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Consulting Agreement

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Prepared for:
[CLIENT COMPANY]

Prepared by:
[CONSULTANCY COMPANY]

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Consulting Agreement

This Consultancy Agreement (the “Agreement”) is made on [Effective Date] (the “Effective Date”), by and between:

[Company Name] Private Limited, a company incorporated under the provisions of the Companies Act, and having its registered office at [Company Address], India (hereinafter referred to as the “Company” which expression shall unless repugnant to the context and meaning thereof, include its successors-in-interest, administrators, representatives and permitted assigns) of the ONE PART; and

[Insert the name of Consultant], aged about [Age], residing at [Address] (hereinafter referred to as the “Consultant” which expression shall, unless it be repugnant to the context, include his/her heirs, successors, and permitted assigns) of the OTHER PART.

WHEREAS

The Company is engaged in the business of [Insert details of the business of the Company]. 
The Consultant is [Insert details about the Consultant].
The Company intends to procure certain services from the Consultant for [Insert small summary of the services for which the Consultant is hired], as more particularly described in this Agreement. 
The Consultant has represented to the Company that he/she has the necessary expertise, experience, personnel, and infrastructure to render the Services (as defined below). Based on the foregoing representation by the Consultant, the Company is desirous of executing this Agreement to enable the provision of Services as provided by the Consultant, as per the terms provided hereafter.

NOW, THEREFORE, in consideration of the representations and mutual covenants and other good and valuable consideration contained hereunder, the sufficiency of which is hereby acknowledged, the PARTIES AGREE AS FOLLOWS:

Term and Conditions

1. Service

[Insert brief details of the Services which the Consultant shall provide] as more specifically provided hereunder (“Services”).

The Consultant shall be obligated to provide the following Services:

[Service 1]
[Service 2]
[Service 3]

During the Term of this Agreement, the Consultant shall, for the benefit of the Company, provide the Services subject to the following terms and conditions: 

The Consultant shall provide the Services upon the execution of this Agreement. Any variation in the Services shall have to be approved in writing by the Company; 
The Services shall be provided by the Consultant on a non-exclusive basis in a professional, timely, and efficient manner and in accordance with acceptable industry standards in this regard. 
The Consultant shall in the performance of Services under this Agreement, comply with and confirm to requirements and instructions or directions given by the Company from time to time; 
The Consultant agrees that he/she shall exercise due diligence and professional skill and care in the performance of all its duties, covenants, and obligations under this Agreement; 
The Consultant shall keep the Company updated on a regular basis about the status of the Services that the Consultant is working on; and

the Consultant shall all time provide the Services in accordance with applicable laws including the [Insert the specific law the Company wants the Consultant to specifically adhere to].

2. Payment Related Obligations

The Consultant shall be paid [Insert the payment fee/commission, etc. to be paid to the consultant, time interval when the same shall be paid and related information which is required for any such payment]

3. Representations and Warranties

The Consultant hereby represents and warrants to the Company that: 

Execution and performance of this Agreement by him/ her does not and will not contravene or conflict with the provisions contained in any agreement, deed, or any applicable law; 
He/ she has all necessary power and authority to execute this Agreement and conduct his/ her business as it is currently being conducted and he/ she is competent to enter into this Agreement and to perform his/her obligations under this Agreement and
He/ she has the necessary skills, experience and expertise to provide the Services in accordance with the terms of this Agreement and in compliance with all applicable laws. The Services provided by the Consultant shall at all times comply with all applicable laws.

4. Indemnification

The Consultant shall indemnify the Company and its affiliates, directors, representatives, and employees (the “Indemnified Parties”) against any and all damages, losses, fines, proceedings, actions, suits, fees, costs (including reasonable attorney’s fee), or other claims arising out of, or related in any way to, any of his/her acts, errors or omissions, whether related to him/her, his/her employees, agents or representatives (the “Indemnifying Party”), or due to breach of the terms of this Agreement, or negligence, fraud or wilful misconduct of Indemnifying Party, or any claim, demand, suit, action or proceeding brought by a third party that involves, relates to or concerns a violation or other breach by the Indemnifying Party of any of the provisions of this Agreement (including, without limitation, any of the representations or warranties of the Indemnifying Party set forth in this Agreement) or the negligence, fraud or wilful misconduct of the Indemnifying Party. It is agreed by the Parties that the Company shall have the right to control all litigations and defend and/or settle any claim, against the Company and/or the Indemnified Parties or affecting their interests, in such manner as the Company may deem appropriate in its reasonable discretion, in each case without affecting Company’s rights under such indemnity
The Indemnified Parties shall give prompt notice to the Indemnifying Party of the existence and specifics of any such claims provided, however, that the failure or delay of the Indemnified Party in giving such notice shall not dilute or lessen the Indemnifying Party’s obligations hereunder.

5. Limitation of Liability

In no event shall the Company or any of its directors, officers, employees, agents, or content or service providers (collectively, the “Protected Entities”) be liable to the Consultant for any incidental, indirect, remote special, consequential or punitive damages, loss of goodwill or business profits, regardless of the nature of the claim, even if such Party knew or should have known of the possibility of such damages or claims.
Subject to Clause above, notwithstanding anything to the contrary contained in this Agreement, the Company’s aggregate liability under or in connection with this Agreement shall not exceed the Commission received by the Company under this Agreement.

6. Confidentiality and Disclosure

The Consultant agrees and acknowledges that any and all information provided by the Company to the Consultant pursuant to this Agreement belongs to the Company and the Consultant shall not have any right or interest in the same. For the purpose of this Agreement, “Confidential Information” shall mean and include any and all information received by the Consultant during the course of this Agreement including without limitation: 

Any business information; 
Advertising and marketing plans or marketing information, data and/or material; 
Any technical, marketing, financial and commercial information; 
Contents of this Agreement and the arrangements contemplated herein; 
Any commercial and business affairs of the Company; and 
Any other material identified by the Company as ‘confidential’.

The Company may, as a result of the relationship contemplated hereunder, disclose to the Consultant such Confidential Information as may be necessary to further the performance of this Agreement. It is clarified and agreed that this Agreement along with its Annexures shall constitute Confidential Information of the Parties. 

The Consultant undertakes to the Company to:

Keep all its information confidential; 
Not disclose the Confidential Information in whole or in part to any other person without the Company’s prior written consent, except to its employees, agents, and sub-contractors involved in the performance of this Agreement on a confidential and need to know basis and provided that employees, agents, and sub-contractors are bound by written agreements of confidentiality which are at least as stringent as the provisions of this Agreement; and 
Use the Confidential Information solely in connection with the performance of this Agreement.

The aforementioned confidentiality obligations will not extend to the Confidential Information which:

Is disclosed to employees, legal advisers, auditors, and other consultants of the Consultant on a need to know basis;
Has ceased to be confidential without default of the Consultant;
Is disclosed with the prior written consent of the Company;
Has been received from a third party who did not receive it in confidence; or
The Consultant is required by any court, government, or other regulatory body to disclose, but only to the extent required by law, provided that the Consultant gives the Company written notice as soon as practicable of such requirement;
Is independently developed by the Consultant without recourse to the Confidential Information of the Company. 

The Consultant shall not, during the Term of this Agreement and [Number of Years] years after the expiry of the same, solicit any client or customers of the Company in any manner whatsoever. 

7. Term and Termination

Termination for Breach - The Company shall have the right to forthwith terminate this Agreement by a written notice of such termination to the Consultant, where the Consultant commits a breach of the terms of this Agreement, and where, in the reasonable opinion of the Company, such breach is capable of cure, this Agreement shall be deemed to have been terminated upon the Consultant’s inability or failure to cure such breach and notify cure of such breach (along with necessary documents satisfactorily evidencing cure of such breach (as applicable)) to the Company within 30 (thirty) days from the date of issuance of the written notice from the Company requiring the Consultant to cure such breach. It is clarified and agreed that the period between the issuance of a notice by the Company seeking the cure of a breach hereof by the Consultant and the receipt of a written notification by the Company from the Consultant along with necessary documents satisfactorily evidencing cure of such breach (as applicable) shall be excluded from the computation of any period stipulated hereunder for acceptance of any Services by the Company.
Termination by either Party for a cause - Each Party shall have the right to terminate this Agreement by prior written notice of 30 (thirty) days of such termination to the other Party without assigning any reason whatsoever. Either Party may terminate this Agreement with immediate effect upon notice in writing to the other Party if (i) the other Party is adjudged bankrupt, or makes a general assignment for the benefit of its creditors, or (ii) if a receiver is appointed for all or a substantial portion of its assets; or (iii) such Party commences any proceeding for relief from its creditors in any court under any insolvency statutes. The Consultant shall have a right to forthwith terminate any Services by written notice to the Company where the Company has committed a material breach of the terms of this Agreement, and where, in the reasonable opinion of the Consultant, such breach is capable of cure, the affected Services shall be deemed to have been terminated upon the Company’s inability or failure to cure such breach or notify cure of such breach to the Consultant within a period of 30 (thirty) days from the date of the written notice from the Consultant requiring the Company to cure such breach.
Termination for Convenience - This Agreement shall be in force for a period of [Year] year(s) from the Effective Date (the “Term”) unless earlier terminated in accordance with the terms of this Agreement. Upon the expiry of the Term, this Agreement may be extended for such period and on such terms as may be mutually agreed between the Parties in writing.
Consequences of Expiration/Termination - Upon expiry or termination of this Agreement, all rights thereunder shall cease. However, the expiry or termination of this Agreement shall not affect the rights and obligations of the Parties which have arisen hereunder up to the time of such expiry or termination. Upon expiry or earlier termination of the Agreement, the Consultant shall return or at the discretion of the Company destroy the Confidential Information in his/ her possession and shall certify the destruction thereof to the Company.

8. Statutory Compliance

The Consultant shall at all times comply with provisions of [Insert relevant provision of law which Consultant needs to comply with] and all other applicable laws while providing the Services pursuant to this Agreement and shall obtain all necessary registrations, licenses, approvals, sanctions under applicable laws. On request by the Company, the Consultant shall forthwith furnish relevant documents evidencing its compliance with applicable law.  

9. Governing Law

This Agreement shall be governed by the laws of India and subject to the provisions of Clause 10 (Dispute Resolution), the courts at [Insert the State in which Company prefers to settle dispute] only shall have the exclusive jurisdiction in respect of any matter or dispute connected with this Agreement.

10. Dispute Resolution

Any dispute which arises between the Parties shall be attempted to be resolved by good faith discussions between the Parties.
Where the Parties are unable to resolve such disputes by good faith discussions within a period of 30 (thirty) business days from the date of a written notice by either Party notifying existence of such dispute, either Party shall be free to refer the dispute to arbitration in accordance with this Clause. This Agreement and the rights and obligations of the Parties shall remain in full force and effect pending the award in such arbitration proceeding.
The arbitration shall be governed by the Indian Arbitration and Conciliation Act, 1996 for the time being in force, and/or any statutory modification or re-enactment thereof.
The place and seat of arbitration shall be [Place and Seat of Arbitration] and the language of the arbitration shall be English.
The arbitration shall be conducted by 1 (one) arbitrator to be jointly appointed by the Parties. In case the Parties fail to appoint an arbitrator, within 30 (thirty) days from the submission of dispute for settlement through arbitration in accordance with Clause 10.3 above, the arbitrator shall be appointed in accordance with Indian Arbitration and Conciliation Act, 1996.
The award rendered shall be in writing and shall set out the facts of the dispute and the reasons for the arbitrator’s decision. The award shall apportion the costs of the arbitration as the arbitrator deems fair.
Notwithstanding anything contained in this Agreement, both Parties acknowledge and agree that the covenants and obligations with respect to the matters covered by this Agreement and set forth herein relate to special, unique, and extraordinary matters, and that a violation of any of the terms of such covenants and obligations will cause irreparable loss and injury to the aggrieved party.. Therefore, notwithstanding the provisions of this Agreement, either Party shall be entitled to approach any appropriate forums for obtaining an injunction, restraining order, or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate.

11. General Clauses

1. Construction of Documents

Each Party represents and warrants that it has read and understood the contents of this Agreement and that this Agreement will not be construed in favor of or against either party due to that Party drafting the Agreement.

2. Relationship between Parties

This Agreement is on a principal to principal basis and shall have no authority to assume or create any obligation whatsoever express or implied, in the name of the other party, or to bind the other Party in any way or manner. Nothing in this Agreement shall be deemed to constitute either party a partner, agent, or legal representative of the other Party, or to create any fiduciary relationship between the Parties.

3. Notices

Any notice, request, consent, waiver, or other communication required or permitted hereunder shall be effective only if it is in writing and shall be deemed received by the Party to which it is sent (i) upon delivery when delivered by hand, (ii) [Days] days after being sent if sent with all sending expenses prepaid, by an express courier with a reliable system for tracking delivery, (iii) when sent by confirmed facsimile, or (iv) [Days] days after the date sent if sent by certified or registered mail, postage prepaid, return receipt requested, addressed as follows:

12. Miscellaneous

Assignment/Sub-Contracting: Except as specifically set forth in this Agreement, neither Party may assign or sub-contract any of its rights, obligations, or responsibilities under this Agreement without the prior written consent of the other (such consent not to be unreasonably withheld). All terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and authorized assignees.
Force Majeure: In the event that either Party is unable to perform any of its obligations (except the obligation to make payments) under this Agreement as a result of natural disasters, actions, or decrees of governmental bodies, communication line failures not the fault of the affected Party, or any other delay or failure which arises from causes beyond a Party’s reasonable control and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default (hereafter referred to as a “Force Majeure Event”), the Party whose performance has been so affected shall immediately give written notice to the other Party of the facts which constitute the Force Majeure Event, and shall do everything reasonably possible to resume performance. For the avoidance of doubt, a Force Majeure Event shall exclude any event that a Party could reasonably have prevented by testing, work-around, or other exercises of diligence. If the period of non-performance exceeds [Date] ([Day]) days from the receipt of written notice of the Force Majeure Event, either Party may by giving written notice terminate the Agreement.
Survival: The following provisions shall survive expiry/termination of this Agreement: Clause 3 (Representations and Warranties), Clause 4 (Indemnification), Clause 6 (Confidentiality And Non-Disclosure), Clause 5 (Limitation of Liability), Clause 7.4 (Consequences of Expiry/Termination), Clause 9 (Governing Law), Clause 10 (Dispute Resolution) and this Clause 11.7.
Severability: It is the intent of the Parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such provision shall be modified to the extent necessary to render it, as modified, valid and enforceable under applicable laws and such invalidity or unenforceability shall not affect the other provisions of this Agreement.
Covenants Reasonable: The Parties agree that having regard to all the circumstances, the covenants contained herein are reasonable and necessary for the protection of the Parties. If any such covenant is held to be void as going beyond what is reasonable in all the circumstances but would be valid if amended as to scope or duration or both, the covenant shall apply with such minimum modifications regarding its scope and duration as may be necessary to make it valid and effective.
Further Assurance: Each Party shall co-operate with the other Party and execute and deliver to the other Party such instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, evidence, and confirm their rights hereunder and the intended purpose of this Agreement and to ensure the complete and prompt fulfillment, observance and performance of the provisions of this Agreement and generally that full effect is given to the provisions of this Agreement.
Independent Rights: Each of the rights of the Parties hereto under this Agreement is independent, cumulative, and without prejudice to all other rights available to them, and the exercise or non-exercise of any such right shall not prejudice or constitute a waiver of any other right of the Party, whether under this Agreement or otherwise.
Counterparts: This Agreement may be executed in any number of originals or counterparts, each in the like form and all of which when taken together shall constitute one and the same document, and any Party may execute this Agreement by signing any one or more of such originals or counterparts. This Agreement may be executed by delivery of the signature page hereof by facsimile transmission or electronic mail in “portable document format” (“.pdf”), which shall be as effective as signing and delivering the counterpart in person.
Entire Agreement & Amendment: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter herein and supersedes and cancels any prior oral or written agreement, representation, understanding, arrangement, communication, or expression of intent relating to the subject matter of this Agreement. No modifications, alterations, amendment, or waivers of any provisions contained herein shall be binding on the Parties hereto unless evidenced in writing and signed by duly authorized representatives of both the Parties.

Acceptance and Signature

IN WITNESS WHEREOF the Parties hereto have executed this Agreement on the date and the year first hereinabove written.

Signature

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