Copyright 1990, NACCB
THE TERMS OF THIS AGREEMENT ARE BASED UPON AN AGREEMENT PREPARED BY THE NATIONAL ASSOCIATION OF COMPUTER CONSULTANT BUSINESSES, INC. AND ARE SUBJECT TO THE COPYRIGHT OF THAT ASSOCIATION. ANY USE OF ANY LANGUAGE IN THIS AGREEMENT BY ANYONE WHO IS NOT A MEMBER IN GOOD STANDING OF THAT ASSOCIATION IS PROHIBITED AND WILL SUBJECT THE USER TO DAMAGES AS WELL AS OTHER CIVIL PENALTIES.
This Agreement made effective this _______ day of __________,20___ by and between Aavalar Consulting, Inc., Swedesford Corporate Center 649 Swedesford Road Malvern, PA 19355 (hereinafter referred to as ?Employer?); and __________________________ (hereinafter referred to as ?Employee?).
WHEREAS, Employer is in the business of locating technical consultant job assignments and providing consulting services in accordance with the needs of its customer clients (hereinafter referred to as “Clients”); and
WHEREAS, employee currently desires to by employed by Employer in the capacity of technical consultant performing work on Clients’ projects, as assigned by Employer, and Employer desires to employ Employee.
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions set forth herein, the parties hereto agree as follows:
1. SCOPE OF DUTIES. Employer employs Employee and Employee accepts employment upon the terms and conditions set forth in this Agreement. Employee shall perform such computer programming, software development, systems analysis, professional engineering, consulting, technical writing or other specialized technical work as he/she is directed to perform by Employer for Employer’s Clients. Employee represents that, in the performance of his/her services for Employer’s clients, he/she will regularly and typically exercise sound discretion and independent judgment with respect to the significant matters entrusted to him/her. Employee agrees to work at Clients’ locations to which Employer directs him/her and at any other premises designated by employer. Employee agrees to adhere to applicable employer and Clients’ policies, procedures and requirements in performing his/her assigned work. Employee further agrees to exert his/her best efforts and to conduct himself/herself in a professional manner at all times while on assignment with Employer’s Clients. Employee understands and agrees that assignments with Employer’s clients may occur at irregular intervals and may involve successive, continuing or recurring work. Employee further understands and agrees that while working at Clients’ sites he/she works in the name of and represents employer.
2. TERM. Employee’s employment will commence on the ________ day of _______, 20___ and shall continue in effect unless and until such employment is terminated by Employer or Employee in accordance with the provisions of paragraph 14 or 19. Employee agrees that, in the event that Employer’s Client for which Employee is scheduled to perform services informs employer, prior to the above-stated date on which Employee’s services are scheduled to commence, that the commencement date is being postponed, then Employer will inform Employee immediately and Employee agrees that he/she will commence performing services on the revised commencement date as determined by the Client.
3. COMPENSATION, TIME RECORDS, DEDUCTIONS. Employer agrees to pay Employee in accordance with the wage plan attached to this Agreement as Exhibit A and made a part hereof. For each assignment Employee will record on Employer’s prescribed time record, and in accordance with any procedures established by Employer, Employee’s hours worked on each day. Prior to submitting any such time record to Employer, Employee shall obtain on each time record Client’s signature confirming and approving the hours worked by Employee. Employee agrees that such Client-approved time record shall be conclusive as to time worked each day by Employee. Employee further agrees that he/she is responsible for ensuring that such time record (including Client signature) for any week is received by Employer’s accounting office no later than the second business day of the following week. Employee recognizes that Employer may elect to modify or supplement these procedures, orally or in writing, and Employee agrees to be bound by any such future modifications or additions. Employer shall deduct amounts from Employee’s compensation only as authorized by applicable law, including amounts attributable to all applicable income tax withholding and Federal Insurance Corporation Act (FICA) tax withholding.
4. BENEFITS. Employer shall pay such taxes as may be required by law to provide Employee with any benefits to which Employee may be entitled under federal and state unemployment law and under state worker’s compensation insurance law. Employee shall be entitled to no other benefits of any kind except to the extent set forth in Exhibit B attached to this Agreement and made a part hereof.
5. TRAINING. Employee may submit to employer a request for funds to pay for a seminar or other similar training or for training materials which employee believes would enhance his/her ability to perform work for Employer’s clients. Employer shall consider each request individually and any approval of Employer funding shall be binding only if it is made in writing by Employer in advance of such training. Nothing in this Agreement shall be constructed as a guarantee of Employer funding for any training.
6. HOURS. Subject to the provisions in Exhibit A, which is attached to this Agreement, while performing work at client’s site Employee shall work the hours typically worked by Client’s employees unless directed otherwise by Employer, who shall set and enforce Employee’s amount and schedule of hours.
7. PERSONAL SERVICES OF EMPLOYEE. Employee must personally perform the work as directed by Client or Employer and has no right to subordinate in any way that responsibility to personally perform the work. Employee has no right to hire, supervise or pay assistants, except as specifically directed in writing in advance by employer to do so.
8. EXCLUSIVITY. Employee hereby agrees that during the term of this Agreement he/she shall provide full-time service and shall refrain from performing services for others to the extent required by Employer.
9. NON-PERFORMANCE OF SERVICES AND NON-RECRUITMENT. During the term of this Agreement and 1 year after the termination of Employee’s employment relationship with Employer for whatever reason, whether such termination was by Employer or Employee, and whether with or without cause, employee agrees that he/she shall not, as a principal, Employer, stockholder, partner, agent, consultant, independent contractor, employee, or in any other individual or representative capacity,: (a) provide or attempt to provide, or solicit the opportunity to provide, directly or indirectly, or advise others of the opportunity to provide, any services of the type set forth in paragraph 1 of this Agreement (regardless of whether and how such services are to be compensated, whether on a salaried, time-and-materials, contingent compensation or other basis) to or for the benefit of any Client (i) to which Employee has provided services in any capacity on behalf of Employer, or (ii) to which employee has been introduced or about which Employee has received information through employer or through any Client for which Employee has performed services in any capacity on behalf of Employer, or (b) retain or attempt to retain, directly or indirectly, for itself or any other party, the service of any person, including any of Employer’s employees, who was providing services to or on behalf of Employer while Employee was employed by Employer, and to whom Employee has been introduced or about whom Employee has received information through Employer or through any Client for which Employee has performed services in any capacity on behalf of Employer. For purposes of this paragraph, the term “Client” includes any subsidiaries Employer’s Clients.
10. REIMBURSEMENT OF EXPENSES. Employer shall reimburse Employee for necessary and ordinary expenses incurred in the course of performing work under this Agreement provided that Employee submits for approval in writing in advance and Employer approves the specific expenditure in writing in advance and notifies Employee in writing in advance of its intention to provide reimbursement. In order to receive an approved reimbursement, Employee shall present Employer with an itemized accounting of expenditures and supporting receipts and vouchers and any further information that Employer may request, and such reimbursement shall be contingent upon receipt of adequate information.
11. DIRECTION, SUPERVISION AND COOPERATION. Employee agrees to adhere to all applicable policies, procedures and rules of Employer. Although employee will ordinarily work as required by employer at the direction of the Client on whose project Employee is working, he/she agrees that Employer has the right to direct Employee as to when, where and how Employee is to perform the work. Employer has the right to instruct Employee as to which tools and technology Employee will use on the job and the right to require that Employee perform the work in the order or sequence directed by Employer. Employer has the right to require Employee’s attendance at meetings at Employer’s or any other premises. Employee’s performance is subject to the review and approval of Employer and Client. Employee’s immediate supervisor in Employer’s firm is ________________________, unless designated otherwise by Employer. Employee agrees to cooperate fully with any request by Employer for Employee to provide any information, orally and in writing, related to the performance of Employee’s services, including but not limited to any information required by Employer to respond to any questions, claims, defenses and the like raised by any person or governmental agency or required by Employer to prepare or file any claims, defenses or the like to be made by Employer.
12. REPORTS. Employee shall provide his/her immediate employer supervisor with weekly reports of progress and status regarding his/her work on Client projects. Such reports shall include providing comments pursuant to paragraph 3 of this Agreement, regarding potential completion of work on project earlier or later than initially anticipated and major problems encountered by Employee. Employee shall also provide further oral or written reports as requested by Employer. Employee shall notify both Client and Employer if for any reason Employee cannot be present where and when expected for work.
13. EMPLOYEE REFERRALS. If in the course of performing work for Client, Employee becomes aware of the potential opportunity for employer to provide additional personnel to Client, employee shall notify his/her Employer supervisor orally, at the earliest possible time, relating all pertinent information of which Employee is aware.
14. DISCHARGE. Employer may terminate Employee’s employment at any time, with or without cause and with or without prior notice, and nothing in this Agreement shall be deemed to restrict Employer from taking such action.
15. CONFIDENTIALITY AND NON-DISCLOSURE. Employee acknowledge that confidential information and materials regarding Employer and its clients have been or will be disclosed to him/her solely for the purpose of assisting him/her in performing his/her duties under this Agreement. Such information and materials are and remain the property of employer and its clients respectively. As used in this Agreement, the phrase “confidential information and materials” includes but is not limited to all information belonging to Employer or Employer’s Clients relating to their respective services and products, customers, business methods, strategies, and practices, internal operations, pricing and billing, financial data, costs, personnel information (including but not limited to names, educational background, prior experience and availability), customer and supplier contacts and needs, sales lists, technology, software, computer programs, other documentation, computer systems, inventions, developments, trade secrets of every kind and character, information designated by Employer or any of its clients as confidential, and all other information that might reasonably be deemed confidential. Employee acknowledges that he/she may use such confidential information and materials only during his/her term of employment and solely for the purpose of such employment, and that this right expires upon employee’s discharge or resignation. Employee therefore agrees not to use for his/her own benefit or for the benefit of any other person, except as specifically authorized in writing in advance by all owners of such information and materials, or divulge to any person for any reason, any such information and materials related to the business of Employer, any of its clients, or their customers, clients and affiliates, both at any time during the term of this Agreement and at any time after its termination. Employee agrees to take any and all reasonable actions, including those requested by Employer or client, to prevent such disclosure and preserve the security of confidential information and materials. Employee further agrees that he/she will not directly or indirectly disclose to any person, including to the Client or to any coworkers either during or after his/her period of employment, Employee’s wage rates and terms (disclosure to a spouse or financial institution shall be permitted so long as further disclosure by such spouse or institution is prohibited).
16. RETURN OF PROPERTY. Employer directs and employee agrees that upon termination of an assignment with any Client, employee will deliver to the Client all keys, pass cards, identification cards, listings, policy and procedure manuals, inventions, records, data, plans, programs, magnetic tapes, card decks, letters, memos or other documents or materials of any nature that are in Employee’s possession or control and that relate to the assignment or activities of the Client. Employee also agrees that upon termination of his/her employment with Employer for any reason, Employee will deliver to Employer all keys, pass cards, identification cards, listings, policy and procedure manuals, memos, letters or other documents or materials of any nature in Employee’s possession or control that were given to Employee by Employer and that relate to Employee’s employment with Employer.
17. PROPRIETARY RIGHTS. Employee shall disclose fully and promptly to Employer and to any client for which Employee has performed work the following; any and all inventions processes, innovations, discoveries, developments, designs, techniques, formulae, improvements, computer programs and other technical materials relating to the business of Employer or Employer’s Client which Employee shall discover, conceive, make, generate or reduce to practice, alone or jointly with others, during his/her term of employment with Employer, and resulting from such employment, whether or not they are patentable or copyrightable. Employee hereby agrees to assign to such Client his/her rights and interests in any inventions, processes, innovations, discoveries, and other similar materials, including copyrights to all copyrightable material and all patent rights to all patentable material unless specifically directed otherwise in writing by Employer. No rights shall be reserved to Employee. Employee agrees to execute and transfer at any time, upon Employer’s request, any certification, affidavit or other document confirming the Client’s ownership rights under this paragraph.
Upon request at any time during or after the term of this Agreement, and at the expense of Employer or its Client for whom the work in question was performed, Employee agrees to assist Client, including its attorneys, in applications for patents or copyrights relating to such inventions, processes and other materials named in this paragraph. Assistance in preparing and prosecuting such applications shall include assistance regarding litigation, and, upon Employer’s or said Client’s request, the execution of all patents and performance of all tasks that may reasonably be necessary to protect the rights of Clients and to vest in it or its assigns ownership of the inventions, applications, copyrights and patents herein contemplated. Where employee is performing the work for Employer and there is no identifiable Client, the term “Client” in this paragraph 17 shall mean “Employer”.
18. REPRESENTATIONS. Employee warrants that all information provided by Employee (including, but not limited to resume, interview, and references) in consideration for employment by Employer or for assignment to a Client is true to the best of Employee’s knowledge. Employee further warrants that he/she is not restricted by, and has no conflict of interest derived from any employment or other agreement or any other interest or obligation that would interfere with his/her performing work as directed under this Agreement for Employer or for any Client or potential Client of Employer, and that he/she shall inform Employer immediately should such a restriction or conflict arise. Employee understands that any misstatements or lack of candor by Employee concerning his/her qualifications or availability to any Client may be grounds for immediate discharge by Employer and may subject Employee to damages for any harm caused to Employer.
19. RESIGNATION. Employee may resign with or without reason as of a specified date that is at least two weeks after Employer receives written notice from Employee of his/her intention to resign as of the specified date. In the event that Employee resigns without providing the required two weeks’ written notice, Employee shall be liable to Employer for damages of _________ dollars ($_____) per day for each week day during which notice was not given during the required two-week written notice period. Employee hereby authorizes Employer to deduct from the last pay check due to Employee the amount of liquidated damages covered by this paragraph.
20. REMEDIES OF BREACHES. Employee agrees that money damages would be an inadequate remedy for any breach of paragraphs 8, 9, 15, or 17, regarding respectively, exclusivity, non-performance of services/non-recruitment, confidentiality and non-disclosure, return of property and proprietary rights, because damages for such breaches are not susceptible to exact measurement in dollars and that Employer would be irreparably harmed by any such breaches. This paragraph in no way limits the remedies Employer has at law or equity for breaches by Employee of any of the paragraphs mentioned in this paragraph or of any other provision of this Agreement.
21. EFFECT OF AGREEMENT. This Agreement shall inure to the benefit of and shall be binding on the parties hereto, the successors, assigns, heirs and personal representatives of Employer, and the heirs and personal representatives of Employee. Employee’s rights, obligations and duties under this Agreement shall not be assigned by nor are they assignable by Employee. Termination of employment as provided in paragraphs 14 and 19 shall terminate this Agreement except that paragraphs 9, 15, 17 shall remain in effect for the periods specified in those paragraphs.
22. NOTICES. Any notice required or permitted to be given under this Agreement shall be sufficient if it is in writing and if it is sent by registered mail, return receipt requested, to the Employee at his residence specified in the opening paragraph of this Agreement or to the Employer at its address specified in the opening paragraph of this Agreement. Notwithstanding the foregoing, delivery by hand shall be deemed sufficient for any notices between Employer and Employee.
23. EMPLOYMENT AT-WILL. Consistent with the provisions set forth herein, the parties acknowledge and agree that the employment relationship created by this Agreement is at-will. Any cause for discharge mentioned in this Agreement or in any document maintained by Employer (including but not limited to employment manuals or recruitment materials) shall not in any way limit Employer’s right to discharge Employee, or in any way alter Employee’s at-will status.
24. ENTIRE AGREEMENT. This instrument contains the entire Agreement of the parties regarding the services to be performed on and after the effective date hereof. This Agreement supersedes and terminates all prior agreements between the parties regarding such services to be performed on or after the effective date hereof and the parties agree and understand that any such prior agreements regarding such services to be performed on or after the effective date hereof are hereby terminated. Any modification of this Agreement shall not be effective unless contained in writing expressly identifying it as a modification and signed by Employee and by an officer of Employer.
25. SEVERABILITY. Each provision of this Agreement shall be considered severable such that if any one provision or clause conflicts with existing or future applicable law, or may not be given full effect because of such law, this shall not affect any other provision of the Agreement which, consistent with such law, shall remain in full force and effect. All surviving clauses shall be construed so as to effectuate the purpose and intent of the parties.
26. GOVERNING LAW. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. Any litigation in connection herewith shall be brought, consistent with law, in the state or federal courts of Chester County and both parties hereby consent to such courts’ exercise of personal jurisdiction over them.
27. WAIVER. No waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the person against whom it is sought to be enforced (in the case of Employer by an officer of Employer). The failure of any party at any time to insist on strict performance of any condition, promise, agreement or understanding contained in this Agreement shall not be constructed as a waiver or relinquishment of the right to insist on strict performance of the same condition, promise, agreement, or understanding at any future time.
28. MISCELLANEOUS. Employee represents that he/she has read and understands the terms of this Agreement, has had an opportunity to ask questions and to review this Agreement with legal counsel of his/her choice, is not relying on any advice from Employer in this regard, and is voluntarily signing this Agreement.
Aavalar Consulting
EMPLOYEE
By: ___________________________ By: ___________________________
Joseph A. Yesulaitis
Principal
EXHIBIT A
Wage Plan
1. Employee shall be paid $ __________ per hour for each hour worked by employee.
2. Employee shall perform work for Client ____________________________________
___________________________________________________________________________
EXHIBIT B
Benefits
No benefits are provided by employer except as describe in the body of the Agreement.
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