CONSULTINGAGREEMENT
THIS CONSULTING AGREEMENT (this “Agreement”) is made this ____ day of ______, 201_, by and between ______,a ______(“Consultant”), and______,a Delaware ______(“Company”). For purposes of this Agreement, the defined term “Company” expressly includes Companyand all of its affiliates and subsidiaries.
NOW, THEREFORE, in consideration of the promises and covenants made herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1.Services.
a.Consultant shall provide Company with the services set forth on ExhibitAattached hereto, and, subject to mutual agreement by Company and Consultant, such other services within Consultant’s area of knowledge and experience for such other specific projects as Company may from time to time request in writing (collectively, the “Services”), all in accordance with this Agreement. The Services shall be provided to Company with respect to the property located at ______(the “Property”).
b.This Agreement is not an exclusive dealings contract and Company may purchase Services (whether the same, similar or different) from other service providers.
2.Payment.
a.Subject to the terms of this Agreement, in consideration of Consultant’s performance of the Services,provided that this Agreement has not expired or been terminated in accordance with its terms and provided further that Company is not disputing payment and such payment complies with all of the terms and conditions of this Agreement, Company shall pay Consultanteither a fixed fee or an hourly rate for the Services equal to a per hour rate (which shall be billed in 10 minute increments), in either case the“Consultant Fee,”as set forth and described on Exhibit A.
b.Consultant shall submit an invoice (an “Invoice”) to Company for the Services within 30 days after the Contract End Date (as defined on ExhibitA), but not earlier than the Contract End Date. Notwithstanding anything in this Agreement to the contrary, Company shall not be obligated to pay an Invoice earlier than 30 days after its receipt by Company or any portion of an Invoice which it disputes in good faith and submits to arbitration pursuant to this Agreement.
c.Except as specifically set forth herein, Consultant will be liable for all expenses that Consultant incurs in performing the Services hereunder, and Company shall have no obligation to reimburse Consultant for such expenses. Company will only reimburse Consultant only for reasonable, actual travel and similar expenses incurred by Consultant in performing the Services hereunder, that are approved by Company (i) in writing in advance of being incurred and (ii) in accordance with the policies and procedures of Company as are in force from time to time (which policies include a requirement that the Company be provided with reasonably detailed receipts or invoices of such expenses).
d.Consultant shall be solely responsible for all taxes with respect to any compensation due hereunder or any Services provided hereunder, including, but not limited to, income, sales, use and gross receipts taxes. As a condition precedent to any payment, Consultant shall deliver promptly to Company such waivers or releases of liens as reasonably requested by Company with respect to the Services provided.
3.Term.
a.The term of this Agreement shall commence on the Contract Start Date (as described on Exhibit A) and shall remain in effect untilthe Contract End Date (as described onExhibit A), unless earlier terminated in accordance with the terms and conditions of this Agreement.
b.Notwithstanding any other provision of this Agreement to the contrary, Company may terminate this Agreement for any reason or no reason upon 30days prior written noticeto Consultantof its intention to terminate this Agreement.
c.Either party may terminate this Agreement upon 5days prior written notice to the other party upon an“event of a default”of the other party. An event of default of a party will be deemed to occur when such party:
(i)fails to make any payment when due hereunder and such default is not cured within 15 days after written notice thereof;
(ii)fails to observe any covenant set forth in this Agreement and such failure continues for a period of 20 days after written notice thereof;
(iii)is in breach of any representation or warranty made pursuant to this Agreement at the time such representation is made; or
(iv)files for bankruptcy or receivership under federal or similar state laws or has filed against it a similar proceeding and such involuntary proceeding is not dismissed within 60 days after its filing.
d.Company may terminate this Agreement immediately and without notice for “cause.” “Cause” hereundermeans:
(i)fraud, unlawful conduct, or gross misconduct by Consultant; or
(ii)a breach by Consultant of Section 6 or Section 7 of this Agreement.
e.The sole liability and obligation of Company upon termination of this Agreement will be to pay for those Services provided to Company prior to the effective date of termination; provided, however, that Company may offset any damages incurred by it against such amounts owed to Consultant and Consultant shall remain liable to Company for any damages caused by a default by Consultant.
f.Ifthis Agreement is terminated before the Contract End Date and Company thereafter orders any Services from Consultant, the parties acknowledge and agree that this Agreement shall not be deemed to be reinstated, but such Services will be provided in accordance with the terms and conditions of this Agreement.
g.The parties may renew this Agreement by mutual written agreement for a term specified in such written agreement (or, if Company requests Consultant to continue providing Services past the Contract End Date and Company does not specify an additional term, then the provision of the Services under this Agreement will continue on a month-to-month basis).
4.Consultant’s Covenants and Duties. Consultant covenants and warrants to Company that:
a.Consultant is a ______, duly organized, validly existing and in good standing under the laws of the state of its organization and the states in which it does business. Consultant has the full right, power, and authority to enter into this Agreement and to take all actions contemplated thereby and hereby. The person signing this Agreement on behalf of Consultant has the legal right, power, and authority to bind Consultant. Neither the execution nor delivery by Consultant of this Agreement nor Consultant’s provision of the Services constitutes or will constitute a breach of, or violate or conflict with any duty or obligations of Consultant or any contract or agreement entered into by Consultant. No further consent or approval of any person is required in connection with the execution, delivery or performance by Consultant of this Agreement.
b.Consultant shall, as reasonably requested by Company, communicate and provide written reports to Company and Company’s personnel with respect to the provision of the Services hereunder.
c.Consultant shall, in performing the Services, comply with all applicable federal, state and local laws, ordinances, rules, regulations and orders (collectively, “Laws”). Without limiting the foregoing, Consultant shall obtain and maintain throughout the term of this Agreement, all approvals, licenses and permits required by any Law in order to provide the Services. Consultant shall, if it receives notice or becomes aware of any violation or potential violations of any Law, ensure that it promptly take such actions as may be necessary to prevent any further violations and promptly provide written notice to Company of such violations or potential violations.
d.Upon completion of the Services at Company’s facilities, Consultant shall (i) restore theproperty to its original condition; (ii) leave the property clean and free of all tools, equipment, waste materials and rubbish; and (iii) be liable for any costs, expenses or damages to the property with respect to restoration thereof to the original condition of the property. Consultant shall be responsible for damage to or theft of real or personal property of Company caused directly or indirectly by Consultant. Consultant shall comply with all reasonable rules and regulations promulgated with respect to Company’s facilities.
e.Consultant shall be solely responsible for the means, methods, techniques and procedures used by Consultant to perform the Services under this Agreement.
f.Consultant represents and warrants that the Services shall not infringe upon any trademark, copyright, patent or other intellectual property right (collectively, “Intellectual Property”) and that it owns all such Intellectual Property rights utilized in providing the Services and that Company may use such Services as contemplated hereunder without infringing upon any such Intellectual Property.
g.The Services shall be performed in a diligent and first class manner and in such a manner so as to minimize the possibility of any annoyance, interference, or disruption to any tenants or other occupants or of the Property or to any invitees thereon.
h.Consultant shall be responsible for damage to or theft of real or personal property of Company or tenants or other occupants of the Property caused by Consultant or Consultant’s employees, contractors or agents.
i.Consultant shall comply with all reasonable rules and regulations promulgated with respect to entry into the Property and shall not interfere or intrude upon the premises or privacy of any tenant or occupant of the Property.
j.Consultant is not a Prohibited Person (as defined below); to Consultant’s knowledge, none of its investors, affiliates or brokers or other agents acting or benefiting in any capacity in connection with this Agreement are Prohibited Persons; and none of the funds or other assets, if any, to be transferred to Companyhereunder are the property of, or beneficially owned, directly or indirectly, by a Prohibited Person, nor are such funds or other assets the proceeds of any specified unlawful activity as defined by 18 U.S.C. § 1956(c)(7). "Prohibited Person" means any of the following: (i) a person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing (effective September 24, 2001) (the "Executive Order"); (ii) a person or entity owned or controlled by, or acting for or on behalf of any person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a person or entity that is named as a "specially designated national" or "blocked person" on the most current list published by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) at its official website, http:www/treas.gov/offices/enforcement/ofac; (iv) a person or entity that is otherwise the target of any economic sanctions program currently administered by OFAC; or (v) a person or entity that is affiliated with any person or entity identified in subclause (i), (ii), (iii) and/or (iv) above.
5.Insurance. At all times during the term of this Agreement, Consultant agrees to maintain, at its sole cost and expense, insurance of the types and in the amounts as set forth on Exhibit B attached hereto and made a part hereof and incorporated herein by this reference. All insurance provided by Consultant shall be primary, and insurance maintained by Company, if any, shall be excess of Consultant’s insurance. Consultant shall arrange with its insurance companies to endorse its policies accordingly.
6.Confidentiality.
a.As used in this Section, the defined term "IPT" expressly includes Company and its affiliates and subsidiaries. Consultant acknowledges that, in rendering the Services hereunder, Consultant may learn, acquire, gather or develop secret, proprietary or confidential information and data concerning IPT (collectively, the "Confidential Information"), including: (i) the name and/or address of any of IPT’s customers, lessees, employees, employee applicants, shareholders, directors, partners, managers, members, or officers (collectively, with IPT, the "Protected Parties") or any information concerning the transactions or relations of any Protected Parties; (ii) any information belonging to Protected Parties; (iii) any financial information relating to the Protected Parties and their businesses, including, without limitation, information relating to capital structure, operating results, borrowing arrangements, contemplated transactions, acquisition targets, strategic plans and business plans, business processes, techniques, data and know-how and systems, and affiliates and subsidiaries; (iv) data relating to IPT’s business operations (including, but not limited to, its business of owning, operating, managing, selling or acquiring assets), including, without limitation, all data, addresses and contact information relating to any properties owned, leased, and/or managed by IPT; (v) trade secrets; (vi) all written, graphic and other material (in any medium whether in writing, on magnetic tape or in electronic or other form) relating to the foregoing; and (vii) all correspondence, memoranda, files, manuals, books, financial lists, operating or marketing records and customer and vendor records relating to or containing any of the foregoing (in any medium whether in writing, on magnetic tape or in electronic or other form). In this regard, Consultant acknowledges that IPT is in the business of owning, operating, managing, selling, lending on or acquiring properties and that the Confidential Information is protected hereby. Consultant covenants, represents and warrants that it shall, and shall cause Consultant’s employees, contractors and agents, to, (i) treat all such Confidential Information as IPT’s confidential property and (ii) not divulge any Confidential Information to others at any time nor use it for any purpose, except on behalf of IPT, without the prior written consent of IPT, which consent can be withheld in the sole and absolute discretion of IPT.
b.Consultant agrees that (i) the covenants and restrictions contained in this Section 6 are of material consideration to this Agreement and are reasonable and necessary to protect and preserve the interests of IPT, (ii) irreparable loss and damage will be suffered by IPT resulting from any breach hereof, (iii) monetary damages will not be sufficient to compensate IPT for any such default or breach, and (iv) in addition to all other remedies provided at Law or in equity, IPT shall be entitled to seek and obtain temporary, preliminary and permanent injunctive relief in a court of Law to prevent and restrain any breach or contemplated or threatened breach of and to specifically enforce the provisions of this Section 6, and IPT will not be obligated to post a bond or other security in seeking such relief or to prove irreparable harm. The existence of any claim, demand, action, set-off, counterclaim, or cause of action by Consultant against IPT or any other person shall not constitute a defense to the enforcement by IPT of this Section 6. Consultant further covenants and agrees that IPT shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits directly or indirectly resulting from any breach hereof and shall have the right to withhold and to offset any amounts owed Consultant by IPT. Such remedies shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which IPT is or may be entitled at Law or in equity or under this Agreement.
c.The provisions of this Section 6 will survive the expiration or earlier termination of this Agreement.
7.Non-Solicitation. During any period in which Consultant is engaged by Company and for a period of 12months after the expiration or termination of Consultant’s engagement by the Company for any reason, Consultant will not:
a.directly or indirectly attempt to hire away, induce or attempt to induce any person who was an employee of Company or any affiliate thereof at such expiration or termination (or within six months prior thereto) to leave employment with the Company; or
b.directly or indirectly solicit, request, advise, or induce any present or potential customer, supplier or other business contact of the Company to change its relationship with the Company or breach its agreement with the Company.
8.Force Majeure. If any party’s performance of any of its obligations under this Agreement is interfered with by any reason or any circumstances beyond its reasonable control, then such party shall be excused from performance on a day-by-day basis to the extent of such interference; provided, however, that the party whose performance is being interrupted shall provide immediate notice to the other party. If the force majeure event continues for 10 days, then Consultant in the case of interrupted performance by Company, or Company in the case of interrupted performance by Consultant, may terminate this Agreement.
9.Limitation on Liability. Consultant agrees that, notwithstanding any provision in this Agreement to the contrary, no partner, member, manager, shareholder, director, officer, employee, agent, affiliate or representative of Company, nor any partner, member, manager, shareholder, director, officer, employee, agent, affiliate or representative of any partner or affiliate of Company (collectively, the “Indemnified Parties”), shall have any liability for the obligations of Company under this Agreement, and Consultant agrees that its sole recourse for any such obligations shall be limited to the assets of Company. Notwithstanding the foregoing, Consultant acknowledges and agrees that this Section does not grant Consultant any lien or similar rights with respect to the applicable property or other assets of Company.
10.No Damages. Consultant agrees that any funds expended or expenses incurred for labor, equipment or other items with regard to its performance under this Agreement are expended or incurred with the understanding that this Agreement may at some point be terminated. It is understood and agreed that Company shall not be liable for damages in any form by reason of any termination of this Agreement in accordance with the terms thereofand hereof including, but not limited to, any claims relating to or arising out of Consultant’s expected future performance under this Agreement.
11.Waiver of Consequential Damages. Except with respect to Consultant’s indemnification obligations hereunder, each party waives the right to special, indirect, consequential and punitive damages, including lost profits arising out of or resulting from a breach of this Agreement.
12.Limitation on Damages. Notwithstanding anything in this Agreement to the contrary, in no event (even a breach by Company) shall Company be liable for damages or losses in excess of the actual amount payable by Company to Consultant for the supply of a particular Service actually provided by Consultant pursuant to this Agreement.
13.Cumulative Remedies. The rights and remedies herein reserved to Company shall be cumulative and additional to any other or further rights and remedies available at law or equity.