Consulting Services Agreement

CONSULTING SERVICES AGREEMENT

Commonwealth of Massachusetts

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THIS CONSULTING SERVICES AGREEMENT (this "Agreement") is made and entered into as of the [____] day of [________________], 20[____] (the "Effective Date"), by and between:

CLIENT:
Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Entity Type: ☐ Individual ☐ Sole Proprietorship ☐ LLC ☐ Corporation ☐ Partnership ☐ Other: [________________]
State of Organization: [________________________________]
Federal Tax ID/EIN: [________________________________]

(hereinafter referred to as "Client")

AND

CONSULTANT:
Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Entity Type: ☐ Individual ☐ Sole Proprietorship ☐ LLC ☐ Corporation ☐ Partnership ☐ Other: [________________]
State of Organization (if applicable): [________________________________]
Federal Tax ID/EIN or SSN: [________________________________]
Massachusetts Business Registration (if applicable): [________________________________]

(hereinafter referred to as "Consultant")

Client and Consultant are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

IMPORTANT MASSACHUSETTS NOTICE: Massachusetts applies one of the strictest independent contractor classification tests in the United States (the "ABC test" under M.G.L. c. 149 § 148B). Misclassification of an individual as an independent contractor when the ABC test is not satisfied may result in treble damages, attorney's fees, and criminal penalties. The Parties must ensure this engagement satisfies all three prongs of the Massachusetts ABC test. Legal counsel should be consulted before execution.

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RECITALS

WHEREAS, Client desires to engage Consultant to provide certain consulting and professional services as more particularly described herein and in the Statement of Work attached hereto as Exhibit A; and

WHEREAS, Consultant represents that it possesses the necessary qualifications, skills, experience, expertise, and professional licenses (if required) to perform such consulting services; and

WHEREAS, the Parties intend to establish an independent contractor relationship satisfying the requirements of M.G.L. c. 149 § 148B, and not an employment, partnership, joint venture, or agency relationship; and

WHEREAS, Consultant has reviewed this Agreement with independent legal counsel;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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ARTICLE 1: DEFINITIONS

1.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means ownership of more than fifty percent (50%) of voting securities or equivalent.

1.2 "Business Day" means any day other than a Saturday, Sunday, or a day on which banks in the Commonwealth of Massachusetts are authorized or required to close.

1.3 "Change Order" means a written document signed by both Parties that modifies the scope, schedule, fees, or other terms of a Statement of Work.

1.4 "Confidential Information" means any and all non-public information disclosed by either Party relating to its business, products, services, trade secrets, know-how, personnel, customers, finances, or other proprietary matters. Confidential Information includes information that qualifies as a "trade secret" under the Massachusetts Trade Secrets Act, M.G.L. c. 93 § 42 et seq.

1.5 "Deliverables" means all work product, reports, analyses, recommendations, documents, data, software, code, designs, specifications, presentations, inventions, or other materials created by Consultant in connection with the Services.

1.6 "Effective Date" means the date first written above.

1.7 "Intellectual Property" or "Intellectual Property Rights" means all patents, copyrights, trademarks, service marks, trade names, trade secrets, know-how, inventions, designs, processes, techniques, software, databases, and other intellectual property rights worldwide.

1.8 "Personal Information" means a Massachusetts resident's first name and last name, or first initial and last name, in combination with any one or more of the following data elements: Social Security number, driver's license number or state identification card number, financial account number, or credit/debit card number (as defined in M.G.L. c. 93H § 1).

1.9 "Pre-Existing Materials" means materials, methodologies, tools, templates, frameworks, software, libraries, know-how, or other intellectual property owned by Consultant prior to the Effective Date or developed independently of the Services.

1.10 "Services" means the consulting and professional services described in Article 2 and the Statement of Work attached hereto as Exhibit A.

1.11 "Statement of Work" or "SOW" means the document attached hereto as Exhibit A, and any subsequent SOWs, describing specific Services, Deliverables, timelines, milestones, acceptance criteria, and fees.

1.12 "Work Product" means all Deliverables, inventions, discoveries, improvements, ideas, designs, works of authorship, documentation, and other work product created by Consultant in connection with the Services.

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ARTICLE 2: SCOPE OF SERVICES

2.1 Engagement. Client engages Consultant, and Consultant accepts, to perform the Services described in the Statement of Work attached as Exhibit A. Additional SOWs may be executed from time to time.

2.2 Standard of Performance. Consultant shall perform the Services:

(a) In a professional, diligent, workmanlike, and timely manner;

(b) Consistent with the highest standards in Consultant's industry or profession;

(c) In accordance with the SOW specifications, requirements, and timelines;

(d) Using personnel with appropriate skills, training, and experience;

(e) In compliance with all applicable federal, state, and local laws, including Massachusetts law; and

(f) Free from material defects and errors.

2.3 Service Deliverables. Consultant shall provide all Deliverables per the SOW delivery schedule, format, and acceptance criteria.

2.4 Additional Services. Additional services must be documented in a written amendment or new SOW signed by both Parties.

2.5 Consultant Personnel.

(a) Consultant shall assign qualified personnel. Key personnel shall not be changed without Client's written consent.

(b) Client may request replacement of unsatisfactory personnel at no additional cost.

(c) Consultant may engage subcontractors with Client's prior written consent, remaining fully responsible for their performance and ensuring they are bound by equivalent confidentiality and IP obligations.

2.6 Client Cooperation. Client shall provide reasonable access to personnel, facilities, systems, and information; designate a primary contact; provide timely decisions and feedback; and perform SOW responsibilities.

2.7 Change Orders. No changes to the Services shall be effective unless in a signed Change Order.

2.8 Project Management. Consultant shall provide regular status reports, prompt notice of issues, and attend project meetings as requested.

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ARTICLE 3: TERM AND TERMINATION

3.1 Term. This Agreement shall commence on the Effective Date and continue for [________________] (the "Initial Term"), unless earlier terminated.

☐ No Automatic Renewal.

☐ Automatic Renewal for successive [________________] periods, unless either Party gives [____] days' written notice of non-renewal.

3.2 SOW Term. Each SOW has its own term. Expiration of a SOW does not affect this Agreement.

3.3 Termination for Convenience. Either Party may terminate upon [____] days' written notice. Client shall pay for all Services performed and expenses incurred through the termination date.

3.4 Termination for Cause. Either Party may terminate immediately if:

(a) The other Party materially breaches and fails to cure within [____] days of written notice;

(b) The breach is incurable;

(c) The other Party becomes insolvent or files for bankruptcy;

(d) The other Party engages in fraud, gross negligence, or willful misconduct.

3.5 Termination for Non-Payment. Consultant may terminate upon [____] days' notice if Client fails to pay undisputed amounts after [____] days' written notice.

3.6 Effect of Termination.

(a) Consultant shall cease Services and deliver all Work Product within [____] days;

(b) Client shall pay for Services performed;

(c) Each Party shall return or destroy Confidential Information;

(d) Licenses for paid-for Deliverables survive;

(e) Articles 1, 5, 6, 8, 9, 10, and 13 survive.

3.7 Transition Assistance. Upon request and at Client's expense, Consultant shall provide transition assistance for up to [____] days.

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ARTICLE 4: COMPENSATION AND PAYMENT TERMS

4.1 Fee Structure. (Check all that apply)

☐ Fixed Fee: $[________________], payable as: [________________________________].

☐ Hourly Rate:

• Senior Consultant/Principal: $[________]/hour
• Consultant: $[________]/hour
• Associate/Analyst: $[________]/hour
• Administrative: $[________]/hour
• Not-to-Exceed: $[________________]

☐ Daily Rate: $[________]/day (minimum [____] hours).

☐ Monthly Retainer: $[________]/month for [____] hours. Additional at $[________]/hour. Unused hours ☐ shall ☐ shall not roll over.

☐ Milestone-Based: Per SOW.

☐ Value-Based/Success Fee: [________________________________].

☐ Blended Rate: $[________]/hour.

4.2 Rate Adjustments. Rates are fixed for the Initial Term. Renewal adjustments up to [____]% with [____] days' notice.

4.3 Expenses. Client shall reimburse pre-approved expenses. Threshold: up to $[________] no pre-approval; over $[________] requires written approval. Monthly cap: $[________]. Receipts required for expenses over $[____].

4.4 Invoicing. Consultant shall invoice:
☐ Monthly ☐ Bi-weekly ☐ Per milestone ☐ Upon completion ☐ Other: [________]

Invoices submitted to: [________________________________] at [________________________________].

4.5 Payment Terms. Client shall pay within [____] days of proper invoice. Payment by:
☐ Check ☐ ACH ☐ Wire ☐ Credit Card ([____]% fee) ☐ Other

4.6 Late Payment Interest. Any amounts not paid when due shall bear interest at:

☐ Six percent (6%) per annum (Massachusetts default interest rate); or

☐ Twelve percent (12%) per annum (M.G.L. c. 231 § 6C judgment interest rate); or

☐ One and one-half percent (1.5%) per month (18% per annum); or

☐ [____]% per annum (not to exceed the maximum rate permitted by Massachusetts law)

from the due date until paid in full.

IMPORTANT NOTE — Massachusetts Wage Act (M.G.L. c. 149 § 148): If Consultant is subsequently reclassified as an employee under the Massachusetts ABC test, failure to timely pay wages may result in mandatory treble damages (three times the amount of unpaid wages) plus attorney's fees under the Massachusetts Wage Act. This applies regardless of whether the late payment was intentional.

4.7 Disputed Invoices. Client shall notify Consultant in writing within [____] days, pay undisputed amounts, and resolve disputes in good faith within thirty (30) days.

4.8 Taxes.

(a) Consultant is solely responsible for all taxes.

(b) Client shall not withhold taxes.

(c) Consultant shall provide IRS Form W-9.

(d) Client shall issue IRS Form 1099 as required.

(e) All fees are exclusive of Massachusetts sales tax unless otherwise specified.

4.9 Records and Audit. Consultant shall maintain records for [____] years. Client may audit upon reasonable notice. Overcharges exceeding [____]% shall be reimbursed with audit costs.

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ARTICLE 5: CONFIDENTIALITY AND TRADE SECRETS

5.1 Obligations. Each Party shall: hold Confidential Information in strict confidence; not disclose without written consent; not use except for this Agreement; and take reasonable protective measures.

5.2 Protective Measures. The Receiving Party shall use at least reasonable care, limit access to those with a need to know, and ensure all such persons are bound by written confidentiality obligations.

5.3 Exclusions. Confidentiality obligations do not apply to information that: is publicly available; was in the Receiving Party's possession without obligation; was obtained from a third party without restriction; was independently developed; or was authorized for release.

5.4 Required Disclosure. If compelled by law, the Receiving Party shall provide prompt notice, cooperate in seeking protection, and disclose only the minimum.

5.5 Massachusetts Trade Secrets Act (MUTSA). Pursuant to M.G.L. c. 93 § 42 et seq.:

(a) A "trade secret" means anything tangible or intangible or electronically kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement (M.G.L. c. 93 § 42);

(b) Any person who embezzles, steals or unlawfully takes, carries away, conceals, or copies, or by fraud or by deception obtains from any person any trade secret shall be liable for misappropriation;

(c) Remedies include injunctive relief and damages (M.G.L. c. 93 § 42);

(d) The Parties also acknowledge that the federal Defend Trade Secrets Act (18 U.S.C. § 1836) may provide additional remedies, including ex parte seizure orders in extraordinary circumstances;

(e) Confidentiality obligations for information constituting trade secrets shall continue for as long as such information remains a trade secret.

5.6 Return or Destruction. Upon termination, each Party shall return or destroy all Confidential Information and certify in writing.

5.7 Injunctive Relief. Breach may cause irreparable harm; the non-breaching Party may seek injunctive relief.

5.8 Duration. Except for trade secrets, obligations survive for [____] years after termination.

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ARTICLE 6: INTELLECTUAL PROPERTY AND WORK PRODUCT

6.1 Ownership. All Work Product shall be Client's sole property. Consultant irrevocably assigns all right, title, and interest worldwide.

6.2 Work Made for Hire. To the extent Work Product qualifies as "work made for hire" under 17 U.S.C. § 101, Client is the author and owner. Otherwise, Consultant assigns all copyrights to Client.

6.3 Inventions. Consultant assigns all inventions conceived in connection with the Services or using Client's Confidential Information.

6.4 Further Assurances. Consultant shall execute documents, cooperate in IP prosecution, assist in legal proceedings, and grants Client an irrevocable power of attorney for these purposes.

6.5 Pre-Existing Materials. Consultant retains rights in Pre-Existing Materials (Exhibit B). Consultant grants Client a perpetual, irrevocable, royalty-free, worldwide license with sublicense rights for Pre-Existing Materials incorporated into Deliverables.

6.6 Third-Party Materials. No third-party materials without Client's written consent. Consultant shall identify, license, and indemnify.

6.7 Moral Rights. Consultant waives moral rights to the extent permitted by law.

6.8 Client Materials. Client retains all rights. Consultant uses them only for the Services.

6.9 Residual Knowledge. Consultant may use general skills and knowledge retained in unaided memory; this is not a license to Client's Confidential Information or IP.

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ARTICLE 7: INDEPENDENT CONTRACTOR STATUS

7.1 Independent Contractor Relationship. The relationship between Client and Consultant is that of independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship.

7.2 Control and Discretion. Consultant has sole control over the manner, means, and methods of performing the Services, including time, place, sequence, tools, equipment, and personnel. Client specifies only the desired results.

7.3 Massachusetts ABC Test (M.G.L. c. 149 § 148B). Massachusetts applies one of the strictest independent contractor classification tests in the United States. Under the Massachusetts ABC test, an individual performing any service shall be considered an employee unless the engaging entity demonstrates ALL THREE of the following:

(a) PRONG A — Freedom from Control and Direction: The individual is free from control and direction in connection with the performance of the service, both under the contract of service and in fact.

The Parties stipulate that Consultant is free from Client's control and direction in performing the Services. Client does not dictate when, where, or how Consultant performs the work. Client may only specify the results and deadlines.

(b) PRONG B — Outside the Usual Course of Business: The service is performed outside the usual course of the business of the employer.

The Parties stipulate that the Services are outside the usual course of Client's business. Client's primary business is [________________________________], which is distinct from the consulting Services provided by Consultant.

☐ IMPORTANT: If the Services are within Client's usual course of business, the ABC test may not be satisfied and the engagement may be classified as employment. Consult Massachusetts legal counsel before proceeding.

(c) PRONG C — Independently Established Trade or Business: The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

The Parties stipulate that Consultant is customarily engaged in an independently established consulting business, as evidenced by:

• Consultant maintains its own business location separate from Client's premises;
• Consultant provides similar services to multiple clients;
• Consultant advertises and holds itself out to the public as providing consulting services;
• Consultant has its own business licenses, insurance, and tax registrations;
• Consultant has its own employees or subcontractors (if applicable);
• Consultant has made significant investment in its own business;
• Consultant has its own business cards, stationery, and professional identity.

7.4 Consequences of Misclassification. The Parties acknowledge that if this engagement is reclassified as employment, the consequences under Massachusetts law may include:

(a) Treble Damages (M.G.L. c. 149 § 150): Mandatory treble damages (three times unpaid wages) for any wage violations, plus reasonable attorney's fees and costs. Massachusetts courts have held that treble damages are mandatory, not discretionary.

(b) Criminal Penalties (M.G.L. c. 149 § 27C): Willful misclassification may result in criminal penalties including fines and imprisonment.

(c) Tax Liability: Back taxes, penalties, and interest for unpaid employment taxes, withholding, workers' compensation premiums, and unemployment insurance contributions.

(d) Attorney General Enforcement: The Massachusetts Attorney General actively enforces independent contractor classification laws.

7.5 No Employee Benefits. Consultant shall not be entitled to any employee benefits from Client.

7.6 Taxes and Withholding. Client shall not withhold taxes. Consultant is solely responsible for all taxes.

7.7 No Authority to Bind. Consultant has no authority to bind Client.

7.8 Consultant's Business Expenses. Consultant bears all its own business expenses except approved reimbursements.

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ARTICLE 8: REPRESENTATIONS AND WARRANTIES

8.1 Mutual Representations. Each Party represents it is duly organized, has full authority, has authorized execution, this Agreement is binding, performance will not violate law or other agreements, and no material litigation is pending.

8.2 Consultant's Representations. Consultant represents:

(a) Possesses necessary qualifications and licenses;

(b) Services will be professional and lawful;

(c) Work Product will be original and non-infringing;

(d) No conflicting rights granted;

(e) Holds all required Massachusetts licenses and permits;

(f) No third-party conflicts;

(g) Personnel authorized to work in the U.S.;

(h) Software free from malicious code;

(i) Deliverables will conform to specifications for [____] days post-acceptance (Warranty Period). Non-conformities corrected at no cost.

8.3 Client's Representations. Client has authority to grant access, will provide accurate information, and owns or has rights to all Client Materials.

8.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

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ARTICLE 9: INDEMNIFICATION

9.1 Indemnification by Consultant. Consultant shall indemnify Client Indemnitees from all Losses arising from: breach of representations or obligations; negligent or wrongful acts; IP infringement (except Client Materials); non-compliance with laws; misclassification claims; personal injury/property damage; and breach of confidentiality.

9.2 Indemnification by Client. Client shall indemnify Consultant Indemnitees from all Losses arising from: breach of representations or obligations; negligent or wrongful acts; Client Materials infringement; and unauthorized use of Work Product.

9.3 Procedures. Prompt notice, Indemnifying Party controls defense, cooperation, and no settlement without consent.

9.4 IP Infringement Remedies. Consultant shall: procure continued use rights; replace with non-infringing equivalent; or modify to be non-infringing. If none is commercially reasonable, Client may terminate for a refund.

9.5 Massachusetts Chapter 93A. Each Party acknowledges that unfair or deceptive acts or practices in the conduct of trade or commerce may give rise to claims under M.G.L. c. 93A, which may provide for up to treble damages and attorney's fees. The indemnification obligations herein shall extend to any Chapter 93A claims arising from a Party's breach of this Agreement.

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ARTICLE 10: LIMITATION OF LIABILITY

10.1 Limitation on Consequential Damages. EXCEPT FOR BREACHES OF ARTICLES 5 AND 6, CLAIMS UNDER ARTICLE 9, IP INFRINGEMENT, FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, AND CLAIMS UNDER M.G.L. c. 93A, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES.

10.2 Cap on Liability. Subject to the same exceptions:

☐ Option A: Total fees paid during the preceding twelve (12) months; or

☐ Option B: Total fees under the applicable SOW; or

☐ Option C: $[________________]; or

☐ Option D: [____] times SOW fees.

10.3 Minimum Liability Floor. Each Party's liability shall not be limited below $[________________].

10.4 Application. These limitations apply regardless of legal theory but do not limit liability for death or personal injury, intentional misconduct, fraud, Massachusetts Wage Act violations (M.G.L. c. 149 § 148 — treble damages are mandatory and cannot be limited by contract), or Chapter 93A claims.

10.5 Essential Basis of Bargain. THE PARTIES ACKNOWLEDGE THESE LIMITATIONS REFLECT A FAIR RISK ALLOCATION AND ARE AN ESSENTIAL BASIS OF THE BARGAIN.

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ARTICLE 11: INSURANCE REQUIREMENTS

11.1 Insurance Coverage. Consultant shall maintain at its sole expense:

(a) Commercial General Liability:

• Per Occurrence: Not less than $[________________]
• General Aggregate: Not less than $[________________]

(b) Professional Liability (E&O):

• Per Claim: Not less than $[________________]
• Annual Aggregate: Not less than $[________________]
• Claims-made tail coverage: [____] years.

(c) Workers' Compensation:

• As required by Massachusetts law (M.G.L. c. 152) if Consultant has employees
• Employers' Liability: Not less than $[________________] per accident

(d) Business Auto Liability (if applicable):

• Combined Single Limit: $[________________]

(e) Cyber Liability (if applicable):

• Per Claim: $[________________]

11.2 Additional Insured. Client named as additional insured on CGL.

11.3 Waiver of Subrogation. Consultant shall cause waiver of subrogation against Client.

11.4 Primary Coverage. Consultant's insurance is primary and non-contributory.

11.5 Certificates. Provided upon request with [____] days' advance notice of changes.

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ARTICLE 12: RESTRICTIVE COVENANTS

12.1 Applicability. This Article 12 applies only if checked:

☐ Restrictive Covenants Apply

12.2 Non-Solicitation of Employees. During the term and for [________________] following termination, Consultant shall not solicit, recruit, hire, or induce any employee of Client with whom Consultant had material contact.

12.3 Non-Solicitation of Clients/Customers. During the term and for [________________] following termination, Consultant shall not solicit any customer with whom Consultant had material contact or about whom Consultant received Confidential Information, for competitive purposes.

12.4 Non-Competition. During the term and for a period not exceeding twelve (12) months following the later of (i) termination or (ii) the date the Consultant ceases providing Services, Consultant shall not, within [________________________________], engage in any competitive business as follows: [________________________________].

12.5 Massachusetts Noncompetition Agreement Act (M.G.L. c. 149 § 24L).

(a) Applicability to Consultants: The Massachusetts Noncompetition Agreement Act (MNAA) applies to "employees," which is defined by reference to M.G.L. c. 149 § 148B. Because § 148B defines employees to include individuals who would be classified as employees under the ABC test (and who may currently be engaged as independent contractors), the MNAA may apply to Consultant if the engagement is reclassified. The Parties should structure non-compete provisions to comply with the MNAA as a precaution.

(b) Maximum Duration: Noncompetition agreements may not exceed twelve (12) months in duration, or twenty-four (24) months in the case of a breach of fiduciary duty or theft of employer property.

(c) Garden Leave or Other Mutually Agreed Consideration Required: Under M.G.L. c. 149 § 24L, a noncompetition agreement is not enforceable unless it includes either:

☐ Garden Leave Clause: The employer agrees to pay the individual, on a pro rata basis during the restricted period, at least fifty percent (50%) of the individual's highest annualized base salary paid within the two (2) years preceding termination; OR

☐ Other Mutually Agreed-Upon Consideration: The Parties agree to the following consideration: [________________________________]

Garden Leave Amount (if applicable): $[________] per [________] during the restricted period.

(d) Excluded Individuals: Noncompetition agreements are not enforceable against:

• Nonexempt employees under the Fair Labor Standards Act;
• Undergraduate or graduate students engaged in short-term employment;
• Employees who have been terminated without cause or laid off;
• Employees age 18 or younger.

(e) Form Requirements: A noncompetition agreement must be in writing, signed by both parties, expressly state the individual's right to consult with counsel, and be provided at or before the formal offer of employment (or, if entered during employment, be supported by fair and reasonable independent consideration and notice at least ten (10) business days before the effective date).

(f) Scope: The noncompetition agreement must be reasonable in geographic scope, temporal scope, and the scope of proscribed activities, and must be consonant with public policy.

(g) Inapplicability to Certain Covenants: The MNAA does not apply to non-solicitation agreements, non-disclosure agreements, forfeiture agreements, invention assignment agreements, garden leave clauses standing alone, or non-competes entered into in connection with a sale of business.

12.6 Reasonableness. Consultant acknowledges the restrictive covenants are reasonable and necessary to protect Client's legitimate business interests.

12.7 Tolling. If Consultant violates any restrictive covenant, the duration shall be extended by the period of violation.

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ARTICLE 13: DATA PROTECTION AND PRIVACY

13.1 Data Protection Obligations. If Consultant receives Personal Information, Consultant shall:

(a) Comply with all applicable federal, state, and local privacy laws, including M.G.L. c. 93H and 201 CMR 17.00;

(b) Implement and maintain a comprehensive Written Information Security Program ("WISP") as required by 201 CMR 17.00 that includes administrative, technical, and physical safeguards appropriate to the size, scope, and type of business; the amount of resources available; the amount of stored data; and the need for security and confidentiality of both consumer and employee information;

(c) Not use Personal Information except for performing the Services;

(d) Not disclose Personal Information without Client's consent;

(e) Promptly notify Client of any data breach.

13.2 Massachusetts Data Breach Notification (M.G.L. c. 93H).

(a) Consultant shall notify Client without unreasonable delay, and in no event later than twenty-four (24) hours after discovery, of any breach of security involving Personal Information of Massachusetts residents;

(b) Under M.G.L. c. 93H § 3, any person or entity that owns or licenses data that includes Personal Information about a Massachusetts resident shall provide notice "as soon as practicable and without unreasonable delay" to:

• The affected Massachusetts resident;
• The Massachusetts Attorney General;
• The Massachusetts Office of Consumer Affairs and Business Regulation (OCABR);

(c) Notification must include: the nature of the breach, the number of affected residents, steps taken, and a description of services offered (such as credit monitoring);

(d) The notification must not include the nature of the breach or number of affected residents (these go only to the AG and OCABR);

(e) Consultant shall cooperate with Client in fulfilling all notification obligations and shall bear the cost of notification and any required remediation to the extent the breach resulted from Consultant's acts or omissions.

13.3 Written Information Security Program (WISP) — 201 CMR 17.00.

(a) Consultant shall maintain a comprehensive WISP that includes:

• Designation of an employee responsible for the WISP;
• Identification and assessment of reasonably foreseeable internal and external risks;
• Employee training on the WISP;
• Disciplinary measures for violations;
• Measures for monitoring and upgrading safeguards;
• Prevention of terminated employees from accessing records;
• Third-party service provider oversight;
• Reasonable restrictions on physical access to records;
• Regular monitoring to ensure the WISP is operating effectively;
• Review of the WISP at least annually;

(b) Technical Requirements under 201 CMR 17.04:

• Secure user authentication protocols;
• Secure access control measures;
• Encryption of all transmitted records and files containing Personal Information that will travel across public networks and on portable devices;
• Monitoring of systems for unauthorized use or access;
• Encryption of all Personal Information stored on portable devices;
• Reasonable up-to-date firewall protection and operating system security patches;
• Up-to-date antivirus software.

13.4 Data Return and Destruction. Upon termination, Consultant shall return or securely destroy all Personal Information and certify compliance in writing.

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ARTICLE 14: DISPUTE RESOLUTION

14.1 Informal Resolution. The Parties shall first attempt good faith negotiation. If unresolved within thirty (30) days, either Party may proceed to formal resolution.

14.2 Formal Resolution. (Select one)

☐ Option A: Litigation. Courts specified in Section 15.2.

☐ Option B: Mediation Then Litigation. Mediation in [________________], Massachusetts, administered by [________________________________]. Costs shared. If unresolved within [____] days, litigation.

☐ Option C: Binding Arbitration. In [________________], Massachusetts, administered by [________________________________]. Single arbitrator for disputes under $[________________]; three otherwise. Decision final and binding.

☐ Option D: Mediation Then Arbitration.

14.3 Injunctive Relief. Either Party may seek injunctive relief without first engaging in informal resolution.

14.4 Continued Performance. The Parties shall continue performing during dispute resolution.

14.5 Attorney's Fees. The prevailing Party shall recover reasonable attorney's fees.

14.6 Chapter 93A Claims. Notwithstanding any arbitration or other dispute resolution provision, either Party reserves the right to bring claims under M.G.L. c. 93A in the courts of the Commonwealth.

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ARTICLE 15: GENERAL PROVISIONS

15.1 Governing Law. This Agreement is governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles.

15.2 Jurisdiction and Venue. Any action shall be brought exclusively in the state courts located in [________________] County, Massachusetts, or the United States District Court for the District of Massachusetts. Each Party submits to exclusive jurisdiction.

15.3 Waiver of Jury Trial. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN ANY ACTION ARISING OUT OF THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY MASSACHUSETTS LAW.

15.4 Entire Agreement. This Agreement, including all Exhibits, SOWs, and Change Orders, is the entire agreement and supersedes all prior agreements.

15.5 Amendment. Only by written instrument signed by both Parties.

15.6 Waiver. Only in writing. No failure to exercise any right is a waiver.

15.7 Severability. Invalid provisions modified to the minimum extent or severed. Remaining provisions remain enforceable.

15.8 Assignment. Consultant may not assign without Client's consent. Client may assign to Affiliates or successors.

15.9 Notices. In writing, deemed given upon personal delivery, confirmed email, next Business Day after overnight courier, or three (3) Business Days after certified mail.

If to Client:
Attention: [________________________________]
Email: [________________________________]
Address: [________________________________]

If to Consultant:
Attention: [________________________________]
Email: [________________________________]
Address: [________________________________]

15.10 Force Majeure. Neither Party liable for failure to perform (except payment) due to circumstances beyond reasonable control. If Force Majeure continues more than [____] days, either Party may terminate.

15.11 Counterparts; Electronic Signatures. Executed in counterparts. Pursuant to M.G.L. c. 110G (UETA), electronic signatures have the same legal effect as original signatures.

15.12 Headings. For convenience only.

15.13 Construction. Construed without presumption against the drafting Party.

15.14 Third-Party Beneficiaries. None.

15.15 Order of Precedence. (a) Amendments; (b) this Agreement; (c) Change Orders; (d) SOWs; (e) Exhibits.

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ARTICLE 16: MASSACHUSETTS-SPECIFIC PROVISIONS

16.1 Massachusetts ABC Test (M.G.L. c. 149 § 148B) — Detailed Analysis.

(a) Massachusetts applies one of the strictest independent contractor classification tests in the nation. Under § 148B, every individual performing services is presumed to be an employee unless ALL THREE PRONGS of the ABC test are satisfied by the engaging entity.

(b) Prong A — Free from Control: Consultant must be free from the Client's control and direction in performing the Services, both under the contract and in fact. Client cannot dictate how, when, or where Consultant works (beyond reasonable project deadlines and specifications).

(c) Prong B — Outside Usual Course of Business: The Services must be performed outside the usual course of Client's business. This is the most frequently litigated prong. If Client engages a consultant to perform the same type of work that Client's own employees perform, this prong may not be satisfied.

(d) Prong C — Independently Established Business: Consultant must be customarily engaged in an independently established trade, occupation, profession, or business of the same nature as the Services. Evidence includes: multiple clients, own business premises, business insurance, advertising, business cards, separate tax returns, investment in business equipment.

(e) Burden of Proof: The burden of proving all three prongs falls on the engaging entity (Client). Failure to satisfy any single prong results in classification as an employee.

(f) Enforcement: The Massachusetts Attorney General, the Department of Unemployment Assistance, and private plaintiffs may bring enforcement actions. Penalties include treble damages (mandatory under M.G.L. c. 149 § 150), attorney's fees, costs, and criminal penalties for willful violations.

16.2 Massachusetts Wage Act (M.G.L. c. 149 § 148).

(a) If Consultant is reclassified as an employee, the Massachusetts Wage Act applies to all compensation. Late or unpaid wages trigger mandatory treble damages (three times the amount of unpaid wages) under M.G.L. c. 149 § 150, plus reasonable attorney's fees and costs.

(b) The Massachusetts Supreme Judicial Court has held that treble damages are mandatory, not discretionary, and apply even if the employer pays the owed wages before the employee files a complaint.

(c) Massachusetts requires that all employees be paid on a weekly or bi-weekly basis. Monthly payment is prohibited under M.G.L. c. 149 § 148.

(d) Upon termination (or "discharge"), all earned wages must be paid on the day of discharge. Upon resignation, wages must be paid by the next regular payday.

16.3 Massachusetts Noncompetition Agreement Act (M.G.L. c. 149 § 24L).

(a) Noncompetition agreements may not exceed twelve (12) months (or twenty-four months in cases involving breach of fiduciary duty or theft).

(b) Garden leave (at least 50% of highest annualized base salary within the prior two years) or other mutually agreed consideration is required.

(c) The agreement must be in writing, signed by both parties, and expressly state the individual's right to consult with counsel.

(d) Noncompetition agreements are not enforceable against nonexempt employees, individuals terminated without cause or laid off, or minors.

(e) Non-solicitation agreements, NDAs, and invention assignments are NOT subject to the MNAA and remain independently enforceable under Massachusetts common law.

(f) Choice of Law: Massachusetts law governs the enforceability of any noncompetition agreement for individuals who reside or work in Massachusetts, regardless of any contractual choice-of-law provision.

16.4 Massachusetts Trade Secrets (MUTSA).

(a) M.G.L. c. 93 § 42 et seq. protects trade secrets. A trade secret includes anything tangible or intangible that constitutes secret scientific, technical, merchandising, production, or management information.

(b) Remedies include injunctive relief and damages.

(c) The Defend Trade Secrets Act (18 U.S.C. § 1836) provides additional federal remedies.

(d) Pursuant to 18 U.S.C. § 1833(b), the Parties shall include in any confidentiality agreement a notice of immunity for whistleblowing: "An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law."

16.5 Massachusetts Data Breach and Privacy.

(a) M.G.L. c. 93H requires notification to the Attorney General, OCABR, and affected residents "as soon as practicable and without unreasonable delay" following a breach involving Personal Information.

(b) 201 CMR 17.00 requires all persons owning or licensing Personal Information of Massachusetts residents to develop, implement, and maintain a comprehensive WISP.

(c) Failure to maintain a compliant WISP may constitute an unfair or deceptive act under M.G.L. c. 93A.

16.6 Massachusetts Interest Rate Provisions.

(a) Massachusetts does not have a general usury statute for commercial transactions. Parties are generally free to negotiate interest rates on commercial obligations.

(b) The statutory post-judgment interest rate is twelve percent (12%) per annum under M.G.L. c. 231 § 6C.

(c) For consumer transactions, Massachusetts imposes specific limits (M.G.L. c. 140 § 90A et seq.), but these generally do not apply to business-to-business consulting agreements.

16.7 Massachusetts Chapter 93A (Unfair Business Practices).

(a) M.G.L. c. 93A prohibits unfair or deceptive acts or practices in the conduct of trade or commerce.

(b) A prevailing plaintiff under c. 93A may recover actual damages or statutory damages of $25 (whichever is greater), attorney's fees and costs, and, if the court finds that the defendant's conduct was willful or knowing, up to three times actual damages (treble damages).

(c) Before filing a c. 93A claim, the plaintiff must send a demand letter to the defendant at least thirty (30) days before filing suit (M.G.L. c. 93A § 9(3)).

(d) The Parties agree to conduct their obligations under this Agreement in good faith and in compliance with c. 93A.

16.8 Massachusetts Electronic Signatures. Pursuant to M.G.L. c. 110G (Massachusetts Uniform Electronic Transactions Act), electronic signatures have the same legal effect as original signatures.

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ARTICLE 17: SIGNATURES

IN WITNESS WHEREOF, the Parties have executed this Consulting Services Agreement as of the Effective Date first written above.

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CLIENT:

[________________________________]
(Print Name of Entity)

By: [________________________________]
Print Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

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CONSULTANT:

[________________________________]
(Print Name of Entity or Individual)

By: [________________________________]
Print Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

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EXHIBIT A: STATEMENT OF WORK

STATEMENT OF WORK NO. [____]

Effective Date: [__/__/____]

This Statement of Work ("SOW") is entered into pursuant to the Consulting Services Agreement dated [__/__/____] between:

Client: [________________________________]
Consultant: [________________________________]

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1. PROJECT OVERVIEW

Project Name: [________________________________]

Project Description:
[________________________________]
[________________________________]

Project Objectives:
☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

Client's Usual Course of Business (for ABC Test Prong B compliance):
[________________________________]

How Services Differ from Client's Usual Business:
[________________________________]

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2. SCOPE OF SERVICES

2.1 [Service Category/Phase 1]: [________________________________]
☐ [________________________________]
☐ [________________________________]
☐ [________________________________]

2.2 [Service Category/Phase 2]: [________________________________]
☐ [________________________________]
☐ [________________________________]

2.3 Out of Scope:
☐ [________________________________]
☐ [________________________________]

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3. DELIVERABLES

No.	Deliverable	Description	Format	Due Date
1	[________________________________]	[________________________________]	[____]	[__/__/____]
2	[________________________________]	[________________________________]	[____]	[__/__/____]
3	[________________________________]	[________________________________]	[____]	[__/__/____]
4	[________________________________]	[________________________________]	[____]	[__/__/____]

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4. MILESTONES

SOW Term: [__/__/____] through [__/__/____]

Milestone	Description	Target Date	Payment Trigger
M1: Kickoff	[________________________________]	[__/__/____]	☐ Yes ☐ No
M2: [________________]	[________________________________]	[__/__/____]	☐ Yes ☐ No
M3: [________________]	[________________________________]	[__/__/____]	☐ Yes ☐ No
M4: Completion	[________________________________]	[__/__/____]	☐ Yes ☐ No

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5. COMPENSATION

☐ Fixed Fee: $[________________]
☐ Time and Materials: See rate table above. NTE: $[________________]
☐ Monthly Retainer: $[________] for [____] hours

Expense Budget: $[________________]
Total SOW Value: $[________________]

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6. KEY PERSONNEL AND CLIENT RESPONSIBILITIES

Client Contact: [________________________________]
Consultant Lead: [________________________________]
Approval Response Time: [____] Business Days

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7. ACCEPTANCE

Review period: [____] Business Days. Cure period: [____] Business Days.

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8. SOW SIGNATURES

CLIENT:
By: [________________________________]
Print Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

CONSULTANT:
By: [________________________________]
Print Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

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EXHIBIT B: PRE-EXISTING MATERIALS

Item	Description	Ownership
[________________________________]	[________________________________]	Consultant
[________________________________]	[________________________________]	Consultant

☐ No Pre-Existing Materials anticipated.

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EXECUTION CHECKLIST

Agreement Setup:
☐ All bracketed fields completed
☐ Party information verified
☐ Effective Date inserted

ABC Test Compliance (CRITICAL — Article 7 and 16):
☐ Prong A: Consultant free from control and direction — confirmed
☐ Prong B: Services outside Client's usual course of business — confirmed and documented in SOW
☐ Prong C: Consultant in independently established business — confirmed with supporting evidence
☐ Massachusetts counsel has reviewed and confirmed ABC test compliance

Compensation (Article 4):
☐ Fee structure selected
☐ Payment terms specified
☐ Late payment interest rate selected
☐ Wage Act implications understood (treble damages risk if reclassified)

Confidentiality (Article 5):
☐ Duration specified
☐ DTSA whistleblower notice included

Data Protection (Article 13):
☐ WISP in place (201 CMR 17.00)
☐ Data breach notification procedures documented
☐ Personal Information handling procedures confirmed

Restrictive Covenants (Article 12):
☐ Determined applicability
☐ If non-compete applies: duration does not exceed 12 months
☐ Garden leave or mutually agreed consideration documented
☐ Right to consult counsel expressly stated
☐ Non-solicitation separately addressed (not subject to MNAA)
☐ Massachusetts counsel confirmed MNAA compliance

Dispute Resolution (Article 14):
☐ Option selected
☐ Chapter 93A rights preserved

Final Review:
☐ Reviewed by Massachusetts-licensed legal counsel
☐ ABC test compliance confirmed by counsel
☐ Both Parties have executed copies
☐ IRS Form W-9 provided
☐ Insurance certificates provided (if applicable)

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This template is intended for use under the laws of the Commonwealth of Massachusetts. Massachusetts imposes strict requirements on independent contractor classification (ABC test with treble damages for misclassification), noncompetition agreements (MNAA — 12-month max, garden leave required), and data security (WISP required under 201 CMR 17.00). All statutory citations were current as of the last updated date and should be verified before execution. This document does not constitute legal advice and must be reviewed by qualified Massachusetts-licensed counsel before use.