Scientific consultancy agreements: why do they come in so many flavours?

It should be simple.  You want to engage Dr Socrates to provide scientific consultancy services, in return for a fee.  It’s not a complex contractual relationship.  So, why isn’t there a standard agreement that everyone can use, rather than have to reinvent the wheel on each occasion?

Au contraire, I hear several of you reply.  We have a standard consultancy agreement that we use all the time.

The problem is that some of these standard consultancy agreements look very different to one another.  They include (with exaggeration and over-simplification):

  • The type used by university academics when doing private work, sometimes based on a template provided by the university.  In summary: success is not guaranteed; liability is strictly limited; no university IP is transferred; this agreement should not be used as a way of getting around university pricing of research contracts; client owns the results.
  • The type used by investors in spin-out transactions.  In summary: consultant indemnifies company against liability for negligence; consultant guarantees no use of third party IP; consultant’s duties to spin-out override all other duties; consultant must do what he is told.
  • The type used by high-tech companies for members of the scientific advisory board.  In summary: the consultant is not an employee; the company is very grateful for any advice that can be given; the duties are light and not very precisely stated.

And there are plenty of other flavours, including the type used for people who should really be treated as an employee, but who want to avoid income tax deductions; the type used for expert witnesses, who have to comply with court rules; and so on.

Sometimes, the parties have very different views on what the template should look like.  For example, the academic doing work for a spin-out company may be used to the first model above, whilst the investors’ lawyers are used to the second model.

Of course, I know what a standard consultancy agreement should look like.  So, why are the lawyers on the other side proposing something so different?

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