Consultant’s Agreement relating to IT systems and applications (Sample)
(When applying the sample Consultant’s Agreement, please make sure that you make any necessary adjustments, supplements or omissions to fit your needs).
Consultant’s Agreement relating to IT systems and applications
The following Agreement is made and entered into between
....... acting as Consultant
...... acting as Client
WHEREBY IT IS AGREED AS FOLLOWS:
§ 1 SUBJECT MATTER OF THE AGREEMENT
- The Consultant shall counsel the client on the following:
- analysis of the system
- decision to purchase and/or
- implementation of the system
- readjustment of the systems.
- The objectives and scope of the services to render as well as the Consultant’s procedures shall be laid down in a consultancy certificate which shall be signed by both parties and constitute a component of this Agreement.
- The Consultant will employ qualified employees and will be prepared to furnish the services to the Client during the whole term of the Agreement.
- Specifications for intermediate stages shall be stipulated in the consultancy certificate.
An alternative to the above formulation of the subject matter of the Agreement:
- shall analyse the IT system used by the Client,
- shall determine which parts of the IT system should be outsourced to the Client’s advantage,
- shall work out a concept of the delimitation between internal and externally-aided parts of the IT system,
- shall state what parts ought to be purchased and adapted of the internal part of the IT system in order to implement the concept,
- shall develop a time schedule and a plan of expenses to implement the concept,
- shall seek legal advice on issues of the concept relating to the right of codetermination and to data protection,
- shall choose the company which is best suited to implement the concept,
- shall monitor the services rendered by the company chosen to implement the concept,
- shall assist the Client in accepting and inspecting the services rendered,
- shall advise the Client in all matters with respect to
- adjustment and upgrades.
§ 2 TIME AND PLACE OF PERFORMANCE
- The Consultant shall furnish the consultancy services agreed upon during his normal working hours from … to … . Extra consultancy services furnished beyond these working hours shall be reimbursed on the basis of a separate agreement.
- For the term of this Agreement, the Client shall place rooms, in which records, documentations and storage media can be stored, at the disposal of the Consultant’s employees engaged in the consultancy.
- Furthermore, if necessary, the Client shall place at the Consultant’s disposal all necessary measures, shall provide all information necessary for the performance of services by the Consultant’s employees and shall supply them with all necessary materials. Moreover, when programming is necessary, the Client shall grant the Consultant’s employees access to the IT system, test data and capacities necessary for data acquisition in due time and scope.
- The Consultant shall summarise the performance in written protocols. When additional performance controls are carried out, the Consultant shall provide respective protocols.
§ 3 FEES AND PAYMENT
- The fee for the work shall be calculated on the basis of the specification of immediate stages as stipulated in contract details according to 1.4. thereof. The fee shall be payable and due when the Consultant provides evidence that he has completed the respective immediate stage of the work.
- If the Client substantially changes the task specification (regarding the presentation of the problem, the configuration, the equipment which is to be purchased or used, the goals, the solution sought or the quantity structure), deadlines and payment stipulated earlier shall be modified respectively. When the Consultant realises that the fees need to be modified, he shall inform the Client about his wish to have it done within a period of two weeks.
§ 4 WARRANTY
- If the Consultant is to provide consultancy services only and if it is the sole duty of the Client to decide for the users upon the IT system to be applied and/or to implement the system, the Consultant shall guarantee for the correctness and appropriateness of his consultancy services, but not for the choice and implementation of the IT system.
- If the Consultant is obliged to develop a new or to implement an existing IT system, the Consultant shall guarantee for the operational availability of the system, but not for the business goals to be reached by means of the system.
- If the Consultant does not successfully remedy the faults pointed out by the Client within an agreed reasonable period, even though he is obliged to do so, the Client shall be entitled to have the faults remedied by a third party at the Consultant’s expense. The Client shall be entitled to demand a payment in advance from the Consultant on the basis of a costs estimate. No deadline shall be necessary, if it can be concluded from the kind of fault or its remedy that the Consultant’s employees in charge cannot carry out their tasks under this Agreement due to the lack of sufficient qualifications.
§ 5 LIABILITY
The Consultant shall be liable for deliberate acts and for acts of gross negligence, for the availability of warranted characteristics, as well as for acts of slight negligence with respect to substantial duties within this Agreement, also those concerning his employees. Any further liability is excluded. This applies also to data losses and other consequential damages. In any other cases, the liability is excluded when the Client has insurance protection.
§ 6 TERMINATION OF AGREEMENT
- Either party may terminate this Agreement at any time, by giving written notice of termination to the other party at least two months prior to the effective date of such termination at the end of a quarter. The termination of this Agreement shall not affect any orders which have been placed by the Client, accepted by the Consultant and determined in the consultancy certificate prior to the notice of termination, except if the Client explicitly waives such orders to be carried out.
- Either party may immediately terminate this Agreement in the event that the other party defaults in its material obligations under this Agreement.
§ 7 INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF THIRD PARTIES, CLIENT’S DUTIES, CONFIDENTIALITY
- All rights in work undertaken in the course of this Agreement shall become the property of the Consultant, only if they have been created due to the work done by the Consultant’s employees or by the Consultant himself. The Client shall have a gratuitous and not exclusive exploitation right which shall require the Consultant’s consent in order to be transferred to third parties.
- The Consultant shall indemnify and hold harmless the Client from any responsibility for any claims by third parties with respect to the infringement of their protective rights for software and problem solutions used to carry out this Agreement.
- During and after the term of this Agreement, the parties shall hold all confidential information concerning the other party obtained in connection with carrying out this Agreement as confidential and not disclose it to any third party. Legal provisions regarding data protection shall be observed. All confidential information and documents shall remain the exclusive property of the respective party and shall not be copied or reproduced in whole or in part by the other party without a prior written consent of the proprietor. Upon termination of this Agreement, the parties shall return to the other all confidential material which each may have received from the other party.
§ 8 CONCLUDING CLAUSES
Any amendments and additions to this Agreement shall be made in writing in order to be effective.
If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, then all other provisions shall be given effect separately therefrom and shall not in any way be affected or impaired thereby. If any covenants set forth are illegal or unenforceable, it is the intention of the parties that such covenant shall not thereby be terminated but shall be deemed amended as soon as possible to the extent necessary to render it valid and enforceable.
Supplement to the Agreement:
Consultancy certificate no. … to the Consultancy Agreement between … and … .
The consultancy service comprises
- Problem analysis
- Working out a solution
- Assisting in the choice of system components
- Assisting in the development of customised software
- Assisting the inspection of the services rendered
- Implementation/exchange of the IT system in the company
- Training/introductory measures
Duration and place of the performance of the consultancy services:
From … to … in …
During the working hours: … .
Written documentation of the consultancy service:
- Job description
- Protocol during service inspection
- Training materials
Materials handed over on …
Consultant’s employee in charge of drafting the materials: …
Client’s employee authorised to receive the materials: …
Fees for the Consultant’s service
Lump sum remuneration for all services furnished: EUR
Hourly/daily/weekly/monthly lump sum: EUR
Itemised lump sum: EUR
Lump sum for overtime work: EUR
(Place, date) … (Place, date)
(Consultant) … (Client)