 6 (b), 7, 8, 10 and 15 and all
other provisions of this Agreement that by their nature extend beyond the
termination of this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties have
duly executed this Agreement by their authorized representatives as of the date
first written above.
Signed for and on behalf of Signed
for and on behalf of
[insert name of Company] [insert name of Consultant]
By: By:
Name: Name:
Title: Title: