This AGREEMENT is between:
hereafter referred to as "Client"
hereafter referred to as "Consultant".
This agreement is dated and in effect as of:
This Agreement shall be governed by and construed in accordance with the laws of:
The validity, construction and performance of this Agreement shall be governed and construed in accordance, with the laws of applicable to contracts made and to be wholly performed within such state, without giving effect to any conflict of laws provisions thereof.
The Federal and state courts located in the state shall have sole and exclusive jurisdiction over any disputes arising under the terms of this Agreement.
This agreement includes the right of forum non conveniens. For example, to change the location if there is a mutually-preferable location.
This agreement is with respect to business consulting for Client's technology, hereinafter referred to as the "Work."
Whereas, Consultant is a business consultant technology developer; Whereas, Client wishes Consultant to create certain Work described more fully herein; and Whereas, Consultant wishes to create such Work; Now, therefore, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the parties hereto agree as follows:
Headings used in this Agreement are for reference only and shall not be used or relied upon in the interpretation of this Agreement.
Technology shall mean designs, methods, processes, formulas, algorithms, discoveries, inventions, technical information, drawings, modifications, enhancements, improvements, and other technologies.
Background Technology shall mean all Technology that: (i) was developed, conceived or owned by a Party prior to the Effective Date; or (ii) is conceived or reduced to practice by a Party outside its performance under this Agreement.
Statement of Work (SOW)
A separate Statement Of Work ("SOW") will describe the Work, such as any plans, deliverables, etc.
Fees and Payments Agreement (FPA)
A separate Fees And Payments Agreement ("FPA") may describe any fees and payments, such as any estimates, retainers, rates, compensation, etc.
Confidentiality Agreement (CA)
A separate Confidentiality Agreement ("CA") will describe any confidentiality agreement, such as for any trade secrets, private security, etc.
Note: In general, a confidentiality agreement may be also known as a non-disclosure agreement (NDA), confidential disclosure agreement (CDA), proprietary information agreement (PIA) or secrecy agreement (SA).
Non-Compete Agreement (NCA)
Consultant and Client have no non-compete agreement ("NCA").
Note: California law voids non-compete agreements for typical consulting. This comes from California Business and Professions Code Section 16600 which provides: "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." It doesn't allow non-compete agreements for employees, consultants, contractors, The enumerated exceptions are for sale of a business, partnership dissolution, and disassociation of a partner.
Client and Consultant are independent parties. There is no dependency such as employer, principal or partner of or joint venture.
Client and Consultant have no authority to assume or create any obligation or liability, either express or implied, on behalf of the other.
Client authorizes Consultant to access the Work's related aspects, such as any content, technology, etc.
Unless otherwise specified in the SOW, Consultant reserves the right to assign subcontractors to the Work to ensure quality and on-time completion.
4.5 Non-consultant changes
Consultant is not responsible for any changes made by anyone other than consultant or consultant's authorized agent(s).
4.6 Reservation of rights
All rights not expressly granted hereunder are reserved to Consultant.
This includes and is not limited to all rights in sketches, comps, demos, prototypes, other preliminary materials, etc.
Moral rights, as described in the international Berne Convention for the Protection of Literary and Artistic Works, are reserved to Consultant.
4.7 Permissions and releases
Client agrees to indemnify and hold harmless Consultant against any and all claims, costs, and expenses, including attorney's fees, due to materials included in the Work at the request of Client for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release.
Client agrees to be generally available as a reference for Consultant, and that Consultant may display non-confidential results of Work in Consultant's portfolio.
4.9 Copyright and license for the Work
Copyright for the Work is in Consultant's name unless otherwise specified.
License for the Work is in Consultant's name unless otherwise specified.
Upon completion of Work, and only upon receiving payment of balance due, Consultant will sign a Release of Copyright that releases the copyright to Client.
Upon completion of Work, and only upon receiving payment of balance due,and Consultant will grant Client a perpetual, irrovocable, worldwide license to use and modify the Work. This license does not include the right to redistribute, resell, or relicense the Work.
4.10 Copyright and license for Background Technology
While performing the Work, Consultant may from time to time use Background Technology. For example, open source software toolkits, stock photos, graphic diagrams, template documents, packaged applications, commercial off the shelf software, etc.
These works may variously be created by Consultant, subcontractors, third parties, etc.
Consultant may from time to time modify these works, or create derivative works. For example, modifying open source code to an open source toolkits, editing stock photos, augmenting images in graphic diagrams, filling in template documents, extending packaged applications, creating scripts for commercial off the shelf software, etc.
These modifications and/or derivative works may be used during the course of the Work and may be among the deliverables.
Copyright for Background Technology remains the property of respective owners.
License for Background Technology remains the property of respective owners.
Background Technology may include many kinds of copyrights and licenses. For example, open software software toolkits may include the GNU Public License, graphic diagrams may include the Creative Commons License, tempate documents may include the Apache License, etc. In all cases it is Client's responsibility to vet all legal aspects to Client's satisfaction.
Unless otherwise specified, Consultant's modifications and/or derivative works belong to the Background Technology respective owners. For example, Consultant may writes a software bug fix for Background Technology source code; the bug fix belongs to the Background Technology respective owner.
4.11 Copyright and license for new Background Technology
While performing the Work, Consultant may from time to time create new Background Technology. For example, new technologies that are generic, or generally useful, or suitable for becoming shared libraries, or open source code, or public packages. For example, Consultant may write a text parser that is generic and generally useful, or a testing tool suitable for becoming a shared library usable by multiple projects, or a data calculation application that can be published as open source code, or system managemenet software that can become a public package.
This new Background Technology may be used during the course of the Work and may be among the deliverables.
Copyright for new Background Techology is in Consultant's name unless otherwise specified.
License for new Background Techology is in Consultant's name unless otherwise specified.
Upon completion of Work, and only upon receiving payment of balance due,and Consultant will grant Client a perpetual, irrovocable, worldwide license to use and modify the new Background Technology. This license does not include the right to redistribute, resell, or relicense the Work.
Agreement to resolve claims
We use the American Arbitration Association (AAA) standard procedures for mediation and non-binding arbitration.
If any controversy or claim arises out of or relating to this contract, or the breach thereof, and cannot be settled through negotiation, then the parties agree to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its mediation procedures before resorting to arbitration, litigation or some other dispute resolution procedure.
If any controversy or claim arises out of or relating to this contract, or the breach thereof, which cannot be settled by mediation as described above, then the parties agree to submit to non-binding arbitration administered by the American Arbitration Association under its Non-Binding Arbitration Rules before the parties may initiate binding arbitration, litigation, or some other type of dispute resolution process.
In the event of litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and expenses.
If any provision of this Agreement, or restriction of this Agreement, is found by a court of competent jurisdiction to be unlawful, or unenforceable, or void, such provision will be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable. If it cannot be so modified, rewritten or interpreted to be enforceable in any respect, it will not be given effect, and the remainder of the Agreement will be enforced as if such provision was not included.
Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
This Agreement constitutes the entire understanding between the parties and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties, with respect to the subject matter hereof.
This Agreement can only be modified by a written amendment signed by the party against whom enforcement of such modification is sought.
Any agreements not specified in this contract must be mutually authorized by a written change order.
Warranties and guarantees
There are no warranties or guarantees, either express or implied.
NO WARRANTIES ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT WHATSOEVER.
NO GUARANTEES ARE MADE BY EITHER PARTY UNDER THIS AGREEMENT WHATSOEVER.
Any notices or communications required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight carrier, electronic-mail, or mailed by certified mail, return receipt requested, postage prepaid, in each case, to the address of the other party first indicated above (or such other addressee as may be furnished by a party in accordance with this paragraph). All such notices or communications shall be deemed to have been given and received (a) in the case of personal delivery or electronic-mail, on the date of such delivery, (b) in the case of delivery by a nationally recognized overnight carrier, on the third business day following dispatch and (c) in the case of mailing, on the seventh business day following such mailing.
This Agreement is personal in nature, and neither party may directly or indirectly assign or transfer it by operation of law or otherwise without the prior written consent of the other party, which consent will not be unreasonably withheld. All obligations contained in this Agreement shall extend to and be binding upon the parties to this Agreement and their respective successors, assigns and designees.
Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that Work is postponed or terminated at the request of Client, Consultant shall have the right to bill pro rata for work completed through the date of that request, while reserving all rights under this Agreement.
If additional payment is due, this shall be payable within 10 days of Client's written notification to stop work. In the event of termination, Client shall also pay any expenses incurred by Consultant and Consultant shall own all rights to the Work. Client shall assume responsibility for all collection of legal fees necessitated by delay and/or default in payment.
Limitation of liability
Consultant's total aggregate liability for damages under this agreement shall be limited to one hundred percent (100%) of the amount of fees received for services by consultant under this agreement.
In the case of per project pricing, Consultant's total aggregate liability for damages under this agreement shall be limited to one hundred percent (100%) of the amount of fees received for services by consultant under this agreement for the project at issue.
Laws affecting electronc commerce
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client agrees that Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend consultant and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client's exercise of Internet electronic commerce.
IN NO EVENT SHALL CONSULTANT, ITS PARENT CORPORATION, OR THEIR AFFILIATES, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, BUSINESS INTERRUPTION LOSSES, OR CUSTOMER CLAIMS, WHETHER ARISING UNDER CONTRACT, WARRANTY, EXPRESS OR IMPLIED, TORT, INCLUDING NEGLIGENCE, OR STRICT LIABILITY, ARISING AT ANY TIME FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR PERFORMANCE HEREUNDER, EVEN IF CAUSED BY THE SOLE OR CONCURRENT OR ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF CONSULTANT.
CLIENT DOES RELEASE, INDEMNIFY, AND HOLD HARMLESS CONSULTANT, ITS PARENT CORPORATION AND THEIR AFFILIATES, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, COSTS, FEES AND EXPENSES, AS WELL AS COSTS OF DEFENSE, SETTLEMENT, AND REASONABLE ATTORNEY'S FEES, ARISING AT ANY TIME IN CONNECTION WITH i) CLAIMS BY CLIENT THAT EXCEED THE LIMITATION OF LIABILITY SET OUT IN SECTION 10 ABOVE, AND ii) ANY CLAIMS BY THIRD PARTIES ARISING IN CONNECTION WITH ANY WORK PRODUCT OR SERVICES PROVIDED HEREUNDER, EVEN IF CAUSED BY THE SOLE OR CONCURRENT OR ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF CONSULTANT. THIS PARAGRAPH SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
On behalf of Client:
On behalf of Consultant: