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:
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.
Client and Consultant are independent parties and nothing in this Agreement shall constitute either party as the employer, principal or partner of or joint venture with the other party. Neither Client nor Consultant has any authority to assume or create any obligation or liability, either express or implied, on behalf of the other.
A separate Statement Of Work, hereafter referred to as the "SOW", will describe the work, plan, deliverables, etc.
A separate Non Disclosure Agreement, hereinafter referred to as the "NDA", will describe any confidentiality agreement.
California law voids non-compete agreements for typical consulting.
Consultant and Client have no non-compete agreement. This supercedes and voids any previous non-compete agreement, written or oral.
Nota bene: 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.
A separate Fees And Payments Agreement, hereafter referred to as the "FPA" will describe fees and payments.
Client hereby authorizes Consultant to access the Work's related content, applications, servers, systems, hosting, infrastructure, monitoring, and providers.
Changes in client input, media assets, copy, or direction or significant changes after work begins will be considered additional and charged at hourly rates.
Any work Client wishes Consultant to create, which is not specified in the Description of Work will be considered an additional service.
Consultant reserves the right to assign other 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.
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.
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.
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 of Consultant-created source code is in Consultant's name.
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 source code that Consultant develops in the course of the Work. This license does not include the right to redistribute, resell, or relicense the source code. Consultant retains all rights to source code unless otherwise specified.
Consultant may from time to time utilize pre-existing works, for example 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, etc. These pre-exisitng works may be used during the course of the Work and may be among the deliverables.
Any pre-existing works and/or their derivatives 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.
(Nota bene: A plain-English example may help illustrate this clause. When a client hires us to build a web application, we use many pre-existing software toolkits, such as open source frameworks and also software libraries that we've built in-house over the years. We sometimes do custom modifications like fixing a bug, adding a feature, editing the documentation, etc. We consider the modified results to be derivative works, so we abide by the original copyright and license, and we can't assign copyright nor license to the client. This comes up fairly frequently with open source, so if you have any questions about it, ask us.)
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.
Consultant agrees that the Services provided for herein will be performed in accordance with recognized professional consulting standards for the same or similar services existing as of the date the Services are performed ("Warranty"). If within one (1) year of completion of Services ("Warranty Period"), Client provides prompt written notice to Consultant that the Services or any portion thereof fail to conform to the Warranty, Consultant agrees to re-perform the faulty or non-conforming Services to the extent necessary to correct the failure or nonconformance, at no cost to Client, up to a maximum amount equivalent to the amount of fees received for the faulty or nonconforming Services. Consultant specifically disclaims any guarantee or warranty that is not specifically provided herein and does not in any way underwrite the economic viability or technical performance of any asset, project or business entity which is related to the Services.
EXCEPT AS PROVIDED IN THIS CLAUSE, CONSULTANT MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO CONSULTANT'S SERVICES.
Contractor disclaims any implied warranties or warranties imposed by law warranties of merchantability and fitness for a particular purpose. This clause governs, modifies, and any other terms in this agreement which may be construed to address, guarantees, or the quality of the services and is Consultant's sole warrany and guarantee obligation and Client's exclusive remedy in respect of of the services.
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):