Fillable Printable Sample Consulting Agreement Form - Iowa State University

Sample Consulting Agreement Form - Iowa State University

Sample Consulting Agreement

File C5-84

October 2013

www.extension.iastate.edu/agdm

For an explanation of this agreement see Information File C5-83, Overview of Consulting Agreements.

This Consulting Agreement, dated effective _____________, 201___ (this “Agreement”), is made and

entered into by and among ___________________ [name of the company] (the “Company”) and [name of

consultant] (the “Consultant”).

ARTICLE 1

SCOPE OF WORK

1.1 Services. The Company has engaged Consultant to provide services in connection with the Com-

pany’s [summary of the project or business of the Company]. Consultant will [summary of the services

Consultant is to provide], and such other services as described in Exhibit A (collectively, the “consulting

services”).

1.2 Time and Availability. Consultant will devote _______ hours per month in performing the services

for the Company as stated herein. Consultant shall have discretion in selecting the dates and times it performs

such consulting services throughout the month giving due regard to the needs of the Company’s business.

If the Company deems it necessary for the Consultant to provide more than ________ hours in any month,

Consultant is not obligated to undertake such work until the Consultant and Company have agreed on a rate of

compensation. [The time devoted can be hours per day, per week, or per year. The Company may also elect

to pay a ﬂ at monthly fee regardless of hours, but the Company should be cautious of this approach.]

1.3 Conﬁ dentiality. In order for Consultant to perform the consulting services, it may be necessary for

the Company to provide Consultant with Conﬁ dential Information (as deﬁ ned below) regarding the Compa-

ny’s business and products. The Company will rely heavily upon Consultant’s integrity and prudent judgment

to use this information only in the best interests of the Company.

1.4 Standard of Conduct. In rendering consulting services under this Agreement, Consultant shall

conform to high professional standards of work and business ethics. Consultant shall not use time, materials,

or equipment of the Company without the prior written consent of the Company. In no event shall Consultant

take any action or accept any assistance or engage in any activity that would result in any university, govern-

mental body, research institute or other person, entity, or organization acquiring any rights of any nature in the

results of work performed by or for the Company.

1.5 Outside Services. Consultant shall not use the service of any other person, entity, or organization in

the performance of Consultant’s duties without the prior written consent of an ofﬁ cer of the Company. Should

the Company consent to the use by Consultant of the services of any other person, entity, or organization, no

information regarding the services to be performed under this Agreement shall be disclosed to that person,

entity, or organization until such person, entity, or organization has executed an agreement to protect the con-

ﬁ dentiality of the Company’s Conﬁ dential Information (as deﬁ ned in Article 5) and the Company’s absolute

and complete ownership of all right, title, and interest in the work performed under this Agreement.

Joe R. Thompson, 612-367-8736

Barnes & Thornburg, LLP

225 S 6

Street, Suite 2800, Minneapolis, MN 55402

File C5-84Page 2

1.6 Reports. Consultant shall periodically provide the Company with written reports of his or her obser-

vations and conclusions regarding the consulting services. Upon the termination of this Agreement, Consul-

tant shall, upon the request of Company, prepare a ﬁ nal report of Consultant’s activities.

ARTICLE 2

INDEPENDENT CONTRACTOR

2.1 Independent Contractor. Consultant is an independent contractor and is not an employee, partner,

or co-venturer of, or in any other service relationship with, the Company. The manner in which Consultant’s

services are rendered shall be within Consultant’s sole control and discretion. Consultant is not authorized to

speak for, represent, or obligate the Company in any manner without the prior express written authorization

from an ofﬁ cer of the Company.

2.2 Taxes. Consultant shall be responsible for all taxes arising from compensation and other amounts

paid under this Agreement, and shall be responsible for all payroll taxes and fringe beneﬁ ts of Consultant’s

employees. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or

paid by the Company on behalf of Consultant or his/her employees. Consultant understands that he/she is re-

sponsible to pay, according to law, Consultant’s taxes and Consultant shall, when requested by the Company,

properly document to the Company that any and all federal and state taxes have been paid.

2.3 Beneﬁ ts. Consultant and Consultant’s employees will not be eligible for, and shall not participate in,

any employee pension, health, welfare, or other fringe beneﬁ t plan of the Company. No workers' compensa-

tion insurance shall be obtained by Company covering Consultant or Consultant’s employees.

ARTICLE 3

COMPENSATION FOR CONSULTING SERVICES

3.1 Compensation. The Company shall pay to Consultant $_________ per month for services rendered

to the Company under this Agreement. The monthly compensation shall be paid on the ﬁ rst of the month

following the month the services were provided. The monthly compensation shall be paid regardless of the

number of consulting hours provided by Consultant in a particular month. [Another option is to pay hourly

and require monthly time documentation. The monthly compensation would be reduced by the hourly rate

for the number of hours less than the devoted hours.]

3.2 Reimbursement. The Company agrees to reimburse Consultant for all actual reasonable and neces-

sary expenditures, which are directly related to the consulting services. These expenditures include, but are

not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, mileage,

etc.), telephone calls, and postal expenditures. Expenses incurred by Consultant will be reimbursed by the

Company within 15 days of Consultant’s proper written request for reimbursement.

ARTICLE 4

TERM AND TERMINA TION

4.1 Term. This Agreement shall be effective as of _________, 201__, and shall continue in full force and

effect for ____ consecutive months. The Company and Consultant may negotiate to extend the term of this

Agreement and the terms and conditions under which the relationship shall continue.

File C5-84 Page 3

4.2 Termination. The Company may terminate this Agreement for “Cause,” after giving Consultant

written notice of the reason. Cause means: (1) Consultant has breached the provisions of Article 5 or 7 of

this Agreement in any respect, or materially breached any other provision of this Agreement and the breach

continues for 30 days following receipt of a notice from the Company; (2) Consultant has committed fraud,

misappropriation, or embezzlement in connection with the Company’ s business; (3) Consultant has been

convicted of a felony; or (4) Consultant’s use of narcotics, liquor, or illicit drugs has a detrimental effect on

the performance of his or her employment responsibilities, as determined by the Company.

4.3 Responsibility upon Termination. Any equipment provided by the Company to the Consultant in

connection with or furtherance of Consultant’s services under this Agreement, including, but not limited to,

computers, laptops, and personal management tools, shall, immediately upon the termination of this Agree-

ment, be returned to the Company.

4.4 Survival. The provisions of Articles 5, 6, 7, and 8 of this Agreement shall survive the termination of

this Agreement and remain in full force and effect thereafter.

ARTICLE 5

CONFIDENTIAL INFORMATION

5.1 Obligation of Conﬁ dentiality. In performing consulting services under this Agreement, Consultant

may be exposed to and will be required to use certain “Conﬁ dential Information” (as hereinafter deﬁ ned) of

the Company. Consultant agrees that Consultant will not and Consultant’s employees, agents, or representa-

tives will not use, directly or indirectly, such Conﬁ dential Information for the beneﬁ t of any person, entity, or

organization other than the Company, or disclose such Conﬁ dential Information without the written authori-

zation of the President of the Company, either during or after the term of this Agreement, for as long as such

information retains the characteristics of Conﬁ dential Information.

5.2 Deﬁ nition. “Conﬁ dential Information” means information not generally known and proprietary to

the Company or to a third party for whom the Company is performing work, including, without limitation, in-

formation concerning any patents or trade secrets, conﬁ dential or secret designs, processes, formulae, source

codes, plans, devices or material, research and development, proprietary software, analysis, techniques,

materials, or designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the

business of the Company, any vendor names, customer and supplier lists, databases, management systems and

sales and marketing plans of the Company, any conﬁ dential secret development or research work of the Com-

pany, or any other conﬁ dential information or proprietary aspects of the business of the Company. All infor-

mation which Consultant acquires or becomes acquainted with during the period of this Agreement, whether

developed by Consultant or by others, which Consultant has a reasonable basis to believe to be Conﬁ dential

Information, or which is treated by the Company as being Conﬁ dential Information, shall be presumed to be

Conﬁ dential Information.

5.3 Property of the Company. Consultant agrees that all plans, manuals, and speciﬁ c materials devel-

oped by the Consultant on behalf of the Company in connection with services rendered under this Agreement,

are and shall remain the exclusive property of the Company. Promptly upon the expiration or termination of

this Agreement, or upon the request of the Company, Consultant shall return to the Company all documents

and tangible items, including samples, provided to Consultant or created by Consultant for use in connection

with services to be rendered hereunder, including, without limitation, all Conﬁ dential Information, together

with all copies and abstracts thereof.

File C5-84Page 4

ARTICLE 6

RIGHTS AND DATA

All drawings, models, designs, formulas, methods, documents, and tangible items prepared for and submitted

to the Company by Consultant in connection with the services rendered under this Agreement shall belong ex-

clusively to the Company and shall be deemed to be works made for hire (the “Deliverable Items”). To the ex-

tent that any of the Deliverable Items may not, by operation of law, be works made for hire, Consultant hereby

assigns to the Company the ownership of copyright or mask work in the Deliverable Items, and the Company

shall have the right to obtain and hold in its own name any trademark, copyright, or mask work registration,

and any other registrations and similar protection which may be available in the Deliverable Items. Consultant

agrees to give the Company or its designees all assistance reasonably required to perfect such rights.

ARTICLE 7

CONFLICT OF INTEREST AND NON-SOLICITATION

7.1 Conﬂ ict of Interest. Consultant covenants and agrees not to consult or provide any services in any

manner or capacity to a direct competitor of the Company during the duration of this Agreement unless ex-

press written authorization to do so is given by the Company’s President. A direct competitor of the Company

for purposes of this Agreement is deﬁ ned as any individual, partnership, corporation, and/or other business

entity that engages in the business of [deﬁ ne business – substantially similar to what is provided at Section

1.1] within _____ miles of the [facility, headquarters, etc.].

7.2 Non-Solicitation. Consultant covenants and agrees that during the term of this Agreement, Consultant

will not, directly or indirectly, through an existing corporation, unincorporated business, afﬁ liated party, suc-

cessor employer, or otherwise, solicit, hire for employment or work with, on a part-time, consulting, advising,

or any other basis, other than on behalf of the Company any employee or independent contractor employed by

the Company while Consultant is performing services for the Company.

ARTICLE 8

RIGHT TO INJUNCTIVE RELIEF

Consultant acknowledges that the terms of Articles 5, 6, and 7 of this Agreement are reasonably necessary to

protect the legitimate interests of the Company, are reasonable in scope and duration, and are not unduly re-

strictive. Consultant further acknowledges that a breach of any of the terms of Articles 5, 6, or 7 of this Agree-

ment will render irreparable harm to the Company, and that a remedy at law for breach of the Agreement is

inadequate, and that the Company shall therefore be entitled to seek any and all equitable relief, including, but

not limited to, injunctive relief, and to any other remedy that may be available under any applicable law or

agreement between the parties. Consultant acknowledges that an award of damages to the Company does not

preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of

relief and are not to be considered as alternative remedies.

ARTICLE 9

GENERAL PROVISIONS

9.1 Construction of Terms. If any provision of this Agreement is held unenforceable by a court of

competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the

remaining provisions.

Page 5File C5-84

9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the internal

laws (and not the laws of conﬂ icts) of the State of [governing law].

9.3 Complete Agreement. This Agreement constitutes the complete agreement and sets forth the entire

understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior

discussions and understandings in respect to the subject of this Agreement, whether written or oral.

9.4 Dispute Resolution. If there is any dispute or controversy between the parties arising out of or relat-

ing to this Agreement, the parties agree that such dispute or controversy will be arbitrated in accordance with

proceedings under American Arbitration Association rules, and such arbitration will be the exclusive dispute

resolution method under this Agreement. The decision and award determined by such arbitration will be ﬁ nal

and binding upon both parties. All costs and expenses, including reasonable attorney’s fees and expert’s fees,

of all parties incurred in any dispute that is determined and/or settled by arbitration pursuant to this Agree-

ment will be borne by the party determined to be liable in respect of such dispute; provided, however, that

if complete liability is not assessed against only one party, the parties will share the total costs in proportion

to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute,

both parties agree to continue performing their respective obligations under this Agreement until the dispute is

resolved.

9.5 Modiﬁ cation. No modiﬁ cation, termination, or attempted waiver of this Agreement, or any provision

thereof, shall be valid unless in writing signed by the party against whom the same is sought to be enforced.

9.6 Waiver of Breach. The waiver by a party of a breach of any provision of this Agreement by the other

party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.

9.7 Successors and Assigns. This Agreement may not be assigned by either party without the prior writ-

ten consent of the other party; provided, however, that the Agreement shall be assignable by the Company

without Consultant’s consent in the event the Company is acquired by or merged into another corporation or

business entity. The beneﬁ ts and obligations of this Agreement shall be binding upon and inure to the parties

hereto, their successors and assigns.

9.8 No Conﬂ ict. Consultant warrants that Consultant has not previously assumed any obligations incon-

sistent with those undertaken by Consultant under this Agreement.

IN WITNESS WHEREOF, this Agreement is executed as of the date set forth above.

[COMPANY] [CONSULTANT]

By: _____________________________________ By: _____________________________________

Its: _____________________________________ Its: ______________________________________

. . . and justice for all

The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and ac-

tivities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs,

sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.)

Many materials can be made available in alternative formats for ADA clients. To ﬁ le a complaint

of discrimination, write USDA, Ofﬁ ce of Civil Rights, Room 326-W, Whitten Building, 14th and

Independence Avenue, SW, Washington, DC 20250-9410 or call 202-720-5964.

Issued in furtherance of Cooperative Extension work, Acts of May 8 and November 30, 1914,

in cooperation with the U.S. Department of Agriculture. Cathann A. Kress, director, Cooperative

Extension Service, Iowa State University of Science and Technology, Ames, Iowa.