THIS CONSULTING AGREEMENT (this “Agreement“), dated as of April 6, 2011, is between ( ), a Limited Liability corporation with an address at ( ) (the “Company“) and MoBG, LLC, with an address at 509 Oak Knoll Rd, Rolla, MO 65401 (“Consultant“). Prior to consummation of this agreement, Company and Consultant have given consideration for a Non-Disclosure Agreement.
For the purposes of this agreement, all information exchanged between the parties will be treated as confidential. This extends to information about the Company, as well as the Consultant. Consultant will not release any information about Company until such time as the Company agrees, in writing, to allow Consultant to release information for marketing or promotional purposes.
The parties agree as follows:
- Retainer. Company shall pay $750.00 per month to Consultant for consultation and advice regarding all business aspects for Company. This rate is based on an hourly rate of $75.00 for 10 hours per month. Should Consultant hours exceed agreed hours in a given month, those additional hours will be billed at the hourly rate in addition to the monthly Retainer. Unused hours covered by the Retainer will be carried for one month to be added to the hours available for that next month’s Retainer without additional charge. Unused hours will not be carried over beyond one month. Consultant will invoice the Company monthly on the first business day of the month for the prior month’s services. During the first two months, hours beyond the 10 retainer hours will not be charged or carried to allow for the initial learning curve.
a. Retainer Success Fee. During the period of this agreement, Consultant efforts may be in pursuit of governmental contracts, foundation grants or other agreements. Company agrees to compensate Consultant one-half of 1 percent of the monies secured, with payment made upon award.
2. Term. Either party may terminate this Agreement on 30 days prior written notice for its convenience, for any reason or no reason, with or without cause.
3. Disclaimer. Neither party, nor any of its representatives, has made any representation or warranty to the other party upon which the other party is relying in entering into this Agreement, except as expressly provided in this Agreement. There have been no promises, agreements or undertakings of either party to the other, except as set forth in this Agreement, relied upon by either as an inducement to enter into this Agreement. Each party has read this Agreement and is fully aware of its contents and its legal effect.
Consultant’s relationship with the Company will be that of an independent contractor and not that of an employee as:
(a) No Authority to Bind Company. Neither Consultant nor any partner, agent or employee of Consultant, has authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
(b) No Benefits. Consultant acknowledges and agrees that Consultant will not be eligible for any Company employee benefits and, to the extent Consultant otherwise would be eligible for any Company employee benefits but for the express terms of this Agreement, Consultant hereby expressly declines to participate in such Company employee benefits.
(c) Withholding; Indemnification. Consultant shall have full responsibility for applicable withholding taxes for all compensation paid to Consultant under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Consultant’s self-employment as a Limited Liability Corporation registered in the state of Missouri.
(d) Intellectual Property. Should Consultant’s work in assisting Company result in new Intellectual Property (IP), any IP will belong to Company, unless Consultant has demonstrated specific input to the development of the IP, wherein Company will negotiate inclusion of Consultant in patent pursuit.
(e) Expenses. Should Consultant incur expenses such as, but not limited to, travel, print, events, etc. Company will reimburse for those expenses as shown in Consultant’s monthly billing. Travel expenses will be reimbursed at actual expenses, with appropriate explanation and will be applicable only for travel expenses outside of Rolla.
Supervision of Consultant’s Services. Consultant shall report to the Company concerning the Services performed under this Agreement. The nature and frequency of these reports will be left to the discretion of the Company.
Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier agreements regarding the subject matter. This Agreement may be amended only in a written document, signed by both parties.
Governing Law and Forum. All claims regarding this Agreement are governed by and construed in accordance with the laws of Missouri, applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of law principles, and must be litigated in Missouri, regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing.
Assignment. This Agreement binds and inures to the benefit of the parties’ successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by Consultant, in whole or in part, without the prior written consent of Company. Any transfer, assignment, delegation or sublicense by Consultant without such consent is invalid.
No Waivers, Cumulative Remedies. A party’s failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at law or in equity, are cumulative and nonexclusive.
Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.
Notices. All notices, including written notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party.
Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.
IN WITNESS WHEREOF, the parties execute this Agreement. Each person who signs this Agreement below represents that such person is fully authorized to sign this Agreement on behalf of the applicable party.
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