SharePoint and Microsoft 365 Consulting Agreement - MSP
This Consulting Agreement, dated effective (this “Agreement”), is made and entered into, by and among (the “Company”) and Mr. SharePoint, LLC (the “Consultant”).
SCOPE OF WORK
1.1 Services. The Company has engaged Consultant to provide services in connection with the Company’s SharePoint and Microsoft 365 Platforms. Consultant will design, develop and maintain SharePoint and Microsoft 365 solutions and/or such other services as agreed upon in writing in the future (collectively, the “consulting services”).
1.2 Time and Availability. Consultant will provide consulting services to the Company to the extent requested by the Company, and will devote up to 40 hours per week in performing the consulting services for the Company as stated herein. The Company has no obligation to request any particular quantity of consulting services hereunder, and will not be in breach if at a certain point before the term of this Agreement has expired the Company no longer requires any consulting services. Consultant shall have discretion in selecting the dates and times it performs such consulting services throughout the week giving due regard to the needs of the Company’s business. If the Company deems it necessary for the Consultant to provide more than 40 hours in any week, Consultant is not obligated to undertake such work until the Consultant and Company have agreed on a rate of compensation.
1.3 Confidentiality. In order for Consultant to perform the consulting services, it may be necessary for the Company to provide Consultant with Confidential Information (as defined below) regarding the Company’s business and products. Without limiting Consultant’s confidentiality obligations other provisions of under this Agreement or under any separate confidentiality agreement, Consultant acknowledges that the Company will rely heavily upon Consultant’s integrity and prudent judgment to use this information only in the best interests of the Company and to not disclose this Confidential Information to any other party.
1.4 Standard of Conduct. In rendering consulting services under this Agreement, Consultant shall conform to high professional standards of work and business ethics. Consultant shall not use time, materials, or equipment of the Company without the prior written consent of the Company. In no event shall Consultant take any action or accept any assistance or engage in any activity that would result in any university, governmental body, research institute or other person, entity, or organization acquiring any rights of any nature in the results of work performed by or for the Company. Consultant shall comply with all applicable laws in connection with the consulting services, including with respect to its employees.
1.5 Reports. Consultant shall periodically provide the Company with written reports of his or her observations and conclusions regarding the consulting services. Upon the termination of this Agreement, Consultant shall, upon the request of Company, prepare a final report of Consultant’s activities.
1.6 Company Policies. While on Company’s premises to perform consulting services, Consultant shall comply with Company’s rules, regulations and policies, including operating procedures, security requirements and working conditions. Consultant shall carry out all work and necessary contacts with Company and its personnel so as not to disrupt Company’s normal operating procedures.
1.7 Indemnification. Consultant shall indemnify and, unless otherwise directed by the Company, defend the Company and its affiliates from and against any third party claims and resulting damages, liabilities, and expenses, including reasonable attorney fees, that arise out of (a) the violation of any applicable law, rule or regulation by Consultant; (b) the breach by Consultant of any covenant, condition, warranty or representation contained in this Agreement; or (c) the negligence or willful misconduct of Consultant or its employees or agents.
2.1 Independent Contractor. Consultant is an independent contractor and is not an employee, partner, or co-venturer of, or in any other service relationship with, the Company. The manner in which Consultant’s services are rendered shall be within Consultant’s sole control and discretion. Consultant is not authorized to speak for, represent, or obligate the Company in any manner without the prior express written authorization from an officer of the Company. To the extent Consultant has indicated to the Company that any particular individual(s) will perform the consulting services, Consultant shall arrange for that person (or those persons) to perform the consulting services, and any replacement or additional persons appointed to perform consulting services will be subject to the Company’s consent. Persons that perform the consulting services must be Consultant’s officers or employees, and Consultant shall not delegate any consulting services to a subconsultant without the Company’s written consent.
2.2 Taxes. Consultant shall be responsible for all taxes arising from compensation and other amounts paid under this Agreement, and shall be responsible for all payroll taxes and fringe benefits of Consultant’s employees. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Company on behalf of Consultant or his/her employees. Consultant understands that he/she is responsible to pay, according to law, Consultant’s taxes and Consultant shall, when requested by the Company, properly document to the Company that any and all federal and state taxes have been paid.
2.3 Benefits. Consultant and Consultant’s employees will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan of the Company. No workers’ compensation insurance shall be obtained by Company covering Consultant or Consultant’s employees.
COMPENSATION FOR CONSULTING SERVICES
3.1 Compensation. The Company shall pay to Consultant $140 per hour for consulting services rendered to the Company under this Agreement. The Consultant will send an electronic invoice to the Company for each time period billed (weekly or bi-weekly). The Company shall remit payment to the Consultant within 30 days of receiving each electronic invoice.
3.2 Reimbursement. The Company agrees to reimburse Consultant for all actual, reasonable and necessary expenditures, which are directly related to the consulting services, provided such expenditures are approved in writing by the Company prior to Consultant incurring such expenses. These expenditures include, but are not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, mileage, etc.), telephone calls, and postal expenditures. Expenses incurred by Consultant will be reimbursed by the Company within 60 days of Consultant’s proper written request for reimbursement so long as Consultant provides Company with invoices documenting the actual costs incurred.
TERM AND TERMINATION
4.1 Term. This Agreement shall be effective as of , and shall continue in full force and effect for 12 consecutive months. The Company and Consultant may negotiate to extend the term of this Agreement and the terms and conditions under which the relationship shall continue.
4.2 Termination. The Company may terminate this Agreement for “Cause,” after giving Consultant written notice of the reason. Cause means: (1) Consultant has breached the provisions of Article 5 or 7 of this Agreement in any respect, or materially breached any other provision of this Agreement and the breach continues for 5 days following receipt of a notice from the Company. Consultant agrees that notice from the Company via email is sufficient to meet this requirement; (2) Consultant has committed fraud, misappropriation, or embezzlement in connection with the Company’s business; (3) Consultant has been convicted of a felony; or (4) Consultant’s use of narcotics, liquor, or illicit drugs has a detrimental effect on the performance of his or her employment responsibilities, as determined by the Company.
4.3 Responsibility upon Termination. Any equipment provided by the Company to the Consultant in connection with or furtherance of Consultant’s services under this Agreement, including, but not limited to, computers, laptops, and personal management tools, shall, immediately upon the termination of this Agreement, be returned to the Company.
4.4 Survival. The provisions of Articles 5, 6, 7, and 8 of this Agreement shall survive the termination of this Agreement and remain in full force and effect thereafter.
5.1 Obligation of Confidentiality. In performing consulting services under this Agreement, Consultant may be exposed to and will be required to use certain “Confidential Information” (as hereinafter defined) of the Company. Consultant agrees that Consultant will not and Consultant’s employees, agents, or representatives will not use, directly or indirectly, such Confidential Information for the benefit of any person, entity, or organization other than the Company, or disclose such Confidential Information to any person or entity without the written authorization of a Principal of the Company, either during or after the term of this Agreement, for as long as such information retains the characteristics of Confidential Information.
5.2 Definition. “Confidential Information” means information not generally known and proprietary to the Company or to a third party for whom the Company is performing work, including, without limitation, information concerning any patents or trade secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or material, research and development, proprietary software, analysis, techniques, materials, or designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the business of the Company, any vendor names, customer and supplier lists, databases, management systems and sales and marketing plans of the Company, any confidential secret development or research work of the Company, or any other confidential information or proprietary aspects of the business of the Company or its customers. All information which Consultant acquires or becomes acquainted with during the period of this Agreement, whether developed by Consultant or by others, which Consultant has a reasonable basis to believe to be Confidential Information, or which is treated by the Company as being Confidential Information, shall be presumed to be Confidential Information.
5.3 Property of the Company. Consultant agrees that all plans, manuals, and specific materials developed by the Consultant on behalf of the Company in connection with services rendered under this Agreement, are and shall remain the exclusive property of the Company. Promptly upon the expiration or termination of this Agreement, or upon the request of the Company, Consultant shall return to the Company all documents and tangible items, including samples, provided to Consultant or created by Consultant for use in connection with services to be rendered hereunder, including, without limitation, all Confidential Information, together with all copies and abstracts thereof and Consultant agrees not to keep any electronic copies.
RIGHTS AND DATA
All drawings, models, designs, formulas, methods, documents, and tangible items prepared for and submitted to the Company by Consultant in connection with the services rendered under this Agreement shall belong exclusively to the Company and shall be deemed to be works made for hire (the “Deliverable Items”). To the extent that any of the Deliverable Items may not, by operation of law, be works made for hire, Consultant hereby assigns to the Company the ownership of copyright or mask work in the Deliverable Items, and the Company shall have the right to obtain and hold in its own name any trademark, copyright, or mask work registration, and any other registrations and similar protection which may be available in the Deliverable Items. Consultant agrees to give the Company or its designees all assistance reasonably required to perfect such rights. Consultant warrants that Consultant, in providing or transmitting any Deliverable Items or other information in connection with its consulting services, and that Company, by using the Deliverable Items, is not violating any copyright or patent restrictions, licensing requirements, or other restrictions applicable to the Deliverable Items or information.
CONFLICT OF INTEREST AND NON-SOLICITATION
7.1 Conflict of Interest. Consultant covenants and agrees not to consult or provide any services in any manner or capacity to a direct competitor of the Company during the duration of this Agreement unless express written authorization to do so is given by the Company’s President.
7.2 Non-Solicitation. Consultant covenants and agrees that during the term of this Agreement, Consultant will not, directly or indirectly, through an existing corporation, unincorporated business, affiliated party, successor employer, or otherwise, solicit, hire for employment or work with, on a part-time, consulting, advising, or any other basis, other than on behalf of the Company any employee or independent contractor employed by the Company while Consultant is performing services for the Company.
RIGHT TO INJUNCTIVE RELIEF
Consultant acknowledges that the terms of Articles 5, 6, and 7 of this Agreement are reasonably necessary to protect the legitimate interests of the Company, are reasonable in scope and duration, and are not unduly restrictive. Consultant further acknowledges that a breach of any of the terms of Articles 5, 6, or 7 of this Agreement will render irreparable harm to the Company, and that a remedy at law for breach of the Agreement is inadequate, and that the Company shall therefore be entitled to seek any and all equitable relief, including, but not limited to, injunctive relief, and to any other remedy that may be available under any applicable law or agreement between the parties. Consultant acknowledges that an award of damages to the Company does not preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies.
9.1 Construction of Terms. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of Illinois.
9.3 Complete Agreement. This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral, except that if the parties have entered into (or are in connection with this Agreement entering into) a separate confidentiality agreement then this Agreement will not supersede the requirements of such separate agreement and in the event of any overlap or conflict between the two agreements the more stringent or restrictive requirement (i.e., the one that affords more protection to the Company) will apply.
9.4 Dispute Resolution. If there is any dispute or controversy between the parties arising out of or relating to this Agreement, the parties agree that such dispute or controversy will first be arbitrated in accordance with proceedings under American Arbitration Association rules. All costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute that is determined and/or settled by arbitration pursuant to this Agreement will be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties will share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement until the dispute is resolved. If mediation does not result in a dispute resolution, either party may file an action in court.
9.5 Modification. No modification, termination, or attempted waiver of this Agreement, or any provision thereof, shall be valid unless in writing signed by the party against whom the same is sought to be enforced.
9.6 Waiver of Breach. The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
9.7 Successors and Assigns. This Agreement may not be assigned by either party without the prior written consent of the other party; provided, however, that the Agreement shall be assignable by the Company without Consultant’s consent in the event the Company is acquired by or merged into another corporation or business entity. The benefits and obligations of this Agreement shall be binding upon and inure to the parties hereto, their successors and assigns.
9.8 No Conflict. Consultant warrants that Consultant has not previously assumed any obligations inconsistent with those undertaken by Consultant under this Agreement.
9.9 Compliance with Anti-Terrorism Laws. Consultant represents and agrees that neither Consultant nor any of its affiliates, nor any of its or their agents acting in any capacity in connection with the transactions contemplated by this Agreement, is or will be (a) conducting any business or engaging in any transaction or dealing with any person appearing on the U.S. Treasury Department’s OFAC list of prohibited countries, territories, “specifically designated nationals” (SDNs) or “blocked persons” (each, a “Prohibited Person”) (which lists can be accessed at the following web address: http://www.ustreas.gov/offices/enforcement/ofac/), including the making or receiving of any contribution of funds, goods or services to or for the benefit of any such Prohibited Person; (b) engaging in certain dealings with countries and organizations designated under Section 311 of the USA PATRIOT Act as warranting special measures due to money laundering concerns; (c) dealing in, or otherwise engaging in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 dated September 24, 2001, relating to “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism”; (d) a foreign shell bank or any person that a financial institution would be prohibited from transacting with under the USA PATRIOT Act; or (e) engaging in or conspiring to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempting to violate, any of the prohibitions set forth in (i) any U.S. anti-money laundering law, (ii) the Foreign Corrupt Practices Act, (iii) the U.S. mail and wire fraud statutes, (iv) the Travel Act, (v) any similar or successor statutes, or (vi) any regulations promulgated under the foregoing statutes. If at any time the representation in this Section becomes false, then that falsity will constitute a material default and the Company may, without limitation, and notwithstanding any cure rights provided herein, immediately terminate this Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the date set forth above.
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Signed by Ryan Clark
Signed On: July 6, 2022
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Document Name: SharePoint and Microsoft 365 Consulting Agreement - MSP
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