EXHIBIT 10.4
CYBEROPTICS CORPORATION
INDEPENDENT CONTRACTOR - SERVICES AGREEMENT
This Independent Contractor - Services Agreement (`Agreement") is made
and entered into this 13th day of October 2002 ("Effective Date") by and between
CyberOptics Corporation, having a principal place of business at 0000 Xxxxxx
Xxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx 00000 U.S.A. ("CyberOptics") and Xxxxxx X.
Xxxxx, having a principal place of business at 00000 Xxxxxx Xxxxx, Xxxx Xxxxxxx,
XX, 00000 X.X.X. ("Contractor").
RECITALS
WHEREAS, CyberOptics requires services to address particular business
needs of CyberOptics; and
WHEREAS, Contractor has expertise in certain services required by
CyberOptics and is willing to provide such services.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises more particularly set forth hereinafter, the above parties,
intending to be legally bound, agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
1.1. "Contractor Personnel" shall mean the employees, contractors,
agents, representatives and/or other persons utilized by Contractor to provide
the Services.
1.2. "Intellectual Property Rights" shall mean any and all patents,
copyrights, trade marks, trade secrets and other intellectual
or proprietary rights, and any and all right, title and
interest in any of the foregoing.
1.3. "Inventions" shall mean any and all improvements, inventions,
discoveries, designs and/or implementations, whether or not
patentable, created, conceived or first reduced to practice in
the performance of this Agreement, and including any
Intellectual Property Rights therein.
1.4. "Reimbursable Expenses" shall mean any direct, reasonable,
verifiable expenses incurred by Contractor related solely to
providing the Services for CyberOptics under this Agreement,
and which have been pre-approved in writing by CyberOptics.
1.5. "Services" shall mean any and all services provided by
Contractor and Contractor Personnel to CyberOptics, including,
without limitation, any and all materials, documentation,
drawings, designs, products, deliverables and/or other items
that Contractor provides to CyberOptics as part of such
services. The parties will describe the Services in as much
detail as is reasonably possible and set forth such in
Attachment A to this Agreement ("Statement of Work");
provided, however,
-1-
that all Services provided by Contractor and Contractor
Personnel for CyberOptics during the term of this Agreement
shall be subject to this Agreement, whether or not such
Services are included in such description.
1.6. "Statement of Work" shall mean the description of the Services
to be provided by Contractor under this Agreement, including,
as applicable, the required or expected duration of the
Statement of Work, the compensation to be paid Contractor
under a given Statement of Work, name(s) of authorized
Contractor Personnel, and any other special terms or
conditions related to providing any specific Services, all as
set forth in Attachment A which is incorporated herein by
reference.
2. AGREEMENT TO PERFORM SERVICES / PERSONNEL & RESOURCES. In consideration
of the compensation to be provided Contractor as set forth in the
applicable Statement of Work, Contractor agrees to furnish Contractor
Personnel to provide the Services required by CyberOptics as specified
in the Statement of Work, and to complete such Services in accordance
with such Statement of Work. If Contractor is providing Services at
CyberOptics facility, then CyberOptics will, in its sole discretion,
furnish Contractor Personnel with reasonable and necessary
accommodations at such facility to the extent such are required to
complete the Services (work space, access to any CyberOptics equipment
and/or computers, etc.). Except for the foregoing accommodations
provided by CyberOptics, or as otherwise agreed to by CyberOptics in
writing, Contractor shall furnish all tools, equipment, vehicles and
other necessary resources to provide the Services specified in the
Statement of Work.
3. COMPLETION OF SERVICES. Completion of Services within the time
specified in the applicable Statement of Work is of the essence.
CyberOptics reserves the right to immediately terminate, without
incurring any cost or liability whatsoever, all or part of the
uncompleted portion(s) of the Statement of Work if Contractor does not,
or if in CyberOptics' reasonable judgment Contractor cannot, complete
the Services as specified in the Statement of Work. If Contractor fails
to meet the Statement of Work completion schedule, CyberOptics shall be
entitled to request completion of the Services by the most expeditious
means available with expenses related to such means to be borne by
Contractor.
4. OTHER CONTRACTORS. CyberOptics retains the right to contract with other
companies, contractors, individuals or entities for services, materials
or other items similar or identical to the Services provided by
Contractor under this Agreement.
5. INDEPENDENT CONTRACTOR / RESPONSIBILITY. Contractor agrees that it is
an independent contractor and that it has no right or authority to bind
Cyber0ptics in any way. Contractor and Contractor Personnel shall not
be considered employees, agents or representatives of CyberOptics for
any purpose whatsoever, and Contractor shall have full responsibility
and liability, at all times, for any and all actions and consequences
of Contractor Personnel. Contractor Personnel shall not be entitled to
any benefits from CyberOptics whatsoever, including, without
limitation, those benefits that CyberOptics provides its employees.
Contractor is responsible for the payment of compensation to the
-2-
Contractor Personnel and, as applicable, for any withholding of any
taxes (including, without limitation, any taxes related to income,
social security or otherwise), workers compensation coverage,
unemployment and disability benefits, and the like. Should Contractor
breach any of the foregoing provisions, Contractor shall indemnify and
hold CyberOptics harmless from all costs, expenses, liabilities of any
kind arising out of or incidental to such breach (including, without
limitation, any reasonable attorneys' fees).
6. INVENTIONS & OWNERSHIP. Contractor and Contractor Personnel shall
promptly disclose to CyberOptics any and all Inventions which
Contractor or Contractor Personnel, individually or in collaboration
with Cyber0ptics or others, may conceive or first actually reduce to
practice during the term of this Agreement or after the term of this
Agreement, if such Inventions relate to any Services provided during
the term of the Agreement. Any and all such Inventions shall be the
sole and exclusive property of CyberOptics or its nominee, and shall be
considered "work for hire". Contractor hereby acknowledges and agrees
that all right, title and interest in and to the Services, including,
without limitation, any and all Intellectual Property Rights, shall be
in and with CyberOptics. The foregoing shall not apply to any
Inventions that satisfy both of the following conditions: (1) that for
which no equipment, supplies, facility, assistance, compensation, trade
secret information of CyberOptics, or any CyberOptics Confidential
Information, was used and/or received by Contractor or Contractor
Personnel; and (2) that which was developed entirely on Contractor's
own time using only its employees and/or contractors.
7. CONTRACTOR ASSISTANCE WITH RESPECT TO INVENTIONS. At any time, whenever
requested to do so by CyberOptics, Contractor and Contractor Personnel
shall execute and assign any and all applications, assignments, and
other instruments, and provide all other aid and assistance which
CyberOptics deems necessary in its opinion, in order to apply for,
obtain, perfect and/or assign Intellectual Property Rights in the
United States or in foreign countries, which are related to and/or are
a result of the Services (including any Inventions arising thereunder).
Cyber0ptics shall pay for and/or reimburse Contractor for all
reasonable and documented expenses incurred by Contractor in providing
such assistance.
8. DOCUMENTATION & OTHER MATERIALS. Upon termination of any given
Statement of Work, and upon termination of this Agreement, Contractor
shall turn over to CyberOptics all notes, memoranda, drawings, designs,
software, parts, components or other documents and items (and all
copies thereof) made, compiled or obtained by Contractor and Contractor
Personnel comprising or concerning the Services, it being understood
that the same and all information contained therein shall be at all
times be the sole property of CyberOptics.
9. CONTRACTOR PERSONNEL AGREEMENTS. Contractor shall require all
Contractor Personnel to sign a "Contractor Personnel Confidentiality
and Invention Assignment Agreement" as set forth in Attachment B, which
shall be incorporated herein by reference.
10. AGREEMENT TERM. The term of this Agreement shall be from the Effective
Date and continue for a period of one (1) year, unless earlier
terminated as provided herein, or otherwise extended by mutual
agreement of both parties in writing.
-3-
11. TERMINATION & CHANGES.
11.1. Either party may terminate this Agreement for any reason at
any time by giving the other party five (5) calendar days
prior written notice. Notwithstanding the foregoing, once the
Contractor has agreed to provide any Services under a specific
Statement of Work, the Contractor shall not be permitted to
terminate this Agreement and any such Statement of Work
unless: (1) Cyber0ptics approves such termination in writing
in its sole discretion; or (2) CyberOptics is in substantial
breach of a material term of this Agreement and such breach
remains uncured for thirty (30) days following Contractor's
written notice thereof to CyberOptics. In the event
CyberOptics substantially breaches a material term of this
Agreement, and CyberOptics has failed to cure such breach
within the aforesaid thirty (30) day written notice period,
then Contractor may terminate the Agreement and/or any
Statement of Work thereunder immediately upon written notice
to Cyber0ptics. Any Agreement termination shall not prejudice
any other legal rights or remedies available to either party.
11.2. Cyber0ptics may, at any time, require modifications be made to
the Statement of Work, in whole or part, and Contractor agrees
to work with Cyber0ptics in good faith to mutually agree upon
such modifications, which shall be set forth in a writing
signed by both parties- (e.g., an updated Statement of Work).
Further, CyberOptics may, at any time and without incurring
any costs or liability, suspend performance of the Services
under any given Statement of Work; if any given suspension
exceeds sixty (60) days in duration, then Contractor may, upon
thirty (30) days written notice to CyberOptics, terminate the
affected Statement of Work if CyberOptics has not ended such
suspension prior to the end of the aforesaid thirty (30) day
period.
12. SURVIVAL. Sections 1, 4 through 9, 12, 14 through 20, 22 and 23 of this
Agreement, shall survive termination or expiration of this Agreement
for any reason.
13. PRICES, TAXES, & INVOICES. Prices shall be in U.S. dollars (USD).
Contractor warrants that the prices and other terms for the Services
provided in the applicable Statement of Work are not less favorable
than those extended to all of its other customers for the same or like
services. All invoices rendered to CyberOptics shall reference this
Agreement and clearly illustrate any necessary taxes, freight and/or
similar charges. CyberOptics shall make payment of Contractor invoices
thirty (30) days after receipt thereof, subject to adjustment for
errors and/or other justifiable causes.
14. CYBEROPTICS' PROPERTY. In the event CyberOptics furnishes and/or pays
for material, tools, equipment and/or other resources that Contractor
and Contractor Personnel use to provide the Services (hereinafter
"CyberOptics Property"), title thereto shall be in and remain with
CyberOptics, and Contractor shall identify, maintain and preserve such
CyberOptics Property and shall dispose of such CyberOptics Property
only in accordance with CyberOptics' written instructions, which
CyberOptics may give at any time. CyberOptics Property shall be used
only in the performance of this Agreement for CyberOptics benefit, or
as otherwise instructed by CyberOptics in writing. Contractor
-4-
shall be responsible for any loss, damage, or destruction to
CyberOptics Property (normal wear and tear excepted). CyberOptics does
not warrant the accuracy or any other aspect of the CyberOptics
Property, and such is provided to Contractor and Contractor Personnel
"AS IS." Any CyberOptics Property provided to Contractor or Contractor
Personnel at CyberOptics facility shall not, unless specifically agreed
to by CyberOptics in writing, be removed from such CyberOptics
facility.
15. COMPLIANCE WITH LAW. Contractor shall comply with all applicable laws,
statutes, rules, regulations, executive orders and ordinances of the
U.S. Government, or of any state or local authority, which now or may
hereafter govern performance of this Agreement and/or any Services
provided hereunder. Without limiting the foregoing, Contractor shall
comply with all U.S. laws and regulations governing the import, export
or re-export of any materials and/or any technology related thereto.
Contractor is an equal opportunity employer, and complies with all
applicable provisions of Executive Order 11246.
16. GENERAL INDEMNITY. Contractor agrees to indemnify, defend and hold
harmless CyberOptics from and against any and all Actions (as defined
in Section 17 above), arising out of or incidental to the injuries or
death to any persons, or damage to or destruction of any property, or
breach of any Contractor warranty or representation made part of this
Agreement, which is caused by or arises from any acts or omissions of
Contractor and/or Contractor Personnel. Contractor shall maintain such
insurance as will protect the Indemnified Parties and CyberOptics from
claims under applicable Worker's Compensation Acts and from any and all
other claims for damages, personal injury, or death to any person which
may arise under this Agreement. Upon CyberOptics' request, certificates
of such insurance shall be filed with CyberOptics and shall be subject
to CyberOptics' reasonable approval for adequacy of protection
(including, if requested by CyberOptics, listing CyberOptics as an
additional insured on such insurance certificates).
17. CONFIDENTIAL INFORMATION. Any information disclosed by CyberOptics to
Contractor or Contractor Personnel under this Agreement or any
Statement of Work thereunder, or which Contractor and Contractor
Personnel become aware of due to being on CyberOptics' premises
(including, without limitation, any specifications, drawings, data,
research and development efforts, or any information related to any
aspect of CyberOptics' business) shall be considered "CyberOptics
Confidential Information". Notwithstanding the foregoing, CyberOptics
Confidential Information shall not include information that is or
becomes publicly known through no wrongful act of Contractor and/or
Contractor Personnel. Contractor shall not disclose any CyberOptics
Confidential Information to any third parties without CyberOptics'
prior written consent, except in the case of Contractor Personnel who:
(1) are under a written obligation of confidentiality with Contractor
which is sufficient to protect CyberOptics Confidential Information as
required herein; and (2) have signed a Confidentiality and Invention
Assignment Agreement as set forth in Attachment B to this Agreement.
CyberOptics shall, at all times, retain all right, title and interest
in the CyberOptics Confidential Information and all copies thereof.
Contractor and Contractor Personnel shall use CyberOptics Confidential
Information only to accomplish their obligations under this Agreement.
Contractor agrees to use its best efforts to protect the CyberOptics
Confidential Information from any unauthorized use or disclosure.
CyberOptics Confidential
-5-
Information and all copies thereof shall be returned to CyberOptics
upon the earlier of CyberOptics' written request or the completion of
the Services under the applicable Statement of Work. CyberOptics shall
own all Inventions which Contractor, Contractor Personnel or any other
party may derive from the CyberOptics Confidential Information, and
Contractor agrees to assign, and hereby does assign to CyberOptics any
such Inventions, whether or not any such Inventions are reduced to
practice. Any information which Contractor discloses to CyberOptics in
connection with this Agreement shall not, unless agreed to by
CyberOptics in writing, be deemed to be confidential or proprietary
information of Contractor and shall be acquired free from any
restrictions on CyberOptics as to use or disclosure.
18. GOVERNING LAW & DISPUTES. This Agreement is formed and shall be
construed, performed and enforced under the laws of the State of
Minnesota, U.S.A., exclusive of its choice of law or conflict of law
provisions. CyberOptics and Contractor agree that the proper and sole
venue for all actions arising under this Agreement shall be in the
applicable courts in the State of Minnesota. The 1980 United Nations
Convention on Contracts for the International Sale of Goods (CISG)
shall not apply to this Agreement. During the pendency of any dispute
arising under this Agreement, Contractor shall proceed diligently with
its obligations set forth in this Agreement.
19. DELAY & FORCE MAJEURE. When any actual or potential event delays or
threatens delay of completion of any Services, Contractor shall
immediately provide CyberOptics with written notice thereof, including
all relevant information with respect thereto. Any delay or failure by
Contractor to perform its obligations to this Agreement shall be
excused if and to the extent that such is caused by an event or
occurrence beyond Contractor's reasonable control, including fires,
floods, windstorms, explosions, riots, wars, and natural disasters;
provided, however, that the Contractor's inability to obtain and
provide Contractor Personnel or supplies / materials required or
contemplated for providing any given Services shall not be deemed to
constitute an event or occurrence beyond Contractor's reasonable
control.
20. DISCLAIMER & LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, NEITHER PARTY HAS MADE ANY WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE,
CONCERNING THE AMOUNT OF SERVICES, COMPENSATION A1ND/OR OTHER BENEFITS
THAT CYBEROPTICS WILL PROVIDE TO CONTRACTOR. IN NO EVENT, REGARDLESS OF
THE FORM OF THE CAUSE OF ACTION, WILL CYBEROPTICS LIABILITY TO
CONTRACTOR AND CONTRACTOR PERSONNEL UNDER THIS AGREEMENT EXCEED THE
COMPENSATION PAID TO CONTRACTOR UNDER THE APPLICABLE STATEMENT(S) OF
WORK UNDER WHICH THE CAUSE(S) OF ACTION ARISE.
21. GENERAL PROVISIONS. (a) In the event that any of the provisions of this
Agreement are in conflict with any rule of law or statutory provision
or otherwise unenforceable, such provisions shall be deemed stricken
from this Agreement, but such invalidity or unenforceability shall not
invalidate any of the other provisions of this Agreement and all other
enforceable provisions of this Agreement shall continue in full force.
(b) No rights
-6-
or obligations other than those expressly recited herein are to be
granted or implied from this Agreement; in particular, no license is
hereby granted or implied, either directly or indirectly, under any
patent, copyright, trademark, trade secret or other intellectual
property right now held by, or which may be obtained by, or which is or
may be licensable by CyberOptics. (c) The failure of CyberOptics to
insist, in any one or more instances, upon the performance of any of
the terms and conditions of this Agreement, or to excuse any right
hereunder, shall not be construed as a waiver or relinquishment of the
future performance of any such term or condition or the future exercise
of such right, but the obligation of Contractor with respect to such
future performance shall continue in full force and effect. (d)
Contractor shall not, without first obtaining the written consent of
Cyber0ptics, in any manner advertise or publish the fact that
Contractor has contracted with Cyber0ptics to perform the services
described herein. (e) There are no understandings, agreements or
representations, express or implied, written or oral, not specified in
the Agreement. Any terms or conditions stated by the Contractor in any
prior, concurrent or subsequent proposal, offer, quotation,
acknowledgement and/or other document(s) are deemed by CyberOptics to
be a material alteration of this Agreement and are hereby rejected and
inapplicable unless specifically agreed to in writing by CyberOptics.
(f) Any modification of this Agreement or any part thereof must be
approved in writing by a duly authorized representative of both
parties. (g) Any notices to be provided under this Agreement shall be
in writing and shall be sent by certified mail (return receipt
requested), overnight courier with delivery verification, or by
verifiable electronic communications (e.g., facsimile or e-mail), to
the respective personnel signing this Agreement below, at the addresses
set forth at the top of this Agreement, or as the same may be changed
from time to time by notice similarly given. If notice is sent by
certified mail or by overnight courier, it shall be effective when
received; if sent by verifiable electronic communications, it shall be
effective when a transmittal can be verified as completed.
-7-
IN WITNESS WHEREOF, the parties hereto have executed and agreed to this
Agreement and made it effective as of the Effective Date.
CYBEROPTICS CORPORATION CONTRACTOR
/s/ Xxxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxx
------------------------------ ------------------------------
(SIGNATURE) (SIGNATURE)
Xxxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxx
------------------------------ ------------------------------
(PRINT/TYPE NAME) (PRINT/TYPE NAME)
President and COO Consultant
------------------------------ ------------------------------
(TITLE) (TITLE)
Sept. 13, 2002 13 Sept. 02
------------------------------ ------------------------------
(DATE) (DATE)
-8-
