Policies and Forms
Consulting Agreements
Harvard is not a party to consulting agreements between Harvard inventors and companies. As a courtesy, however, OTD provides a sample consulting agreement as guidance. As an alternative to using the sample agreement, investigators may wish to attach the recommended set of standard provisions to a consulting agreement provided by the company.
The sample agreement displayed below is also available for viewing/download as a PDF file.
Sample Consulting Agreement
Between [COMPANY [address]]
and [PROFESSOR [address]]
This agreement, by and between [company] and [professor], witnesseth that:
In consideration of the mutual promises hereinafter set forth, [company] and [professor] do hereby agree as follows:
This agreement pertains to consulting services and advice to be furnished to [company] by [professor] during the period commencing [start date] and ending [end date]. During the period of the agreement [professor] will devote [#] days of service to [company] as requested from time to time by [company] and mutually agreed upon in advance. The amount paid for said services under this agreement exclusive of travel and living expenses shall be [amount] dollars ([$]) for each day in a consulting capacity to [company]. Assignment of this agreement or of any interest therein by either party, or of any payment due or to become due hereunder, without prior written consent of the other party, shall be void.
[Professor] will participate as a consultant and advisor in the field and technologies pertaining to [field of consultantship], excluding areas relating to [excluded fields].
The sum stated in paragraph one (1) above will compensate [professor] for services rendered. Travel and living expenses incurred as a result of fulfilling this agreement will also be reimbursed by [company].
The work contemplated under this agreement may require that [professor] have access to information which is proprietary and/or confidential to [company]. [Professor] agrees not to publish or otherwise disclose to persons outside [company], without specific permission, any proprietary and/or confidential information acquired from [company] by him or her as a result of participation in studies under this agreement; nor to use said information for any purposes other than consultation with [company]. [Company] shall designate in writing all information which it considers to be confidential.
It is understood that this agreement is not intended to restrict [professor]'s use or disclosure of information which (i) is or later becomes publicly known under circumstances involving no breach of this agreement; (ii) was already known to [professor] (other than by previous disclosure to him or her by [company] or through services performed by him or her for [company]) as evidenced by his or her written records; (iii) is lawfully and in good faith made available to [professor] without restriction on disclosure by a third party; or (iv) which is created or originated by [professor] outside this consultation. It is further agreed and understood that specific information disclosed to [professor] by [company] shall not be deemed to be available to the public or in his or her prior possession merely because it is embraced by more general information available to the public or in his or her prior possession. [Professor] will not publish on the specific work covered by this agreement without first providing [company] with a reasonable opportunity to review and comment on the contemplated publication for the purpose of protecting its interest in any patentable subject matter referred to therein.
[Professor] will communicate findings, conclusions, recommendations, and supporting data and analyses to [company], and any such reports shall become the property of [company].
It is agreed and [professor] agrees that any and all inventions and discoveries, whether or not patentable, which [professor] conceives and/or makes within the consulting period and which are a direct result of his consulting with [company] under this agreement and/or a direct result of confidential information received from [company] and not subject to his or her prior obligations to Harvard University or other sponsors of his or her University research shall be the property of [company]. [Professor] further agrees that he or she will, upon request by [company], promptly execute all applications, assignments, or other instruments which [company] shall deem necessary or useful in order to apply for and obtain Letters Patent in the United States and any foreign countries for such inventions and discoveries. It is understood that [company] will bear the cost of any such patent filing and prosecution.
Although [Professor]'s work at Harvard University is being supported by outside sponsorship agreements, it is unlikely that any inventions made in the course of this agreement will be subject to the patent provisions of such agreements. [Professor] represents that he or she is not a party to any existing agreement which would prevent his or her entering into this consulting agreement, but advises [company] that he or she is a member of Harvard University and has executed the standard Harvard Participation Agreement. As a member of the University, [professor] is responsible for ensuring that any consulting agreement he or she enters into is not in conflict with the patent and copyright policy of the University or in conflict with other University commitments. Under his or her Participation Agreement, he or she is required to disclose to the University any inventions made by him or her during the course of his or her work at the University. Disclosure of inventions by University members regarding professionally related consulting work is recognized by [company] as necessary in order that the University fully comply with its contractual obligations and commitments. In the event of any conflict between this agreement and the conditions of [professor]'s Participation Agreement with the University, the latter shall prevail.
[Professor] is an independent contractor under this agreement. He or she is not an employee of [company] and will not be entitled to participate in or receive any benefit or right as a [company] employee under any [company] employee benefit and welfare plans, including, without limitations, employee insurance, pension, savings and security plans as a result of his or her entering into this agreement.
It is understood that this agreement will run the full term stated in paragraph one (1) above at which time it will be renewable as mutually agreed by the parties. The agreement may be terminated by either party upon ___ days notice.
[Designated representative] shall represent [company] in administering this agreement and must make and approve all requests for [professor]'s services in order for such services to qualify for payment pursuant to paragraph three (3) of this agreement. [Designated representative] may by written notice appoint another designated representative for the above purposes.
This agreement is the sole agreement between [professor] and [company] with respect to consulting service to be performed during the term of this agreement and it supersedes all prior agreements and understandings with respect thereto. No change, modification, alteration or addition to any provision hereof shall be binding unless in writing and signed by both [professor] and a duly authorized representative of [company].
This agreement shall be construed, interpreted, and applied in accordance with laws of the Commonwealth of Massachusetts.
ACCEPTED AND AGREED TO:
[Signatures: for Company, for Professor]
The sample agreement displayed above is also available for viewing/download as a PDF file.
The sample agreement displayed below is also available for viewing/download as a PDF file.
Standard Consulting Agreement Provisions (Harvard University)
Attachment to [CONSULTING AGREEMENT] between [CONSULTANT] and [COMPANY].
In order that Consultant's commitments to Company are consistent with Consultant's obligation to Harvard, it is strongly recommended that these standard Provisions be attached to and become a part of any Consulting Agreement (Agreement) between Consultant and Company. By signing these Standard Provisions, the parties to the Agreement agree to abide by these Standard Provisions, and further agree that if anything in the Agreement is inconsistent with these Standard Provisions, these Standard Provisions shall govern.
Nothing in the Agreement shall limit or be construed to limit the right of Consultant to use or publish information which (a) is or becomes available to the public through no breach of the Agreement by Consultant, (b) was known to Consultant before the consulting services were performed, (c) is acquired by Consultant from a third party that has the legal right to disclose the information to the Consultant, or (d) Consultant is required to disclose by law, government regulation, or court order. In addition, information generated by Consultant pursuant to the Agreement shall be proprietary to the Company only if (a) such information is generated as a direct result of the performance of consulting services under the Agreement and (b) is not generated in the course of the Consultant's activities as a Harvard employee.
Consulting services shall not involve any use of the funds, personnel, facilities, materials, or other resources of Harvard, provided that Consultant may use the library and the Consultant's office, phone and personal computer.
Neither the name of the Consultant nor that of Harvard, nor any variation thereon, nor adaptation thereof may be used in any advertising, promotional sales literature, or other publicity without the prior written approval of the party whose name is to be used.
Consultant's rights, title and interest in inventions, discoveries and developments conceived or reduced to practice in the performance of Company funded consulting services made solely by Consultant or jointly with Company employees or agents (Consulting Inventions) may be assigned to the Company, so long as the provisions in Paragraph 6 below are not applicable. Consultant shall disclose to Harvard's Office of Technology and Trademark Licensing, in confidence, all Consulting Inventions which are related to Consultant's research, clinical, or educational activities at Harvard in order to provide Harvard an opportunity to assess, together with the Company, whether the invention is subject to the provisions of Paragraph 6 below.
Notwithstanding Paragraph 5 above, Company agrees and understands that Consultant has a pre-existing obligation to assign to his or her employer, Harvard, all of Consultant's rights in intellectual property which arise or are derived from Consultant's employment at Harvard or which utilize the funds, including funding from any outside source awarded to or administered by Harvard, personnel, facilities, materials, or other resources of Harvard including resources provided in-kind by outside sources. Company has no rights by reason of this Agreement in any publication, invention, discovery, improvement or other intellectual property, whether or not publishable, patentable, or copyrightable that is subject to Consultant's obligations to Harvard. Company also acknowledges and agrees that it will enjoy no priority or advantage as a result of the consultancy created hereunder in gaining access, whether by license or otherwise, to any proprietary information or intellectual property of Harvard.
Consultant shall not disclose to Company any unpublished results of research performed at Harvard by Consultant or any other Harvard employee, student, or member of the professional staff. Other than the inventions assigned to Company pursuant to Paragraph 5 above, Company shall have no rights or interests in any other inventions, discoveries or developments owned by or assignable to Harvard.
Nothing in the Agreement shall be construed to restrict or limit the duties Consultant is performing or may perform in the course of, or incidental to, Consultant's right to serve as an advisor to any hospital, or to any governmental or not-for-profit organization.
Each party to the Agreement acknowledges (i) that the Consultant is entering into the Agreement, and providing services to the Company, in the Consultant's individual capacity and not as an employee or agent of Harvard, (ii) Harvard is not a party to this Agreement and has no liability or obligation hereunder, and (iii) Harvard is intended as a third party beneficiary of this Agreement and certain provisions to this Agreement are for the benefit of Harvard and are enforceable by Harvard in its own name.
The Standard Provisions shall be and hereby are in force and effect for the entire term of any Agreement between Consultant and Company.
ACCEPTED:
[Signatures: for Company, for Consultant]
The sample agreement displayed above is also available for viewing/download as a PDF file.