Contractor Agreement Template
The template that we follow for all Contractor Agreements that we share at Wednesday.
This Consultancy Agreement (Agreement) is entered into and made effective on ________________, by and between
a. Wednesday Solutions, a registered partnership firm, with its registered office at Unit 509 & 510, Clover Hills Plaza Mall, NIBM Road, Kondhwa, Pune 411048 which expression unless repugnant to its context shall mean and include its successors, assigns, affiliates, and related entities, of the First Part;
and
b. ______________________ (PAN No. ________________), residing at ________________________________________________ (Consultant) which expression unless repugnant to its context shall mean and include its successors, of the Second Part.
Wednesday and Consultant shall be referred to individually as Party, and jointly as Parties, where the context so requires.
Whereas:
1. Wednesday in engaged in the business of providing software and technology advisory and consulting services.
2. Relying on representation made by the Consultant about his/her previous experience, trainings and qualifications, Wednesday has agreed to engage the Consultant as ____________________ with effect from ________________ (Effective Date), and on the terms and conditions contained in this Agreement;
3. The Parties agree and undertake that they shall abide by the terms and conditions contained in this Agreement and therefore agree to sign this Agreement confirming their commitment and intention.
The Parties agree as follows:
1. Definitions
When used in this Agreement or in each Statement of Work, the capitalized terms listed in this section shall have the meaning as provided below. Other capitalized terms used in this Agreement shall have the meaning respectively assigned to them elsewhere in this Agreement or in each Statement of Work.
“Agreement” means this Consultancy Agreement, its Statement of Work, schedules, exhibits, together with all amendments as approved In Writing by the Parties from time to time.
“Confidential Information” shall mean all information including but not limited to commercial, technical, financial and artistic information relating to the business of Wednesday or its clients, which are confidential or proprietary in nature and not available to the general public. This shall include particularly such information that may be developed by Wednesday or the Consultant pursuant to this Agreement, whether protected under law or not. Confidential Information shall also include the information relating to the customers and clients of Wednesday and the services to be performed for such customer or client, source code version of the software programs, and any portion or derivative work thereof, provided by Wednesday and/or the client to the Consultant for the performance of the obligations under this Agreement as well as any oral information disclosed to the Consultant pursuant to this Agreement, whether or not it has been designated as “Confidential.” Notwithstanding the foregoing, the term Confidential Information does not include information that;
was publicly known at the time it was disclosed or becomes publicly known through no fault or action of the Consultant or any breach of any confidentiality obligation;
was known to the Consultant, without restriction, at the time of disclosure, provided the Consultant can demonstrate such prior knowledge with adequate evidence;
was independently developed by the Consultant without any use of the Confidential Information and Consultant who has not been exposed to the Confidential Information, provided that the Consultant can demonstrate such independent development with adequate evidence, or
becomes known to the Consultant, without restriction, from a source other than Wednesday or its clients without breach of this Agreement by the Consultant or breach of another agreement or otherwise in violation of the rights of Wednesday or its clients.
“Deliverables” shall mean the Work Product to be delivered to Wednesday by the Consultant and the other items under the Agreement including designs, artwork, or other tools and materials developed for Wednesday.
“Intellectual Property Rights” mean copyright, trademark rights, patent rights, trade secret rights, authors’ rights, as may exist at any time, and all renewals and extensions thereof, under the laws of any state, country, or jurisdiction.
“Services” is defined as any and all work to be performed by the Consultant specified herein or in the SOW, including without limitation all professional, management, labor, and general services.
“Specifications” means the specifications of the Deliverables as to its intended functionality and features, with reference to Services, description, or type of Services and as agreed by the Parties in the relevant Statement of Work.
“Statement(s) of Work” or “SOW” means the exhibit attached hereto, specifying the Services and/or Deliverables to be provided by Consultant to the Wednesday. Additionally, Statement of Work shall mean any proposal of the Consultant or Wednesday or any other written instrument or plan(s) or equivalent authorized communication by Writing from one Party to other Party that at a minimum (i) is signed on behalf of both Parties by their authorized representatives or agreed to between the Parties by their authorized representatives; and (ii) contains a description or type of Services or Specifications of the Deliverables to be delivered, the time schedule for delivery of the Deliverables or performance of the Services, and such other terms and conditions as may be mutually agreed upon by the Parties.
“Written” or “In Writing” means any communication in a written form, which shall include, without limitation, any communication by telex, facsimile, and electronic e-mail transmission.
2. Appointment of Consultant
Wednesday hereby appoints the Consultant as ________________ on an exclusive basis in order to avail Services and provide Services to the Customer.
The Consultant will perform and discharge all duties and functions mutually agreed to in a faithful, competent, and professional manner.
The Consultant shall immediately make full and true disclosure In Writing to Wednesday of:
any direct or indirect interest or benefit they have derived or is likely to derive through or in connection with any contractual arrangements, dealings, transactions, or affairs of Wednesday and/or any transactions which are likely to be detrimental to Wednesday
any and all business interests that are similar to or in conflict with the business of Wednesday; and
any Intellectual Property developed, created or owned by Consultant (“Pre-Existing IP”) and proposed to be used by them during the course of their engagement with Wednesday.
The Consultant represents that to the best of their knowledge, they have no commitments which would restrict them from being engaged by Wednesday. The Consultant shall hold Wednesday harmless from any and all claims arising from any breach of the representations and warranties in this Clause.
The Consultant agrees that it shall provide the Services in a timely and effective manner and deliver the Deliverables to Wednesday in accordance with the time schedule specified by Wednesday. The Consultant shall exercise reasonable care and judgment in performing the duties, functions, and Services of this engagement. The Consultant shall not incur any liability on behalf of Wednesday or in any way pledge or purport to pledge Wednesdays’ credit or purport to make any contract binding upon Wednesday except in accordance with the terms of this Agreement.
The Consultant shall not in any manner transfer or alienate or sell, license, or assign any rights of Wednesday with respect to the Confidential Information or the intellectual property in the Confidential Information or the Intellectual Property to which the Consultant has access to under the terms of this Agreement. The Consultant represents and warrants to Wednesday that: (i) they have all rights (including copyright, common-law proprietary, patent, trademark or trade secret) necessary to perform their duties, functions, and Services under this engagement and for Wednesdays’ full use and enjoyment thereof; (ii) no materials or work product provided by the Consultant, and none of the Consultant’s activities hereunder, will violate or infringe any such right of any third party, nor shall such materials, work product or activities violate any contractual obligations or confidential relationships which the Consultant may have with Wednesday or any third party; and (iii) the Consultant shall hold Wednesday harmless from any claim to the contrary.
The Consultant shall ensure that the trademarks owned by Wednesday and its Customer are not utilized except in accordance with the terms of this Agreement.
The Consultants shall ensure that the Deliverables as delivered to Wednesday and/or the Customer does not infringe or misappropriate any copyright, patent, trade secret, trademark, or other proprietary right held by any Third Party and is free of any lien, claim, security interest or encumbrance and Consultant shall indemnify and hold Wednesday harmless from any claims, losses, damages, suits, proceedings, etc. arising from the breach of this clause.
The Consultant shall not utilize the Confidential Information and the Intellectual Property provided by Wednesday or Customer under this Agreement except for the purposes specifically contemplated under this Agreement.
The Consultant undertakes that they have been given the opportunity to read the terms and conditions of the various policies, procedures, and processes of Wednesday (collectively the “Policies”) including but not limited to the Employee Handbook and the Prevention of Sexual Harassment Policies. The Consultant further undertakes that they will be bound to all the terms and conditions of the Policies and any violation thereto shall subject the Consultant to appropriate disciplinary proceeding(s). The Consultant understands that such Policies are subject to review and may be modified periodically and all such modified Policies shall be applicable to the Consultant.
The duties of the Consultant are more fully set out in Annexure A to this Agreement. The Consultant shall comply with all operating policies, procedures, and practices of Wednesday as regards their duties.
3. Payment
The rate of the fees payable by Wednesday to the Consultant shall be on an hourly basis as specified in Annexure A of this Agreement.
The consultant shall submit the timesheets only for the productive hours spent by the Consultant on providing the Services and Deliverables. On submission of the timesheets by the Consultant, Wednesday shall, at its sole discretion, based on the Deliverables submitted and Services provided by the Consultant, determine the total hours that constitute billable hours and shall calculate the total fees payable for such billable hours in the month.
The consultant shall then raise invoices for payment of fees or expenses, once in a month. Wednesday shall pay the undisputed fees to the Consultant within 20 days of the submission of the correct invoice by the Consultant.
The Parties agree that the fee and benefits as specified in the Annexure A shall be the sole payment to be paid by Wednesday to the Consultant for providing Services under this Agreement. All the other expenses incurred by the Consultant shall be at their sole cost and Wednesday shall not have an obligation to pay such expenses unless otherwise mutually agreed upon between the Parties.
Wednesday shall pay or reimburse the Consultant for all reasonable business expenses incurred or paid by the Consultant in the performance of their duties; provided, that the Consultant furnishes Wednesday with relevant documentation evidencing such expenses, as well as such other documentation as Wednesday may reasonably request. The reimbursement shall be as per the limit mentioned in any Policy prevalent at that point in time. The Consultant must file authorization requests and expense reports with respect to such expenses in accordance with the Policies.
All payments received by the Consultant under this Agreement shall be subject to relevant deduction of taxes at source.
4. Term and Termination
This Agreement will commence on the Effective Date specified above and shall remain in effect for a period of 12 months. Either Party may terminate this Agreement or Statement of Work for convenience by providing thirty (30) calendar days prior notice in writing to the other. In case of a breach of a material obligation under this Agreement and failure to remedy the same within a period of thirty (30) calendar days, the non-defaulting party may terminate the Agreement by providing a written notice.
Wednesday may also terminate the Agreement, at its discretion, if the Services and Deliverables provided by the Consultant are not satisfactory or if the Consultant wrongfully submits unproductive hours in the timesheet as billable hours at the time of raising invoices.
Upon any such termination, the Consultant shall complete and deliver to Wednesday all the Deliverables and/or Services under a Statement of Work.
5. Intellectual Property
Wednesday shall own the rights, title, and interest in and to all Intellectual Property Rights for all Deliverables and/or output from Services. The Consultant hereby irrevocably assigns and agrees to assign to Wednesday, without further consideration, the entire right, title, and interest in and to all Deliverables and Services, including all rights to obtain, register, and enforce patents, copyrights, and other intellectual property protection for Deliverables and Services. The Consultant will disclose promptly and in writing to Wednesday, all Deliverables and Services which the Consultant has made, authored, or reduced to practice. During the term of this Agreement and for one (1) year thereafter, the Consultant will assist Wednesday to obtain and enforce patents, copyrights, and other forms of intellectual property for the protection of the Deliverables and Services. If the Deliverables and Services are assigned by the Consultant to Wednesday on its demand, Wednesday shall have the unfettered right to assign such Deliverables and Services to any person as it may deem fit, without the necessity of any consent from the Consultant.
The Consultant acknowledges and agrees that the assignment set forth herein is irrevocable, worldwide, and perpetual and that the Consultant shall have no rights to the reversion of the Deliverables and Services, even if Wednesday does not exploit them.
Consultant shall hereby permanently waive all rights of authorship, special, moral, or similar rights, if any, that vest or may vest in Consultant as of the date any Deliverables and Services are created. Consultant further acknowledges and agrees that through the complete and permanent waiver contained herein, neither does the Consultant nor its legal heirs retain any authorship, moral, special, or similar rights in and to any Deliverables and Services. The Consultant hereby agrees, at the request and expense of Wednesday, to provide any assistance as may be necessary to confirm its waiver of any authorship, special, moral, or similar rights associated with the Deliverables and Services that may vest in the Consultant. In the event Wednesday is unable for any reason, after reasonable effort, to secure the Consultant’s signature on any document needed in connection with the actions specified herein, the Consultant hereby irrevocably designates and appoints Wednesday and its authorized personnel as the Consultant’s agent and attorney in fact and at law, which appointment is coupled with an interest, to act for and on its behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this clause with the same legal force and effect as if executed by the Consultant.
If, in the course of this Agreement with Wednesday, the Consultant incorporates, or does incorporate, a Pre-Existing IP into any Wednesday’s product, process, machine, or Deliverable or any Service, the Consultant shall hereby unconditionally grant to Wednesday, a non-exclusive, perpetual, irrevocable, perpetual, worldwide, fully paid right and license, with the right to sub-license through multiple levels of sub-licensees under all of Consultant’s Intellectual Property Rights in any and all Pre-Existing IP used or incorporated in any Deliverables and/or Services or otherwise used by Consultant in performance of obligations in connection with the this Agreement to: (1) reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Deliverables and/or Services in any medium or format, whether now known or hereafter discovered, (2) use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from the Deliverables and /or Services, and (3) exercise any and all other present or future rights in the Deliverables and/or Services.
In the event the Customer provides Wednesday or the Consultant any software, documentation, equipment, or other tangible materials (Customer Materials) in connection with any Deliverables and not under the terms of any other written agreement, then, the Customer hereby grants Wednesday and/or the Consultant a non-exclusive, personal, non-transferable, non-assignable, license to internally use, modify and create derivative works of such Customer Materials solely to the extent necessary to perform the Services on behalf of the Customer, except to the extent such activities are prohibited by the terms of any non-Customer license agreement provided with such Customer Materials. Any derivative works Wednesday and/or the Consultant makes out of Customer Materials will constitute Services to be provided pursuant to this Agreement and shall be assigned solely and absolutely in favour of the Customer. Consultant shall indemnify and hold harmless Wednesday for any and all claims, losses, damages, suits, proceedings (including reasonable attorney’s fees) arising out of the breach of this provision.
6. Confidentiality Obligations
Both Parties recognize that, by virtue of this Agreement, they will be given and have access to specialized technical know-how, information, data and other confidential and proprietary information of the other Party. The receiving party undertakes not to divulge or communicate to any person (unless required by law or by any regulation or by any governmental authorities or with proper authority) or use or exploit for any purpose whatever, any of the trade secrets or confidential knowledge or information of the disclosing Party which it may receive or obtain as a result of entering into this Agreement, and the receiving Party shall use its reasonable endeavors to prevent its officers, employees or agents if any from doing so. This obligation and restriction on the receiving Party shall continue to apply without limit in point of time but shall cease to apply to information or knowledge which may properly come into the public domain through no fault of the receiving Party, or was already known to the receiving Party prior to the disclosure by the disclosing Party.
For sake of clarity, Confidential Information will include the Deliverables, Services the existence, terms, and conditions of this Agreement, information relating to released or unreleased Customer software or hardware products, marketing or promotion of any Customer product, or information received from others that Wednesday and the Customer are obligated to treat as confidential.
The Receiving Party shall (i) promptly notify the Disclosing Party to the extent lawful and practical to enable the Disclosing Party to protect its Confidential Information, (ii) at the request and sole expense of the Disclosing Party, cooperate reasonably with the Disclosing Party’s efforts to contest or limit the scope of the order or directive and (iii) limit any disclosure to the minimum that is necessary to comply with the regulation, order or directive.
7. Independent Parties
This Agreement is neither intended to nor will it be construed as creating an employer-employee relationship, joint venture, partnership, or other forms of business association between the parties, nor an obligation to buy or sell products using or incorporating the Confidential Information.
8. Non-Solicitation
During the term of this Agreement and for a period of 3 years from the date of the termination of this Agreement, Consultant will not directly or indirectly, either as an individual on its own account or as a partner, employee, consultant, advisor, agent, contractor, director, trustee, committee member, office bearer, or shareholder (or in a similar capacity or function) solicit the existing or prospective customers, clients, or employees of Wednesday, except as necessary during this Agreement to perform its Services under this Agreement.
9. Disclaimer
Except as expressly set forth herein, both Parties hereby disclaim all warranties to each other and all third-parties, with respect to express, implied, statutory warranties including, without limitation, with respect to the Services or Deliverables (and all portion or components thereof), implied warranties of merchantability, quality, non-infringement, and fitness for a particular purpose.
10. No Waiver
The failure of either party to enforce any right resulting from a breach of any provision of this Agreement by the other party will not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right hereunder.
11. Governing Law
This Agreement will be governed by the laws of India without reference to conflict of law principles if any. Any disputes arising from this Agreement shall be subject to the jurisdiction of the courts in Pune, India.
12. Entire Agreement
This Agreement constitutes the sole and entire agreement between the parties with respect to the Confidential Information and all restrictions thereon; it supersedes any and all prior or contemporaneous oral or written agreements, negotiations, communications, understandings and terms, whether express or implied regarding the Confidential Information, and may not be amended except in writing signed by a duly authorized representative of the respective parties. Any other agreements between the parties, including non-disclosure agreements, will not be affected by this Agreement.
13. Liability
The Consultant shall, at all times, indemnify and keep indemnified Wednesday against all sums whether by way of claims, demands, damages, costs, charges, or expenses paid or incurred by Wednesday in or in connection with any action, claim proceedings, or demand instituted or made against Wednesday due to the Consultant’s breach, failure, default, fraud or neglect.
The Parties mutually agree to waive, to the fullest extent permitted by law, any claim, liability, prayer, or recovery of any indirect, incidental, consequential, special, exemplary, punitive, restitutionary or disgorgement damages, reliance damages, speculative, damages, losses, damages, costs or expenses or any lost profits or lost contracts, lost goodwill, lost business, lost general overhead, loss of reputation, loss of market share, loss of data, loss of anticipated savings, business interruptions, loss of the use of money, interest payments incurred to third parties, and such like claims of damages losses, damages, costs or expenses from the other party and any third party in connection with or arising out of this Agreement (even if such Party has been advised of the possibility of such damages, losses, costs or expenses whether based on an action or claim in contract, equity, negligence, tort or any other theory of law). In consideration for the fees as set forth in this Agreement, the Parties acknowledge and agree that Wednesday’s total liability under this Agreement and any relevant Statement of Work shall be limited to the total fees payable in the six months preceding the cause of action, under which the liability or claim for damages arose.
14. Force Majeure
A Party shall not be liable for any event that is beyond the control of that Party or which could not have been reasonably foreseen, including without limitation, acts of god, man or state, civil unrest, terrorism, explosions, floods, hurricanes, earthquakes, mechanical breakdowns, strikes, labor unrest, breakdown in essential utilities, medical or other emergencies (Force Majeure).
15. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. An electronic copy of an executed signature page delivered by facsimile transmission or e-mail shall be binding to the same extent as an original copy of an executed signature page delivered otherwise. A Party that delivers an electronic copy of an executed signature page agrees to later deliver an original counterpart to the other Party if requested.
16. Headings
The headings used in this Agreement are for convenience and identification only, and shall not be deemed to limit, amplify or define the contents of the respective sections or paragraphs to which they pertain.
17. Severability
If any provision or part of this Agreement shall be determined to be illegal, invalid or unenforceable, that part shall be severed from this Agreement and the remaining parts shall be valid and enforceable.
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