Consulting agreement
This Independent Contractor Agreement (“the Agreement”) is entered into as of <date> (“Effective Date”) by and between:
Nilenso Software LLP, a limited liability partnership firm, with its registered office at 3453, 4th floor, 5th Main, Indiranagar 2nd Stage, Bengaluru 560038, INDIA (hereinafter referred to as “Company” which expression shall mean and include its representatives, successors-in-office and assigns) on the FIRST PART;
AND
<Client name>, with its registered office at <client address> (hereinafter referred to as “Client” which expression shall mean and include its representatives, successors-in-office and assigns) of the SECOND PART;
Company and Client, wherever the context so permits shall individually be referred to as “Party” and collectively as “Parties”
WHEREAS:
Company is in the business of designing and developing web and mobile products (collectively “Services”).
Client is engaged in the business of <explain services provided>.
Client wishes to utilize the services of Company to develop customized software applications, the details of which are more fully available in Annexure A herein.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS
SCOPE OF SERVICES
Subject to the terms and conditions of this Agreement, Company shall perform the Services, as elaborated in the statements of work attached hereto as Annexure A. A Statement of Work will set forth the scope of Services to be provided. The Parties may enter into additional statements of work, and, if so, each will constitute a separate contract subject to the terms and conditions of this Agreement.
For the purpose of clarification, the Services rendered and the commercials correlative to that shall be based on an estimate of time that Company spends on the projects. In case of any changes in the specifications of the project, the deliverables and the timelines correlative to it shall accordingly stand modified. Client expressly disclaims any objections to the same, post commencement of a specific project as laid out in the Annexure A.
Client shall be solely responsible for the specification, the product management and the direction of the project. Any changes in the same, which influences the project, shall be the sole responsibility of Client.
PRICING AND PAYMENT TERMS
Company agrees to undertake and complete the Services as defined in Annexure A.
Invoices shall be raised at the start of every month every [30] days, or at the end of the engagement (whichever comes first), and the payments shall be due within [15] days from the invoice date.
For the purpose of clarification, Company shall be permitted to suspend the Services or terminate in keeping with Clause 6 herein, in case the payments have not been received from Client for more than [30] days.
PROPRIETARY RIGHTS
Company agrees that the Services provided herein is a “work for hire”, and ownership of any solutions or application developed while providing the Services lies solely and exclusively with Client. Client will be entitled to freely practice the Services and no liability will accrue to Company from such practice.
Company agrees that the compensation provided herein is adequate for the work undertaken and herein waives any and all right, title and interest in the Services including any ownership through patent, copyright, trademark or otherwise.
Company shall assist and freely assign without any restriction or limitation all right, title and interest in the Services developed including, but not limited to, patents, patent applications, inventions, designs, trademarks, copyrights, specifications, or other ideas or materials developed or conceived under this Agreement.
Prior to commencement herein, Company will use its best efforts to notify Client of any intellectual property rights owned or controlled by it that may need to be licensed in order to practice and fully enjoy the ownership rights to the Services.
Except as expressly licensed herein, neither Party grants to the other Party any license directly or by implication, estoppel or otherwise to its patents, patent applications, copyrights, trademarks, or trade secret information by virtue of this Agreement herein.
4. CONFIDENTIALITY OBLIGATIONS
“Confidential Information” shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party, that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. Without limiting the generality of the foregoing, the Services that are developed shall be considered as Client’s Confidential Information.
Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party's Confidential Information shall not be deemed to include information that:
(i) is or becomes publicly known other than through any act or omission of the receiving Party;
(ii) was in the other Party's lawful possession before the disclosure;
(iii) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
(iv) is independently developed by the receiving Party, which independent development can be shown by written evidence; or
(v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body
The parties agree that the terms of this agreement are to be treated as Confidential Information.
Each Party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
Each Party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
Authority and Performance by Company: Company hereby represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder; (ii) the performance of its obligations and delivery of Services will not violate any applicable laws or regulations, or cause a breach of any agreements, with any third parties; and (iii) it has obtained all regulatory approvals / licenses to perform the Services covered by this Agreement.
Authority and Performance by Client: Client represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder; (ii) the performance of its obligations will not violate any applicable laws or regulations, or cause a breach of any agreements, with any third parties.
6. TERM AND TERMINATION
The term of this Agreement shall commence upon execution hereof and shall continue until termination in keeping with the provisions below:
By the mutual written assent of both Parties hereto;
By either Party, immediately, for any material breach of terms of this Agreement, which includes but not limited to non-payment by the Client or material deficiency in the Services by Company;
With immediate effect, without giving any prior written notice to the Client, in case, there has been a continuous non- communication with the Client for a period of more than five (5) working days or where the Client has revoked Company’s access to the requisite tools necessary for providing Services hereunder.
Consequence of termination: On termination herein:
(i) Company shall forthwith cease providing the Services and ensure delivery of all software or solutions that have been developed up until the date of termination; (ii) all invoices which are pending shall immediately be payable by the Client; and (iii) the Parties shall cease using each other’s Confidential Information or/and Intellectual Property.
7. INDEMNITY
The breaching Party agrees to indemnify, defend and hold the other Party from and against any awarded claim, liability, obligation, loss, damage, deficiency, assessment, judgment, cost or expense (including, without limitation to costs and expenses incurred in preparing and defending against or prosecuting any litigation, claim, action, suit proceeding or demand) arising out of or in any manner incidental, relating, or attributable to any act of gross negligence or material breach by a Party to perform and observe the representations, warranties and services described in this Agreement. 8. LIMITATION OF LIABILITY
In no event or under any circumstance shall either Party be liable to the other in contract, tort or otherwise for indirect, special, incidental, exemplary, punitive, or consequential damages of any kind whatsoever even if advised of the possibility of such damages. The total cumulative liability of either Party to the other Party or to any person claiming under or through it, shall not exceed the amount that becomes payable as per the terms of this Agreement for Services availed hereunder 9. NOTICES
All notices, certificates, acknowledgments and other reports under this Agreement, shall be in writing and shall be deemed properly delivered when duly mailed by registered letter to, and received by, the other Party at its address herein above first mentioned in this Agreement, or to any other address a Party may, by prior written notice, designate to the other. 10. NON SOLICITATION
During the subsistence of this Agreement and for a period of twelve (12) months on termination of this Agreement, neither Party shall solicit and/or attempt to solicit employment of or advise any of other Party’s existing employees or any person who was employed by other Party to terminate his or her contract or relationship with other Party or to accept any contract (directly or indirectly) or other arrangement for providing services to any other person or organization. 11. DISPUTE RESOLUTION
Except for breach of confidentiality obligations or intellectual property infringement, any dispute or controversy arising out of this Agreement shall be finally settled by arbitration, in accordance with the provisions of the Rules of Arbitration under the Singapore Arbitration Act, by a sole arbitrator, who shall be appointed by the mutual decision of both the Parties. The seat of arbitration shall be Singapore and the language of arbitration shall be English. The arbitral award shall be final and binding. 12. INDEPENDENT CONTRACTOR
This Agreement is not intended by the parties to constitute or create a joint venture, partnership, or formal business organization of any kind, other than a contractor team arrangement, and the rights and obligations of the parties shall be only those expressly included in this Agreement. Neither party shall have authority to bind the other except to the extent authorized in this Agreement. The Parties shall remain independent contractors at all times and neither party shall act as the agent for the other. 13. GENERAL PROVISIONS
This Agreement embodies the entire understanding of the Parties and supersedes any other agreement or understanding between the Parties relating to the subject matter hereof.
No waiver, amendment or modification of this Agreement shall be valid or binding unless written and signed by the Parties. Waiver by either Party of any breach or default of any clause of this Agreement by the other Party shall not operate as a waiver of any previous or future default or breach of the same or different clause of this Agreement.
This Agreement may not be assigned by either Party without the prior written consent of the other Party, which consent will not be unreasonably withheld; provided that this Agreement shall be binding upon and inure to each Party’s respective successors in interest.
Any claim arising under or relating to this Agreement shall be governed by the laws of India. Each party hereby agrees to jurisdiction and venue in the Courts of Singapore as venue and jurisdiction for all disputes and litigation arising under or relating to this Agreement.
If any provision of this Agreement is held void or unenforceable, the remaining provisions shall nevertheless be effective, the intent being to effectuate this Agreement to the fullest extent possible.
Any notice required to be served by either party shall be deemed to have been served if the same is sent by registered post acknowledgement due addressed to the other party at the address indicated first herein above.
[SIGNATURE PAGE FOLLOWS]
IN WITHNESS WHEREOF, the Parties have executed this Agreement on the date first written above.
For,
[Company name] [Client name]
<Signature> <Signature> <Name, Title> <Name, Title>
ANNEXURE A
Statement of Work
SERVICES
The services to be delivered are as follows and allow for additions and changes when asked for by [client name] and agreed upon by Nilenso Software LLP.
[describe work in detail]
FEES/EXPENSES
Company shall be paid [ .. ] plus any applicable taxes per hour per developer ([128] hours per person on average) of Services provided by its development team. Company shall maintain time-sheets and provide Client an invoice detailing hours within [7] days of every invoice generated. The cash payment shall be payable in arrears, [fifteen] days after receipt of such invoice.
By exception, and at the request of Client, Company may be requested to work additional days to meet unforeseen requirements. [different rates are often specified for additional days of work]
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