CONSULTING AGREEMENT FOR HOURLY WORK
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CONSULTING AGREEMENT FOR HOURLY WORK
Effective ____________________ (“Effective Date”), ____________________ (“Consultant”)
and ____________________ (“Company”), a Delaware corporation, agree (this “Agreement”) as
follows:
1.
Consultant agrees to undertake and complete the Services (as defined
Services and Payment.
in Exhibit A) in accordance with and on the schedule specified in Exhibit A. As the only
consideration due Consultant regarding the subject matter of this Agreement, Company will pay
Consultant in accordance with Exhibit A.
2. Ownership; Rights; Proprietary Information; Publicity.
2.1. Company shall own all right, title and interest (including patent rights, copyrights, trade secret
rights, mask work rights, trademark rights,
database rights and all other rights of any sort
sui generis
throughout the world) relating to any and all inventions (whether or not patentable), works of
authorship, mask works, designations, designs, know-how, ideas and information made or
conceived or reduced to practice, in whole or in part, by Consultant in connection with Services
or any Proprietary Information (as defined below) (collectively, “Inventions”) and Consultant will
promptly disclose and provide all Inventions to Company. All Inventions are works made for hire
to the extent allowed by law. In addition, if any Invention does not qualify as a work made for
hire, Consultant hereby makes all assignments necessary to accomplish the foregoing ownership.
Consultant shall further assist Company, at Company’s expense, to further evidence, record and
perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned.
Consultant hereby irrevocably designates and appoints Company and its agents as attorneys?in?fact
to act for and in Consultant’s behalf to execute and file any document and to do all other lawfully
permitted acts to further the foregoing with the same legal force and effect as if executed by
Consultant.
2.2. Consultant agrees that all Inventions and all other business, technical and financial information
(including, without limitation, the identity of and information relating to customers or employees)
Consultant develops, learns or obtains in connection with Services or that are received by or for
Company in confidence, constitute “Proprietary Information.” Consultant will hold in confidence
and not disclose or, except in performing the Services, use any Proprietary Information. However,
Consultant shall not be obligated under this paragraph with respect to information Consultant can
document is or becomes readily publicly available without restriction through no fault of
Consultant. Upon termination and as otherwise requested by Company, Consultant will promptly
return to Company all items and copies containing or embodying Proprietary Information, except
that Consultant may keep its personal copies of its compensation records and this Agreement.
Consultant also recognizes and agrees that Consultant has no expectation of privacy with respect to
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Company’s telecommunications, networking or information processing systems (including, without
limitation, stored computer files, e-mail messages and voice messages) and that Consultant’s activity,
and any files or messages, on or using any of those systems may be monitored at any time without
notice.Consultant further agrees that any property situated on the Company’s premises and owned,
leased or otherwise possessed by the Company, including computers, computer files, email,
voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company
personnel at any time with or without notice.
2.3. As additional protection for Proprietary Information, Consultant agrees that during the period
over which it is (or is supposed to be) providing Services (i) and for one year thereafter, Consultant
will not encourage or solicit any employee or consultant of Company to leave Company for any
reason, and (ii) Consultant will not engage in any activity that is in any way competitive with the
business or demonstrably anticipated business of Company, and Consultant will not assist any other
person or organization in competing or in preparing to compete with any business or demonstrably
anticipated business of Company.
2.4. To the extent allowed by law, Section 2.1 and any license to Company hereunder includes all
rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as
or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like. Furthermore,
Consultant agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or
not statutory) anywhere in the world and without any further compensation, Company may and is
hereby authorized to use Consultant’s name in connection with promotion of its business, products
and services and to allow others to do so To the extent any of the foregoing is ineffective under
.
applicable law, Consultant hereby provides any and all ratifications and consents necessary to
accomplish the purposes of the foregoing to the extent possible. Consultant will confirm any such
ratifications and consents from time to time as requested by Company.
2.5. If any part of the Services or Inventions is based on, incorporates, or is an improvement or
derivative of, or cannot be reasonably and fully made, used, reproduced, distributed or otherwise
exploited without using or violating technology or intellectual property rights owned or licensed
by Consultant and not assigned hereunder, Consultant hereby grants Company and its successors a
perpetual, irrevocable, worldwide royalty-free, nonexclusive, sublicensable right and license to
exploit and exercise all such technology and intellectual property rights in support of Company’s
exercise or exploitation of the Services, Inventions, other work performed hereunder, or any
assigned rights (including any modifications, improvements and derivatives of any of them).
3.
Consultant warrants that: (i) the Services will be performed in a professional and
Warranty.
workmanlike manner and that none of such Services or any part of this Agreement is or will be
inconsistent with any obligation Consultant may have to others; (ii) all work under this Agreement
shall be Consultant’s original work and none of the Services or Inventions or any development,
use, production, distribution or exploitation thereof will infringe, misappropriate or violate any
intellectual property or other right of any person or entity (including, without limitation,
Consultant); (iii) Consultant has the full right to provide the Company with the assignments and
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rights provided for herein; (iv) Consultant shall comply with all applicable laws and Company
safety rules in the course of performing the Services and (v) if Consultant’s work requires a license,
Consultant has obtained that license and the license is in full force and effect.
4.
If either party materially breaches a material provision of this Agreement, the
Termination.
other party may terminate this Agreement upon five (5) days written notice unless the breach is
cured within the notice period. Company also may terminate this Agreement at any time, with or
without cause, upon ten (10) days’ notice, but, if (and only if) without cause, Company shall upon
termination pay Consultant all unpaid and undisputed amounts due for Services completed prior to
notice of termination. Sections 2 (subject to the limitations on Section 2.3 stated therein) through
8 of this Agreement and any remedies for breach of this Agreement shall survive any termination or
expiration. Company may communicate such obligations to any other (or potential) client or
employer of Consultant.
5.
Notwithstanding any provision hereof, for all purposes of this
Relationship of the Parties.
Agreement each party shall be and act as an independent contractor and not a partner, joint
venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract.
Consultant is an independent contractor and is solely responsible for all taxes, withholdings, and
other statutory or contractual obligations of any sort, including, but not limited to, workers’
compensation insurance. Consultant agrees to indemnify, defend and save Company harmless from
any and all claims and threatened claims by any third party, including employees of either party,
arising out of, under or in connection with:
5.1. The death or bodily injury of any third party, including any agent, employee, customer,
business invitee or business visitor of Company but only to the extent caused or contributed to by
Consultant, or the damage, loss or destruction of any tangible personal or real property but only to
the extent caused or contributed to by the Consultant; or
5.2. An act or omission of Consultant in its capacity as an employer of a person and arising out of
or relating to: (i) federal, state or other laws or regulations for the protection of persons who are
members of a protected class or category or persons, (ii) sexual discrimination or harassment,
(iii) work related injury or death, (iv) accrued employees benefits and (v) any other aspect of the
employment or contractual relationship or its termination (including claims for breach of an express
or implied contract of employment) and which, with respect to each of the clauses (i) through (v)
arose when the person asserting the claim, demand, charge, action or other proceeding was or
purported to be an employee or independent contractor of Consultant.
6.
This Agreement and the services contemplated hereunder are personal to
Assignment.
Consultant and Consultant shall not have the right or ability to assign, transfer, or subcontract any
obligations under this Agreement without the written consent of Company. Any attempt to do so
shall be void.
7.
All notices under this Agreement shall be in writing, and shall be deemed given when
Notice.
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personally delivered, sent by confirmed telecopy or other electronic means, or three (3) days after
being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set
forth herein or such other address as such party last provided to the other by written notice.
8.
The failure of either party to enforce its rights under this Agreement at any time
Miscellaneous.
for any period shall not be construed as a waiver of such rights. No changes or modifications or
waivers to this Agreement will be effective unless in writing and signed by both parties. In the
event that any provision of this Agreement shall be determined to be illegal or unenforceable, that
provision will be limited or eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed
by and construed in accordance with the laws of the state of New York without regard to the
conflicts of laws provisions thereof. Any legal action or proceeding relating to this Agreement shall
be brought exclusively in the state or federal courts located in New York County, New York, and
each party consents to the jurisdiction thereof.In any action or proceeding to enforce rights under
this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Headings
herein are for convenience of reference only and shall in no way affect interpretation of the
Agreement.Any breach or threatened breach of Sections 2, 3 or 6 this Agreement will cause
irreparable harm to the Company for which damages would not be an adequate remedy, and,
therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of
posting any bond) in addition to any other remedies. This Agreement constitutes the complete and
exclusive agreement between the parties concerning its subject matter and supersedes all prior or
contemporaneous agreements or understandings, written or oral, concerning the subject matter
described herein.
EXHIBIT A
Services & Fees
Services:
____________________
Term:
____________________
Fees:
Hourly fee of $____________________
Exclusive of travel time; payable ____________________ in arrears 30 days after receipt of
itemized invoice, with a cap of $____________________ in the aggregate.
Expense reimbursement
Limited to required, reasonable telephone expenses, coach class (or equivalent) transportation,
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lodging and meals that have been authorized in writing by Company in advance; payable 30 days
after receipt of itemized invoice.