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Sample Consultant Agreement
Working through an Intermediary
(Agency or Lead Contractor)



This sample consultant agreement is broadly reflective of the type of contract that would be used between a Consultant and an Intermediary (or introducer) where the Intermediary would typically be an Agent or Lead Consultant.


THIS AGREEMENT
is made [ insert date ] BETWEEN:

[ Intermediary Company Name ] of [ Address ] ("The Company") and

[ Independent Consultant's Company Name ] of [ Address ] (the "Subcontractor Company")
Consultant Agreement - narrative:

  • Identifies the parties to the agreement and the date of the agreement

Definitions

The provision of specialist professional consulting services to the Client as outlined in Schedule A. The "Services":

The rate at which fees will be payable to the Subcontractor Company by The Company in respect of the Consultant's services to the Client. The "Project Rate":

[Insert Client Organisation Name ]. "The Client":
Consultant Agreement - narrative:

  • Defines key terms used within the contract

Introduction

(1) The Company is engaged in the business of providing management services to its Clients; and

(2) From time to time The Company proposes to introduce and supply providers of specialist professional consulting services in the undertaking of various projects by the Client; and

(3) The Company has agreed to introduce the Subcontractor Company to the Client for consideration by the Client; and

(4) The Company will retain the Subcontractor Company if requested to do so by the Client; and

(5) The Subcontractor Company confirms that all information provided to The Company regarding the experience, qualifications and expertise of the Subcontractor Company is accurate, complete and up-to-date; and

(6) The Subcontractor Company confirms that it is suitably qualified to undertake the Services and warrants that the Services will be carried out in a professional manner and to allocate such time, effort, resource, skill and attention as the Services justify and require
Consultant Agreement - narrative:

  • Introduction and preamble to the Consultant agreement providing context for the perspective of each party

IT IS HEREBY AGREED as follows:

1. Appointment

1.1 The Subcontractor Company will during the term of this Agreement provide the Services for The Company and the Client on the terms and conditions set out in Schedule A.

1.2 It is agreed for the purposes of this Agreement that no contractual relationship exists between The Company and any of the employees, subcontractors or associates of the Subcontractor Company.

1.3 The rights and obligations created by this Agreement do not create any obligation for The Company to provide further introductions or work or enter into further contracts with the Subcontractor Company beyond the termination of this Agreement.

1.4 The Services will be undertaken at a location or locations to be agreed between the Client and the Subcontractor Company Which may include the Client's business premises and the Subcontractor Company's business premises.

Consultant Agreement - narrative:

  • Seeks to define the boundaries and limit the extent of the relationship to the Services to be provided
  • Records the shared understanding and intent that this is a discreet and standalone commercial contract for the provision of Services and that the relationship is not enduring or necessarily recurring. There is no obligation for the intermediary to provide further work beyond that which is the subject of the current consultant agreement.

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2. Schedule A

Schedule A will contain information as follows:¬

2.1 The Client to whom the Subcontractor Company's Services will be provided.

2.2 The date of commencement of the Services.

2.3 The anticipated period for completion of the Services as reasonably estimated by the Client, The Company and the Subcontractor Company.

2.4 The project summary terms of reference as initially agreed between The Company and the Client. From time to time the terms of reference may be updated in light of the findings of and by agreement with the Subcontractor Company).

2.5 The description of the Services to be provided by the Subcontractor Company including key outcomes and deliverables expected by the Client.

2.6 The fixed amount or rate of compensation to be paid by The Company to the Subcontractor Company in consideration of the Services and the payment terms. Consultant Agreement - narrative:

  • Self explanatory

3. Obligations and Duties of the Subcontractor Company

3.1 The Subcontractor Company will be responsible for undertaking the Services outlined in Schedule A and as updated from time to time. The Subcontractor Company will exercise its best endeavours to ensure that the Services are undertaken to the best of its ability in a professional, efficient and independent manner, working diligently, in good faith and in the best commercial interest of the Client.

Subcontractor Company will undertake the Services without the direction, control or supervision of either the The Company or Client with respect to the approach adopted to carrying out the Services and will be solely responsible for providing the Services in accordance with the terms and conditions of this Agreement.

3.2 The Subcontractor Company will use its best endeavours to complete the Services within the time period specified in Schedule A.

3.3 The Subcontractor Company will exercise sound commercial and professional judgment and may at any time and without giving The Company prior notice make changes to the Services which are judged to be necessary in the sole opinion of the Subcontractor Company are necessary to comply with any statutory, safety or other mandatory requirements or make any other change to the Services providing that the fundamental nature and quality of the Services are not materially degraded.

3.4 The Subcontractor Company is entitled to continue promoting and marketing its business and services and accept commercial contracts to supply services to other parties throughout the term of this Agreement, subject to Clause 11 of this agreement (Confidentiality), and provided the soliciting and acceptance of said commercial contracts will not constitute a conflict of interest to the potential detriment or disadvantage of the Client.

3.5 In the event that the performance of the Services by the Subcontractor Company is judged to be unsatisfactory in the sole opinion of the Client, the subcontractor will rectify all defects at its own expense.

3.6 The Subcontractor Company undertakes at all times to comply with the provisions of all Laws, Acts and Regulations that are applicable to the Client's business or industry and any amendments thereof.

3.7 Upon completion of the Services or termination of this agreement the Subcontractor Company deliver to The Company or to the Client all papers and other materials belonging to the Client and any materials produced or procured during the course of delivery of the Services.
Consultant Agreement - narrative:

  • Positions the subcontractor as an independent professional providing services to the client under an arm's length commercial contract
  • An important point is that the consultant will work autonomously without supervision
  • The consultant has discretion if he feels that some amendments to the service are required; this evidence is the potential for the consultant to exercise independent professional judgment in the execution of the project
  • 3.4 reinforces the independent nature of the consultant in that he is at liberty to promote his business and secure other assignments which could run in parallel to the assignment that is the subject of this consultant agreement
  • 3.5 reinforces the commercial risk of the consultant; if the services are judged not to be satisfactory then the consultant will rectify at his own expense

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4. Obligations and Duties of The Company

4.1 The Company will only pass on details of the Subcontractor Company to its Clients following receipt of consent from the Subcontractor Company.

4.2 The Company is not obliged to put forward the Subcontractor Company for consideration by Clients for a minimum number of assignments or any specific number of assignments or at all over any period of time.
Consultant Agreement - narrative:

  • 4.1 in order for the consultant to retain control of which clients are approached he would need to give prior consent to an intermediary before his details were passed to a potential new client. This is common sense and also simple good manners. To have two copies of your CV arrive on the same client desk from seemingly separate sources does not look good.
  • 4.2 reinforces the arm's length nature of the relationship between the intermediary and the consultant -the intermediary is not obliged to promote the consultants business at all, but will choose to do so if there is potential commercial advantage to the intermediary and his client

5. Absence and Substitution

Where the Subcontractor Company wishes to meet other commitments, which will require absence from the project, the Subcontractor Company will ensure that:

5.1 The Subcontractor Company gives the Client and The Company as much notice as possible, and in any circumstance this notice period to be not less than 10 working days

5.2The Subcontractor Company's absence does not interfere with the performance and schedule of completion of the Services as detailed in Schedule A;

5.3 If appropriate, the Subcontractor Company offers substitute resource to continue the project in accordance with the Clause 5.4.

5.4 Where the Subcontractor Company is unable to perform the whole or any part of the project for whatever reason the Subcontractor Company will offer a substitute of equivalent expertise to work in the Subcontractor Company's place. Client has the right on reasonable grounds to refuse to accept the proposed substitute and the right to review the Agreement and if appropriate, terminate the Agreement.

5.5 In the event of a substitution, the rights, obligations and covenants of the Subcontractor Company remain as detailed in this Agreement and the Services remain as detailed in Schedule A.
Consultant Agreement - narrative:

  • Fairly standard absence and substitution arrangements -the consultant has the right to delegate delivery of the services to an employee or subcontractor
  • It is important that the right of substitution is not only included in every consultant agreement but also that periodically this right is exercised and can be evidenced as having been exercised

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6. Fees and Invoices

6.1 The Subcontractor Company will submit to The Company on a monthly basis its invoice with fees calculated at the Project Rate in the form agreed from time to time with The Company. Payment of invoices will be contingent upon the ongoing satisfaction of the client that the Services are being, or if completed, have been undertaken satisfactorily and in a diligent and professional manner.

6.2 The Subcontractor Company will maintain records and receipts in support of all invoices submitted to The Company and will make such records available for inspection by The Company at any time when requested to do so on reasonable notice.

6.3 No overtime payments will be made by The Company to Subcontractor Company.

6.4 Invoices will be settled by automated bank transfer or where this is not possible or convenient by cheque.

6.5 The Subcontractor Company is entitled to charge interest to The Company on any amounts outstanding that are in breach of the terms of trade recorded in Schedule A at the rate of 3% over [ Bank of Insert ] standard rate. Interest will begin to accrue 5 days after the due date for payment and will continue to accrue until payment is made. Consultant Agreement - narrative:

  • Self explanatory

7. Equipment, Materials and Consumables

7.1 The Subcontractor Company will be responsible for the provision of all equipment, materials and consumables as maybe required by the Subcontractor Company in the execution of the Services.

7.2 The Subcontractor Company will provide its own computer hardware and software as required for the execution of the services and will ensure that all computer equipment used will contain software and controls that will provide reasonable protection against computer viruses and other malicious attack.

7.3 The Subcontractor Company will ensure that no computer files are exchanged directly between its own computer systems and Client computer systems other than through remote exchange using e-mail or Internet which will require files to be passed through the Client's firewall facility thereby protecting the integrity of client systems against computer viruses as far as is reasonably possible.
Consultant Agreement - narrative:

  • the requirement for the consultant to be and self sufficient and provide his own equipment is important and is one test of true independent contractor status
  • The protections around computer viruses are important and should not be overlooked. The potential for causing havoc in a client business through inadvertently introducing a malicious virus is significant. The potential financial exposure is substantial and the probability of litigation is high.

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8. Termination

8.1 This Agreement will commence on [ insert date ] and will persist for such time period or until such date as provided in Schedule A unless terminated earlier through the operation of this Clause 8.

8.2 The Company will be entitled to terminate the Agreement at any time and with immediate effect by giving the Subcontractor Company immediate oral or written notice of such termination in the following circumstances; if:

8.2.1 The Subcontractor Company is in material breach of this Agreement including but not limited to failure to undertake the Services with the levels of professionalism and diligence set out elsewhere in this agreement.

8.2.2 The Client terminates its contract with The Company

8.2.3 There is misconduct or malpractice either alleged or confirmed by the Subcontractor Company, its employees or subcontractors in the performance or non-performance of the Services

8.2.4 The Client considers any of the Subcontractor Company's employees or subcontractors unsatisfactory

8.3 The Subcontractor Company will be entitled to terminate this Agreement at any time and with not less than [ 5 ] working days written notice to The Company if:

8.3.1 The Company commits a material breach of this Agreement. In this event, for a breach that is capable of remedy, the agreement can be terminated by Subcontractor Company if The Company fails to remedy the breach within a period of [ insert ] days of the receipt by The Company of the notice from the Subcontractor Company providing notice of the breach and requesting remedy of same.

8.3.2 The Company has an administrator or receiver appointed or passes into liquidation or otherwise ceases to carry on normal business as a going concern.

8.4 Both parties to the Agreement acknowledge the value to the Client of continuity and consistency and commit to take all steps considered reasonable to complete the assignment without periods of unscheduled absence or the need to invoke the provisions for substitution.

8.5 Upon termination of the Agreement the Subcontractor Company will ensure that all materials, data and information that are the property of the Client are returned immediately to the Client directly or to The Company. Consultant Agreement - narrative:

  • Fairly standard termination arrangements -quite reasonable
  • The termination options are weighted slightly in favour of the intermediary - arguably the consultant should be given equal opportunity to rectify any breach or shortcoming

9. Taxation and Fees

9.1 The Subcontractor Company will be solely responsible for the management, calculation and payment of all liabilities to tax arising from this agreement.

9.2 The Subcontractor Company will fully protect and indemnify The Company with respect to any claim made against The Company for liability to tax in any form as a consequence of this agreement and / or the Services provided by the Subcontractor Company to the Client.

9.3 The relationship between The Company and the Subcontractor Company is that of separate, independent commercial entities and no rights of employment are created for the Subcontractor Company as a consequence of this Agreement or otherwise. The Company is under no obligation finance to sick pay, maternity pay, pension contributions or any other contribution, reward, remuneration or benefit other than the Project Fee in consideration of the Services provided.

9.4 The Subcontractor Company will be paid the Project Fee in consideration of the Services undertaken on behalf of the Client. The Subcontractor Company will not be entitled to any compensation, reward or payment in respect of any holiday periods or other periods of absence taken by the Subcontractor Company or its employees or subcontractors, except for as provided in Clause 5 of this Agreement.
Consultant Agreement - narrative:

  • A range of straightforward clauses intended to reinforce the independent nature of the arrangement between the consultant and the intermediary
  • The consultant will not be an employee of the intermediary or the end client, therefore he does not have any of the rights or benefits that would ordinarily be available to an employee
  • The consultant will be paid his fee gross i.e. there will be no withholding tax and the consultant will be fully responsible for managing all aspects of his own taxation affairs
  • Watch out for 9.2 - if the IRS or HMR&C investigate the intermediary or the consultant and are ultimately able to successfully challenge and overturn the assumed independent nature of the relationship then some significant tax liabilities may crystallize once the fees are assessed as if they were remuneration paid to the consultant as an employee rather than being paid on a business to business basis. As it stands, the clause passes the full exposure and potential liability to the consultant - you may wish to discuss and negotiate this point with the intermediary to share the risk

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10. Force Majeure

10.1 Notwithstanding anything contained in this Agreement neither party will be liable for any delay in performing its obligations herein, if such delay is caused by circumstances beyond its reasonable control.

10.2 Subject to the party so delaying promptly notifying in writing the other party of the reason for and the likely duration of the delay, the performance of such party's obligations will be suspended during the period that the said circumstances persist, and such party will be granted an extension of a time period for performance of obligations and duties under this agreement equal to the period of the delay.

10.3 This to be the case except where said delay is caused by the act or omission of the other party, in which event the rights, remedies and liabilities of the parties will be as conferred by the other Clauses and terms of this Agreement and by law:

10.3.1 Any costs arising from such delay will be borne by the party incurring the same, and

10.3.2 Either party may, if such delay continues for more than [ insert period ] weeks terminate this Agreement on giving notice in writing to the other in which event neither party will be liable to the other or to the Client by reason of such termination.
Consultant Agreement - narrative:

  • Fairly standard clauses for most contracts including a consultant agreement -- Force Majeure simply translates to 'Superior Power'; the intent of this Clause is simply to excuse a party from their obligations under the contract should any unexpected and disruptive event take place
  • Typically such an event would be outside of the control of either party; examples would include civil unrest, war and natural disasters

11. CONFIDENTIALITY

The Subcontractor Company, its subcontractors and employees will maintain confidentiality and will not disclose, publish or use any data or information relating to the client, the client's business, the Services or the Agreement except as required to carry out out the Services or meet its obligations or duties to the Client or The Company except in circumstances where prior written consent has been obtained from The Company to allow such disclosure, publishing or use.

Information will include but not be limited to materials concerned with: methods and data, trade secrets, commercial contracts, financial models, pricing, key controls, product specific information, technical data, computer software documentation and specifications, and any information concerning the trading or valuation of any security or share.

Notwithstanding anything in this Agreement to the contrary, the Subcontractor Company retains the right to publish, disclose or use any information that is in public domain or otherwise becomes known to the public through no fault or action of the Subcontractor Company.

This Clause will continue in force for a period of [ 2 ] years after termination of this Agreement.

The Subcontractor Company will maintain as confidential all details of all fees, compensation or remuneration arising from this Agreement and the Services with, but not limited to the following parties: Client, Client staff or agents, other members of the Project team.

Consultant Agreement - narrative:

  • Self explanatory and fairly standard

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12. Relationship

Nothing contained in this Agreement will constitute any contract of employment or partnership between The Company, the Subcontractor Company or any Client.

Consultant Agreement - narrative:

  • it is important that the consultant agreement states plainly that there is no employer employee relationship or partnership arrangement between any of the three parties
  • However, simply stating this in the consultant agreement does not make it so. It is important that it appears in every contract that an independent consultant will use, however the tax authorities will look through the contracts and seek to establish the true nature of the commercial arrangements between the parties, applying 'substance over form'. Check out the Contractor Tests to improve your understanding of the basic criteria for establishing and being able to demonstrate true independent status

13. Intellectual Property Rights

The Subcontractor Company nor its subcontractors or employees will not obtain rights in any materials, data, or systems utilised or provided by the Client in connection with this Agreement.

At the request and expense of the Client, the Subcontractor Company will do all things and sign all documents or instruments as reasonably necessary in the sole opinion of the Client to enable the Client to obtain, defend and enforce its rights in any such data, materials or systems. Upon request by the Client and in any event promptly deliver to the Client copies of such materials , data or systems that may be in the possession, control or custody of the Subcontractor Company.

All Intellectual Property Rights in and to any software, documentation, drawings, data, information, database or product created or produced by the Subcontractor Company in performing the Services under this Agreement will be the property of the Client. The Subcontractor Company hereby assigns to the Client absolutely its whole right, interest and title, present and future in and to such Intellectual Property Rights free from all liens, charges and encumbrances.

The Subcontractor Company will provide the Client with all information which the Client may reasonably request for the purpose of allowing the Client to fully exercise its proprietary rights over said Intellectual Property in any jurisdiction.

The Subcontractor Company will at the Client's request and expense undertake and execute all acts, deeds, documents and steps necessary to effectively vest such Intellectual Property Rights in the Client and will, at the Client's request and expense provide the Client with all reasonable assistance required to vest the same in the Client in any part of the world.

The provisions and requirements of this Clause will survive the expiry or termination of this Agreement.

Consultant Agreement - narrative:

  • Fairly standard requirement effectively protecting the position of the client for whom the work is undertaken
  • If you are bringing to the client and the project any proprietary methods, methodologies or software then clearly you need to take steps to remove fence that intellectual property in order that you retain exclusive right to it going forward
  • If the IP is central to your practise and underpins your premium consulting rates then he consultant agreement must address these matters

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14. Notices

Unless stated otherwise elsewhere in this agreement notices relating to or arising from this agreement will be served in writing and will be considered adequately served if sent by recorded delivery first class post to the address of the parties as recorded above or any alternative address subsequently notified to the parties for this purpose from time to time, and will be deemed to have been received by the party to whom it is addressed two working days following the date of posting.

Consultant Agreement - narrative:

  • Self explanatory

15. Client Requirements, Obligations or Conditions

In the event that the Client has specific requirements of, or desires to impose any additional obligations or conditions on the Subcontractor Company, such requirements, obligations or conditions will be set out in Schedule B and will form part of this Agreement.

Consultant Agreement - narrative:

  • It is sometimes useful to record in a schedule separate to the main consultant agreement any specific requirements that the client might have

16. Law

This Agreement is construed in accordance with and will be governed by the Laws of [ insert country name ]. Any dispute which arises between the parties concerning this Agreement will be determined by the [ insert ] Courts and the parties submit to the exclusive jurisdiction of the [ insert ] courts for this purpose.

Consultant Agreement - narrative:

  • Self explanatory - be sure to use a consultant agreement that is appropriate to your geographic location and jurisdiction and is therefore capable of enforcement should the need arise

SIGNED by ________________________________

on behalf of The Company [ the "Company" Name ]

SIGNED by________________________________


On behalf of The Subcontractor [ "Subcontractor Company" Name ]


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