Pro Forma Consulting Agreement
This Consulting Agreement ("Agreement"), dated as of [date], is entered into by and between
[consultant name], an independent consultant ("Consultant"), and [contractor name], a UK company
(“Contractor”). Consultant and Contractor are sometimes referred to herein collectively as the
“Parties” or separately as a “Party”
WHEREAS Contractor desires to retain Consultant as an independent contractor to perform
consulting services for Contractor from time to time and Consultant is willing to perform such
services, on the basis set forth more fully below.
In consideration of the mutual promises contained herein, Consultant and Contractor agree as
follows:
1.
SERVICES. Consultant agrees to perform the Services described in each Project Assignment
issued pursuant hereto in a workmanlike manner according to the schedule of work set forth
therein. A copy of the form of Project Assignment is attached hereto as EXHIBIT A. The Parties
agree that the terms of this Agreement will apply to all services performed by Consultant for
Contractor even if a Project Assignment form has not been completed for a specific assignment.
Consultant may perform services for any other person or entity so long as Consultant does not
perform similar services for a direct competitor of Contractor and so long as Consultant’s
performance of such services does not interfere with the performance of Consultant’s obligations
under this Agreement.
2.
PAYMENT FOR SERVICES. Contractor shall pay Consultant the fees and reimbursements
set forth in the Project Assignment. Except as otherwise provided for in a Project Assignment,
Consultant’s sole compensation for the Services shall be the fees and reimbursements set forth in
the Project Assignment and Contractor shall not be obligated to Consultant for any other payments
or reimbursements.
3.
RELATIONSHIP OF PARTIES. Consultant shall perform the Services under the general
direction of Contractor, but Consultant shall determine, in Consultant’s sole discretion, the manner
and means by which the Services are accomplished, subject to the express condition that
Consultant shall at all times comply with applicable law. Consultant is an independent contractor
and Consultant is not an agent or employee of Contractor, and has no authority whatsoever to bind
Contractor by contract or otherwise.
4.
FACILITIES, EXPENSES, INSURANCE, RECORDS AND LICENSES. Except as otherwise
provided for in a Project Assignment, Consultant shall provide its own facilities and place of business
to perform the Services and shall bear the entire cost of its facilities without reimbursement by
Contractor. Except as otherwise provided for in a Project Assignment, Contractor shall have no
obligation to reimburse Consultant for any costs or expenses incurred by Consultant in the
performance of its obligations under this Agreement and all such costs and expenses shall be borne
by Consultant. Consultant shall be responsible for providing, for itself and its employees at its own
expense and in its own name, disability, liability, workers' compensation and other business
insurance as is necessary, appropriate and/or required by law. In connection with its performance of
the Services under this Agreement, Consultant will be solely responsible for and will maintain, any
records required by law. Consultant further agrees that it will obtain and maintain all required
licenses (if any) relating to the services provided under this Agreement.
5.
TAXES AND BENEFITS. No part of Consultant’s compensation under this Agreement will be
subject to withholding of any income taxes, social security, workers' compensation or other
employment related taxes or payments.
6.
INTELLECTUAL PROPERTY DEFINITIONS: Except as otherwise provided in a Project
Assignment or unless a different meaning is clearly intended, when used in this Agreement or any
Project Assignment, the following definitions shall apply:
6.1.
"Intellectual Property" means any and all tangible and intangible:
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6.1.1. rights associated with works of authorship throughout the world, including but
not limited to copyrights, neighboring rights, moral rights, and all derivative works
thereof;
6.1.2. trademark, trade name, trade dress, service mark and similar rights;
6.1.3. trade secret rights, technical information and know-how;
6.1.4. inventions (whether patentable or not), patents, patent applications patents,
designs (whether or not registered) applications thereof, algorithms and other
industrial property rights;
6.1.5. Proprietary Information, and
6.1.6. all other intellectual and industrial property rights (of every kind and nature
throughout the world and however designated) whether arising by operation of law,
treaty, contract, license, or otherwise, together with all registrations, initial
applications, renewals, extensions, continuations, divisions or reissues thereof now or
hereafter in force (including any rights in any of the foregoing).
6.2.
"Foreground Intellectual Property" means Intellectual Property arising from the
research, development or other work undertaken pursuant this Agreement after the date of
the relevant Project Assignment whether generated by one Party or by two or more Parties
jointly.
6.3.
"Background Intellectual Property" means Intellectual Property relevant to a Project
Assignment and already owned by a Party on the date of the Project Assignment.
6.4.
“Proprietary Information” means confidential technical and business information such
as scientific, technical and/or engineering research; production, marketing, distribution,
research and development and/or financial, plans, results, operations, capacities and/or
projections and customer, vendor, supplier and partner lists. Both Parties consider their
Proprietary Information as assets of substantial commercial value.
7.
INTELLECTUAL PROPERTY OWNERSHIP AND ACCESS RIGHTS:
7.1.
Foreground Intellectual Property: Unless otherwise provided in a Project Assignment,
Foreground IP shall be owned Contractor.
7.2.
Background Intellectual Property: Unless otherwise provided in a Project Assignment,
Consultant’s Background IP shall be made freely available to Contractor as reasonably
required for the exploitation of the Foreground Intellectual Property by Contractor.
8.
CONFIDENTIALITY. The Parties agree to hold each others’ Confidential Information in strict
confidence and not to disclose such Confidential Information to any third parties. For purposes
hereof, "Confidential Information" shall include all confidential and Proprietary Information disclosed
by either Party (the “Disclosing Party”) to the other Party (the “Recipient Party”) including but not
limited to Intellectual Property, Background Intellectual Property, software source code, technical
and business information relating to current and proposed products, research and development,
production, manufacturing and engineering processes, costs, profit or margin information, finances,
customers, suppliers, marketing, and production, personnel and future business plans. "Confidential
Information" also includes proprietary or confidential information of any third party that is disclosed
by a Disclosing Party to a Recipient Party in the course of business. The above obligations shall not
apply to Confidential Information:
8.1.
which is already known to the Recipient Party at the time it is disclosed;
8.2.
has become publicly known through no wrongful act of the Recipient Party;
8.3.
has been rightfully received from a third party without restriction on disclosure and
without breach of this Agreement or other Agreements entered into by the Recipient Party;
8.4.
has been independently developed by the Recipient Party;
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8.5.
has been approved for release by written authorization of the Disclosing Party; or
8.6.
has been disclosed pursuant to a requirement of a governmental agency or of law.
9.
TERMINATION. This Agreement shall commence on the date first written below and shall
continue until terminated as follows:
9.1.
Either Party may terminate the Agreement in the event of a breach by the other Party
of any of its obligations contained herein if such breach continues uncured for a period of
fifteen (15) days after written notice of such breach to the breaching Party;
9.2.
Either Party may terminate this Agreement upon written notice to the other Party if
either Party is adjudicated bankrupt, files a voluntary petition of bankruptcy, makes a general
assignment for the benefit of creditors, is unable to meet its obligations in the normal course
of business as they fall due or if a receiver is appointed on account of insolvency;
9.3.
Either Party may terminate this Agreement for its convenience upon ninety (90) days
written notice to the other if there is no outstanding Project Assignment. Contractor may
terminate this Agreement for its convenience if Consultant has not commenced work under
an outstanding Project Assignment. In addition, if Consultant has commenced work under a
Project Assignment, Contractor may terminate an outstanding Project Assignment by paying
Consultant a termination fee of eighty-five percent (85%) of the unpaid next installment of
the fee for services described in such Project Assignment in addition to payment for services
already rendered and payment of all reimbursable costs already incurred.
9.4.
Upon the termination of this Agreement for any reason, each Party shall be released
from all obligations and liabilities to the other Party occurring or arising after the date of such
termination, except that any termination shall not relieve the Parties of their obligations
under Paragraph 5 ("Taxes and Benefits"), Paragraph 6 ("Inventions"), Paragraph 7
("Confidentiality") and Paragraph 9 ("General"), nor shall any such termination relieve the
Parties from any liability arising from any breach of this Agreement. Upon the termination of
this Agreement for any reason, the Recipient Party shall immediately return to the Disclosing
Party all Confidential Information that is in the Recipient Party’s possession or control.
10.
GENERAL
10.1. Pre-Existing Obligations. The Parties each represent and warrant that that they are not
under any pre-existing obligation or obligations (whether contractual, legal, equitable,
statutory, regulatory, or otherwise) inconsistent with the provisions of this Agreement or any
Project Assignment entered into hereunder.
10.2. Assignment. The rights and liabilities of the Parties hereto shall bind and inure to the
benefit of their respective successors, executors and administrators, as the case may be,
provided that, Consultant may only assign this Agreement either in whole or in part with the
prior written consent of Contractor.
10.3. Arbitration: Any controversy or claim arising out of or relating to this contract, or the
breach thereof, that cannot be amicably resolved shall be settled by binding arbitration
administered by the International Chamber of Commerce (“ICC”) (or the London Court of
International Arbitration, if the venue is London) in accordance with its Commercial
Arbitration Rules including any Emergency Interim Relief Procedures, and judgment on the
award rendered by the arbitrator(s) may be entered in and enforced any court having
competent jurisdiction.
10.4. Attorney's Fees. The prevailing Party in any arbitration shall be entitle to reasonable
attorney's fees, costs and expenses in addition to any other relief to which such prevailing
Party may be entitled.
10.5. Governing Law; Severability. This Agreement shall be governed by and construed in
accordance with the laws of the United Kingdom. If any provision of this Agreement is for any
reason found by a court or arbitrator of competent jurisdiction to be unenforceable, the
remainder of Agreement shall continue in full force and effect.
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10.6. Complete Understanding; Modification; Precedence. This Agreement constitutes the
full and complete understanding and agreement of the Parties hereto and supersedes all prior
understandings and agreements. Project Assignments and any waiver, modification or
amendment of any provision of this Agreement shall be effective only if in writing and signed
by the Parties thereto. In the event of an apparent conflict between the constituent parts of
this Agreement, Project Assignments take precedence over the provisions of this contract
and, more recent amendments and Project Assignments take precedence over earlier
amendments and Project Assignments.
IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of the date written below.
[Contractor]
[Consultant]
Date:
Date:
By
By
[signatory]
[signatory]
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Eg.
Exhibit A
PROJECT ASSIGNMENT # [*****]
UNDER CONSULTING AGREEMENT
WITH [consultant].
1.0
TITLE OF WORK
Eg. To carry out business development on behalf of [contractor] by mutual agreement.
2.0
SCOPE OF WORK:
Eg. The scope of this assignment includes:



3.0
Interaction with *** to further [contractor’s] **** consultancy opportunities
Interactions with and identification of potential clients in the ***** and other sectors
Identification of possible opportunities for the company and/or approach
persons/companies who might be looking to contract some [discipline] work
of
SCHEDULE OF WORK:
Eg. The assignment is to begin on the [date] and extend until further notice. A spreadsheet of
milestones may be required.
4.0
FEES AND REIMBURSEMENTS:
Consultant will be reimbursed at a rate of £*****/d plus charges for telecommunication and other
appropriate expenses that will be charged using vouchers for verification.
Part days spent on work relating to this project will be charged on a pro rata basis by mutual
agreement.
The assignment reimbursement is not to exceed £***** without prior authorization.
5.0
INTELLECTUAL PROPERTY:
All work is the property of [contractor]
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