- 1 Cover Page
- 2 Introduction
- 3 1. Engagement
- 4 2. Term
- 5 3. Compensation & Payment
- 6 4. Independent Contractor
- 7 5. Audit
- 8 6. Confidentiality
- 9 7. Intellectual Property Rights
- 10 8. Representations & Warranties
- 11 9. Insurance
- 12 10. Safety
- 13 11. Publicity
- 14 12. Acceptance
- 15 13. Termination
- 16 14. Liability and Indemnification
- 17 15. Miscellaneous
- 18 Acceptance
This Consulting Contract (this “Agreement” or this “Consulting Contract”), effective as of 29/Jul/2021, (“Effective Date”) is made by and between , a company with offices located at (“Company”) and Your Company, a company with offices located at [Consultant.Address] (“Consultant”).
WHEREAS, the Company intends to retain Consultant to provide [description of services] as detailed in Attachment 1; and
WHEREFORE, the Consultant agrees to provide the services described in this Agreement and Attachment 1;
NOW, then, it is therefore agreed as follows, in consideration of the aforementioned recitals and the terms, conditions, and covenants included herein:
Company hereby engages Consultant, and Consultant agrees to provide independent consulting services (“Services”) at the request of Company, as set forth in the Statement of Work at Attachment 1 and any other statements of work that may be added hereto by way of modification to this Agreement (“Statement of Work”), all of which are incorporated herein and form a part of this Agreement.
Purchase orders that incorporate this Agreement by reference and/or statements of work that incorporate this Agreement by reference or are otherwise added to this Agreement by way of modification shall be used to order services. Consultant shall provide the Services diligently and professionally, and in no event later than the Statement of Work or the conditions of any purchase order's anticipated completion deadlines. For the purposes of this Agreement and any purchase orders and/or statements of work issued hereunder, time is of the essence.
The duration of this Agreement will begin on the Effective Date and end on the 29/Jul/2021, unless the parties mutually agree in writing to modify it or it is terminated as set out herein.
The Company shall pay Consultant at the rates or in accordance with the milestone payment schedule set forth on purchase order(s) issued by Company or in the Statement of Work, as consideration for the Services, and upon submission of monthly invoices within the payment terms stipulated herein, for such Services as are actually rendered by Consultant and accepted by the Company.
Consultant must not, however, execute or be compensated for any of the following: (a) extra services not specified in the Statement of Work; (b) additional services not specified in the Statement of Work; (c) additional services not specified in the Statement of Work; (d) additional services
Work performed without a formal, bilateral modification to the Statement of Work to include such additional services; (b) services involving contingency payments prohibited by any applicable law or regulation or by the Company's contract; or (c) services rendered that result in billings to the Company in excess of [Dollar amount], which is the total ceiling value or not-to-exceed (NTE) value for this agreement.
Company shall reimburse Consultant for reasonable and necessary out-of-pocket travel and other miscellaneous expenses relating to this Agreement, which are incurred at the direction of, and with the prior written approval of, the Company, if expressly provided for in the Statement of Work and expressly not included in the firm-fixed-price that may be established in the Statement of Work. Air/rail travel, taxis, auto rentals, meals, and lodging are examples of reasonable travel expenses, provided that such reimbursement does not exceed that allowed by the paragraph above, and that no reimbursement is made for Consultant's commuting to facilities within a fifty-mile radius of Consultant's home or place of business.
Prior to any expected reimbursable travel, the Company must approve it. The following rates will be used to reimburse for reasonable and actual expenses:
- Lowest unrestricted coach cost for air travel
- Rented Automobile – Compact Type, unless not practical
- Actual and reasonable costs supported by original receipts, or the rates and allowances specified in Appendices B, C, and D of the Treasury Board of Canada Travel Directive Effective April 1, 2008 (revised January 15, 2009), whichever is less, for meals, incidentals, lodging (accommodations), and private vehicle usage.
- Actual and reasonable pre-approved costs that are directly and fairly required for the performance of the Services.
- Alcohol and most entertainment charges are not acceptable expenses, will not be reimbursed by the Company, and will not be included in any invoice presented under this agreement in any way.
All invoices must include a breakdown and description of the Services rendered, as well as the actual hours and expenses incurred (for T&M type services) and milestone descriptions (for FFP type services), as well as receipts (if required), and must be submitted in a format prescribed by the Company, indicating the applicable purchase order number issued by the Company or Statement of Work for which the invoice is being submitted.
The Company must pay within forty-five (45) days after receiving a legitimate invoice that meets the terms of this Agreement. Any amounts in an invoice that are in dispute, that are contrary to the requirements of this Section 3, or that are not proved by proper receipts may be withheld by the company.
Payments made to Consultant do not represent or imply acceptance of any of Consultant's services provided under this Agreement.
Consultant and Company will be treated as independent contractors at all times, and nothing in this agreement will be construed to create or imply that the parties are in a partnership, joint venture, or other merged business entity. Consultant has no stated or implied authority to commit, obligate, or make representations on behalf of Company, and makes no such representations to anyone. Nothing herein is intended to create an employer-employee or agent-principal relationship between the parties, and nothing herein shall be construed to do so. Consultant reserves the right to command, control, or supervise the details and means by which the consulting Services are given, unless otherwise stipulated below. Employees of Consultants are not eligible for or permitted to participate in any insurance, pension, workers' compensation, profit-sharing, or other schemes created for the benefit of Company employees.
Consultant shall be responsible for all foreign and domestic taxes arising out of the Consultant's activities in connection with this Agreement, including, without limitation, sales, goods and services, excise, value added, or similar taxes, whether at the federal or state level, social security taxes, unemployment insurance taxes, and any other taxes or business licence fees, whether at the federal or state level. Consultant further agrees to indemnify, defend, and hold Company harmless from and against any claims or actions arising out of or relating to Consultant's failure to withhold such taxes on behalf of Consultant or Consultant's employees, and Consultant further agrees to indemnify, defend, and hold Company harmless from and against any claims or actions arising out of or relating to Consultant's failure to withhold such taxes on behalf of Consultant or Consultant's employees.
All books, records, documents, and other documentation relevant to Consultant's Services delivered and billings made under this Agreement (collectively, "the Records") shall be kept by Consultant. For a period of three (3) years after final payment under this Agreement, the Records will be subject to inspection and audit by Company and the Government (if necessary) at all reasonable times and upon reasonable notice. If an audit of Consultant's invoiced charges reveals that the invoiced charges exceed the correct charges, Consultant shall immediately pay or refund the excess charges to Company's account, and if the excess charges exceed the correct charges by more than 5% (5%), Consultant shall also pay or reimburse Company for all reasonable audit costs, including an audit fee.
Each party shall receive in confidence (“receiving party”) from the other party (“disclosing party”) and treat as confidential all technical information, business/financial information, management information, and documentation which (i) is stamped or otherwise marked as being confidential or proprietary, whether in written or electronic form, (ii) pertains in any way to such party’s (or its affiliates’) business plans or methods, or (iii) otherwise is not generally known by others, and under the circumstances of the disclosure, the disclosing party had a reasonable expectation that the receiving party would know that the information is confidential or proprietary (collectively, “Proprietary Information”). Information that is disclosed orally or visually to a receiving party shall also be deemed Proprietary Information if the disclosing party identifies such information as proprietary at the time of disclosure and, within thirty (30) days after such disclosure reduces the subject matter of the disclosure to writing and submits it to the receiving party.
A receiving party shall hold Proprietary Information received from the disclosing party in confidence, shall use such information only for the purpose of and in accordance with this Agreement and shall not further disclose such information to any third party without the prior written approval of the original disclosing party. The obligation to protect the confidentiality of Proprietary Information shall extend for a period of five (5) years following a party’s receipt of Proprietary Information.
The restrictions of this Section shall not apply to any information: (i) lawfully received from another source free of restriction and without breach of this Agreement, (ii) that is published or becomes generally available to the public without breach of this Agreement, (iii) known by the receiving party prior to the time of disclosure, (iv) independently developed by the receiving party without resort or access to the Proprietary Information; or (v) that the disclosing party has approved for further release by the receiving party.
Proprietary Information shall remain the property of the disclosing party and shall be returned or destroyed upon written request or upon termination or expiration of this Agreement. Receiving party may retain in the files of its legal counsel for archival purposes only, one copy of all written materials returned.
- Consultant shall promptly disclose to Company all inventions, software, development, improvements, and contrivances (hereinafter “Inventions”) in Consultant’s field of endeavour in the line of Company’ present or future business which are made or conceived or actually or constructively reduced to practice by Consultant or with Consultant’s assistance or under Consultant’s direction in the course of performance during the term and any extension of the term of this Agreement, whether or not patentable and whether made by any of Consultant’s employees solely or jointly with others, which relate to or are suggested by or result from any Services which the Consultant may perform pursuant to this Agreement or from any information obtained by the Consultant in any discussions or meetings with employees of Company.
- Consultant shall assign and does hereby assign all Consultant’s rights, title and interest in and to said Inventions to Company, and shall assist Company in every way to protect, at Company’ expense, said Inventions, including but not limited to, the signing of patent applications, oaths and assignments in favour of Company relating to the said Inventions, respecting such applications in the United States and in any and all foreign countries and shall assist in any interference proceedings or litigation involving any patents that may be obtained for such Inventions.
- Consultants shall make no applications for patents on any such Inventions except for Company’ benefit as herein provided.
- “Intellectual Property Rights” shall mean all intellectual and industrial rights, including intellectual and industrial rights to inventions and patents for inventions, including reissues thereof and continuations in part, copyright, designs and industrial designs, trademarks, know-how, trade secrets and confidential information, and other proprietary rights. Consultant hereby undertakes and agrees to cause any individuals contracted by it or employed by it to perform work hereunder to waive all moral rights and droits de suite in and to all intellectual property, including Inventions and copyrightable materials, created by such individuals in their performance of this Agreement and does waive, for itself, any and all moral rights it may have in and to any such intellectual property created in the performance of this Agreement. Consultant further agrees that subject to the above paragraphs and all subparagraphs thereunder, during and after the term of this Agreement, Consultant shall execute any documents necessary to vest full title in any such intellectual property in Company, and will otherwise assist Company in obtaining, either for itself or its assigns, at Company’ expense, all advantages and benefits which may be derived from any such intellectual property, in every proper way during and subsequent to this Agreement, including the securing of all Intellectual Property Rights.
- Consultant agrees that, with respect to all copyrightable materials which were not first produced, programmed or designed by Consultant but were incorporated into Services performed and delivered to Company in connection with this Agreement, Consultant shall grant a royalty-free, non-exclusive, and irrevocable license to Company to use, reproduce, dispose of, translate, publish and to authorize others of Company’ choosing to do the same with respect to any and all said materials, provided this license shall be only to the extent the Consultant has the right or in the future acquires the right to grant such licenses without becoming liable for any compensation to others solely because of such grant. In this regard, Consultant further agrees to promptly notify Company of any such limitation of which Consultant is aware concerning said materials.
- Data — All notes, drawings, designs and technical data developed in connection with or pursuant to the terms of this Agreement shall become and/or remain the exclusive property of the Company, and Company shall have the exclusive right to use and disclose them for any purpose. Upon completion of the Services or earlier termination of this Agreement, Consultant agrees to promptly deliver to Company all materials, including all copies thereof, that are in Consultant’s possession or under his/her control that was developed in connection with this Agreement.
Shall provide the Services in accordance with the highest professional standards, and for a period of six (6) months after the Services are completed, Consultant shall provide, at no cost to Company, such materials and services as may be required to correct any defects in the materials or deliverables developed under the applicable Statement of Work;
Shall perform the Services in accordance with all applicable federal and other jurisdictional laws, including local laws;
Consultant shall indemnify, defend, and hold Company harmless against any claims, penalties, fees, or charges of any kind arising out of or as a result of Consultant's failure to comply with applicable immigration laws in Canada and if any of the Services are performed in the United States or on behalf of the United States Government, the United States, and that Consultant shall indemnify, defend, and hold Company harmless against any claims, penalties, fees, or charges of any kind arising out of or as a result of Consultant;
It has the legal power and capacity to enter into this Agreement, and the Consultant is not bound by any restrictive covenant or other legal obligation that prevents the Consultant from executing the Services;
Has no relationship with any third party with whom Company has engaged that would pose a conflict of interest in relation to this Agreement or the Services. If a conflict of interest arises during the duration of this Agreement, the Consultant agrees to notify the Company immediately; and
For the duration of this Agreement, is and will continue to be a GST/HST registrant in accordance with the Excise Tax Act (Canada).
Consultant agrees to obtain and maintain, at his or her own cost and expense, liability and property damage insurance, including vehicle and contractual liability, for the duration of this Agreement, with the following minimum liability limits:
1. $1,000,000 for injuries or death to any one person;
2. $1,000,000 for injuries or death(s) from any one accident; and
3. $1,000,000 for damage to property.
Consultant undertakes to submit any certificates or other evidence of insurance coverage that the Company may seek. Consultant agrees that obtaining and maintaining the aforesaid insurance coverage will not reduce or impact any responsibility that Consultant may incur as a result of this Agreement or otherwise.
Consultant agrees to comply with all federal, provincial and territorial occupational health and safety laws, regulations and standards, and all Company’s safety rules of which Consultant has notice, regarding the performance of Services under this Agreement. Consultant agrees to communicate Company’s safety rules to Consultant’s contractors and employees. Consultant is responsible for maintaining a safe workplace by following commercially accepted safety and health rules and practices. Consultant is responsible for immediately reporting accidents, injuries, and unsafe equipment, practices or conditions related to Consultant’s performance of work for Company to the Authorized Representative of Company identified herein. The company is committed to keeping its workplaces free from hazards.
Consultant authorizes Company to provide minor first aid to those individuals performing Services on behalf of Consultant hereunder, with the consent of the injured person, for injuries sustained on Company’ property. If Company believes immediate emergency care is necessary for an illness or injury to Consultant’s employees, Consultant authorizes Company to call for ambulance service, and Consultant agrees to pay (or to reimburse Company) for any such ambulance charge.
Consultant shall defend, indemnify and hold Company and its officers, directors and employees harmless from and against all expenses, costs, damages, liabilities and losses incurred by Company in connection with any claim, investigation, demand, action, suit or proceeding arising out of or resulting from the provision of any medical care or treatment to those individuals performing Services on behalf of Consultant hereunder or the calling of ambulance services for such employees by Company.
Consultant shall not issue any press release or make any other public statement relating to this Agreement, any Services performed under this Agreement, or any of the transactions contemplated by this Agreement without first obtaining Company's prior written approval as to the contents and manner of presentation and publication of such press release or public statement, except as required by law.
If the Company is dissatisfied with any Service, it will tell the Consultant with a detailed explanation of the problem. Consultant will re-perform the Service at its own expense within fifteen (15) days of receiving the Company's notice of inadequacy. The method shall be repeated until the Company, in its reasonable discretion, accepts or rejects the Service.
This Agreement may be terminated by either party if the other party fails to perform its obligations hereunder on time, fails to ensure timely performance, or otherwise fails to perform its material obligations; provided, however, that the terminating party notifies the defaulting party in writing at least ten (10) days in advance of such termination, states the reasons why the Agreement is being terminated, and
If the other party: (a) files a petition in bankruptcy; (b) has filed against it an involuntary petition in bankruptcy not dismissed within sixty (60) days; (c) consents to the appointment of a receiver, custodian, trustee, or liquidator; or (d) dissolves, liquidates, or makes a general assignment for the benefit of creditors, either party may terminate this Agreement on notice and without liability.
Company may terminate this Agreement, or any Services to be performed hereunder, in whole or in part, without cause and for its own convenience, by giving Consultant written notice of termination at least seven (7) days in advance, specifying the extent to which the Agreement will be terminated and the date on which such termination will take effect. Except for liability for Services delivered or expenses incurred by Consultant in accordance with this Agreement prior to the effective date of such termination for which payment has not been paid, Company shall have no liability for such termination.
Consultant shall return to Company all copies of any Company data, records, or materials, regardless of nature or media, upon termination of this Agreement. Consultant must additionally provide all work in progress (or portions thereof) to the Company. Consultant shall submit to Company a termination proposal stating the work completed and accepted by Company, as well as the projected value of such completed and accepted work, within thirty (30) days of the termination or expiration of this Agreement. The following is the sum due Consultant if this agreement is terminated:
1. Firm-fixed-price (FFP) services include the following: The lesser of 1) a prorated portion of the overall Statement of Work price based on the percent of work completed and accepted up to the date of termination, or 2) actual hours expended under the Statement of Work at the Consultant's most favoured rate for such consulting services, such hours to be supported by appropriate records.
2. Actual hours expended under the Statement of Work for accepted Services at the hourly rates set out in the Statement of Work for Services provided on a time-and-materials (T&M) basis.
Company shall have no further obligations or obligation to Consultant for any further compensation, fees, costs, or other payments relating to this Agreement following payment of the agreed-upon termination settlement sum.
Except to the extent that such injury was directly caused by the fault or negligence of Company or its employees acting within the scope of their employment, neither Company nor its officers, directors, employees, affiliates, or parent companies shall be liable for any injury to the person or property of Consultant or its employees or contractors.
In addition to any other indemnification obligation herein, Consultant shall indemnify, defend and hold Company and its officers, directors, and employees, harmless from and against all expenses, costs, damages, liabilities and losses (including, without limitation, reasonable attorneys fees) incurred by Company in connection with any claim, investigation, demand, action, suit or proceeding (whether civil, criminal, administrative or investigative) arising out of or resulting from Consultant’s performance of the Services, including but not limited to, the following:
1. Consultant's failure to deduct and pay taxes on remuneration it owes to its officers, employees, or independent contractors as required by law; and Consultant's failure to deduct and pay taxes on compensation it owes to its officers, employees, or independent contractors as required by law.
2. Personal injury or death, as well as loss or damage to property, caused directly or indirectly by Consultant's or any of Consultant's agents, employees, officers, or independent contractors participating in the performance of the Services under this Agreement's acts, omissions, or negligence.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT, OR BASED UPON A WARRANTY, EVEN IF THE OTHER PARTY OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE THE SUM OF THE STATEMENT OF WORK AND / OR PURCHASE ORDER TOTAL VALUES, LESS ANY PAYMENT MADE TO CONSULTANT HEREUNDER.
1. Severability. If any term of this Agreement is found to be illegal or unenforceable, that provision will be struck, and the remainder of the Agreement will continue in full force and effect to carry out the parties' intent and purpose. The parties agree to negotiate the severed provision in order to make it as close as feasible to the applicable legal standards.
2.Governing Law. The laws of [STATE], including its recognition of relevant federal law, but excluding such jurisdiction's choice of law provisions, shall govern the validity, interpretation, and/or enforcement of this Agreement.
3. No Waiver. Any failure or delay by any party to exercise any right, power, or privilege under this Agreement, or to insist on the other party's observance or execution of the provisions of this Agreement, shall not operate or be regarded as a waiver of those rights, powers, or privileges. A waiver is not enforceable unless it is in written and signed by an authorised representative of the party to be bound.
4. Survival. The obligations in this Agreement that by their terms naturally survive the expiration or termination of this Agreement shall so survive, including without limitation Sections 5, 6, 7, 8, 13, 14, 15, 18 and 20.
5. Contradictory Terms. All purchase orders or requests for service issued pursuant to this Agreement or in connection with the Services to be provided hereunder shall be subject to and governed by the terms and conditions of this Agreement and the attachments hereto, notwithstanding any provisions on any form supplied by Company or Consultant. No provision that modifies, revises, or supplements the terms of this Agreement, whether found on a purchase order or other form issued by the parties, shall have any validity or effect unless agreed to in writing by Company and Consultant and specifically incorporated herein.
6. Anti-Assignment. Neither party may assign, subcontract, or otherwise transfer its rights or responsibilities under this agreement without the other party's prior written consent, which shall not be withheld arbitrarily.
7. Integration/Modification. This document, along with any exhibits or attachments hereto, constitutes the parties' entire agreement with respect to the subject matter hereof, and supersedes and cancels any prior talks, agreements, or promises, whether oral or written, between them. This Agreement may not be released, cancelled, abandoned, changed, or modified in any way unless each of the parties hereto signs a written instrument to that effect.
8. Disputes. The parties agree that prior to bringing any legal action upon any dispute or controversy between the parties arising under or in connection with this Agreement (“Dispute”) they will attempt to settle such matter through good faith negotiations. Failing such efforts, the parties agree and consent to exclusive venue and jurisdiction in the State and Federal courts of [STATE] and each party waives any defence of inconvenient forum in connection with such proceedings. The parties acknowledge and agree that the foregoing shall not prevent a party hereto from seeking or obtaining injunctive, preliminary or provisional relief to enforce a party’s rights or to prevent immediate or irreparable harm to a party, including but not limited to the rights set forth in Sections 6 and 7 of this Agreement.
9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one agreement. To evidence the fact that it has executed this Agreement, a party may send a copy of its executed counterpart to the other party by electronic transmission and the signature transmitted by such transmission shall be deemed to be that party’s original signature for all purposes.
10. Acknowledgement. The parties acknowledge that they have read and understand this Agreement, and agree to be bound by its terms and conditions in their entirety.
This Agreement has been duly executed by the parties' lawfully authorised representatives as follows: