PATEXIA INDEPENDENT CONTRACTOR AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is entered into by and between Patexia, Inc. ("COMPANY"), a Delaware limited liability company, having a place of business located at 1431 7th Street, Suite 204, Santa Monica, CA 90401, and Consultant (“CONSULTANT"). The effective date of this Agreement shall be the date on which the last party executes this Agreement below.
The parties hereby agree as follows:
1. INDEPENDENT CONSULTANT STATUS.
1.1 Status. CONSULTANT desires to perform the services described in Schedule A (Description of Services) of' this Agreement and such other services requested by COMPANY and agreed upon by CONSULTANT (collectively the ‘Services"). CONSULTANT will act solely as an independent contractor and neither CONSULTANT nor its employees nor agents shall be considered an employee. agent or partner of COMPANY under the provisions of this Agreement or otherwise.
2. CONSULTANT'S SERVICES.
2.1 CONSULTANT’s engagement and the Services have been requested by COMPANY. CONSULTANT shall perform the Services in good faith and shall avoid any conflicts of interest in the performance of its obligations under this Agreement.
3.1 Payments. As full compensation for the Services, and any Work Product (defined in Section 5 ‑ Proprietary Rights), COMPANY shall pay to CONSULTANT the amount specified in Schedule B (Payment Schedule) to this Agreement.
3.2 Expenses. COMPANY shall reimburse CONSULTANT for his/her reasonable out-of-pocket expenses including telephone, facsimile, and overnight carrier charges. CONSULTANT shall provide COMPANY with receipts for such expenses.
3.3 Authority. CONSULTANT does not have and shall not have any authority, and CONSULTANT shall not represent that CONSULTANT has the authority, to bind COMPANY, to assume or to create any obligation or responsibility, express or implied, on behalf of COMPANY or in its name.
3.4 Other Compensation. CONSULTANT shall not be entitled to any remuneration, benefits, or expenses other than as specifically provided for in this Agreement.
4.1 CONSULTANT acknowledges and agrees that it is the sole responsibility of CONSULTANT to report as income its compensation received from COMPANY and to make the requisite tax filings and payments to the appropriate federal, state or local tax authority. No part of CONSULTANT's compensation shall be subject to withholding by COMPANY for the payment of social security, unemployment, or disability insurance or any other similar state or federal tax obligations.
5. PROPRIETARY RIGHTS.
5.1 Ownership. All intellectual property rights, including without limitation all copyrights, trademarks, patents, trade secret rights, moral rights and all contract and licensing rights related to all ideas, inventions, designs, improvements, and discoveries developed by CONSULTANT prior to the Effective Date of this Agreement or developed by CONSULTANT outside the scope of this Agreement shall be owned by the CONSULTANT. All intellectual property rights, including without limitation all copyrights, trademarks, patents, trade secret rights, moral rights and all contract and licensing rights related to all ideas, inventions, designs, improvements, and discoveries developed by CONSULTANT, either individually or in collaboration with others, resulting from the work performed hereunder related to the Services (collectively, the "Work Product"), shall be the sole and exclusive property of COMPANY. CONSULTANT agrees that all files, records, documents, drawings, specifications, equipment and similar items related to COMPANY’s business, whether prepared by CONSULTANT or otherwise coming into CONSULTANT's possession, shall remain the exclusive property of COMPANY. CONSULTANT acknowledges that COMPANY’s rights to the Work Product are exclusive to COMPANY and include, but are not limited to, the right to use, adapt, reproduce, distribute, broadcast, display and make derivative works of the Work Product in any and all media and all formats now known or later developed.
5.2 Work Made For Hire. Without limiting the foregoing, CONSULTANT hereby acknowledges that any
Work Product to be delivered to COMPANY in conjunction with the Services performed under this Agreement is work made for hire and COMPANY shall be considered the author of such work made for hire and own all right, title and interest therein.
5.3 Assignment. To the extent that the Work Product does not constitute a work made for hire, CONSULTANT hereby irrevocably grants, assigns and transfers to COMPANY all right, title and interest in and to the Work Product. COMPANY shall have the sole and exclusive worldwide right, title and interest in perpetuity to use and exploit all or any part of the Work Product.
5.4 Waiver/License. In the event CONSULTANT has any rights to the Work Product that cannot be assigned to the COMPANY, CONSULTANT hereby unconditionally and irrevocably waives the enforcement of all such rights and all claims of any kind with respect to such rights against COMPANY and COMPANY’s successors, distributors and customers. In the event CONSULTANT has rights to the Work Product that cannot be assigned or waived, CONSULTANT hereby grants to COMPANY and its successors, an exclusive, worldwide, perpetual, royalty-free license to use the Work
Product in any way whatsoever and to sublicense and assign those rights as COMPANY chooses.
5.5 Additional Documents. CONSULTANT agrees to execute any documents as COMPANY may request to evidence or otherwise protect COMPANY’s ownership, assignment or license of the Work Product. CONSULTANT appoints COMPANY as CONSULTANT's attorney-in-fact to execute any such documents on CONSULTANT's behalf if CONSULTANT fails to do so within five (5) business days of COMPANY’s reasonable request.
5.6 Disclosure. CONSULTANT agrees to promptly and fully inform and disclose to COMPANY all computer program designs, creations, improvements, and discoveries that CONSULTANT makes during the term of this Agreement relating to the Work Product, whether conceived by CONSULTANT
alone or with others.
6. CONFIDENTIAL & PRIVILEGED INFORMATION.
6.1 Definition. By virtue of this Agreement, CONSULTANT may have access to information that is confidential (“Confidential Information”). Confidential Information includes, without limitation: (i) any and all trade secrets; (ii) technical information concerning the COMPANY products and intellectual property, including data and specifications, diagrams, flow charts, drawings, test results, know‑how, processes, inventions, research projects and product development; (iii) information concerning the COMPANY business, including royalty rates, profits, litigation strategies, sales information, accounting and unpublished financial information, business plans, markets and marketing methods, licensing strategies and information; and (iv) any other information not generally known to the public which, if misused or disclosed, could reasonably be expected to adversely affect COMPANY's business.
6.2 Confidential Information. Confidential Information does not include any information that: (i) is in the possession of CONSULTANT at the time of disclosure as shown by CONSULTANT’s files and records immediately prior to the time of disclosure; (ii) lawfully is or becomes public knowledge through a source other than CONSULTANT and through no fault of CONSULTANT; (iii) is independently developed by or for CONSULTANT; (iv) is disclosed by COMPANY to others without any restriction on use and disclosure; or (v) is or becomes lawfully available to CONSULTANT from a source other than COMPANY.
6.3 Obligations. CONSULTANT agrees (i) that the Confidential Information is COMPANY’s sole and exclusive property; (ii) to hold the COMPANY Confidential Information in confidence; and (iii) to not publish, disclose or otherwise make available, directly or indirectly, the Confidential Information or any part thereof to any third party or use the Confidential Information for any purpose other than in accordance with this Agreement without COMPANY’s prior written consent. CONSULTANT shall take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its agents or employees in violation of the provisions of this Agreement.
6.4 Privileged Information. The parties may share certain information that is protected by the attorney-client privilege, the attorney work product doctrine, and/or other applicable privileges and immunities (“Privileged Information”). In furtherance thereof, the parties agree that such sharing and exchange of Privileged Information will be subject to the attorney-client privilege, the work product privilege and/or other applicable privileges and immunities to the maximum extent possible. This Agreement memorializes the understanding of the parties that their exchange of Privileged Information is not intended to, and is not understood to, void, waive or compromise in any respect any applicable privilege, protection, immunity, or other legal protection applicable to such information.
7. CONSULTANT'S REPRESENTATIONS AND WARRANTIES. CONSULTANT warrants and represents that:
7.1 No Infringement. CONSULTANT will not infringe upon any copyright, patent, trade secret or other property right of any third party in the performance of the Services required by this Agreement.
7.2 Authority. CONSULTANT has the authority to enter into this Agreement and to perform all obligations under this Agreement, including, but not limited to, the grant of rights to the Work Product and all related proprietary rights.
7.3 No Conflicting Grant. CONSULTANT has not granted any rights or licenses to any intellectual property or technology or has not entered into any other agreement that would conflict with CONSULTANT's obligations under this Agreement.
7.4 Performance Standard. CONSULTANT will perform the Services in a professional and workmanlike manner. The Services and the terms of this Agreement do not conflict with any obligation CONSULTANT may have to a third party.
8. TERM AND TERMINATION.
8.1 Term of Agreement. This Agreement will become effective on the date indicated in the introductory paragraph of this Agreement, and will remain in effect for a period of three (3) years unless terminated earlier as set forth in Section 8.2 (Termination of Agreement) below.
8.2 Termination of Agreement. Each party has the right to terminate this Agreement at any time, upon written notice to the other party.
8.3 Return of Materials. Upon termination of this Agreement, each party shall promptly return to the other all data, materials and other property of the other held by it.
8.4 Survival. The following provisions shall survive any termination of this Agreement: Section 5 (Proprietary Rights), Section 6 (Confidential & Privileged Information), Section 7 (Representations and Warranties), Section 8 (Termination), and Section 9 (Miscellaneous).
9.1 Entire Agreement. This Agreement is the sole and entire Agreement between the parties relating to the subject matter hereof, and supersedes all prior understandings, agreements and documentation relating to such subject matter.
9.2 Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same instrument. A faxed or e-mailed copy of this Agreement shall be considered an original for purposes of this Agreement.
9.3 Modifications. Any modifications to this Agreement must be in writing and signed by both parties.
9.4 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full force without being impaired or invalidated in any way.
9.5 Antitrust and Export. The parties shall strictly comply with all applicable laws and regulations, including but not limited to antitrust laws and export administration laws.
9.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the state of Texas, and shall be binding upon the parties to this Agreement in the United States and worldwide. Each party hereby submits to the jurisdiction of, and waives any venue objections against, the United States District Court, Eastern District of Texas and the District, County, and Justice Courts in, Collin County, Texas in any litigation arising out of the Agreement.
9.7 Equitable Relief. CONSULTANT acknowledges that the unauthorized use or disclosure of the Work Product or the Confidential Information will cause irreparable harm and significant commercial damages to COMPANY, the extent of which will be impossible to measure in money. Therefore, if COMPANY should institute any action or bring any proceeding under this Agreement, CONSULTANT hereby waives the claim or defense that COMPANY has an adequate remedy at law.
9.8 No Agency. This Agreement does not create any agency or partnership relationship.
9.9 Assignability. This Agreement is not assignable by CONSULTANT without the prior written consent of COMPANY, but COMPANY may assign its rights under this Agreement to any successor in interest, assignee or licensee.
DESCRIPTION OF SERVICES
Patent analysis related to digital image processing of data obtained from chemical microarrays.
From time to time and upon request by COMPANY, CONSULTANT shall review intellectual property and other technologies related to certain patents identified by the COMPANY and provide analysis or findings on technical issues related to the identified patents.
CONSULTANT shall not exceed four (4) hours of support per Services engagement (any one engagement) unless COMPANY provides prior approval to exceed this limitation.
COMPANY will pay CONSULTANT a previously agreed upon hourly rate.
CONSULTANT shall keep track of his/her hours and shall invoice COMPANY on a monthly basis. CONSULTANT shall also include in the invoice the (i) name of the project, (ii) the services performed, and (iii) the name of the COMPANY representative requesting the Services. A properly completed W-9 shall by furnished to COMPANY by CONSULTANT before any payments can be made for Services.