INDEPENDENT CONTRACTOR AGREEMENT
AGREEMENT
made this 2nd day of February 2009,
between Belimed, Inc. (“Contractor”) and BioDrain Medical, Inc.
(“Company”).
WHEREAS,
Company desires to have Contractor to perform certain assignments as the Company
may reasonably request.
WHEREAS,
Contractor desires to engage in a contractual relationship (“Agreement”) with
the Company as described above and perform such assignments as the Company may
reasonably request.
NOW,
THEREFORE, in consideration of the covenants and agreements hereinafter set
forth the parties agree as follows:
|
|
1.
|
Contractual
Services. The Company hereby retains the services of the
Contractor on a non-exclusive basis as an authorized installation and
maintenance firm. Where Contractor’s service will be required,
the Company will introduce Contractor and allow negotiations for services
to occur between Contractor and the third party
customer(s).). Contractor will provide a written quotation and
receive written authorization from the third party customer(s) prior to
initiating installation services. The Company will be
reimbursed at a rate of *** of the total installation
price. Additionally, Contractor will respond and provide
written quotations to the third party customer(s) for extended Service
Agreements or Preventative Maintenance Agreements (collectively referred
to as “Service Agreements”) services. Upon written acceptance
of Contractor Service Agreements, the Company will be reimbursed at a rate
of *** of the Service Agreements’ price. The Contractor is
responsible for all compensation owing for the assignment performed
including, without limitation, all costs of labor, taxes, third-party
charges, materials, overhead and other costs to the
Contractor. The Company acknowledges and agrees that Contractor
will render such Contractual Services only on a part-time or limited
basis.
|
|
|
2.
|
Terms. This
Agreement shall be for a period of 3 years commencing on April 1, 2009.
Agreement shall be automatically renewable annually, on the anniversary
date of the Agreement, unless terminated in writing by either party not
less than 90 days prior to expiration in the given
year.
|
|
|
3.
|
Fees. For
routine repair and preventative maintenance during the Company warranty
period, Contractor shall be paid $*** per hour. Within the
territories defined by Attachment 1, fees are inclusive of all
compensation owing for the assignment performed including, without
limitation, all costs of labor, taxes, third-party charges, materials, and
other costs to the Contractor. All materials and other
purchased items shall be reimbursed at cost by the
Company. Outside of the territories defined by Attachment 1,
and if applicable, the Company is responsible for airfare and hotel
expenses, with the understanding that Contractor will use its best efforts
to maintain reasonable airfare and hotel expenses, as provided for in
Company’s corporate travel policy. The Contractor is to invoice
the Company at the end of each month for hours worked and the Company will
pay the Contractor within 30 days after receipt of an
invoice. Contractor acknowledges that Company shall only be
liable for these expenses during the warranty period (one-year from
purchase date of third party customer). Following the lapse of
the initial warranty period, Contractor will be compensated directly
through the customer, either through the purchase of an extended Service
Agreement, or, if after the warranty, and with no service contract in
place, directly from the third party customer, based on discussions and
negotiations directly with the third party customer and
Contractor.
|
*** This
material has been omitted pursuant to a request for confidential treatment and
filed separately with the Securities and Exchange Commission.
|
|
4.
|
Independent
Contractor. This Agreement shall not establish an
employment relationship between the parties. Contractor
services shall not be regulated or controlled by the Company, but shall be
that of an independent contractor providing contractual
services. Nothing in this Agreement shall be construed as
creating the relationship of an employer and employee between the Company
and the Contractor or any of Contractor’s employees, subcontractors or
agents for the purposes of any current or future employee benefit plan of
the Company. Accordingly, Contractor agrees that the terms of
this Agreement exclude participation by any employees or agents of the
Contractor in any benefit plan of the Company. Neither
Contractor nor any of Contractor’s employees or agents are required or
permitted to make contributions (including, but not limited to,
contribution by salary deduction agreements) to any benefit plan, and no
contributions are made or required to be made for Contractor’s benefit or
the benefit of Contractor’s employees or agents. Contractor
further agrees that neither Contractor nor any of his employees or agents
accrue any benefits under any Company benefit plan by reason of this
Agreement and that services rendered under this Agreement do not give rise
to any claim for benefits under any Company benefit
plan. Contractor waives any right Contractor’s employees or
agents may otherwise be deemed to have to participate in any Company
benefit plan. In addition, neither Contractor nor any of his
employees or agents shall be considered an employee of the Company for
purposes of any tax or contribution levy by any foreign or U.S. federal,
state or local government.
|
|
|
5.
|
Contractor’s
Responsibility As Employer. Contractor represents and
warrants that, except as otherwise specifically stated in writing, all
persons who Contractor assigns to perform work in conjunction with an
assignment from the Company under this Agreement shall be employees or
contractors of the Contractor. Contractor agrees to file all
required returns and reports, withhold and/or pay all required federal,
state and local wage or employment-related taxes including, but not
limited to, income taxes, Social Security taxes, unemployment taxes and
taxes measured by gross income and gross receipts with respect to the
amounts received hereunder or paid to such employees in connection with
their performance of an assignment as required by applicable
law. Contractor further agrees that he will be responsible for
any taxes withheld or required to be paid by any foreign government in
relation to services performed by Contractor or his employees or
agents. Contractor agrees to reimburse the Company for any
wage, employment related or other tax not so withheld/or remitted and for
any costs and expenses including reasonable attorney’s fees and interest
which the Company may incur by reason of Contractor’s failure to comply
with the obligations set forth in this
paragraph.
|
|
|
6.
|
Contractor’s Taxpayer
Identification Number. Contractor shall provide
Contractor’s tax identification number to the
Company.
|
|
|
7.
|
Representation
Regarding Employees. Contractor represents and warrants
that all of his employees or agents assigned to perform work under this
Agreement are legally entitled to perform such work. Contractor
also agrees to comply with all immigration laws of the United
States.
|
|
8.
|
Work
Performed. Company
customers and or third party customers are to call their service requests
directly into the Contractor technical support/dispatch office, where
calls may be entered as a matter of record. For service calls
related to a unit under warranty, Contractor will seek written (electronic
or hard copy) authorization from Company prior to dispatching a field
service technician. For installation and work performed in
support of a Service Agreement, Contractor will dispatch the appropriate
personnel and resolve the problem in a timely
manner. Contractor agrees to provide field service personnel
which are competent and trained in their area of
responsibilities. Company agrees to provide tuition free
product training to Contractor’s field service personnel. When
representing Company on an assigned job, contractor agrees to utilize
Company authorized forms and procedures; including; PM & installation
check lists, service reports, training records. Contractor also
agrees to provide quality repair service, supervision of equipment
installation/performance check out at customer locations and other duties
as assigned, in accordance with established Company procedures and
techniques, using proper tools, test equipment and OEM replacement
parts. Contractor further agrees not to modify, substitute or
alter any OEM component, hardware or software, without the written
permission of Company Engineering. At a minimum on a quarterly basis,
Contractor agrees to provide Company with copies of all documentation
pertaining to all service related calls for the life of this
Agreement.
|
|
|
9.
|
Confidential Business
Information Limitations On Disclosure and Use. It is
understood that in the performance of an assignment, each party
(“Receiving Party”) and his employees or agents will have access to and
may require confidential business information of the other party
(“Disclosing Party”), including, but not limited to, information relating
to the Disclosing Party’s employees, vendors, customers, products,
pricing, and access to the Disclosing Party’s
systems. Receiving Party shall not disclose to anyone not
employed or contracted by the Receiving Party nor use, except on behalf of
the Disclosing Party and with current customers or accounts of Disclosing
Party at the date of signing of this Agreement, any such confidential
information required in the performance of an assignment, except as may be
specifically authorized by the Disclosing Party in
writing. Regardless of the term of this Agreement, Receiving
Party shall be bound by this obligation until the confidential business
information shall lawfully become part of the public domain or the parties
otherwise agree in writing. All business information regarding
customer lists or business arrangements from the Disclosing Party shall be
presumed to be confidential, except to the extent that it shall have been
lawfully published or that it shall have been made freely available to the
general public by the Disclosing Party. Receiving Party agrees
that all tangible forms of the previously mentioned confidential and
proprietary information which Receiving Party requires pursuant to this
Agreement: (i) shall be safeguarded with the same degree of control and
care as a reasonably prudent person would exercise with respect to its own
similar property under similar circumstances and (ii) all copies thereof
shall be returned to the Disclosing Party immediately upon a written
request therefore. Receiving Party further agrees to obligate
Receiving Party’s employees and agents to observe and be bound by the same
confidentiality requirements by which Receiving Party is bound hereunder
by the Disclosing Party.
|
|
10.
|
Reciprocal Restriction
on Interference with Business Relationships and Notification of
Visit. Contractor agrees it will not solicit, market,
encourage or otherwise interfere with the business relationship of current
customers of Company. Company agrees it will not solicit,
market, encourage or otherwise interfere with the business relationships
of Contractor’s current customers.
|
|
11.
|
Assignment and
Subcontracting. The rights of each party under this
Agreement are personal to such party and may not be assigned or
transferred to any such person or entity without the prior written consent
of the other party. Notwithstanding the foregoing, the Company
may transfer its rights to an affiliate with the written consent of the
Contractor. Contractor shall not subcontract all or any portion
of an assignment without the prior written approval of the
Company.
|
|
12.
|
Non-solicitation. Contractor
agrees that for the duration of this Agreement and for a period of one (1)
year following the termination or expiration of this Agreement, it shall
not, directly or indirectly through any other individual, person or
entity, employ or solicit, entice, persuade, or induce any individual who
currently is, or at any time during such period shall be, an employee of
the Company to terminate or refrain from renewing or extending his or her
employment by the Company or to become engaged by or enter into a
contractual relationship with Contractor or any other individual, person
or entity. Company agrees that for the duration of this
Agreement and for a period of one (1) year following the termination or
expiration of this Agreeement, it shall not, directly or indirectly
through any other individual, person or entity, employ or solicit, entice,
persuade, or induce any individual who currently is, or at any time during
such period shall be, an employee of the Contractor to terminate or
refrain from renewing or extending his or her employment by the Contractor
or to become engaged by or enter into a contractual relationship with
Company or any other individual, person or
entity.
|
|
13.
|
Termination. Upon
termination of this Agreement, Contractor agrees to stop work and to
return to the Company all items relating to an assignment including, but
not limited to, the following: all reports, drawings, hardware,
software, documents and files, including items electronically recorded
generated or stored on personal computers or diskettes. Copies
of such items shall not be retained by Contractor or its employees and
agents in any form, electronic or otherwise unless required to service
existing accounts of the Contractor. If either party breaches a
material portion of this Agreement and does not remedy such breach within
30 days of written notice, the other party may terminate the Agreement for
cause. This Agreement may be terminated by either party without
cause upon 90 days written notice to the other
party.
|
|
14.
|
Other
Clients. Contractor represents and warrants that the
services for which it has been retained, or other similar services, are
performed for clients other than the
Company.
|
|
15.
|
Indemnity. Each
party (“Indemnifying Party”) understands and acknowledges that the other
party (“Indemnified Party”) will be relying upon the representations made
in this Agreement and hereby agrees to indemnify and hold the Indemnifying
Party harmless from and against any and all claims, suits, damages,
penalties, costs or fees (including reasonable attorney fees)
(collectively, “Claims”) that may arise as a result of any knowing
misrepresentation including any Claims made by any federal, state or local
taxing entity. This indemnity does not extend to any warranty
either expressed or implied in the equipment of the Indemnifying Party or
the failure thereof.
|
|
16.
|
Insurance. Contractor
will maintain one million dollars ($1,000,000.00) in liability insurance
and maintains adequate worker’s compensation
insurance.
|
|
17.
|
Entire
Agreement. This Agreement contains the entire
understanding between the parties. No warranties,
representations or understandings have been made orally or in writing by
either party except those which are expressly set forth in this
Agreement.
|
|
18.
|
Choice of
Law. This Agreement shall be construed and enforced in
accordance with the substantive laws of the State of South Carolina
(without giving effect to its laws regarding conflict of laws), and the
parties hereto agree to submit the exclusive jurisdiction of the federal
and state courts of the State of South Carolina for any and all purposes
hereof.
|
|
19.
|
Severability. If
any provision of this Agreement is found by a court or other competent
authority to be void or unenforceable, the provision must be treated as
amended or deleted from the Agreement, without effecting any other
provisions or the validity of the Agreement. The parties will
negotiate in good faith to agree on the terms of a mutually satisfactory
amended provision, if an amended provision is required to carry out the
intent of the parties expressed in the void and unenforceable
provision.
|
|
20.
|
Mediation of
Issues. In the event of any dispute of this Agreement or
its terms and prior to the filing of any suit or legal action, the parties
agree that they shall submit to mediation to resolve their
differences. Mediation shall take place in South Carolina by a
qualified mediator mutually agreed upon by the
parties.
|
|
21.
|
Response
Time. In agreement with Contractor standard policies,
once notified by Company office, Contractor agrees to respond to customer
requests over the telephone within (2) hours, make every reasonable effort
to respond on site within (24) hours, and guarantee to respond on site
within (48) hours. Contractor requires ten (10) working days
notice to schedule installation personnel, arrange travel and other
applicable resources.
|
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the
first day written above. The parties affirm that this Agreement
accurately and completely reflects their understanding and
agreement.
|
/s/
Xxxx Xxxxx
|
|
Contractor
– Belimed, Inc.
|
|
By:
Xxxx Xxxxx
|
|
Title:
Director, Technical Services
|
|
Dated
this 2nd day of February 2009.
|
|
/s/
Xxxxx Xxxxxxxx
|
|
Company
– BioDrain Medical, Inc.
|
|
Title:
CEO
|
Attachment
1
