From: elendil@mintir.new-orleans.la.us (Edward J. Branley)
Newsgroups: misc.jobs.contract
Subject: Sample Contracts (1 of 4)
Date: Sat, 08 Aug 92 20:13:33 CDT
Organization: Minas Tirith BBS, New Orleans, LA

Note:  This is a boilerplate contract I picked up from the CONSULT forum on
Compu$pend.  Usual disclaimers (see my previous article) apply:

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Consulting Agreement

This agreement is made at this xx day of xxxx 199x, by and between MindStorm, Inc. (RConsultantS) and xxxx. (RClientS).

Witnesseth

WHEREAS, Client desires to retain Consultant as an independent contractor to perform consulting services for Client and Consultant is willing to perform such services on the terms and conditions set forth below:

1.      Services

1.1     Consultant agrees to perform the services described in the item RProject DescriptionS in the project schedule (the RProject ScheduleS) attached hereto as Attachment RAS and by this reference made a part hereof (the RServicesS).  Consultant shall p

1.2     Consultant shall determine, in its sole discretion, the manner and means by which the Services shall be performed and the location where the Services will be performed.  Consultant agrees, while working on the ClientUs premises, to observe ClientU

1.3     The Services will be performed in such stages, and with such milestones and deliverables, if any, as are set forth in the Project Schedule.  Client shall promptly test any milestone deliverables upon delivery thereof to Client and shall accept suc

2.      Independent Contractor.  Consultant is and will at all times remain an independent contractor.  Consultant agrees that Consultant is only retained for the performance of the Services, the anticipated duration which is set forth in the Project Sche

3.      Payment.

3.1.    As full compensation for the performance of the Services and all other obligations of Consultant hereunder, Client shall pay Consultant at the ConsultantUs current hourly rate specified in Appendix A.

3.2     All travel relating to the performance of the Service shall be compensated at the current normal hourly rate as stated in Section 3.1 above.  In the event Client requires Consultant to travel in connection with the Services to a location more than

3.3     Consultant shall bill client in arrears twice monthly, with one invoice being sent on or after the 16th of each month covering the 1st through 15th of that month, and another invoice being sent on or after the 1st of each month covering the 16th t

3.4     All overdue amounts shall bear an interest at the rate of one percent (1%) per month or the highest interest rate allowed by applicable law, whichever is less, until paid in full.  Additionally, Consultant reserves the right to terminate all furth

3.5     Consultant hereby reserves, and Client hereby grants to Consultant, a security interest in any and all software programs and other results from the Services and any additions hereto and proceeds therefrom, to secure the payment by Client of all am

3.6     The fees set forth on the Project Schedule do not include any sales use of value added taxes or any other governmental duties, taxes or charges not based upon ConsultantUs net income.  All such taxes, duties, and charges shall be borne by the Clie

4.      Ownership of Software.  Consultant acknowledges and agrees that all worldwide rights, titles and interest in and to any and all software programs, or parts thereof, and related documentation resulting from the Services (together called the RSoftwa

5.      Know-How Retention.  Client expressly acknowledges and agrees that pursuant to Section 4 (ROwnership of SoftwareS), it is not acquiring (and Consultant retains) any and all rights to the know-how with respect to how to perform the Services or deve

6.      Confidentiality

6.1     Consultant acknowledges and agrees that Consultant will have access to, or become acquainted with RConfidential InformationS of Client.  As used herein, the term RConfidential InformationS shall mean (i) the source code of the software, (ii) any a

6.2     Consultant shall keep all Confidential Information of Client in confidence and shall not publish, disclose or otherwise make available, directly or indirectly, without the prior written consent of Client, any item of Confidential Information to an

6.3     ConsultantUs confidentiality obligations hereunder shall continue for each item of Confidential Information until such time as such item of Confidential Information (i) is or has become publicly available other than as a result of any act of Consu

6.4     The parties agree that the confidentiality covenants contained in this Section 6 shall not restrict Consultant in the exercise of its technical skill, provided that others do not benefit in any manner or form from Confidential Information of the C

7.      Employment Taxes and Benefits.  Consultant acknowledges and agrees that it will be solely responsible for withholding and paying all federal, state and local income taxes, FICA, FUTA, and state unemployment and disability insurance.

8.      Non-Infringement.

8.1     Consultant represents and warrants to Client that to the best of its knowledge the Software or any part thereof does not, and will not upon delivery to Client infringe any US patent right, US copyright, or US trade secret right of any third party.

8.2     Consultant will have no liability to Client with respect to any infringement claim which is based upon the combination of the Software with any other product or program not furnished by Consultant or upon any modification of the Software by a part


9.      Term and Termination

9.1     This agreement shall commence on the date hereof and shall continue in full force and effect until the receipt by Consultant of full payment for the Services, unless terminated earlier as hereinafter provided:

9.2     This Agreement may be terminated at any time:

9.2(a)  By either party, immediately upon written notice to the other party if such other party commits or allows any breach of any provision of this Agreement which is incurable or which is curable but not cured within thirty (30) days (ten [10] days for

9.2(b)  By Client, for any reason or no reason, upon two (2) weeks prior written notice to Consultant.

9.3     Upon the termination of this Agreement, and full payment by Client to Consultant of all services performed by Consultant, Consultant shall immediately deliver to Client or its designee all Software and all documents, media or items containing any

10.     Disclaimer; Notice of Liability

10.1    Except for the warranty provided in Section 8.1 hereof, Consultant does not make any representations or warranties with respect to the Software or any part thereof and CONSULTANT SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY AND OF FITNES

10.2    Except as and to the extent provided in Section 8.1 hereof, under no circumstances shall consultant be liable to Client or any other person for any special, indirect, incidental or consequential damages, whether arising out of break or warranty, b

10.3    Notwithstanding any other provision of this Agreement, the aggregate liability of Consultant on whatever basis, shall not exceed the fee actually received by Consultant hereunder.

11.     Notice.  Any notice or other communication hereunder shall be in writing and shall be deemed given and effective (i) when delivered personally or by overnight express, or (ii) three (3) days after the postmark date if mailed by certified or regist

12.     Miscellaneous.

12.1    This Agreement, including Attachment A, constitutes the entire agreement between the parties hereto relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understa

12.2    Except as hereinafter provided, this Agreement may not be changed or amended except by a writing executed by both parties.  Client may, at its discretion, change or amend the Project Schedule, including all or part of the project description and p

12.3    This Agreement shall inure to the benefit of the Consultant and be binding upon Client and its successors and assigns (to the extent that this Agreement is assignable).

12.4    This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California excluding conflict of law rules.

12.5    The parties agree that the state courts located in Alameda County and the US District Court of the Northern District of California, San Francisco Division, shall have exclusive jurisdiction to determine the validity, construction and performance o

12.6    No delay or failure by either party to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver thereof or of such partyUs right thereafter to exercise or enforce each and every right and provision of t

12.7    This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same instrument.  In construing or interpreting this Agreement, the word RorS shall not be con

12.8    If any provision of this Agreement shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enfor


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written:

CLIENT:         CONSULTANT:

        xxxx    MindStorm, Inc.

By:     __________________________      _____________________________

Name:   xxxx    Burt Johnson

Title:  __________________________      President

Address:        xxxx    88 Oak Ridge Rd

        xxxx    Berkeley, CA 94705


Attachment RAS

Project Schedule

(a)     Commencement Date:      xxxx

(b)     Anticipated Duration:   xxxx

(c)     Name of Client Project Managers:        xxxx

(d)     ContractorUs Hourly Rate:       $xxxx / hour

(e)     Project Description:
Client has contracted with Consultant to xxxx

Consultant estimates xxx hours for this phase of the project.

CLIENT:         CONSULTANT:

        xxxx.   MindStorm, Inc.

By:     __________________________      _____________________________

Name:   xxxx    Burt Johnson

Title:  __________________________      President







>Edward J. Branley         elendil@mintir.new-orleans.la.us<
>Seashell Software, Metairie, LA            +1-504-455-5087<


Article 4734 of misc.jobs.contract: