COPYRIGHT 1988 NACCB, 1995 NACCB
The terms of this Agreement are based upon an Agreement Prepared by The National Association of Computer Consultant Businesses 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.
An Agreement made this day of , 20 , between Aavalar Consulting, Inc. ("BROKER") and (Name) at (Address) ("Contractor"), wherein the parties agree as follows:
1. SCOPE
The terms of this Agreement apply in a situation where Contractor agrees to provide programming , systems analysis, engineering , technical writing or other specialized services as an independent contractor directly to the third party user client ("client") who has requested to locate temporary staffing for the client's project according to the training, skills, abilities and experience required by the client. BROKER agrees to examine Contractor's background for providing services to client, to refer Contractor to the client for further evaluation and possible retention of Contractor's services, to negotiate a rate for those services in accordance with Contractor's directions, and to otherwise perform as stated herein.
2. TERM OF AGREEMENT
Nothing in this Agreement obligates Contractor to accept any offer to provide services. However, all terms and conditions of the Agreement shall remain in force during any and all periods for which Contractor's services are provided to the client and for any other periods before and/or thereafter as stated herein. In addition, paragraphs 4, 5, 8, 15 and 16 shall apply even if Contractor rejects an offer to provide services on a client project, in which case BROKER shall have no further obligation to Contractor.
Prior to the commencement of any services, BROKER and Contractor will execute a Purchase Order on the form attached as Exhibit A to this Agreement which shall be considered part of this Agreement and binding upon both parties. Contractor's services under this Agreement will terminate at the end of the minimum time requirement covered by the Purchase Order and any renewals or extensions thereof ("end date"), or upon twenty-four hours notice if for any reason the client no longer desires the services of Contractor. Contractor may not voluntarily terminate its services under this Agreement before the end date unless, as stated in writing by the client, the project has been completed or the services are no longer required.
In the event that Contractor voluntarily terminates its services before the end date in violation of this Agreement, in addition to other damages and relief afforded to BROKER under Paragraphs 9 and 15, Contractor shall be liable for liquidated damages in the amount of $ 80.00 per day for each non-holiday weekday between the date of termination and the end date to compensate BROKER for its lost commission.
3. ASSIGNMENT OF CONTRACT
Contractor is to provide services through its personnel named in paragraph 7 of the Purchase Order, for whom it is responsible, and may not assign its rights under this Agreement or any Purchase Order.
4. FEES FOR USE OF BROKER CLIENTS AND CONTRACTORS
During the term of this Agreement and any renewals thereof, and for one year after the expiration of the initial and renewal periods, Contractor agrees that it will pay a finder's fee and/or a commission to BROKER if (a) Contractor or any of its personnel within a restricted area (i) provides or attempts to provide (or advises others of the opportunity to provide), directly or indirectly, any services to any client to which Contractor has been introduced or about which Contractor has received information through BROKER or through any client for which Contractor has performed services or to which Contractor was introduced under this Agreement; or (ii) retains or attempts to retain, directly or indirectly, for itself or for another party, the services of another one of the BROKER's Contractors or employees to which Contractor has been introduced or has received information about through BROKER or through any client for which Contractor has performed services or to which Contractor was introduced under this Agreement; and (b) such services are provided or such other Contractor or employee is retained in any capacity whatsoever, including as a Contractor or employee. The "restricted area" referred to above is the area within a 50 mile radius of any client location where Contractor provided or was offered an opportunity to provide services.
For the purposes of the above, the term "client" includes any affiliates, customers and clients of the client. This provision may be waived only on a case-by-case basis in writing by an executive officer of BROKER, in its sole discretion, prior to Contractor taking the action for which waiver is sought.
The parties agree that the finder's fee shall be paid immediately upon commencement of the services and shall be 20% of Contractor's billings to client each month payable to BROKER within 14 days at the end of each.
5. REPRESENTATIONS
Contractor acknowledges for itself and its personnel that information provided by it (including, but not limited to, resume, interview, references) in consideration for providing services to or on behalf of the client is true to the best of Contractor's knowledge and that it is not restricted by any employment or other Contractor agreement from providing services in any attached Purchase Order. Contractor understands that any misstatements or lack of candor by Contractor of the qualifications or availability of it or its personnel constitutes a breach of this Agreement and may be grounds for immediate termination of Contractor's services by the client .
6. PAYMENT FOR SERVICES
Payment for services will be made in the corporate or business name of Contractor on the periodic basis set forth in the Purchase Order that is based upon remittance of funds to BROKER from the client covered by that Purchase Order. Payment to Contractor will be in accordance with the terms in the Purchase Order and up to the amount authorized in that Purchase Order for the client project. No other compensation in any form, including benefits, will be provided by BROKER or anyone else. For billing and payment purposes, Contractor shall maintain records of the hours that services have been performed, have a client representative verify those hours by signing the records, and submit to BROKER those records for the amount due to Contractor for the hours worked and verified. Contractor will also invoice BROKER only for the hours covered by such records.
Payment to Contractor per its invoice shall be made in accordance with the following: BROKER will bill the client based upon the hours contained in Contractor's invoice at a rate agreed upon between BROKER and the client. The difference between the amount paid to BROKER by the client and the amount due to Contractor per its invoice shall be retained by BROKER as a commission from the client to BROKER for locating Contractor, arranging for interviews between Contractor and the client, and performing associated administrative functions. Contractor is entitled to compensation per its invoice only upon BROKER receipt of funds from the client for that invoice, and with no BROKER liability otherwise, because Contractor agrees that the client controls the payment of consulting fees to Contractor.
At the request of and as a convenience to Contractor, BROKER may deliver funds to it prior to receiving funds from the client. In that event, if BROKER does not receive funds from the client that cover all hours set forth in Contractor's invoice to BROKER for which such delivery of funds was made, then Contractor must pay BROKER an amount equal to any funds delivered by BROKER to Contractor based upon hours set forth in that invoice for which the client has not made payments to BROKER. Such repayments shall be due immediately upon written demand mailed to Contractor.
7. TRAVEL, LIVING AND OTHER COSTS
No travel, living, entertainment or other costs of Contractors will be paid by BROKER. Whether the client for whom Contractor is performing services will pay any such costs is a matter between Contractor and the client and should be included in Contractor's invoice only if authorized by the client in accordance with industry practice to reimburse Contractor for such costs. BROKER will provide no training, tools, equipment or other materials to Contractor. Contractor's invoiced hours will include no time spent in formal training and Contractor represents that it is not being provided such formal training by the BROKER, the client or anyone on behalf of BROKER or client.
8. CONFIDENTIALITY
Contractor agrees that neither it nor its personnel will disclose to any third party, without the prior written consent of an executive officer of BROKER, any information relating to the business of BROKER, the client, the customers and clients of the client, or other BROKER Contractors or employees, if such information could reasonably be construed as confidential and was obtained in the course of Contractor's providing services on client's project, interviewing with BROKER or client, or contracting with BROKER. Contractor further agrees neither it nor its personnel will reproduce in any way, divulge, or remove from the premises of BROKER, any client, or the customers and clients of any client, at any time during the interview, or during or after providing services, any tangible or intangible property whatsoever (except personal effects) which could reasonably be construed as constituting confidential information of BROKER, the client, or the customers or clients of the client.
9. CONDUCT, INDEPENDENT STATUS, AND BENEFITS
Contractor shall provide competent, professional services in the required disciplines, using its own appropriate independent skill and judgment, and the manner and means that appear best suitable to it to perform the work, and BROKER shall have no right to and shall not interfere. Evaluation of Contractor's performance, if any, shall be made by the client . BROKER shall have no right or responsibility hereunder to and shall not review such performances, require progress reports, set the order or sequence for performing of services, or set Contractor's hours or location of work except that Contractor shall not perform services on BROKER's premises.
Contractor is:
(a) A valid corporation existing under the laws of the State of , doing business with the corporate name or business name , and certifies its federal employer identification number (EIN) is .
Contractor warrants that it maintains a set of books and records which reflect items of income and expenses of its trade or business.
The parties to this Agreement agree that the relationship created by this Agreement is that of broker-independent contractor. Contractor agrees and has advised its personnel that Contractor and its personnel are not employee(s) of BROKER or the client and are not entitled to (and also hereby waive) any benefits provided or rights guaranteed by BROKER or the client, or by operation of law, to their respective employees, including but not limited to group insurance, liability insurance, disability insurance, paid vacations, sick leave or other leave, retirement plans, health plans, premium "overtime" pay, and the like. It is understood and agreed that since the Contractor is an independent contractor, BROKER will make no deductions from fees paid to Contractor for any federal or state taxes or FICA, and BROKER and the client have no obligation to provide Worker's Compensation coverage for Contractor or to make any premium "overtime" payments at any rate other than the normal rate agreed to in the Purchase Order. It shall be the Contractor's responsibility to provide Worker's Compensation and, if applicable, pay any premium "overtime" rate, for its employees who work on the project covered by this Agreement and to make required FICA, FUTA, income tax withholding or other payments related to such employees, (and to provide BROKER with suitable evidence of the same whenever requested). In the event of any claims brought or threatened by any party against BROKER or the client relating to the status, acts or omissions of Contractor or its personnel, Contractor agrees to cooperate in all reasonable respects, including to support the assertions of employment status made in this Agreement.
10. SERVICES TO OTHERS
Contractor may provide services for others and through other BROKERS.
11. LIABILITY
Because of the independent status of Contractor, it is solely and completely accountable for the services it provides to the client, and neither the client nor its customers and clients, nor BROKER, shall have any liability whatsoever to any party for such services provided by Contractor or its personnel. BROKER will not indemnify Contractor for any liability incurred by Contractor, its agents or employees. Contractor understands that BROKER will act in good faith to describe the task requirements set forth by the client, but that because Contractor has the opportunity to discuss directly with the client these task requirements prior to acceptance of the project offered by the client, and because BROKER has no right to control any aspect of the project on which Contractor will be working, Contractor hereby releases BROKER from any liability relating to representations about the task requirements or to the conditions under which Contractor will be working. Contractor also agrees to release BROKER from any liability for statements made by BROKER, without malice, to third parties who inquire about Contractor's performance.
12. OWNERSHIP OF INTELLECTUAL PROPERTY, ETC
. Unless Contractor and the client reach a written agreement to the contrary, in which case Contractor agrees to provide a copy to BROKER for its files, Contractor agrees for itself and its personnel that pursuant to the client's requirement (a) all documents, deliverables, software, systems designs, disks, tapes and any other materials (collectively, "materials") created in whole or in part by Contractor in the course of or related to providing services to the client shall be treated as if it were "work for hire" for the client, and (b) Contractor will immediately disclose to the client all discoveries, inventions, enhancements, improvements and similar creations (collectively, "creations") made, in whole or in part, by Contractor in the course of or related to providing services to the client.
All ownership and control of the above materials and creations, including any copyright, patent rights and all other intellectual property rights therein, shall vest exclusively with the client, and Contractor hereby assigns to the client all right, title and interest that Contractor may have in such materials and creations to the client, without any additional compensation and free of all liens and encumbrances of any type. Contractor affirms that the fee it has negotiated for the services performed under this Agreement includes payment for assigning such rights to the client. Contractor agrees to execute any documents required by the client to register its rights and to implement the provisions herein.
13. INSURANCE
Contractor will obtain for itself and its personnel before providing services, at its own expense, comprehensive General Liability (GL) insurance coverage for projects covered by this Agreement, for limits of liability not less than $500,000, and (if available under state law) worker's compensation coverage with limits of not less than $500,000 and will name BROKER as an Additional Insured and provide a copy of the binder, the policy or a certificate of insurance to BROKER upon request.
14. INDEMNIFICATION
. Contractor shall indemnify and hold harmless BROKER and client, and their officers, directors, agents, owners, and employees, for any claims brought or liabilities imposed against BROKER or client by Contractor's employees or by any other party (including private parties, governmental bodies and courts), including claims related to worker's compensation, wage and hour laws, employment taxes, and benefits, and whether relating to Contractor's status as an independent contractor, the status of its personnel, or any other matters involving the acts or omissions of Contractor and its personnel. Indemnification shall be for any and all loss, including costs and attorneys fees.
15. BREACH
Any breach of any provision of this Agreement by Contractor or its personnel entitles BROKER to recover from Contractor damages and injunctive relief. Contractor agrees that because monetary damages are likely to be inadequate, BROKER shall be entitled to temporary injunctive relief (by proving to a court a likelihood of breach by Contractor) and to permanent injunctive relief (by proving to a court such breach). If BROKER is successful in recovering damages or obtaining injunctive relief, Contractor agrees to be responsible for paying all of BROKER'S expenses in seeking such relief, including all costs of bringing suit and all reasonable attorneys' fees.
16. MISCELLANEOUS
This Agreement and any attached Purchase Order(s) and Exhibit(s), including those relating to separate requirements imposed by the client, represent the entire agreement and understanding of the parties and any modification thereof shall not be effective unless contained in writing signed by both parties. No other document, including any agreement between the BROKER and the client, shall be deemed to modify any terms of this Agreement unless expressly stated in writing to do so and signed by both BROKER and Contractor.
Contractor agrees that all of its personnel working on client projects covered by this Agreement shall sign an "Employee Consent" form in the form of Exhibit X, agreeing to the terms of paragraphs 4, 5, 8, 9, 12 and 14 of this Agreement. The Employee Consent form will be delivered to BROKER before such personnel begin work under any Purchase Order.
Each provision of the 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, it shall not affect any other provision of the Agreement which can be given effect without the conflicting provision or clause. To the extent that there may be any conflict between the terms of this Agreement and of the Purchase Order, this Agreement shall take precedence.
Contractor represents that Contractor has read and understands the terms of this Agreement, has had an opportunity to ask any questions and to seek the assistance of legal counsel regarding these terms, and is not relying upon any advice from BROKER in this regard.
This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, except for its choice of law principles, regardless of where Contractor's work is performed, and any litigation shall be brought in the state or federal courts of the Commonwealth of Pennsylvania. Contractor agrees to the exercise of personal jurisdiction over it by such courts to the full extent permitted by law.
| Aavalar Consulting, INC. |
Business Name of Contractor |
| By: ______________________________ |
By: ______________________________ |
EXHIBIT A
Aavalar Consulting
PURCHASE ORDER
In accordance with the Contractor Agreement signed between the undersigned parties on , it is agreed as follows:
1. Contractor, ,
with Federal I.D. Number , and office address at , is contracted to perform work for ("Client") , beginning and terminating on the "end date" of ("minimum time requirement") at a rate of $ per hour ("Contractors rate") and not to exceed (NTE) the lump sum and hours listed below, to accomplish the following end result for the client on the following client project:
MAXIMUM FUNDS ALLOCATED UNDER THIS PURCHASE ORDER AS LUMP SUM FOR COMPLETION OF SERVICES ON PROJECT:
NTE $ ( HOURS)
2. Unless otherwise notified, when the minimum time requirement has elapsed this Purchase Order shall be deemed to have been extended beyond the original "end date" on a month-to-month basis to a new "end date" and with a new pro-rated NTE lump sum, on the same terms and conditions stated herein and in the Contractor Agreement referenced above, until such time as the above-mentioned project is completed or Contractor provides 30 days prior written notice of a refusal to extend this Purchase Order. For purpose of this Purchase Order, "month-to-month" means the period beginning on the next calendar date immediately after the previous "end date" and terminating on the same calendar date of the next month (or, if there is not such date, the closest date thereto in that month), which is the new "end date". Contractor's 30 day written notice shall commence on the actual calendar date that it is received and 30 days thereafter shall be the new "end date". The purpose of this paragraph is not to extend the end date indefinitely and create a continuous relationship, but is instead to cover situations where the original estimates for project completion require adjustment.
3. Within ____ days after the end of each _____ one week period, for billing and payment purposes, Contractor shall submit a time record signed by an authorized client official verifying the number of hours of consulting services provided by Contractor to the client. At the same time, Contractor will submit an invoice to BROKER for Contractor's services to the client for those hours verified by the client on time records. No payments will be made to Contractor without such invoices. BROKER will pay such invoices after BROKER's receipt of payment from the client for Contractor's services based upon the required time records and BROKER's invoices to the client, unless BROKER and Contractor have provided in this Agreement for earlier payment and, in the event of client non-payment, repayment by Contractor.
4. Contractor and the client will discuss the hours and location where the work is to be performed and BROKER shall not be involved.
5. Contractor agrees to complete the project and produce the end result required by the client.
6. Contractor's rate is a confidential matter between Contractor and BROKER and shall not be divulged to any other party, including the client.
7. The following personnel of Contractor who will work on this project have been informed and understand their obligations under this Purchase Order and the Contractor Agreement:
| Name: ____________________________________________ |
Date:_______________ |
| Name: ____________________________________________ |
Date:_______________ |
| Name: ____________________________________________ |
Date:_______________ |
| Name: ____________________________________________ |
Date:_______________ |
8. The undersigned has/have read, understand(s), and agree(s) to the terms and conditions herein.
For and on behalf of: For an on behalf of:
Aavalar Consulting CONTRACTOR
Swedesford Corporate Center
649 Swedesford Road
Malvern, PA 19355
| By: ___________________________________ |
By: ___________________________________ |
| Title: ___________________________________ |
Title: ___________________________________ |
| Date: ___________________________________ |
Date: ___________________________________ |
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