PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the “Agreement”) is entered into as of the Date(the “Effective Date”) between MISSOURI BOTANICAL GARDEN (“Client”) and ______, an independent consultant (“Consultant”).
WHEREAS, Client wishes to engage Consultant to perform the services identified on Exhibit A attached hereto (the “Services”); and
WHEREAS, Consultant is willing to perform such Services for Client.
NOW, THEREFORE, in consideration of the mutual agreements set forth in this Agreement, and other good and valuable consideration, Client and Consultant agree as follows:
1.Engagement
. Consultant is hereby engaged by Client for the Engagement Period (as defined in Section2)to work as [[insert description]] and perform the Services, and Consultant accepts such engagement on the terms and conditions set forth in this Agreement. The manner in which Services are performed shall be entirely in Consultant’s discretion. Consultant’s success in performing the Services shall be based on the end result only. Client shall provide Consultant with a general orientation, but shall not provide Consultant with any training related to performance of the Services.
2.Engagement Period
. The term of Consultant’s engagement shall commence on [[the Effective Date]] [[Insert Date]] and shall continue until [[Insert Date]], unless earlier terminated (the “Engagement Period”). Thereafter, the parties may mutually agree to renew this Agreement.
3.Termination
. Prior to the expiration of the Engagement Period, this Agreement and Consultant’s engagement may be terminated by either party for convenience upon [[15 days’]] prior written notice to the other party. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease, except that Client shall be obligated to pay Consultant all compensation due (prorated through the date of termination), with such payment to occur promptly following Consultant’s return to Client of all of Client’s confidential information in Consultant’s possession.
4.Fees
.
a.In full satisfaction of Consultant’s performance of the Services, Client shall pay Consultant $______per ______. On a weekly basis, Consultant shall submit an invoice to Client for fees with respect to Services rendered by Consultant during such period. Client shall pay all undisputed invoices within 30 days following receipt.
b.As an independent contractor, Consultant will not be entitled to any insurance, retirement or other benefits afforded generally by Client to its employees. Consultant shall be responsible for all federal, state and local taxes payable in connection with the Services rendered pursuant to this Agreement. Consultant will not be covered under Client’s workers compensation insurance.
5.Consultant’s Service to Others
. Client understands that Consultant has performed and will perform consulting and other services for other clients, and Client agrees that Consultant may continue or begin the performance of such services. Client understands that Consultant’s obligations to other clients will necessarily have an affect on when Consultant schedules his performance of the Services.
6.Warranty
. Consultant warrants that[[OPTIONAL - LIST SPECIFIC QUALIFICATIONS THAT THIS CONSULTANT MUST HAVE OR THAT IT HAS REPRESENTED IT HAS.]] it will provide all Services in a professional and workmanlike manner in accordance with the highest industry standards. Consultant makes no other warranties, whether regarding services, personnel or any other aspects of Consultant’s performance under this Agreement, including without limitation warranty of fitness for purpose of merchantability.
7.Confidential Information; Intellectual Property Rights
. The parties agree that during the Engagement Period, Consultant may be exposed to or receive certain confidential and proprietary information of Client relating to Client’s business, plans, activities, initiatives and the like. Consultant agrees that during the Engagement Period, as well as for a period of three (3) years following the termination of this Agreement, Consultant will not use for himself or disclose to any other party any of Client’s confidential and proprietary information, except as required for Consultant to perform the Services hereunder or as otherwise authorized by Client. Further, all ideas which are developed by Consultant while performing the Services hereunder and which relate to the business of Client are and shall be the sole and exclusive property of Client, and Client shall own any and all worldwide right, title and interest in, to and under such ideas. Consultant hereby agrees to assign, and does assign, to Client any and all worldwide right, title and interest in, to and under such ideas.
8.Insurance
. Consultant agrees to indemnify Client for any damages it may cause to Client’s property or staff while engaged under this Agreement. Consultant agrees to provide its own liability and vehicle insurance coverage sufficient to cover any potential damages; provided, however, that at all times during the Engagement Period, Consultant shall have the following insurance coverage: General Commercial Liability Coverage with limits of not less than $2,000,000 in the aggregate / $1,000,000 per occurrence.
9.Indemnification
. Consultant shall indemnify, defend and hold harmless Client from and against, and waive any claim for contribution or indemnity from Client with respect to, any and all claims, losses, damages, injuries, liabilities, expenses or costs (including reasonable attorneys’ fees), incurred to the extent resulting from or arising out of (a) any breach or violation by Consultant of his representations, warranties, covenants, or agreements contained in this Agreement, (b) any action (or inaction) of Consultant in connection with his performance or non-performance, as the case may be, of his obligations under this Agreement.
10.Limitation of Liability
. IN NO EVENT SHALL CLIENT BE LIABLE TO ANY PERSON IN RESPECT OF THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER.
11.Independent Contractor
Consultant is retained by Client only for the purposes of, and to the extent set forth in, this Agreement, and the relationship of Consultant with Client under this Agreement during the term of this Agreement shall be that of an independent contractor. Consultant will devote such time, attention, skill, energy and efforts as needed to faithfully perform the Services, and will perform the Services in a professional manner that reflects positively on Client, but Consultant shall have the full authority to select the means, manner and method of performing such Services. Consultant shall not be considered by reason of this Agreement as being an employee of Client.
12.General
.
a.Consultant’s obligations under the Agreement shall be subject to delay or prevention by accident, illness, failure of means of transportation, act of God, riots, strikes, labor difficulties, epidemics, any act or order of any public authority or any other cause, similar or dissimilar, beyond Consultant’s control.
b.During the Engagement Period, this Agreement shall be freely assignable by Client and shall inure to the benefit of, and be binding upon, Client, its successors and assigns and/or any other corporate entity which shall succeed to the business presently being operated by Client, but, being a contract for personal services, neither this Agreement nor any rights hereunder are assignable by Consultant at any time.
c.This Agreement constitutes the entire agreement between Consultant and Client with respect to the matters covered in this Agreement. Client acknowledges that it is entering into this Agreement solely on the basis of the representations contained in this Agreement.
d.This Agreement shall be governed by the laws of the State of Missouri, without regard to its conflict of law rules.
e.Each party covenants and warrants that the person executing this Agreement on its behalf has been duly authorized to do so and this Agreement constitutes valid and binding obligations of each party.
f.All notices under this Agreement shall be in writing and shall be (i) delivered in person, (ii) sent by reputable express courier or delivery service, (iii) sent by registered or certified mail, postage prepaid, return receipt requested, or (iv) sent by facsimile machine followed by delivery by an of the above methods, addressed as follows:
Notice to Client to be sent to:
Missouri Botanical Garden
4344 Shaw Blvd
St. Louis, MO 63110
Attn: Rick Angevine
Notice to Consultant should be sent to: (Name and address)
______
______
______
This notice address may be changed by any party by giving notice under this provision. Notices shall be deemed delivered (a) on the date hand delivery is made, (b) on the next business day following the date that the notice is deposited with an overnight delivery service, (c) on the date that is two (2) calendar days after the notice is deposited in the United States mail by registered or certified mail, or (d) on the date transmission is made by facsimile machine.
g.Client shall be responsible at its own expense for obtaining all licenses for software which is used by Client or Consultant, including any software that is used to perform the functions resulting from the Services.
h.No provision of this Agreement shall be deemed waived, amended or modified by either party unless such waiver, amendment or medication is in writing and signed by the party against whom enforcement of the waiver, amendment or modification is sought. The waiver of one default under this Agreement by either party shall not constitute a waiver of subsequent defaults.
i.In the event that any term of this Agreement is declared invalid or void by any court or tribunal of competent jurisdiction, such term shall be null and void and shall be deemed deleted from this Agreement, and all remaining terms of the Agreement shall remain in full force and effect.
j.This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Client and Consultant have executed this Agreement as of the Effective Date.
CLIENT:
Missouri Botanical Garden
Print Name:
CONSULTANT:
By:
Print Name:
An Individual and Independent Contractor
1
SL01DOCS\3841059.3