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Consulting Services Agreement

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Governing Law: New York     Date: 8/9/2016
Industry: Biotechnology and Drugs     Sector: Healthcare

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Exhibit 10.1


This CONSULTING AGREEMENT, including all referenced attachments (collectively, the “Agreement”), sets forth the terms and conditions under which DANIEL COUTO , an individual with a principal place of business located at 61 Bacon Hill Road, Pleasantville, New York, 10570 (“Consultant”) shall provide certain consulting services as described below for or on behalf of CONTRAFECT CORPORATION , located at 28 Wells, Avenue, 3 rd Floor, Yonkers, New York 10701 (“ContraFect”). This Agreement is entered into as of May 1, 2016 (the “Effective Date”). The parties agree as follows:



Term .  This Agreement shall be for a 6 month term beginning on the Effective Date and terminating on October 31, 2016 (the “Term”), with the understanding that by mutual agreement in writing, the period may be extended under new or existing terms.



Services .  During the Term of this Agreement, Consultant agrees to provide the services specified in Appendix 1 (the “Services”). Consultant represents and warrants to ContraFect that the Services performed by Consultant hereunder will be of professional quality, consistent with generally accepted industry standards for work of a similar nature. Consultant shall comply with all applicable laws in performing the Services.



Consultancy Fee .  Consultant shall be paid by ContraFect for the performance of Services, as set forth in Appendix 1. ContraFect will only reimburse reasonable expenses incurred in performing the Services that are pre-approved by ContraFect in writing. Consultant shall provide ContraFect with all documentation in support of such expenses as ContraFect may reasonably require. Payments due to the Consultant under this Agreement will be made within thirty (30) days after receipt of the proper invoices.



Independent Contractor .




Relationship of the Parties . The status of Consultant shall be that of an independent contractor only, and all of the Services which Consultant shall render to ContraFect in connection with this Agreement shall be as an independent contractor with respect to ContraFect. Consultant shall not be considered an employee of ContraFect. Nothing contained in this Agreement shall constitute or be deemed to constitute the parties to this Agreement in the relationship of partners, joint venturers, principal/agent, employer/employee, or master/servant, or as an insurer or a representative of the other party to this Agreement.




ContraFect Benefits . Consultant shall not be entitled to participate in or receive any benefits or have any rights as an employee of ContraFect under any employee pension or welfare benefit plan, or any fringe benefit plan, including without limitation, any qualified or nonqualified deferred compensation plan, any bonus or compensation plan, any stock, restricted stock or stock option plan, any severance plan, any long-term or short-term disability plan, any medical, dental or insurance plan, any personnel program or policy, or any flexible spending arrangement sponsored or maintained by ContraFect (each, a “Plan”). In addition, even if Consultant’s status as an independent contractor is reclassified by a Federal or state governmental entity, a court or a third party arbitrator to constitute an employee or a common law employee of ContraFect, Consultant shall not be eligible to participate in or receive any benefits or have any rights as an employee of ContraFect under any Plan unless and until ContraFect consents to such eligibility in writing. Consultant will not be covered by any ContraFect liability insurance policies during the term of this Agreement.




Liability for Taxes . Consultant shall not be considered an employee of ContraFect for purposes of any Federal, state or local laws regarding employment related taxes, including, but not limited to, reporting, paying, withholding or remitting any income tax, FICA, FUTA, unemployment insurance, social security, workers’ compensation, disability insurance or any


laws or regulations which may impute any obligation or liability to ContraFect by reason of an employment relationship. Consultant acknowledges and agrees that he/she shall pay all taxes, fees and levies or other charges of any type imposed by any Federal, state or local governmental authority on any fees that Consultant receives under this Agreement.




Authority to Act . This Agreement shall not be construed as authority for Consultant to act as ContraFect’s agent or in any other similar capacity, or to make commitments of any kind for the account of or on behalf of ContraFect.




Other Clients . ContraFect acknowledges that Consultant has and may seek other clients during the Term of this Agreement. Subject to Section 12 of this Agreement, ContraFect agrees that it will not interfere with or hinder Consultant’s efforts to attract or provide services to any other clients provided that during the Term of this Agreement, and any renewal(s), Consultant and Consultant’s employees and agents shall not undertake to render consulting services of the nature herein described to any other person, firm, or corporation in connection with the promotion, sale or marketing of any product(s), good(s), or service(s) which compete with those offered by ContraFect. Consultant warrants and represents that Consultant has not previously assumed any obligations inconsistent with those of this Agreement.



Confidentiality .  Consultant shall not disclose or use, at any time during or subsequent to the Term of this Agreement, any proprietary, secret, or confidential information of ContraFect or its commercial partners created, learned, or acquired by Consultant in the course of performing the Services hereunder including, without limitation, information about inventions, products, processes, methods, techniques, formulas, compositions, compounds, projects, development plans, research, data, clinical data, financial data, investor relations, potential investors, financing arrangements, personnel data, computer programs, customer and supplier lists or such organizations or individuals, research, commercial or other activities (“Information”). Consultant shall not use or copy any Information for any purpose other than as required to perform the Services under this Agreement and for no other purpose. Consultant shall only disclose Information to its employees on a strict need-to-know basis. Consultant shall be fully liable towards ContraFect for the acts and omission of the employees who have received Information, as if they were the Consultant’s acts or omissions.

The confidentiality obligations and use limitations set forth above shall not apply to Information which Consultant can demonstrate:




is or becomes generally available to the public otherwise than by reason of breach by Consultant of the provisions of this Agreement;




is known to Consultant and is at Consultant’s free disposal (having been generated independently by the Consultant or a third party, in circumstances where it has not been derived directly or indirectly from ContraFect) provided that documentary evidence of such knowledge is furnished by Consultant to ContraFect within thirty (30) days of receipt of demand for such proof;




is subsequently disclosed to Consultant without obligation of confidence by a third party owing no such obligations to ContraFect in respect of that Information; or




is required by law to be disclosed but then only when prompt notice of this requirement has been given to ContraFect so that it may, if so advised, seek appropriate relief to prevent or limit such disclosure provided always that any disclosure shall be only to the extent so required and shall be subject to prior consultation with ContraFect with a view to agreeing timing and content of such disclosure.



ContraFect Property .  In connection with the Services, ContraFect may provide Consultant with equipment, materials, documents, data, records, raw materials, drug, medical device, clinical materials, or other tangible property (collectively, “ContraFect Property”).




ContraFect shall retain ownership of ContraFect Property. Nothing in this Agreement shall be construed as granting or conferring any rights by express or implied license or otherwise to Consultant in ContraFect Property other than the rights expressly set forth herein. ContraFect hereby grants Consultant the right to use the ContraFect Property solely for the purpose of performing the Services as specified herein and for no other purpose. Consultant shall keep such ContraFect Property safely and securely. Upon the completion of the Services, Consultant shall return and/or destroy the ContraFect Property as requested by ContraFect.



Inventions and Discoveries .  Any invention or discovery (whether patentable or not), copyright material or confidential know-how which may be made, discovered, conceived or reduced to practice by the Consultant as a result of or in connection with Consultant’s performance of the Services or exposure to any Information or ContraFect Property, together with any associated patent, copyright, trademark, trade secret and other intellectual property rights (collectively, “Works”) shall belong absolutely to ContraFect. Consultant (on behalf of itself and each employee and agent of Consultant that performs any portion of the Services) agrees to, and does hereby, assign and transfer to ContraFect any and all of Consultant’s rights, title, and interest in and to the Works. Consultant shall execute and deliver all instruments and take all actions as may be necessary or reasonably requested by ContraFect to document the assignment and transfer of the Works to ContraFect, or to enable ContraFect to secure, register, maintain, enforce, or otherwise fully protect its rights in and to the Works.



Equitable Relief . Consultant hereby acknowledges and agrees that damages at law may be an inadequate remedy for any breach of Consultant’s obligations under Section 5 (Confidentiality) or Section 7 (Inventions and Discoveries), and accordingly, Consultant agrees that ContraFect will be entitled to such temporary, preliminary, and permanent injunctive relief as may be necessary to remedy or limit such breach, without the necessity of proving actual damages or posting any bond or other security, including, without limitation, specific performance of such obligations and an order enjoining Consultant from the continuation of, or from any threatened, breach of such obligations. The rights set forth in this paragraph shall be in addition to, and not in lieu of, any other rights which ContraFect may have at law in or in equity.



Termination .  Either party may terminate this Agreement at any time by written notice to the other having immediate effect in the event of the other party being in material breach of any of the terms or conditions of this Agreement and, only where such breach is capable of remedy, failing to remedy such breach within thirty (30) days of written notice requiring such breach to be remedied. In addition, ContraFect may terminate this Agreement upon written notice to Consultant.



Effect of Termination . Upon expiration or termination of this Agreement, Consultant shall promptly deliver to ContraFect: (a) all work product or deliverables completed and in progress pursuant to this Agreement; (b) complete and accurate documentation of the Services provided in accordance with Section 2 ; and (c) all Information and ContraFect Property. To the extent that payments by ContraFect under this Agreement exceed the fees and expenses owing for Services actually provided and expenses actually incurred, Consultant shall promptly refund to ContraFect any and all excess funds, but under no circumstances shall said reimbursement exceed sixty (60) days from the date of termination. If ContraFect terminates this Agreement without cause, Consultant

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