This AGREEMENT is between:
This agreement is dated and in effect as of:
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:
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.
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.
A separate Statement Of Work ("SOW") will describe the Work, such as any plans, deliverables, etc.
A separate Fees And Payments Agreement ("FPA") will describe fees and payments, such as any estimates, rates, etc.
A separate Non Disclosure Agreement ("NDA") will describe any confidentiality agreement, such as for any trade secrets, etc.
Consultant and Client have no non-compete agreement.
Client authorizes Consultant to access the Work's related aspects, such as any content, technology, etc.
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.
Unless otherwise specified in the SOW, Consultant reserves the right to assign subcontractors to the Work to ensure quality and on-time completion.
Consultant is not responsible for any changes made by anyone other than consultant or consultant's authorized agent(s). <-------------------------->
We use the American Arbitration Association (AAA) standard procedures for mediation and non-binding arbitration.
Mediation: If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first 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.
Non-Binding Arbitration: Any controversy or claim arising out of or relating to this contract, or the breach thereof, which cannot be settled by mediation as described above, shall be submitted to non-binding arbitration administered by the American Arbitration Association under its Non-Binding Arbitration Rules before the parties may initiate arbitration, litigation or some other type of dispute resolution process.
This Agreement shall be governed by and construed in accordance with the laws of San Francisco, California.
Any dispute will be mediated, arbitrated, or litigated in San Francisco, California.
This agreement includes the right of forum non conveniens. For example, to change the location if there is a mutually-preferable location.
If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
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.
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.
Copyright is in Consultant's name unless otherwise specified.
Upon completion of Work, the copyright will only be released to Client upon payment of balance due and Consultant's signing of the Release of Copyright.
Copyright in Consultant's name unless otherwise specified. Upon completion of the Work and only upon payment of balance due, the 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. Consultant retains all rights unless otherwise specified.
Consultant may from time to time utilize pre-existing works, for example background technology, open source software toolkits, stock photos, graphic diagrams, template documents, etc. These works may variously be created by Consultant, subcontractors, third parties, etc.
While performing the Work, Consultant may from time to time modify, augment, and edit these works, for example modifying open source code to an open source toolkits, augmenting images in graphic diagrams, editing template documents, creating software libraries, etc. These may be used during the course of the Work and may be among the deliverables.
These remain the property of the respective owners, and may include alternative copyrights and licenses, for example open software software toolkits that include the GNU Public License, graphic diagrams that include the Creative Commons License, tempate documents that include the Apache License, etc.
While performing the Work, Consultant may from time to time create new works, for example new technologies that are generic, or generally useful, or modular, or suitable for becoming libraries, or packages, or adjunct technology. For example, Consultant may write a string parser that is suitable for a small open source project, or a testing library that other projects can use, or a data calculation tool that can become a standalone utility.
These new works are the property of the Consultant, and upon payment in full, the Client receives a license that is worldwide, perpetual, irrevocable, and suitable for the Client to do anything to the new works, including use, extend, modify, distribute, sell, etc.
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.
The agreement contained herein constitutes the sole agreement between client and consultant regarding the Work.
Any agreements not specified in this contract must be mutually authorized by a written change order.
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.
There are no warranties or guarantees, either express or implied.
The parties disclaim any warranties or guarantees imposed by law, such as merchantability, or fitness for particular purpose.
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.
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.
The undersigned agrees to the terms of this agreement on behalf of his or her organization or business.
On behalf of Client (authorized signature and date):
On behalf of Consultant (authorized signature and date):