CONSULTING AGREEMENT

	This Consulting Agreement ("Agreement") is made as of the Effective Date by and between _______________, (“[COMPANYNAME]”) a ________________, USA corporation with offices located at _______________________ and the individual (“Consultant”) whose name is provided on the signature page of this Agreement.

W I T N E S S E T H

WHEREAS, Consultant is a graphics design professional with experience in software development and implementation; and

WHEREAS, [COMPANYNAME] is engaged in the business of manufacturing, distributing and selling software products and services; and 

WHEREAS, Consultant has reviewed the graphics design requirements of [COMPANYNAME] and is familiar with the tools required for meeting such requirements; and

WHEREAS, Consultant has independently determined that Consultant has the expertise and experience necessary to provide [COMPANYNAME] with graphics design services of the type required by [COMPANYNAME].

NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Consultant and [COMPANYNAME] hereby agree as follows:

ARTICLE I:  RECITALS AND DEFINITIONS

Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.

Section 1.02 -- Definitions: The following definitions shall apply:

(1)	Design Selling Website:  The term “Design Selling Website” shall mean any of the following websites: www.designcrowd.com, www.brandcrowd.com and any other website which allows users to sell designs.

(2)	Drafts:  The term “Drafts” shall mean any and all graphics design work product developed by Consultant.  For purposes of this Agreement, graphics design work product includes, without limitation, designs submitted by Consultant on a Design Selling Website.

(3)	Authorized Person:	 The term “Authorized Person” shall mean a person or organization who is authorized in writing by [COMPANYNAME] to receive Confidential Information and who agrees to maintain the confidentiality of such Confidential Information.

(4)	Business Records:  The term “Business Records” shall mean any and all records, information and data of [COMPANYNAME] relating to products, accounting, financial matters, legal matters, personnel, manufacturing, distribution, sales and customers of [COMPANYNAME].

(5)	Cancellation Notice:  The term “Cancellation Notice” shall mean that written notice sent by one party to this Agreement to the other party to this Agreement seeking to cancel this Agreement because of breach by such other party.

(6)	Confidential Information:  The term “Confidential Information” shall mean all information disclosed by [COMPANYNAME] to Consultant in oral, written, graphic or electronic form that has or could have commercial value or other utility in the business in which [COMPANYNAME] is engaged. Confidential Information includes, without limitation, any trade secret, information, process, technique, algorithm, computer program (source and object code), design, drawing, formula or test data relating to any research project, work in process, future development, engineering, manufacturing, marketing, servicing, financing or personnel matter relating to [COMPANYNAME], its past, present or future products, sales, marketing, suppliers, clients, customers, employees, investors or business, whether in oral, written, graphic or electronic form. Confidential Information also includes any other information not generally known to the public which, if misused or disclosed, could reasonably be expected to adversely affect the business in which [COMPANYNAME] is engaged. Confidential Information does not include information which is (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Consultant; (b) discovered or created by the Consultant before disclosure by [COMPANYNAME]; (c) learned by the Consultant through legitimate means other than from [COMPANYNAME] or [COMPANYNAME]'s representatives; or (d) is disclosed by Consultant with [COMPANYNAME]'s prior written approval.  For purposes of this definition, Confidential Information shall be deemed to include all information concerning this Agreement, the Services, Documentation, Deliverables and Business Records.

(7)	Consulting Fee:  The term “Consulting Fee” shall mean that certain fee for the Services rendered by Consultant under this Agreement not to exceed the applicable budget amount for total Services performed in the Consulting Term as input by [COMPANYNAME] on an applicable Design Selling Website.

(8)	Consulting Term:  The term “Consulting Term” shall mean a period of time starting on the Effective Date and continuing for 21 days or until this Agreement is terminated or canceled under Article III of this Agreement, whichever occurs first.

(9)	Deliverables:  The term “Deliverables” shall mean any and all Drafts developed or provided by Consultant in connection with the Services.

(10)	Deliverables Schedule:  The term “Deliverables Schedule” shall mean Deliverables provided by Consultant each week during the Consulting Term in Weekly Drafts Submissions.

(11)	Documentation:  The term “Documentation” shall mean any and all written materials made available to Consultant by [COMPANYNAME] under this Agreement, including, without limitation, examples and guides.

(12)	Effective Date:  The term “Effective Date” shall mean the date this Agreement is signed by [COMPANYNAME].

(13)	Facility:  The term “Facility” shall mean the office of Consultant.

(14)	Implement:  The term “implement” and variants thereof (including, but not limited to, the terms “implementation”, “implementing” and “implemented”) shall mean to load and make fully functional for user access and use.

(15)	Invoice Schedule:  The term "Invoice Schedule" shall mean a portion of the Consulting Fee for the applicable one-week period invoiced on a weekly basis upon receipt by [COMPANYNAME] of the Weekly Drafts Submissions.

(16)	Proprietary Information:  The term “Proprietary Information” shall mean the Documentation, Deliverables, Business Records and any and all information and data in relation thereto.

(17)	Restatements:  The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, and Section 1 of the Uniform Trade Secrets Act.

(18)	Services:  The term “Services” shall mean the Drafts research and writing services as requested by [COMPANYNAME].

(19)	Termination Notice:  The term “Termination Notice” shall mean that written notice sent by one party to this Agreement to the other party to this Agreement seeking to terminate this Agreement.

(20)	Weekly Drafts Submissions:  The term “Weekly Drafts Submissions” shall mean Drafts files associated with the performance of the Services as created or updated in an applicable one-week period.

ARTICLE II:  SCOPE OF SERVICES

Section 2.01 -- Services: Consultant shall provide the Services to [COMPANYNAME] in the Facility.

Section 2.02 -- Status: Consultant shall provide the Services as an independent contractor to [COMPANYNAME]. The fees paid by [COMPANYNAME] to Consultant for the Services shall be all inclusive. [COMPANYNAME] shall not be responsible for providing any insurance, benefits or paying any taxes owed by Consultant.  The Consultant agrees that the work shall be performed by Consultant as part of an independent contractor relationship and not as part of an employer-employee relationship and the work performed (a) is not an integral part of [COMPANYNAME]'s operation or part of [COMPANYNAME]'s regular business primarily because its nature is graphics design, (b) is not done with supervision from or control by [COMPANYNAME] because [COMPANYNAME]’s involvement with the work is to provide feedback suggestions or objective clarifications, (c) involves the Consultant assuming the opportunity for profit or loss depending on management skill, (d) will be for a short period of time as a one-time contract project with no ongoing work expectations.

ARTICLE III:  TERM OF AGREEMENT

Section 3.01 -- Term:  This Agreement shall be valid for the Consulting Term.

Section 3.02 -- Termination Limitations:  This Agreement shall only be terminated or canceled as provided under this Article III.

Section 3.03 -- Termination: Any party may terminate this Agreement for convenience upon providing fifteen days Termination Notice to the other party.

Section 3.04 -- Mutual Rescission: Notwithstanding Section 3.03, [COMPANYNAME] and the other party may agree in writing to terminate this Agreement without notice.

Section 3.05 -- Cancellation:  If Consultant violates its obligations under this Agreement, [COMPANYNAME] may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Consultant.  Upon receiving Cancellation Notice, Consultant (as the case may be) shall have ten days from the date of such notice to cure any such noncompliance.  If such noncompliance is not cured within the required ten day period, [COMPANYNAME] shall have the right to cancel this Agreement as of the eleventh day after the date of the Cancellation Notice.

Section 3.06 -- Cancellation Without Notice: Notwithstanding Section 3.05, [COMPANYNAME] may cancel this Agreement without notice upon the earliest to occur of the following events:

(a)	Fraud or Dishonesty:  Consultant commits an act of fraud or dishonesty (as determined by [COMPANYNAME]) in providing the Services;

(b)	Failure to Perform:  Consultant fails to perform the Services (as determined by [COMPANYNAME]);

(c)	Felony Conviction:  Consultant is convicted of a felony;

(d)	Business Damages:  Consultant willfully or negligently harms, damages or injures the Proprietary Information, property, business or goodwill of [COMPANYNAME].

Section 3.07 -- Return of Materials:  Upon termination or cancellation of this Agreement, Consultant shall destroy any and all copies of Proprietary Information provided to Consultant by [COMPANYNAME] and shall provide [COMPANYNAME] with a certificate of compliance with this Section 3.07 signed by authorized representatives of Consultant.

ARTICLE IV:  FEES

Section 4.01 -- Rate of Payment: [COMPANYNAME] shall pay Consultant the Consulting Fee for Services rendered by Consultant hereunder, subject to invoicing and approval under Section 4.02.  If [COMPANYNAME] 

Section 4.02 -- Invoices: Consultant shall invoice [COMPANYNAME] according to the Invoice Schedule for the Consulting Fee for Services rendered by Consultant hereunder during such calendar week.  All invoices of Consultant shall be subject to approval by [COMPANYNAME].  [COMPANYNAME] shall pay such invoices within two days of approval by [COMPANYNAME].  Consultant agrees that any and all invoices associated with Consultant work specified by [COMPANYNAME] in a project on a Design Selling Website shall be deemed paid in full if [COMPANYNAME] submits a payment associated with the applicable project on the applicable Design Selling Website.

Section 4.03 -- Costs:  Except as otherwise approved in writing by [COMPANYNAME] in advance, Consultant shall be responsible for all costs incurred by Consultant in providing Services under this Agreement. Such costs shall include (without limitation) all taxes, postage, telephone, travel, material, reproduction, per diem, transportation, lodging, postage and insurance costs.

ARTICLE V:  INTELLECTUAL PROPERTY

Section 5.01 -- Ownership and Title:  Title to the Deliverables, including ownership rights to patents, copyrights, trademarks and trade secrets therein shall be the exclusive property of [COMPANYNAME].  Consultant hereby assigns, transfer and convey any and all rights, title and interests Consultant may have or accrue in the Deliverables including (without limitation) any and all ownership rights to patents, trademarks, copyrights and trade secrets in connection therewith.  Consultant hereby agrees that all Drafts shall be deemed to be “works made for hire” owned by [COMPANYNAME] under the U.S. Copyright Act [17 U.S.C. § 101, et seq.]. Consultant shall promptly identify, disclose and provide all Deliverables to [COMPANYNAME].  Consultant shall cooperate with and assist [COMPANYNAME] in protecting, securing, registering, enforcing and maintaining any and all rights, title and interests in Deliverables.

Section 5.02 -- Confidential Information: Consultant shall not disclose Confidential Information except to Authorized Persons. Consultant shall hold Confidential Information in strict confidence and shall not access, duplicate, use or disclose Confidential Information except as otherwise permitted under this Agreement.

Section 5.03 -- Trade Secrets: Consultant hereby acknowledges and agrees that the Confidential Information derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under Chapter 688 of the Florida, USA Statutes [§688.002(4)] and the Restatements.

Section 5.04 -- No Contest: Consultant shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets of [COMPANYNAME].

Section 5.05 -- Continuation:  The terms and provisions of this Article V shall survive termination and cancellation of this Agreement.

ARTICLE VI:  COVENANT NOT TO COMPETE

Section 6.01 -- Employee Pirating:  Consultant shall not induce or solicit (directly or indirectly) any employee of [COMPANYNAME] to leave the employ of [COMPANYNAME] or engage (directly or indirectly) the services of such employee (as an employee, consultant, independent contractor or otherwise) without the prior written consent of [COMPANYNAME].

Section 6.02 -- Survival:  The terms and provisions of this Article VI shall survive termination and cancellation of this Agreement for a period of two years.

ARTICLE VII:  WARRANTY AND INDEMNIFICATION

Section 7.01 -- Warranty of Services: Consultant represents and warrants that the Services shall be performed by Consultant on a best efforts basis and in accordance with industry standards, all applicable laws and regulations and the guidelines established by [COMPANYNAME]. Consultant shall guarantee performance of all obligations of Consultant under this Agreement.

Section 7.02 -- No Violation of Contract: Consultant represents and warrants that the performance of the Services shall not violate or infringe any agreement, contract or other obligation under which Consultant is bound, or any rights, title or interests of any third party.

Section 7.03 -- Injury: Consultant shall release, defend, indemnify and hold harmless [COMPANYNAME] from any and all claims, liability, damages and costs in connection with harm, injuries and accidents sustained or caused by Consultant.

Section 7.04 -- Indemnification: Consultant shall release, indemnify and hold harmless [COMPANYNAME] from any and all losses and damages to [COMPANYNAME] resulting from any breach of the terms of this Agreement or for any negligent or willful act by Consultant causing damages to [COMPANYNAME] or [COMPANYNAME]'s business or customer relationships including (without limitation) failure by Consultant to follow guidelines established by [COMPANYNAME] in performing Services, failure by Consultant to complete Services, and any misrepresentations as to the performance or completion of Services.

ARTICLE VIII:  MISCELLANEOUS

Section 8.01 -- Assurances: Consultant represents and warrants that all representations, warranties, recitals, statements and information provided to [COMPANYNAME] under this Agreement are true, correct and accurate as of the date of this Agreement.

Section 8.02 -- Entire Agreement: This Agreement contains the entire understanding of the parties relating to the Services and supersedes all previous verbal and written agreements relating to the Services. 

Section 8.03 -- Amendments and Modifications: Any waiver, alteration, modification or amendment of this Agreement shall be void unless such waiver, alteration, modification or amendment is in writing and signed by the parties hereto.

Section 8.04 -- Severability: If a provision of this Agreement is rendered invalid the remaining provisions shall remain in full force and effect.  

Section 8.05 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.

Section 8.06 -- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Section 8.07 -- Governing Law: This Agreement shall for all purposes be governed and interpreted solely and exclusively by the laws of the State of California, USA without reference to conflict of laws principles.  In addition, the venue shall be San Diego, California, USA.

Section 8.08 -- Notice: All communications shall be in writing.  Notices shall be delivered by Certified or Registered Mail - Return Receipt Requested - or by hand to the address set forth below for [COMPANYNAME] and to the addresses set forth on the signature page of this Agreement for Consultant. Notice shall be deemed given on the date of receipt, as evidenced in the case of Certified or Registered Mail by Return Receipt.

	[COMPANYNAME]’s Address:
	
	[COMPANYNAME]
	[ADDRESSLINE1]
	[ADDRESSLINE2]
			
Section 8.09 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require.

Section 8.10 -- Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to [COMPANYNAME]. In addition to other rights which may be available, [COMPANYNAME] shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement by Consultant.

Section 8.11 -- Litigation Expenses: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation and arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration). 

Section 8.12 -- Bankruptcy:  If any party must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by another party, fees and expenses shall be paid by the filing party.  If any party has a bankruptcy proceeding filed against it, the other party shall recover attorney fees, expert witness fees, and other costs incurred by such other party in connection with the bankruptcy proceeding, hearing or trial.

Section 8.13 -- Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach.  All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.

Section 8.14 -- Assignments: Any and all assignments of rights hereunder by Consultant shall be void.

Section 8.15 -- Public Announcements:  All public announcements of the relationship of Consultant and [COMPANYNAME] under this Agreement shall be subject to the prior written approval of [COMPANYNAME].

IN WITNESS WHEREOF, this Agreement has been executed as of the Effective Date.

[COMPANYNAME]:

[COMPANYNAME]:
	
BY:                                                             	 
        	       [COMPANYREP]

DATE:                                                        	 

CONSULTANT:

BY:                                                             	 
        	             [CONSULTANTNAME]

[CONSULTANTNAME]
[ADDRESSLINE1]
[ADDRESSLINE2]

DATE: