INDEPENDENT CONTRACTOR AGREEMENT
This INDEPENDENT CONTRACTOR AGREEMENT (this "Agreement") is dated as of
November 24, 2008, by and among ELECTRONIC SENSOR TECHNOLOGY, INC., a Nevada
corporation ("Company"), WITTHAM, a California corporation ("Wittham") and
XXXXXXX XXXXXXXXX, an individual ("Xxxxxxxxx," and collectively with Wittham,
"Contractor").
W I T N E S S E T H:
WHEREAS, Company wishes to engage Contractor, and Contractor wishes to be
engaged by Company, to have Xxxxxxxxx act as Company's Chief Operating Officer,
on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the above recitals and of the mutual
promises and conditions in this Agreement, it is agreed as follows:
ARTICLE 1.
SERVICES OF CONTRACTOR
Contractor agrees that Xxxxxxxxx will act as Chief Operating Officer of
Company and shall perform the services customarily performed by such an officer
(the "Services"). Contractor will determine the method, details, and means of
performing the Services.
ARTICLE 2.
COMPENSATION
Company agrees to pay Contractor $6,666.67 for the Services on a monthly
basis. Contractor shall be responsible for all expenses incurred in association
with the performance of the Services.
ARTICLE 3.
TERM OF AGREEMENT
3.1 This Agreement will become effective on November 24, 2008. Either
party may terminate this Agreement at any time by giving ten (10) days' written
notice to the other party.
3.2 Should either party default in the performance of this Agreement or
materially breach any of its provisions, the nonbreaching party may terminate
this Agreement by giving written notification to the breaching party.
Termination shall be effective immediately on receipt of the notice, or five (5)
days from mailing of the notice, whichever occurs first. For the purposes of
this section, material breach of this Agreement shall include but not be limited
to the following:
(a) Nonpayment of compensation by Company after twenty (20) days'
written demand for payment.
(b) Failure of Contractor to provide the Services in accordance with
this Agreement.
3.3 Company may terminate this Agreement immediately if Xxxxxxxxx is no
longer employed by Wittham.
ARTICLE 4.
RELATIONSHIP OF THE PARTIES
4.1 Contractor enters into this agreement as, and shall continue to be, an
independent contractor. Under no circumstances shall Contractor look to Company
as his employer, or as a partner, agent, or principal. Contractor shall not be
entitled to any benefits accorded to Company's employees, including workers'
compensation, disability insurance, vacation, or sick pay. Contractor shall be
responsible for providing, at Contractor's expense, and in Contractor's name,
disability, workers' compensation, or other insurance as well as licenses and
permits usual or necessary for performing the Services. Contractor may
represent, perform services for, or be employed by any additional persons, or
companies as Contractor sees fit.
4.2 Contractor shall pay, when and as due, any and all taxes incurred as a
result of Contractor's compensation, including estimated taxes, and shall
provide Company with proof of payment on demand. Contractor indemnifies Company
for any claims, losses, costs, fees, liabilities, damages, or injuries suffered
by Company arising out of Contractor's breach of this section.
ARTICLE 5.
REPRESENTATIONS AND INDEMNITIES
5.1 Contractor represents that Contractor has the qualifications and
ability to perform the Services in a professional manner, without the advice,
control, or supervision of Company. Contractor shall be solely responsible for
the professional performance of the Services, and shall receive no assistance,
direction, or control from Company. Contractor shall have sole discretion and
control of Contractor's services and the manner in which they are performed.
Contractor represents that Xxxxxxxxx is employed by Wittham and will continue to
be employed by Wittham throughout the term of this Agreement.
5.2 Contractor shall and does hereby indemnify, defend, and hold harmless
Company, and Company's officers, directors, and shareholders, from and against
any and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries, and deficiencies, including interest, penalties, and
reasonable attorney fees and costs, that Company may incur or suffer and that
result from, or are related to any breach or failure of Contractor to perform
any of the representations, warranties, and agreements contained in this
Agreement.
5.3 Company shall indemnify Xxxxxxxxx in the performance of his duties as
an officer of Company to the fullest extent permitted by law and Company's
articles of incorporation and bylaws; provided, however, that Company shall only
be required to indemnify Xxxxxxxxx in connection with any action, suit or
proceeding initiated by Xxxxxxxxx if such action, suit or proceeding was
authorized by the board of directors of Company.
ARTICLE 6.
OWNERSHIP OF INTELLECTUAL PROPERTY
6.1 Contractor agrees that all designs, plans, reports, specifications,
drawings, schematics, prototypes, models, inventions, and all other information
and items made during the
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course of this Agreement and arising from the Services ("New Developments")
shall be and are assigned to Company as its sole and exclusive property. On
Company's request, Contractor agrees to assist Company, at Company's expense, to
obtain patents or copyrights for such New Developments, including the disclosure
of all pertinent information and data, the execution of all applications,
specifications, oaths, and assignments, and all other instruments and papers
that Company shall deem necessary to apply for and to assign or convey to
Company, its successors and assigns or nominees, the sole and exclusive right,
title, and interest in such New Developments. Contractor agrees to obtain or has
obtained written assurances from its employees and contract personnel, if any,
of their agreement to these terms with regard to proprietary information and New
Developments.
6.2 Contractor warrants that Contractor has good title to any New
Developments, and the right to assign New Developments to Company free of any
proprietary rights of any other party or any other encumbrance whatever.
6.3 The written, printed, graphic, or electronically recorded materials
furnished by Company for use by Contractor are proprietary information and the
property of Company. Proprietary information also includes, but is not limited
to, specific customer requirements, customer and potential customer lists,
including information concerning Company's employees, agents, or divisions, and
pricing information.
6.4 Contractor will maintain in confidence and will not, directly or
indirectly, disclose or use, either during or after the term of this Agreement,
any proprietary information or confidential information or know-how belonging to
Company, whether or not it is in written or permanent form, except to the extent
necessary to perform the Services. On termination of Contractor's services to
the Company, or at the request of Company before termination, Contractor shall
deliver to Company all material in Contractor's possession relating to Company's
business. The obligations concerning proprietary information extend to
information belonging to customers and suppliers of Company about whom
Contractor may have gained knowledge as a result of performing the Services.
ARTICLE 7.
MISCELLANEOUS PROVISIONS
7.1 This Agreement contains the entire agreement between the parties
regarding the subject matter hereof and supersedes all prior oral and written
agreements, understandings, commitments, and practices between them.
7.2 No oral modifications, express or implied, may alter or vary the terms
of this Agreement. No amendments or modifications to this Agreement and no
waiver of any provision of this Agreement may be made except by a writing signed
by both parties.
7.3 THE FORMATION, CONSTRUCTION, AND PERFORMANCE OF THIS AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA (EXCLUSIVE
OF CONFLICTS OF LAWS PRINCIPLES) APPLICABLE TO AGREEMENTS EXECUTED AND TO BE
PERFORMED SOLELY WITHIN SUCH JURISDICTION.
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7.4 Except as otherwise expressly provided herein, this Agreement shall be
binding upon, and shall inure to the benefit of, Company, its successors and
assigns. This Agreement, as it relates to Contractor, is a personal contract and
the rights and interest of Contractor hereunder may not be sold, transferred,
assigned, pledged or hypothecated.
7.5 If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and
effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it shall nevertheless remain in full force and effect
in all other circumstances.
7.6 Section headings are for convenience of reference only and shall not
be considered a part of this Agreement.
7.7 This Agreement may be executed in any number of counterparts, each of
which when executed shall be deemed to be an original and all of which together
shall be deemed to be one and the same instrument.
7.8 This Agreement shall not confer any rights or remedies upon any party
other than Contractor, Company and their respective successors and permitted
assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, on and
as of the day and year first above written.
COMPANY: ELECTRONIC SENSOR TECHNOLOGY, INC.
By: /s/ Xxxxx Xxx
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Name : Xxxxx Xxx
Title: President, Chief Executive
Officer and Chairman
WITTHAM
By: /s/ Xxxxxxx Xxxxxxxxx
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Name : Xxxxxxx Xxxxxxxxx
Title: President
CONTRACTOR: /s/ Xxxxxxx Xxxxxxxxx
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XXXXXXX XXXXXXXXX
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