SERVICE AGREEMENT
EXHIBIT
10.23
This Agreement, dated as of
February 1, 2008 is entered into by Rivertek Medical Systems, Inc., a Minnesota
Corporation with offices located at 0000 Xxxxxxxxx Xxx. Xx. #000, Xx. Xxxx, XX
00000 (hereinafter referred to as “Rivertek”), and Scivanta Medical Corporation,
a Nevada Corporation with offices located at 000 Xxxxxx Xxxxxx Xxxxxx
Xxxx, XX 00000, (hereinafter referred to as “Scivanta”),
RECITALS
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1.
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Rivertek
has expertise in providing services of the types described in Exhibit A
(“Services”).
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2.
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Scivanta
has the need for such Services.
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3.
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Rivertek
desires to provide Scivanta with personnel to provide such
Services.
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4.
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Scivanta
desires to have personnel of Rivertek available to provide such
Services.
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AGREEMENT
Article
I
Definitions
Section
1.01. Employees. Individuals who perform Services for and on
behalf of Rivertek in an employer-employee relationship to
Rivertek.
Section
1.02. Consultants. Individuals who perform Services for or on
behalf of Rivertek in the capacity of an independent Consultant to
Rivertek.
Section
1.03. Person or Personnel. Both Employees and
Consultants.
Section
1.04. Confidential Information means all confidential data,
specifications,
ideas,
know-how, designs, code, writings, technology, plans and other information of
Scivanta and its Clients, or of another person which have been entrusted to
Rivertek. Results (as defined below) generally are Confidential
Information.
Section
1.05. Scivanta Materials means all physical embodiments of
Confidential Information (such as in documents or computer tapes, or physical
objects such as prototypes or models), and all other Scivanta physical property
(such as hardware, equipment, supplies and tools).
Section
1.06. Rights means ownership of intellectual property rights
(patents, patent applications, copyrights, trademarks, service marks, mask work
rights, “moral rights,” and trade secrets) in Confidential Information and in
Results. If “moral rights” cannot legally be transferred to Scivanta,
where this Agreement requires transfer of “moral rights” to Scivanta, this shall
be construed to require the owner of the “moral rights” to waive them and to
consent to any Scivanta action which would violate the “moral
rights.”
Section
1.07. Results means all results of the Services including all
data, ideas, information, tangible results, all documentation, and all
Technology/Writings.
Section
1.08. Technology/Writings means any aspect of the Results in
which one can have Rights (e.g., inventions/patents; working of
authorship/copyrights; know-how/trade secrets).
Article
II
Services by
Rivertek
Section
2.01. Services Provided. During the term of this Agreement,
Rivertek shall provide as requested by from time-to-time Services as described
in Exhibit A and such additional Services requested by Scivanta. For
all services requested of Rivertek, Scivanta shall submit to Rivertek written
instructions describing the requested services. The terms set forth
in the written instructions not inconsistent with the terms of this Agreement,
if accepted by Rivertek, shall then form a part of this
Agreement. The terms of this Agreement shall control between
inconsistent terms of written instructions and this Agreement.
Section
2.02. Where Provided. Services shall be performed by Personnel
at Rivertek’s, Scivanta’s, or authorized supplier facilities, unless otherwise
agreed to by Rivertek and Scivanta.
Article
III
Assignment and Release of
Personnel
Section
3.01. Assignment. Rivertek shall select Personnel to perform
Services for Scivanta who are qualified to perform the requested Services, and
when requested, by Scivanta shall submit their names and qualifications to
Scivanta. Scivanta shall review the Personnel qualifications and
conduct interviews of those Personnel where appropriate to determine their
suitability for the job, after which Scivanta will accept or reject such
Personnel.
Section
3.02. Release of Personnel. After acceptance of a Person to
perform Services, Scivanta may release such Person from performing Services at
any time, with or without cause, upon five (5) working days prior notice to
Rivertek; provided, however, Scivanta may
release any Person without prior notice to Rivertek if, in Scivanta’s opinion,
such Person does not perform satisfactorily, does not comply with Scivanta’s
security requirements or other rules and regulations applicable to the conduct
of Rivertek’s Personnel, or for other good cause relating to the performance of
Services by such Person.
Section
3.03. Withdrawal. After acceptance of a Person to perform
Services, Rivertek may withdraw such Person from performing Services on ten (10)
working days prior written notice to Scivanta; provided, however, Rivertek
uses its best efforts to provide Scivanta with a replacement Person acceptable
to Rivertek.
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Article
IV
Charges and
Payment
Section
4.01. Charges. Charges for Services shall be on a time
incurred basis as set forth in the Exhibit A to this Agreement and the Exhibit A
rates shall be fixed for one year following execution of this
agreement. Rivertek shall have the right to adjust Exhibit A rates on
a yearly basis by providing a revised Exhibit A to
Scivanta. Personnel subject to overtime payments after forty (40)
hours worked in a given week will have their overtime hourly rate
specified. Travel costs shall not be billed at higher than Coach
class rates (or, if lower, the fare actually paid) An itemization of
expenses shall be included with each invoice.
Section
4.02. Invoices. Rivertek shall submit invoices weekly to
Scivanta for Services rendered, for items purchased, and authorized expenses
incurred. Invoices shall be sent to Scivanta at 000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxxxx. Each invoice will
show the name and number of hours for each Person who performed Services during
the invoice period and, for equipment supplied by Rivertek, the type of
equipment and hours used. All invoices shall reference Rivertek’s
Purchase Order Number.
Section
4.03. Payment. Invoices shall be payable thirty (30) days from
receipt.
Section
4.04. Supporting Documentation. Scivanta, upon request, shall
be permitted to inspect all time reports and similar documentation in Rivertek’s
possession and control relating to Services provided pursuant to this
Agreement.
Article
V
Rivertek
Personnel
Section
5.01. Personnel of Rivertek. The relationship of Rivertek to
Scivanta shall be independent contractor. Rivertek and Scivanta
acknowledge and agree that although Personnel performing Services may at some
times perform those Services under the general direction of Scivanta, such
Personnel shall at all times and for all purposes be deemed Employees of or
Consultants to Rivertek and not employees of Scivanta. Rivertek shall
advise all Personnel of this fact.
Section
5.02. Wages and Salaries. Rivertek shall be responsible for
all contract obligations it may have with its Consultants, for the payment of
all wages and salaries payable to Employees, and the cost of providing Employees
with any fringe benefits to which they are entitled by reason of being employed
by Rivertek. Rivertek shall be responsible for withholding payroll
taxes from the wages and salaries paid to Employees and the payment of such
payroll and employer taxes to government agencies. Rivertek shall
also provide xxxxxxx’x compensation insurance, unemployment insurance and any
other insurance required by statute in respect of Employees provided
hereunder
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Section
5.03. Pass-through of Obligations. Rivertek shall
have a written agreement in place with each Person defining the Rivertek/Person
relationship in such a way, and imposing any indicated obligations on the
Person, to give Rivertek rights against such Person sufficient to enable
Rivertek to comply with its obligations to Scivanta under Article VI and Article
VIII. For example, the Person must agree that Rivertek (or Rivertek’s
client directly) is the owner of all Rights, so Rivertek can assign the Rights
to Scivanta.
Section
5.04. Non-Solicitation. During this Agreement, neither
party shall solicit any personnel of the other party to leave in order to become
an employee or consultant of the first party. Offers to the public or
the trade generally shall not constitute solicitation.
Article
VI
Property Rights of
Scivanta
Section
6.01. Confidentiality. Rivertek acknowledges that Personnel
will have access to confidential information while performing Services pursuant
to this Agreement. Rivertek, for itself and its Personnel, agrees to
maintain the confidentiality of such confidential information and to not
disclose it to third parties or Personnel of Rivertek other than those Personnel
who have a need to have such confidential information to perform Services,
without prior written consent of Scivanta.
Section
6.02. Use of Scivanta Property. Neither Rivertek nor any
Person shall use for their benefit, or for the benefit of any person or entity
other than Scivanta, any confidential information or Scivanta
materials.
Section
6.03. Returnability. Rivertek Personnel and
Rivertek shall have no ownership or license rights in any Confidential
Information (including Results) or Scivanta Materials or related
Rights. Upon completion of the Services, Rivertek shall return to
Scivanta all copies and originals of Scivanta Materials, and all copies and
originals of all notes, documents or other materials created by Rivertek
Personnel embodying or reflecting any of the foregoing.
Section
6.04. Ownership of Rights. All Rights in all
Results shall be the sole property of Scivanta. Rivertek hereby
assigns (and agrees to assign) to Scivanta all such
Rights. Furthermore, it is agreed that all works of authorship within
the Results are works made for hire.
Section
6.05. Cooperation in Assignment/Enforcement of
Rights. Rivertek (for it and its Personnel) agrees to provide
all reasonable assistance to Scivanta in obtaining, maintaining, defending and
enforcing Rights, in the name of (or transferred to) Scivanta, with respect to
the Results.
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Section
6.06. Disclosure. Rivertek shall promptly disclose
to Scivanta, Results which Rivertek in good faith believes are material to
Scivanta, and agrees to conform to Rivertek’s Engineering and Product
Development Procedures, including those relating to the delivery of
results. Rivertek shall promptly disclose to Scivanta all inventions
of Personnel for which, to Rivertek’s knowledge, any patent application relating
to the subject matter of the Services is filed and for which a conception and/or
reduction-to-practice date earlier than 6 months after a Person’s final date of
providing Services under this agreement. Such disclosure shall be
kept confidential by Scivanta unless Scivanta is the true owner of the Rights to
the invention.
Section
6.07. Originality Warrant. Rivertek warrants to the best of
its knowledge that all technology/writings created by Personnel shall be
original creations for Scivanta for hire and shall not knowingly infringe any
U.S. rights of a third party.
Article
VII
Term and
Termination
Section
7.01. Effective Date. This Agreement shall be effective
February 1 2008, and shall continue in effect until January 31, 2009 unless it
is earlier terminated by either party upon giving the other party not less than
seventy-two (72) hours prior written notice of termination. The
obligations in Article V shall survive the termination of this
Agreement.
Article
IX
Miscellaneous
Section
9.01. Notices. Written notices required or permitted hereunder
shall be deemed to have been delivered if sent by first class mail, postage
prepaid, to the following addresses or such other address as may be designated
by a party:
If to
Rivertek:
Rivertek
Medical Systems, Inc.
0000
Xxxxxxxxx Xxx. Xx.
#000
Xx. Xxxx,
XX 00000
Attn: Managing
Director
If to
Scivanta:
000
Xxxxxx Xxxxxx
Xxxxxx
Xxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxxx
Executive
Vice President and CFO.
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Section
9.02. Insurance. Rivertek shall maintain liability insurance
providing coverage for personal injury (including death) and property damage
caused by any negligence or intentional act or omission or Rivertek, its
directors, officers, employees or agents.
Section
9.03. Disclaimer of Agency. This Agreement shall not make
either party the legal representative or agent of the other, nor shall either
party have the right or authority to assume, create, or incur any third party
liability or obligation of any kind, express or implied, against or in the name
of or on behalf of the other party except as expressly set forth in this
Agreement. Each party agrees that it will not attempt to assume,
create, or incur any such liability or obligation against or in the name of or
on behalf of the other party.
Section
9.04. Entirety of Agreement. This Agreement sets forth the
entire agreement and understanding of the parties relating to the subject matter
contained herein and merges all prior discussions between them, and neither
party shall be bound by any representation other than as expressly stated in
this Agreement, or by a written amendment to this Agreement signed by authorized
representatives of both parties.
Section
9.05. Non-Waiver. The failure of either party in any one or
more instances to insist upon strict performance of any of the terms and
conditions of this Agreement shall not be constructed as a waiver or
relinquishment, to any extent, of the right to assert or rely upon any such
terms or conditions on any future occasion.
Section
9.06. Headings. The headings contained in this Agreement have
been added for convenience only and shall not be constructed as
limiting.
Section
9.07. Severability. In the event any term of this Agreement is
or becomes or is declared to be invalid or void by any court of competent
jurisdiction, such term or terms shall be construed in such a way as to make
them valid and enforceable to the maximum extent possible in such a way as to
make effective the parties expressed intent insofar as possible, and all the
remaining terms of this Agreement shall remain in full force and
effect.
Section
9.08. Governing Law. The validity, performance and
construction of this Agreement shall be governed by the laws of the State of New
Jersey. The parties hereby agree that any dispute relating to this
Agreement shall be subject to the jurisdiction of the courts within the State of
New Jersey.
Section
9.09. Assignment. Neither this Agreement nor the rights and
obligations arising hereunder may be assigned or transferred by either party
without the prior written consent of the other party. Any attempted
assignment in violation of the preceding sentence shall be null and
void.
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Section
9.10. Equitable Remedies. Rivertek acknowledges Scivanta will
suffer serious, irreparable harm if Rivertek violates this Agreement, and that
damages would not be an adequate remedy for the breach. Therefore, in
the event of any such breach, in addition to other available remedies, Scivanta
shall have the right (without being required to post any bond or other security)
to obtain temporary, preliminary and/or permanent injunctive relief and/or
specific performance.
IN
WITNESS WHEREOF the parties have caused this Agreement to be executed, effective
as of the latter of the two dates set forth below.
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Rivertek
Medical Systems, Inc.
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By:
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/s/
Xxxxxx X. Xxxx
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Xxxxxx
X. Xxxx
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Managing
Director
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Date:
January 31, 2008
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Scivanta
Medical Corporation
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Executive
Vice President and CFO
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Date:
February 1,
2008
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7
EXHIBIT
A TO SERVICE AGREEMENT BETWEEN
RIVERTEK
MEDICAL SYSTEMS, INC. AND SCIVANTA MEDICAL
CORPORATION.
DATED:
February 1, 2008
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1.
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Description
of Services: Investigation and analysis of designs,
products, processes, procedures, schedules and personnel on behalf of
Scivanta.
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2.
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Acceptance
Criteria: The Services shall not be considered complete
until accepted by Scivanta in accordance with established specifications,
government regulations, and accepted industry development
practices.
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3.
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Expected
Duration of Services: Rivertek shall begin the Services
on or about February 1, 2008, and will continue to provide services on an
as-requested
basis through March 30, 2008. Rivertek will be notified
of Scivanta’s need for services, and the expected duration of those
services when the work is
available.
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4.
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Schedule
of Charges: This is a time and materials
contract. Charges for personnel will be billed at the following
rates:
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Xxxxxx
Xxxx Senior
Program
Manager $150.00/Hr
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By:
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/s/
Xxxxxx X. Xxxx
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Xxxxxx
X. Xxxx
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Managing
Director
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Date:
January 31, 2008
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Scivanta
Medical Corporation
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Executive
Vice President and CFO
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Date:
February 1,
2008
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