This Consulting Agreement ("Agreement") is entered into this 1st day of
October 1998 (the "Effective Date"), by and between SGI International, a Utah
corporation ("SGI") and ________________ ("Consultant").
1. Performance by Consultant. Consultant agrees to provide consulting services
(the "Services") relating to strategic planning, negotiation and other services
as requested by the Company. The Services shall also include, but not be limited
to, advice, assistance, and information supplied by Consultant, or developed
with the use of any of Consultant's information, equipment, personnel, goods or
facilities.
2. Payment for Services.
a. Consulting Fee. SGI agrees to pay Consultant for the Services in an amount
described on Exhibit A attached hereto.
b. Additional Compensation. SGI International may also issue warrants to
Consultant in an amount determined by its Board of Directors.
3. Personal Service Contract. SGI and Consultant agree that the Services will be
performed personally by Consultant. If the services are not performed by
Consultant, then SGI has the right to terminate this Agreement immediately.
4. Obligations of SGI. SGI agrees to make available to Consultant, upon
reasonable notice, computer programs, data, and any documentation required by
Consultant to complete the Services.
5. Term. This Agreement shall be effective and shall continue for a period for
one year. Absent termination in writing by either party within a thirty day
period prior to the end of each one year term, the Agreement shall continue for
one additional one year term.
6. Ownership. Consultant agrees that SGI is the owner of all right, title and
interest in proprietary information and data (the "Proprietary Information"),
including but not limited to that relating to the processing of oil, resid and
other carbonaceous material and oil materials, and to the drying, cleaning and
other processing of coal, bitumen, crude as well as any developments or
improvement related thereto, and as well as any related process control
technology, computational techniques or related trade secrets or intellectual
property. SGI shall also own all other technical and confidential information
and related material used by, developed for, or paid for, by it in connection
with the performance of any Services provided by Consultant before or after the
date set forth above.
7. Confidentially and Disclosure.
a. Disclosure. Consultant desires to have the Proprietary Information
disclosed to him to enable him to render the Services to SGI. SGI is prepared to
make such Proprietary Information as it deems necessary available to Consultant
for the aforesaid purpose on the following understanding:
For the purpose of the Agreement:
The term "Proprietary Information" shall not include any information which:
(i) is "publicly available" information. The phrase "publicly available"
information shall mean readily accessible to the public in written publication,
and shall not include information which is only available by a substantial
searching of the published literature, and information the substance of which
must be pieced together from a number of different publications and sources;
(ii) is known to Consultant from sources other than SGI or its Affiliates prior
to the receipt of the same hereunder from SGI or its Affiliates;
(iii) is received by Consultant without restriction on disclosure from a third
party who is legally in possession of such information and has a right to
reveal the same to Consultant.
(iv) "Affiliate(s)" of SGI shall mean any person or entity directly or
indirectly controlling, controlled by or under common control with SGI.
Notwithstanding anything herein to the contrary in this Agreement, Consultant
shall have the right to use general skills and capabilities developed as a
result of his performance of Services for his own benefit or the benefit of
others subject to the obligation of Consultant set forth hereinafter.
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b. Confidentiality. Consultant agrees to hold the Proprietary Information in
confidence and not to reproduce or disclose it to others nor to use it except
as herein authorized in writing or as may later be authorized in writing by SGI.
c. Usage. Both parties agree that the Consultant may use such Proprietary
Information in connection with, but only in connection with, providing Services
to SGI.
8. Termination. This Agreement shall be effective on the Effective Date and
continue in full force and effect until terminated in writing by either party
during a thirty (30) day period prior to the end of the term of the Agreement.
9. Independent Contractor. Consultant is and at all times during the term of
this Agreement shall be an independent contractor providing professional
consulting services to SGI. Nothing contained in this Agreement shall be
construed to create a relationship of principal and agent, employer and
employee, servant and master, partnership or joint venture between the parties.
Consultant shall have no power to commit or bind SGI in any manner whatsoever.
10. Limitation of Liability. In no event shall either of the parties hereto be
liable to the other for the payment of any consequential, indirect, or special
damages, including lost profits.
11. Notices. Any and all notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given or received when delivered
personally or forty-eight (48) hours after being mailed, via first class,
postage prepaid, to the addresses set forth immediately below of the parties
hereto or to such other addresses as either of the parties hereto from time to
time designate in writing to the other party.
SGI: SGI International
0000 Xxxxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Consultant:
12. Applicable Law. The provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of California.
13. Entire Agreement and Amendments. This Agreement constitutes the entire
understanding and agreement between the parties relating to the subject matter
hereof and supersedes any prior written or oral understanding or agreement
between the parties relating to the subject matter hereof. This Agreement shall
not be amended, altered, or supplemented in any way except by an instrument in
writing, signed by the duly authorized representative of the parties, that
expressly references this Agreement.
14. Waivers. The failure or delay of either party to exercise or enforce at any
time any of the provisions of this Agreement shall not constitute or be deemed a
waiver of that party's right thereafter to enforce each and every provision of
the Agreement and shall not otherwise affect the validity of this Agreement.
15. Severability. If any provision of this Agreement is finally determined to be
contrary to, prohibited by, or invalid under applicable laws or regulations,
such provision shall become inapplicable and shall be deemed omitted from this
Agreement. Such determination shall not, however, in any way invalidate the
remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and in
the year first above written.
SGI Consultant
SGI International
a Utah Corporation
By: /s/ Xxxxxx X. Xxxxxx By:
-------------------------- ----------------------------
Xxxxxx X. Xxxxxx
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