Consulting Services Agreement

Ready to Edit

CONSULTING SERVICES AGREEMENT

State of New Mexico

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: [________________________________]
New Mexico CRS ID (if applicable): [________________________________]

(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: [________________________________]
New Mexico CRS ID (if applicable): [________________________________]
New Mexico Business License No. (if applicable): [________________________________]

(hereinafter referred to as "Consultant")

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

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 in compliance with all applicable laws and professional standards; and

WHEREAS, Consultant desires to provide such consulting services to Client upon the terms and conditions set forth in this Agreement; and

WHEREAS, the Parties intend to establish an independent contractor relationship and not an employment, partnership, joint venture, or agency relationship; and

WHEREAS, the Parties acknowledge the applicability of New Mexico's Gross Receipts Tax to services performed within the State of New Mexico;

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:

ARTICLE 1: DEFINITIONS

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

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

1.3 "Change Order" means a written document signed by authorized representatives of 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, in any form or medium, disclosed by either Party to the other Party, whether orally, in writing, electronically, or by inspection, that relates to the disclosing Party's business, products, services, research, development, trade secrets, know-how, personnel, customers, suppliers, vendors, finances, pricing, business strategies, marketing plans, technical data, inventions, processes, or other proprietary matters. Confidential Information includes, without limitation, information that qualifies as a "trade secret" under the New Mexico Uniform Trade Secrets Act, NMSA 1978 § 57-3A-1 et seq.

1.5 "Deliverables" means any and all work product, reports, analyses, recommendations, assessments, documents, data, software, code, designs, specifications, presentations, inventions, discoveries, improvements, or other materials created, developed, prepared, or produced by Consultant in connection with the performance of the Services, as specified in the applicable Statement of Work.

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

1.7 "Intellectual Property" or "Intellectual Property Rights" means all patents, patent applications, copyrights, copyright registrations, trademarks, trademark registrations, service marks, trade names, trade dress, trade secrets, know-how, inventions, discoveries, improvements, ideas, designs, processes, techniques, methodologies, formulae, algorithms, software, databases, and other intellectual property rights, whether registered or unregistered, anywhere in the world.

1.8 "Personal Identifying Information" means information as defined in NMSA 1978 § 57-12C-2, including an individual's first name or first initial and last name in combination with one or more data elements such as Social Security number, driver's license number, government-issued identification number, account number or credit/debit card number with any required security code, or biometric data.

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

1.10 "Services" means the consulting and professional services to be provided by Consultant as described in Article 2 hereof and in the Statement of Work attached hereto as Exhibit A, including any subsequent Statements of Work executed by the Parties.

1.11 "Statement of Work" or "SOW" means the document attached hereto as Exhibit A, and any subsequent statements of work executed by the Parties pursuant to this Agreement, which describe the specific Services, Deliverables, timelines, milestones, acceptance criteria, and fees applicable to each engagement.

1.12 "Work Product" means all Deliverables, inventions, discoveries, improvements, ideas, concepts, techniques, methods, processes, designs, works of authorship, documentation, and other work product conceived, created, developed, prepared, or reduced to practice by Consultant, solely or jointly with others, in connection with or arising out of the performance of the Services.

ARTICLE 2: SCOPE OF SERVICES

2.1 Engagement. Client hereby engages Consultant, and Consultant hereby accepts such engagement, to perform the Services described in the Statement of Work attached hereto as Exhibit A and incorporated herein by reference. The Parties may execute additional Statements of Work from time to time, each of which shall be subject to the terms and conditions of this Agreement.

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 and practices in Consultant's industry or profession;

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

(e) In compliance with all applicable federal, state, and local laws, rules, regulations, ordinances, and professional standards, including the laws of the State of New Mexico; and

(f) Free from material defects and errors.

2.3 Service Deliverables. Consultant shall provide the Deliverables specified in each Statement of Work in accordance with the delivery schedule, format requirements, and acceptance criteria set forth therein. Unless otherwise specified, all Deliverables shall be provided in electronic format compatible with Client's systems.

2.4 Additional Services. Any services not specifically described in an executed Statement of Work that Client requests and Consultant agrees to perform shall be documented in either:

(a) A written amendment to the existing Statement of Work; or

(b) A new Statement of Work.

No additional services shall be performed, and no fees shall be due therefor, unless documented in writing and signed by authorized representatives of both Parties.

2.5 Consultant Personnel.

(a) Consultant shall assign qualified personnel to perform the Services. Key personnel, if designated in the Statement of Work, shall not be removed or replaced without Client's prior written consent.

(b) Client may request replacement of any Consultant personnel who, in Client's reasonable judgment, do not perform satisfactorily. Consultant shall promptly replace such personnel at no additional cost to Client.

(c) Consultant may, with prior written consent of Client (which shall not be unreasonably withheld), engage subcontractors to perform portions of the Services, provided that:

Consultant shall remain fully responsible for the performance and conduct of such subcontractors;
Subcontractors shall be bound by confidentiality and intellectual property provisions at least as restrictive as those in this Agreement;
Consultant shall ensure subcontractors comply with all terms of this Agreement.

2.6 Client Cooperation and Responsibilities. Client shall:

(a) Provide Consultant with reasonable and timely access to Client's personnel, facilities, systems, information, data, and resources as reasonably necessary for Consultant to perform the Services;

(b) Designate a representative to serve as the primary point of contact for communications with Consultant regarding the Services;

(d) Ensure that all information and materials provided to Consultant are accurate and complete;

(e) Perform Client responsibilities identified in the Statement of Work in a timely manner.

2.7 Change Orders. Either Party may request changes to the scope, schedule, or other aspects of the Services by submitting a written change order request to the other Party. No change to the Services shall be effective unless documented in a written Change Order signed by authorized representatives of both Parties.

2.8 Project Management. Unless otherwise specified in the Statement of Work, Consultant shall:

(a) Provide regular status reports to Client at intervals specified in the Statement of Work;

(b) Promptly notify Client of any issues, delays, or circumstances that may affect the timely or successful completion of the Services;

ARTICLE 3: TERM AND TERMINATION

3.1 Term. This Agreement shall commence on the Effective Date and shall continue for an initial term of [________________] (the "Initial Term"), unless earlier terminated in accordance with this Article 3.

☐ No Automatic Renewal: This Agreement shall expire at the end of the Initial Term unless the Parties execute a written extension.

☐ Automatic Renewal: Following the Initial Term, this Agreement shall automatically renew for successive [________________] periods (each, a "Renewal Term"), unless either Party provides written notice of non-renewal to the other Party at least [____] days prior to the expiration of the then-current term.

3.2 Statement of Work Term. Each Statement of Work shall have its own term as specified therein. Expiration or termination of a Statement of Work shall not affect the validity of this Agreement or any other Statement of Work.

3.3 Termination for Convenience.

(a) Either Party may terminate this Agreement or any Statement of Work for any reason or no reason upon [____] days' prior written notice to the other Party.

(b) Upon termination for convenience by Client, Client shall pay Consultant for:

All Services satisfactorily performed through the effective date of termination;
All non-cancelable expenses properly incurred prior to receipt of termination notice;
Pro-rata portion of any prepaid fixed fees for work completed.

3.4 Termination for Cause. Either Party may terminate this Agreement or any Statement of Work immediately upon written notice to the other Party if:

(a) The other Party commits a material breach of any provision of this Agreement and fails to cure such breach within [____] days after receipt of written notice specifying the nature of the breach;

(b) The other Party commits a material breach that by its nature cannot be cured;

(c) The other Party becomes insolvent, makes a general assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy, has a receiver or trustee appointed for a substantial portion of its assets, or ceases to conduct business in the normal course;

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

3.5 Termination for Non-Payment. Consultant may terminate this Agreement upon [____] days' written notice if Client fails to pay any undisputed amount when due and such failure continues for [____] days after written notice thereof.

3.6 Effect of Termination. Upon termination or expiration:

(a) Consultant shall immediately cease performing the Services unless otherwise directed by Client;

(b) Consultant shall deliver to Client within [____] days:

All completed Deliverables and Work Product;
All partially completed Deliverables and Work Product in their then-current state;
All Client materials, data, and Confidential Information in Consultant's possession or control;
A final accounting of all time spent and expenses incurred;

(c) Client shall pay Consultant for all Services satisfactorily performed and expenses properly incurred through the effective date of termination;

(d) All provisions that by their nature should survive termination shall survive.

3.7 Survival. The following provisions shall survive: Article 1, Article 5, Article 6, Article 7, Article 8, Article 9, Article 10, Article 12, Article 14, and Article 15.

ARTICLE 4: COMPENSATION AND PAYMENT

4.1 Fees. Client shall pay Consultant for the Services in accordance with the fee structure set forth in the applicable Statement of Work:

☐ Fixed Fee: A total fixed fee of $[________________] for the Services described in the SOW.

☐ Time and Materials: Based on Consultant's actual hours at the following rates:

[Role/Title]: $[____] per hour
[Role/Title]: $[____] per hour
[Role/Title]: $[____] per hour
Not-to-exceed amount: $[________________] (if applicable)

☐ Retainer: A monthly retainer of $[________________] for up to [____] hours per month.

Additional hours beyond retainer: $[____] per hour
Unused hours: ☐ Roll over ☐ Do not roll over

☐ Milestone-Based: Payments tied to the completion and acceptance of milestones as set forth in the SOW.

☐ Other: [________________________________]

4.2 Invoicing. Consultant shall submit invoices to Client:

☐ Monthly, within [____] days after the end of each calendar month
☐ Upon completion of milestones as set forth in the SOW
☐ Other: [________________________________]

Each invoice shall include: (a) a description of Services performed; (b) hours worked (if time-based); (c) applicable rates; (d) itemized expenses with receipts; (e) the total amount due; (f) the SOW to which the invoice relates; and (g) applicable New Mexico Gross Receipts Tax, if any.

4.3 Payment Terms. Client shall pay each undisputed invoice within [____] days of receipt (the "Payment Period"). Payment shall be made by:

☐ Check ☐ ACH/Wire Transfer ☐ Credit Card ☐ Other: [________________]

4.4 Late Payment Interest — New Mexico Statutory Rate. Any undisputed amounts not paid within the Payment Period shall bear interest at a rate of fifteen percent (15%) per annum, which is the legal rate of interest under NMSA 1978 § 56-8-3 for contracts not specifying a rate. The Parties may agree to a different rate as follows:

NEW MEXICO INTEREST NOTICE: Pursuant to NMSA 1978 § 56-8-3, the legal rate of interest on judgments and contracts not specifying a rate is 15% per annum. For commercial transactions, the parties may agree to a different contractual rate. New Mexico does not have a general usury statute imposing a maximum interest rate cap for commercial borrowers, though unconscionable rates may be challenged under equitable principles.

Agreed Late Payment Rate: [____]% per annum

4.5 Expenses. Client shall reimburse Consultant for reasonable, pre-approved, out-of-pocket expenses incurred in performing the Services, including:

☐ Travel expenses (airfare, mileage at IRS rate, lodging, meals)
☐ Materials and supplies
☐ Third-party vendor costs
☐ Other: [________________________________]

All expenses exceeding $[________________] individually, or $[________________] in the aggregate per month, require Client's prior written approval.

4.6 Taxes.

(a) Consultant shall be solely responsible for the payment of all federal, state, and local taxes arising from the compensation paid under this Agreement, including but not limited to income taxes, self-employment taxes, and estimated tax payments.

(b) New Mexico Gross Receipts Tax (GRT):

(i) New Mexico imposes a Gross Receipts Tax (NMSA 1978 § 7-9-1 et seq.) in lieu of a traditional sales tax. GRT is imposed on the gross receipts of persons engaged in business in New Mexico, including the performance of services.

(ii) Consultant's GRT Obligation: Consultant is responsible for reporting and remitting GRT on the total amount received for Services performed in New Mexico. The combined state and local GRT rate varies by location (typically ranging from approximately 5% to 9%) depending on the municipality where the services are performed or the business is located.

(iii) GRT Reimbursement: The Parties agree that (select one):

☐ Consultant shall separately itemize GRT on invoices, and Client shall reimburse Consultant for the GRT amount as a separate line item in addition to the fees;

☐ The fees specified in the SOW are inclusive of GRT, and Consultant shall not separately bill Client for GRT;

☐ Other arrangement: [________________________________]

(iv) CRS Registration: Consultant represents that it holds or will obtain a New Mexico Combined Reporting System (CRS) identification number from the New Mexico Taxation and Revenue Department before commencing Services.

(c) New Mexico State Income Tax: New Mexico imposes a graduated income tax on individuals and entities earning income from New Mexico sources. Consultant is responsible for filing and paying applicable New Mexico income tax.

(d) Client shall not withhold any taxes from payments to Consultant, and Consultant shall indemnify Client against any tax liability arising from Consultant's failure to pay applicable taxes.

(e) Each Party shall provide the other with any tax forms or documentation reasonably requested, including IRS Form W-9 and New Mexico CRS documentation.

4.7 Disputed Invoices. If Client disputes any portion of an invoice, Client shall:

(a) Pay the undisputed portion in accordance with Section 4.3;

(b) Provide Consultant with a detailed written explanation of the disputed amount within [____] days;

ARTICLE 5: CONFIDENTIALITY AND DATA PROTECTION

5.1 Confidentiality Obligations. During the term of this Agreement and for a period of [____] years following termination or expiration, each Party (the "Receiving Party") shall:

(a) Hold in strict confidence all Confidential Information of the other Party (the "Disclosing Party");

(b) Not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party;

(d) Limit access to Confidential Information to those employees, agents, and subcontractors who have a need to know and who are bound by confidentiality obligations no less restrictive than those herein;

(e) Protect Confidential Information using at least the same degree of care as the Receiving Party uses for its own confidential information, but in no event less than reasonable care.

5.2 Exclusions. Confidential Information shall not include information that:

(a) Is or becomes publicly available through no fault of the Receiving Party;

(b) Was rightfully in the Receiving Party's possession prior to disclosure;

(c) Is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information;

(d) Is rightfully received from a third party without restriction;

(e) Is required to be disclosed by law, regulation, court order, or governmental authority, provided the Receiving Party gives prompt notice and cooperates in obtaining protective treatment.

5.3 Trade Secrets — New Mexico Uniform Trade Secrets Act (NMUTSA). Both Parties acknowledge that certain Confidential Information may constitute "trade secrets" as defined in NMSA 1978 § 57-3A-2. A trade secret under New Mexico law means information, including a formula, pattern, compilation, program, device, method, technique or process, that:

(a) Derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

"Improper means" under the NMUTSA includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means (NMSA 1978 § 57-3A-2(A)). Misappropriation subjects the offending party to injunctive relief (§ 57-3A-3), damages including actual loss, unjust enrichment, and reasonable royalties (§ 57-3A-4), and attorney's fees for willful and malicious misappropriation (§ 57-3A-5). The statute of limitations is three (3) years (§ 57-3A-6).

5.4 Return of Confidential Information. Upon termination or expiration, or upon request, the Receiving Party shall promptly:

(a) Return or destroy all Confidential Information;

(b) Certify in writing that all such information has been returned or destroyed;

(c) The Receiving Party may retain copies as required by law, provided such copies remain subject to the confidentiality obligations herein.

5.5 Data Breach Notification — New Mexico Law (NMSA 1978 § 57-12C-6). In the event of a security breach involving Personal Identifying Information as defined in NMSA 1978 § 57-12C-2, the responsible Party shall:

(a) Notify the other Party within twenty-four (24) hours of discovery of the breach;

(b) Comply with all notification requirements under NMSA 1978 § 57-12C-6, including notification to each affected New Mexico resident in the most expedient time possible, but not later than forty-five (45) calendar days following discovery of the breach;

(c) Include in the notice the following information as required by NMSA 1978 § 57-12C-7: the name and contact information of the notifying person; a list of the types of personal identifying information believed to have been subject to the breach; the date or estimated date of the breach; a general description of the incident; toll-free telephone numbers and addresses of major consumer reporting agencies; and advice to review personal accounts and credit reports;

(d) If the breach affects more than one thousand (1,000) New Mexico residents, notify the New Mexico Attorney General and all nationwide consumer reporting agencies;

(e) Bear the costs of notification and remediation to the extent the breach resulted from such Party's negligence.

5.6 Data Security Standards. Each Party handling Personal Identifying Information shall implement and maintain reasonable security measures consistent with NMSA 1978 § 57-12C-4 and applicable industry standards.

ARTICLE 6: INTELLECTUAL PROPERTY

6.1 Work Product Ownership. Select one:

☐ Option A — Client Ownership: All Work Product shall be considered "work made for hire" to the maximum extent permitted under applicable law. To the extent any Work Product does not qualify as work made for hire, Consultant hereby irrevocably assigns to Client all right, title, and interest in and to such Work Product, including all Intellectual Property Rights therein.

☐ Option B — Consultant Ownership with License: Consultant shall retain all right, title, and interest in and to the Work Product. Consultant hereby grants to Client a perpetual, irrevocable, non-exclusive, royalty-free, worldwide license to use, reproduce, modify, distribute, display, and create derivative works from the Work Product for Client's internal business purposes.

☐ Option C — Joint Ownership: The Parties shall jointly own all Work Product.

6.2 Community Property Considerations. If Consultant is a married individual residing in New Mexico, the Parties acknowledge that New Mexico is a community property state under NMSA 1978 § 40-3-1 et seq. Income earned by Consultant under this Agreement during marriage may constitute community property. The assignment of Intellectual Property Rights under this Agreement is the act of Consultant in Consultant's capacity as the creator of the Work Product and is intended to be effective regardless of community property interests. Consultant represents that Consultant has the authority to make such assignment, and shall obtain any necessary consent from Consultant's spouse if required to effect a valid assignment.

6.3 Pre-Existing Materials. Consultant retains all right, title, and interest in Pre-Existing Materials. To the extent Pre-Existing Materials are incorporated into the Deliverables, Consultant grants Client a perpetual, irrevocable, non-exclusive, royalty-free license to use such materials solely in connection with the Deliverables.

6.4 Assignment Assistance. Consultant shall, at Client's request and expense, execute all documents and take all actions reasonably necessary to perfect, register, or enforce Client's Intellectual Property Rights in the Work Product.

6.5 Client Materials. Client retains all rights in Client Materials. Client grants Consultant a limited, non-exclusive, non-transferable license to use Client Materials solely for performing the Services.

6.6 No Other Rights. Except as expressly set forth herein, neither Party grants the other any rights in or to its Intellectual Property.

ARTICLE 7: REPRESENTATIONS AND WARRANTIES

7.1 Mutual Representations and Warranties. Each Party represents and warrants that:

(a) It is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization;

(b) It has the full power and authority to enter into and perform its obligations under this Agreement;

(d) It shall comply with all applicable federal, state (including the State of New Mexico), and local laws.

7.2 Consultant Representations and Warranties. Consultant further represents and warrants that:

(a) The Services shall be performed in a professional and workmanlike manner;

(b) The Deliverables shall conform to the specifications in the applicable SOW;

(d) Consultant possesses all necessary licenses, permits, and qualifications required in New Mexico;

(e) Consultant has not entered into any conflicting agreement;

(f) Consultant shall comply with all applicable anti-corruption and anti-bribery laws.

7.3 Warranty Period. Consultant warrants that the Deliverables shall conform to specifications for [____] days following acceptance. During this period, Consultant shall correct material errors at no additional cost.

7.4 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

ARTICLE 8: INDEMNIFICATION

8.1 Indemnification by Consultant. Consultant shall indemnify, defend, and hold harmless Client and its officers, directors, employees, agents, and affiliates from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:

(a) Any breach by Consultant of any representation, warranty, or obligation under this Agreement;

(b) Any negligent act, omission, or willful misconduct by Consultant or its personnel;

(d) Any failure by Consultant to comply with applicable laws, including New Mexico law;

(e) Any personal injury or property damage caused by Consultant or its personnel;

(f) Any claim that Consultant or its personnel are employees rather than independent contractors;

(g) Any Gross Receipts Tax liability arising from Consultant's failure to properly report and remit GRT.

8.2 Indemnification by Client. Client shall indemnify, defend, and hold harmless Consultant and its officers, directors, employees, agents, and affiliates from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:

(a) Any breach by Client of any representation, warranty, or obligation;

(b) Any negligent act, omission, or willful misconduct by Client or its personnel;

(d) Client Materials infringing the rights of any third party.

8.3 Indemnification Procedure. The indemnified Party shall:

(a) Provide prompt written notice of any claim;

(b) Grant the indemnifying Party sole control of the defense and settlement;

(d) Not settle any claim without the indemnifying Party's prior written consent.

ARTICLE 9: LIMITATION OF LIABILITY

9.1 Limitation Cap. EXCEPT FOR OBLIGATIONS UNDER ARTICLES 5, 6, 8, AND CLAIMS ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, NEITHER PARTY'S TOTAL AGGREGATE LIABILITY SHALL EXCEED:

☐ The total fees paid or payable during the [____]-month period preceding the claim
☐ $[________________]
☐ Other: [________________________________]

9.2 Exclusion of Consequential Damages. EXCEPT FOR BREACHES OF ARTICLES 5, 6, OR CLAIMS ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY.

9.3 New Mexico Law Considerations. Nothing in this Article 9 shall be construed to limit liability in a manner prohibited by New Mexico law. New Mexico courts apply principles of unconscionability and may decline to enforce provisions deemed unreasonable or against public policy.

ARTICLE 10: RESTRICTIVE COVENANTS — NEW MEXICO PROVISIONS

10.1 Non-Compete Covenants — New Mexico Enforceability. New Mexico courts will enforce reasonable non-compete agreements that protect legitimate business interests. To be enforceable, a non-compete must be:

(a) Reasonable in time, territory, and scope;

(b) Supported by adequate consideration;

(c) Designed to protect a legitimate business interest (e.g., trade secrets, confidential information, customer relationships);

(d) Not unduly burdensome on the restricted party.

NEW MEXICO NON-COMPETE NOTICE: New Mexico courts have generally upheld non-compete agreements lasting three (3) years or less as presumptively reasonable. Agreements exceeding three years face heightened judicial scrutiny. A non-compete may be deemed void if the restricted party is terminated without cause. New Mexico courts have the authority to reform overly broad covenants.

10.2 Non-Competition (if applicable). ☐ Select if applicable:

During the term of this Agreement and for a period of [____] months following termination or expiration (not to exceed 36 months), Consultant shall not, directly or indirectly, within the following geographic area: [________________________________], engage in any business or provide services substantially similar to the Services to:

☐ Direct competitors of Client identified in Exhibit [____]
☐ Businesses in Client's industry
☐ Other: [________________________________]

10.3 Non-Solicitation of Clients. During the term of this Agreement and for a period of [____] months following termination, Consultant shall not directly or indirectly solicit any clients of Client with whom Consultant had material contact during the performance of Services.

10.4 Non-Solicitation of Employees. During the term of this Agreement and for a period of [____] months following termination, neither Party shall directly solicit or recruit any employee of the other Party who was involved in the Services, without prior written consent.

10.5 Non-Disclosure. The Parties' obligations regarding Confidential Information and trade secrets as set forth in Article 5 constitute a separate and independent covenant enforceable under the NMUTSA (NMSA 1978 § 57-3A-1 et seq.).

10.6 Termination Without Cause. The Parties acknowledge that under New Mexico law, a non-compete agreement may be void if the consultant is terminated without cause. If Client terminates this Agreement without cause, the non-competition restrictions in Section 10.2 (if selected) shall:

☐ Remain in effect regardless of the reason for termination
☐ Be null and void upon termination without cause
☐ Be reduced to [____] months upon termination without cause

10.7 Remedies. In the event of a breach of the restrictive covenants, the non-breaching Party may seek injunctive relief, monetary damages, and such other relief as may be available.

ARTICLE 11: INDEPENDENT CONTRACTOR STATUS — NEW MEXICO CLASSIFICATION

11.1 Independent Contractor Relationship. The Parties intend and agree that Consultant is an independent contractor and not an employee.

11.2 New Mexico ABC Test (NMSA 1978 § 51-1-42). New Mexico uses the ABC test under NMSA 1978 § 51-1-42(F)(5) for unemployment compensation purposes. Under this test, services are presumed to be employment unless the engaging entity demonstrates by a preponderance of the evidence that ALL THREE conditions are met:

(A) Freedom from Control: The individual has been and will continue to be free from control or direction over the performance of the services, both under the contract and in fact.

(B) Outside Usual Course of Business or Outside All Places of Business: The service is either outside the usual course of the business for which the service is performed, or the service is performed outside of all the places of business of the enterprise for which the service is performed.

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

The Parties agree to the following to support independent contractor classification:

(a) Consultant controls the manner, method, and means of performing the Services;

(b) Consultant sets its own work schedule;

(d) Consultant may perform services for other clients;

(e) Client does not provide training to Consultant;

(f) Consultant maintains its own business registration and insurance;

(g) Consultant bears the risk of profit or loss.

11.3 Workers' Compensation. New Mexico requires employers to carry workers' compensation insurance under NMSA 1978 § 52-1-1 et seq. As an independent contractor, Consultant is not covered under Client's workers' compensation policy. Consultant shall maintain adequate insurance for its own protection and for any employees.

11.4 Tax Obligations. Consultant shall be solely responsible for all tax obligations, including:

(a) Federal and New Mexico state income taxes;

(b) Self-employment taxes;

(d) New Mexico Gross Receipts Tax (NMSA 1978 § 7-9-1 et seq.);

(e) Client shall report payments on IRS Form 1099-NEC as required.

11.5 Consequences of Reclassification. If any governmental authority reclassifies Consultant as an employee, Consultant shall indemnify Client for resulting taxes, penalties, interest, and costs, unless the reclassification results from Client's exercise of control inconsistent with independent contractor status.

ARTICLE 12: INSURANCE

12.1 Required Insurance. During the term and for [____] years thereafter, Consultant shall maintain:

(a) Commercial General Liability: $[________________] per occurrence / $[________________] aggregate;

(b) Professional Liability (E&O): $[________________] per occurrence / $[________________] aggregate;

(c) Cyber Liability / Data Breach: $[________________] per occurrence (if handling Personal Identifying Information);

(d) Workers' Compensation: As required by New Mexico law, or evidence of exemption;

(e) Commercial Automobile Liability: $[________________] per occurrence (if applicable);

(f) Umbrella/Excess Liability: $[________________] (if applicable).

12.2 Insurance Requirements. All policies shall:

(a) Be issued by insurers licensed in New Mexico with a minimum A.M. Best rating of A-VII;

(b) Name Client as an additional insured on CGL and Umbrella policies;

(d) Be primary and non-contributory.

12.3 Certificates of Insurance. Consultant shall provide certificates prior to commencing Services and upon each renewal.

ARTICLE 13: NEW MEXICO-SPECIFIC PROVISIONS

13.1 Community Property State. New Mexico is a community property state under NMSA 1978 § 40-3-1 et seq. If Consultant is a married individual:

(a) Income earned under this Agreement during marriage may constitute community property;

(b) Intellectual property created by Consultant during marriage may have community property implications;

(c) Consultant represents that Consultant has the authority to enter into this Agreement and perform the obligations herein, including intellectual property assignments, and shall obtain any necessary spousal consent if required;

(d) Client should be aware that community property interests may affect the enforcement of certain contractual provisions, including restrictive covenants.

13.2 Gross Receipts Tax — Detailed Provisions. New Mexico's Gross Receipts Tax (NMSA 1978 § 7-9-1 et seq.) applies to the gross receipts of persons engaged in business in New Mexico:

(a) GRT is imposed on the seller (Consultant), not the buyer (Client);

(b) The tax rate varies by location and includes combined state and local components;

(c) Certain services may qualify for exemptions or deductions under the GRT Act (e.g., services performed for the federal government under § 7-9-54, services performed for certain manufacturing operations under § 7-9-75.1);

(d) Consultant shall properly report and remit GRT to the New Mexico Taxation and Revenue Department;

(e) Consultant shall provide Client with documentation of GRT registration and compliance upon request.

13.3 Unfair Practices Act (NMSA 1978 § 57-12-1 et seq.). The Parties acknowledge that unfair, deceptive, or unconscionable trade practices related to this Agreement may be subject to the New Mexico Unfair Practices Act, which provides for actual damages, treble damages in certain cases, and attorney's fees.

13.4 Electronic Transactions. This Agreement may be executed electronically in accordance with the New Mexico Uniform Electronic Transactions Act (NMSA 1978 § 14-16-1 et seq.). Electronic signatures shall have the same legal effect as original signatures.

13.5 Civil Law Influences. New Mexico's legal system reflects influences from both the common law tradition and the civil law tradition (Spanish/Mexican law heritage). Certain contract principles may be interpreted differently than in purely common law jurisdictions. Legal counsel licensed in New Mexico should review this Agreement.

13.6 Compliance with New Mexico Professional Licensing. If the Services require professional licensing in New Mexico, Consultant represents that it holds all required licenses from the applicable New Mexico regulatory board and shall maintain them throughout the term.

13.7 New Mexico Inspection of Public Records Act (IPRA). If either Party is a public body as defined under NMSA 1978 § 14-2-1 et seq., certain information exchanged under this Agreement may be subject to disclosure under IPRA. The Parties shall clearly designate Confidential Information and cooperate in asserting applicable exceptions.

ARTICLE 14: DISPUTE RESOLUTION

14.1 Negotiation. The Parties shall first attempt to resolve any dispute through good faith negotiation for a period of [____] days.

14.2 Mediation. If negotiation fails, the Parties shall submit to mediation administered by:

☐ The American Arbitration Association (AAA)
☐ A mutually agreed mediator licensed in New Mexico
☐ Other: [________________________________]

14.3 Arbitration (if selected). ☐ If mediation is unsuccessful:

(a) Administered by: ☐ AAA ☐ JAMS ☐ Other: [________________]

(b) Conducted in [________________], New Mexico

(d) The decision shall be final and binding and enforceable in any court in New Mexico.

14.4 Litigation (if arbitration not selected). ☐ Exclusive jurisdiction in the state and federal courts located in [________________] County, New Mexico.

14.5 Attorneys' Fees. The prevailing Party shall be entitled to recover reasonable attorneys' fees and costs.

14.6 Equitable Relief. Either Party may seek injunctive relief without first engaging in negotiation, mediation, or arbitration where necessary to prevent irreparable harm.

14.7 Jury Trial Waiver. TO THE FULLEST EXTENT PERMITTED BY NEW MEXICO LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

ARTICLE 15: GENERAL PROVISIONS

15.1 Governing Law. This Agreement shall be governed by the laws of the State of New Mexico, without regard to its conflict of laws principles.

15.2 Entire Agreement. This Agreement, together with all Exhibits and SOWs, constitutes the entire agreement and supersedes all prior agreements.

15.3 Amendments. This Agreement may be amended only by written instrument signed by both Parties.

15.4 Waiver. Failure to enforce any provision shall not constitute a waiver.

15.5 Severability. If any provision is held invalid by a New Mexico court, the remaining provisions remain in effect.

15.6 Notices. All notices shall be in writing and deemed delivered:

(a) Upon personal delivery;
(b) One (1) Business Day after overnight courier deposit;
(c) Three (3) Business Days after certified mail deposit;
(d) Upon email transmission with confirmation.

15.7 Assignment. Neither Party may assign without prior written consent, except to an Affiliate or in connection with a merger, acquisition, or sale of substantially all assets.

15.8 Force Majeure. Neither Party shall be liable for delays due to causes beyond reasonable control, including acts of God, war, pandemic, fire, flood, or government actions.

15.9 Counterparts. This Agreement may be executed in counterparts. Electronic signatures per the NM UETA (NMSA 1978 § 14-16-1 et seq.) shall be valid and binding.

15.10 Headings. Headings are for convenience only.

15.11 Relationship of the Parties. Nothing herein creates a partnership, joint venture, agency, or employment relationship.

15.12 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties.

15.13 Construction. This Agreement shall not be construed against either Party as drafter.

EXECUTION

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

CLIENT:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

CONSULTANT:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

EXHIBIT A: STATEMENT OF WORK (SOW)

SOW Number: [____]
SOW Effective Date: [__/__/____]
Reference Agreement Date: [__/__/____]

1. Project Description

[________________________________]

2. Scope of Services

[________________________________]

3. Deliverables

Deliverable	Description	Due Date	Acceptance Criteria
[________________]	[________________]	[__/__/____]	[________________]
[________________]	[________________]	[__/__/____]	[________________]
[________________]	[________________]	[__/__/____]	[________________]

4. Timeline and Milestones

Milestone	Description	Target Date
[________________]	[________________]	[__/__/____]
[________________]	[________________]	[__/__/____]
[________________]	[________________]	[__/__/____]

5. Fees and Payment Schedule

Fee Structure: ☐ Fixed Fee ☐ Time & Materials ☐ Retainer ☐ Milestone-Based

Payment Milestone	Amount	Due Date
[________________]	$[________________]	[__/__/____]
[________________]	$[________________]	[__/__/____]
[________________]	$[________________]	[__/__/____]

Total SOW Value (excluding GRT): $[________________]
Estimated GRT: $[________________]
Total SOW Value (including GRT): $[________________]

6. Key Personnel

Name	Role	Hourly Rate (if applicable)
[________________]	[________________]	$[____]
[________________]	[________________]	$[____]

7. Client Responsibilities

[________________________________]

8. Location of Services

Services will be performed at: [________________________________]
Applicable GRT Location Code: [________________________________]
Combined GRT Rate: [____]%

9. Assumptions and Dependencies

[________________________________]

10. Acceptance Criteria and Process

[________________________________]

11. Special Terms Applicable to This SOW

[________________________________]

SOW SIGNATURES:

CLIENT:
Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

CONSULTANT:
Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

EXECUTION CHECKLIST

☐ All bracketed fields completed with appropriate information
☐ Fee structure selected and amounts filled in (Article 4)
☐ GRT reimbursement arrangement selected (Section 4.6(b)(iii))
☐ IP ownership option selected (Article 6)
☐ Community property considerations addressed (Articles 6, 13)
☐ Renewal option selected (Article 3)
☐ Dispute resolution method selected (Article 14)
☐ Insurance amounts specified (Article 12)
☐ Liability cap selected and amount specified (Article 9)
☐ Non-compete option reviewed and periods specified (Article 10)
☐ Termination without cause effect on non-compete selected (Section 10.6)
☐ Non-solicitation periods specified (Article 10)
☐ Confidentiality period specified (Article 5)
☐ ABC test compliance confirmed (Article 11)
☐ Statement of Work (Exhibit A) completed and attached
☐ GRT location and rate confirmed in SOW
☐ CRS ID verified for Consultant
☐ IRS Form W-9 collected from Consultant
☐ Certificates of insurance obtained
☐ Review by New Mexico-licensed attorney completed
☐ Both Parties have executed the Agreement and SOW

This Consulting Services Agreement template is provided for informational and educational purposes only. It does not constitute legal advice and should not be relied upon as such. This template must be reviewed, customized, and approved by a qualified attorney licensed in the State of New Mexico before execution. New Mexico is a community property state, which may affect the rights and obligations under this Agreement. The Gross Receipts Tax implications of services performed in New Mexico require careful analysis. Laws and regulations change frequently; verify all statutory citations are current at the time of use. Use of this template is at your own risk.

New Mexico Statutory References:

NMSA 1978 § 56-8-3 — Legal Rate of Interest (15%)
NMSA 1978 § 57-3A-1 et seq. — Uniform Trade Secrets Act
NMSA 1978 § 51-1-42 — Independent Contractor Classification (ABC Test)
NMSA 1978 § 57-12C-1 et seq. — Data Breach Notification Act
NMSA 1978 § 52-1-1 et seq. — Workers' Compensation Act
NMSA 1978 § 7-9-1 et seq. — Gross Receipts and Compensating Tax Act
NMSA 1978 § 57-12-1 et seq. — Unfair Practices Act
NMSA 1978 § 40-3-1 et seq. — Community Property Act
NMSA 1978 § 14-16-1 et seq. — Uniform Electronic Transactions Act
NMSA 1978 § 14-2-1 et seq. — Inspection of Public Records Act (IPRA)

Ezel AI

Hi! I can rewrite every section of this to your exact case in about 5 minutes. Heads up: I'm $49 for a one-shot, or $249/mo if you want unlimited docs. But that's still less than 10 minutes of what a lawyer charges to even look at this. Want me to do it?

AI Legal Assistant

Ezel AI

Insert Image

Insert Table

Need to customize this document?

About This Template

A contract is a written record of what two or more parties agreed to and what happens if someone does not follow through. Clear language, defined terms, and clean signature blocks keep disputes small and enforceable. The most common mistakes in contracts come from vague promises, missing details about timing or payment, and skipping standard protective clauses like governing law and dispute resolution.

Important Notice

This template is provided for informational purposes. It is not legal advice. We recommend having an attorney review any legal document before signing, especially for high-value or complex matters.

Last updated: March 2026

Consulting Services Agreement