© 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.
AGREEMENT made effective as of the ___ day of _____________, 20___, between Aavalar Consulting, Inc. (hereinafter "FIRM"), with offices at Swedesford Corporate Center 649 Swedesford Road Malvern, PA 19355 and [CLIENT NAME]___________________________(hereinafter "Client") with offices at___________________________.
Whereas FIRM is in the business of locating for clients, according to their specifications, technical personnel (hereinafter used in the plural to refer to one or more such personnel) to provide services to such clients, and performing as stated herein; and
Whereas Client from time to time desires the services of one or more of such technical personnel; and
Whereas FIRM and Client wish to enter into an agreement pursuant to which FIRM will arrange with such technical personnel for them to provide their services to Client;
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, FIRM and Client agree as follows:
l. SERVICES PROVIDED UNDER PURCHASE ORDER. For any technical personnel who will be performing services for Client pursuant to this Agreement, FIRM will issue and Client will execute a Purchase Order in the form attached as Appendix A hereto referencing its incorporation of the terms and conditions of this Agreement and stating the name(s) and the payment rate(s) of the personnel, duration of services, brief description of project, authorization of additional costs beyond the payment rate(s) (such as travel, parking, drug testing), and any other terms to which FIRM and the Client may choose to agree. In the event of a conflict between the terms of this Agreement and the terms of any Purchase Order, the terms of this Agreement shall control unless the Purchase Order specifically (and not generally) identifies the conflicting terms in this Agreement and explicitly states that such terms shall not apply but shall instead be superseded by the Purchase Order. The Purchase Order will be signed by an authorized representative of Client. Upon expiration of a Purchase Order, to the extent that any services performed by one or more technical personnel are thereafter provided on the same or a different project, they shall be provided under the terms of this Agreement and under the payment rate(s) applicable to each such technical personnel as set forth in the most recent Purchase Order covering that personnel until such time as a new Purchase Order is issued by FIRM.
2. BILLING AND PAYMENT. FIRM will bill Client through invoices issued to Client in arrears on a weekly basis for services provided by technical personnel and associated costs, as approved by Client, except that FIRM has sole discretion to bill on a less frequent basis if it deems it appropriate to do so. Client will pay FIRM within 30 days from the date of such invoice, unless some other time has been agreed to in the Purchase Order, according to the rates and terms of the Purchase Order. Any late invoicing by FIRM shall not affect the obligation of the Client to pay for the services covered by that invoice.
3. ACCEPTANCE OF SERVICES. Client's Project Manager or other agent shall review for approval each week the time records of technical personnel on a form provided by FIRM to the technical personnel and submitted to Client. Client's approval of such time records (including, but not limited to, costs of any applicable overtime rates, travel, per diem and other costs stated thereon) shall be evidenced by its signature thereon and such approval shall constitute acceptance of the work performed by technical personnel and Client's agreement to pay FIRM as stated herein. Acceptance by Client shall not be unreasonably withheld and any refusal to accept shall be noted on the time record for the relevant week, with a written explanation of the reasons that the work was not acceptable and failure to so note such refusal shall constitute acceptance. Nothing herein shall eliminate Client's obligation to pay FIRM for any services provided by technical personnel which Client has approved by some other means.
4. ABILITY TO PAY. Client warrants that it is able and willing to pay for the services of technical personnel providing services under this Agreement. Client will provide FIRM with suitable credit and financial information, as requested, including credit and financial references which Client agrees that FIRM may contact to obtain information about Client. If FIRM determines that Client's credit rating or financial condition is unsatisfactory, in the discretion of FIRM, then FIRM may terminate its obligations under this Agreement upon notification to Client.
5. TECHNICAL PERSONNEL NOT EMPLOYEES OF CLIENT. FIRM and Client agree that for purposes of FICA, FUTA and income tax withholding, as well as for purposes of any pension plan or health benefit plan maintained by Client for its own employees, the technical personnel supplying services under this Agreement are not employees of Client.
6. EMPLOYMENT OR CONTRACTING OF PERSONNEL. During the period covered by any Purchase Order and extensions thereof pursuant to this Agreement, or when Client is provided with the name of a technical personnel but determines not to use the services of such personnel so that no Purchase Order is written covering that personnel, and for 12 months thereafter, Client will not directly or indirectly, other than through FIRM, solicit for hire, contract with, or engage or receive the services of, any technical personnel located by FIRM for Client, except that Client may Directly Employ any personnel as its Employee if Client provides FIRM with notice of a request to retain such personnel other than through FIRM at least 14 days in advance of the desired retention date (which request may be granted in the sole discretion of FIRM) and if Client agrees to and does pay the following fee prior to commencement of services other than through FIRM:
The "Contract Period" is the number of months that a technical personnel has been providing FULL TIME (40 HOURS PER WEEK) services to Client in the most recent twelve month period under the terms of this Agreement.
The "annual salary" shall be the amount that such technical personnel is paid as a salaried employee of Client on Client's payroll. The "annualized hourly rate" shall be used for technical personnel who will be providing services to Client either as an hourly employee of Client on Client's payroll or as an independent contractor being paid directly by Client (either as a sole proprietor, partner in a partnership, or an employee of a corporation which is at least fifty per cent (50%) owned by such employee), and it shall be determined by multiplying (the hourly rate paid to such personnel as an employee of Client or to the sole proprietor, partnership or corporation owned by such personnel) by (40 hours per week) by (52 weeks per year).
For purposes of this section 6 of the Agreement, the term "Client" includes any customers of the Client for which the FIRM referred such technical personnel to Client to provide services under this Agreement (whether or not such services were performed) and also includes any successors, assigns, subsidiaries, parents, and partners of Client, as well as other affiliates of Client with at least fifty per cent (50%) common ownership of Client.
7. DUTIES AND SUBSTITUTION OF TECHNICAL PERSONNEL. FIRM will locate technical personnel for Client according to the qualifications, experience, and project requirements set forth by Client and given to FIRM. The work to be performed by the technical personnel providing services under this Agreement shall be set out by Client and stated in the Purchase Order. The technical personnel shall report the results of the work, to the extent required by Client, to Client's Project Manager or other designated official, but the primary control over such personnel shall be exercised by FIRM or, in the case of such personnel who is a valid independent contractor, by that personnel itself. Because Client has the opportunity to interview all technical personnel located by FIRM prior to their commencement of any services for Client, FIRM shall have no liability to Client if such personnel are determined by Client not to meet its requirements and Client shall not be relieved of making payments to FIRM for the services provided by such personnel up to the time that they are terminated in accordance with this Agreement.
8. NOTICE OF TERMINATION OF SERVICES. Client agrees to notify FIRM 14 days prior to its termination of any services of the technical personnel covered by this Agreement regardless of whether such termination comes before, is coincident with, or follows the duration date set forth in a written Purchase Order covering such services, provided however that Client may terminate such services immediately upon notice to FIRM for cause or when termination is due to matters completely beyond the control of Client. In the event that FIRM plans to terminate without cause or reassign any technical personnel performing services under this Agreement as FIRM's employees, it shall give Client at least 14 days prior notice. If FIRM plans to terminate any such personnel for cause, it shall give Client at least 1 day's prior notice. If any technical personnel providing services under this Agreement has terminated the relationship with FIRM, and whether or not such termination is in violation of such personnel's agreement with FIRM, FIRM shall notify Client of such termination.
9. INTELLECTUAL PROPERTY RIGHTS. FIRM agrees that all material, documentation, deliverables and other tangible expressions of information including but not limited to software programs and software documentation, designs, technical data, formulae, and processes, whether in final production or draft, which result from any work performed by any technical personnel providing services under this Agreement shall be deemed to be works for hire and all rights, title and interest, including any copyright, patent rights and all other intellectual property rights, shall belong exclusively to Client unless some other arrangements have been agreed to by both parties or by Client and such technical personnel, as appropriate, in writing.
10. CONFIDENTIALITY. FIRM agrees that it will not disclose to any party any information learned by it which has been clearly marked "Confidential" by Client, except as such disclosure is necessary on an individual basis to technical personnel whom FIRM has located for Client. Client may request the technical personnel covered by this Agreement to execute a separate agreement not to disclose the Client's Confidential information. Client shall not request of the technical personnel providing services under this Agreement any information regarding the rate(s) and other terms of remuneration agreed to between FIRM and such technical personnel, nor shall Client induce such technical personnel to provide such information, nor shall Client disclose or permit to be disclosed to such personnel, directly or through another party, any information regarding the rate(s) or other terms of remuneration agreed to between Client and FIRM. As FIRM considers such information to be "Confidential", Client agrees to notify FIRM immediately if such rate(s) or other terms are disclosed to it by any technical personnel or any other party, or if it learns that any technical personnel have received information about the rate(s) or other such terms agreed to between Client and FIRM.
11. EXCISE, SALES, ETC. TAXES ON SERVICES. There shall be added to any charges payable by Client under this Agreement amounts equal to any and all applicable taxes, however designated, levied or based on any charges payable under this Agreement or the services rendered hereunder, including without limitation state and local privilege, excise, sales, and use taxes and any taxes or amounts in lieu thereof paid or payable by FIRM, but excluding taxes based upon the net income of FIRM. Client shall be billed by FIRM before or within a reasonable time following payment of such taxes by FIRM, and such amounts shall be due and payable by Client promptly following billing thereof, whether or not such billing occurs following completion of the services hereunder.
13. LIABILITY AND INDEMNIFICATION. In connection with the services provided generally under this Agreement and specifically by a particular technical personnel, in no event shall FIRM be liable to Client for damages to any property or person or for indemnification in an amount greater than the amount paid by Client in connection with the performance of such services by such personnel whose actions or omissions are the basis for such damages or indemnification provided, however, that FIRM shall not be liable for any damages whatsoever caused by any acts or omissions beyond its control or not due to its fault, or for any special or consequential damages, loss of profits, interest, penalties or fines; and provided further, that if Client requests or directs that FIRM perform an act or omit the performance of an act, and if FIRM performs or omits the performance of such act as directed or requested, or if Client approves, affirms or ratifies the performance or omission of any act of FIRM, then notwithstanding anything in any section of this Agreement, Client shall have no claim against FIRM for liability or indemnification in connection with such act or omission to act. In the event that FIRM performs or omits to perform any act which may support a claim for liability or for indemnification by Client, Client shall give prompt written notice to FIRM upon its initial receipt of information that could reasonably support such claim, and failure to give such timely notice shall constitute a waiver of such claim. FIRM shall have the right to defend, or cause Client to defend, any claim for indemnification and Client shall extend reasonable cooperation in connection with such defense, which shall be at FIRM's expense. FIRM or its designated representative shall also have the sole right to settle any such claim for indemnification if such settlement includes a complete release of Client. Client may at its expense participate in the defense of any such claim for indemnification if its position is not materially inconsistent with that of FIRM and if in its reasonable judgment such claim or the resolution thereof would have an ongoing material effect on Client. In the event FIRM fails to defend the same within a reasonable length of time, Client shall be entitled to assume the sole defense thereof, and FIRM shall be liable to repay Client for all expenses reasonably incurred in connection with said defense (including reasonable attorneys' fees and settlement payments ) if it is determined that such request for indemnification was proper.
14. TERMINATION OF THIS AGREEMENT. This Agreement will continue in effect until terminated by Client or FIRM at any time upon the terminating party giving not less than 14 days notice to the non-terminating party. Such termination of this Agreement shall not affect any technical personnel providing services under it unless such personnel are terminated in accordance with the terms of section 8 of this Agreement.
15. ASSIGNMENT. Neither this Agreement nor any interest hereunder may be assigned or otherwise transferred by either party to third parties other than affiliates of either party without the prior written consent of the other party which shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, assigns, and delegates of the parties hereto.
16. NOTICES. Any requirement to "notify" , or for "notice" or "notification", in connection with the subject matter of this Agreement shall be in writing and shall be effective when delivered personally (including by Federal Express, Express Mail, or similar courier service) to the party for whom intended, or five (5) days following deposit of the same into the United States mail, certified mail, return receipt requested, first class postage prepaid, addressed to such party at the address set forth below its signature to this Agreement. Either party may designate a different address by notice to the other given in accordance herewith.
l7. SEVERABILITY. If any term or provision of this Agreement shall be found to be illegal or otherwise unenforceable, the same shall not invalidate the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary by the adjudication to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
l8. COMPLETE AGREEMENT AND AMENDMENT. This Agreement (including specifically the Personal Guaranty at the end hereof) and any written Purchase Orders executed hereunder contain the entire agreement between that parties hereto with respect to the matters covered herein. Client acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein. This Agreement shall not be modified in any way except in writing signed by both parties and stating expressly that it constitutes a modification of this Agreement.
l9. LAW AND DISPUTES. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. All claims against either party to this Agreement shall be brought by the other party no later than one (1) year after such claims have arisen (except for claims for non-payment for services, which may be brought within two (2) years after the last date of services for which payment is sought).
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by their authorized agents as of the date written above.
FIRM: Aavalar Consulting, Inc. Client:
By:____________________________ By:___________________________
____________________(print name) ____________________(print name)
______________________(title) ______________________(title)
In accordance with the Client Agreement signed between Aavalar Consulting and ____________ ("Client") on ____________ , it is agreed as follows:
1. This Purchase Order ("PO") incorporates by reference all of the terms and conditions of the Client Agreement.
2. The services to be performed under this PO shall be as follows:
Start Date: ____________
Approximate End Date: ____________
Hourly Billing Rate: ____________ Per Hour*
*Special Billing Rates/Terms (Overtime, Etc.):
N/A
Project/Services Description:
Personnel: ____________
Issued by FIRM by: Confirmed by CLIENT by:
_________________________ ________________________
Title: _________________ Title: ________________
Date: _________________ Date: ________________
