INDEPENDENT CONTRACTOR AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into and effective April 23,
2002, between Vital Living Inc., ("VL") and CIDCO (▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇)
("Contractor").
RECITALS
A. Vital Living is engaged in, among other things, the distribution of
nutritional supplements. VL wishes to retain Contractor to assist in VL's
business.
B. Contractor has extensive domestic and international business
experience. CIDCO owns, consults and manages interests in companies in the
medical device field as well as heart hospitals, and wishes to provide
services to VL as an independent contractor. In connection with his work,
Contractor will be given access to, generate, or otherwise come into contact
with certain proprietary and confidential information of VL.
NOW, THEREFORE, the parties agree as follows:
TERMS AND CONDITIONS
1. Scope of Work. Contractor will perform the sales and marketing
services consistent with VL's model. Contractor will specifically be charged
with facilitating the successful completion of the Arizona Heart Institute
(AHI) contract, which will include but not be limited to, coordinating all
meetings, implementation procedures, and follow through with AHI staff to
successfully commence and continue distribution of VL's product distribution
at AHI. Contractor will also assist in the solicitation and execution of
signed agreements with additional Heart Institutes, private clinics and or
hospitals to exclusively distribute the Vital Living Nutraceuticals. This
includes but is not limited to, contacting hospitals, institutes and clinics,
and arranging meetings. Contractor agrees to assist in successfully
implementing the executed agreement with Advanced Medical China which was
subsequently assigned to the AHI Management, HKG Limited and bringing this
agreement to a successful conclusion. Contractor represents that he is
qualified to perform such services and that he will use reasonable
professional skill and his best efforts to perform the work. Contractor will
abide by VL's ordinary policies, procedures, and rules of conduct and will
comport himself lawfully and with integrity. Contractor will at all times be
and represent himself to be an independent contractor, not an agent or
employee.
2. Place of Work and Materials. Contractor will perform the services at
facilities of Contractor's choice. Any equipment or materials paid for by VL
and used by Contractor will be the property of VL.
3. Term: This agreement will commence April 24, 2002 and continue
until December 31, 2002.
4. Termination. This Agreement will terminate upon:
(a) Thirty days written notice of termination by either party; or
(b) VL's determination in good faith that the Contractor has materially
failed to perform the services, which the Contractor is at the time
engaged to perform.
Upon termination of this Agreement, the parties will determine in good
faith the extent, if any, to which Contractor will be compensated for
partially completed work or service through the date of termination.
5. Compensation. In consideration of Contractor's services, VL will pay
Contractor an up front fee of $10,000. Additionally on or around the 1st
business day of each month beginning 5-01-2002, contractor will be paid a
monthly consulting fee of $5,000.
6. Additional Compensation. Upon successful Contractor assistance in
the solicitation and execution of signed agreements with additional Heart
Institutes, private clinics and or hospitals to exclusively distribute the
Vital Living Nutraceuticals, additional compensation to Contractor will be
negotiated.
7. Benefits, Insurance, Taxes. Contractor is an independent
contractor and will not be eligible for any benefits offered by VL to its
employees, including but not limited to health care insurance, group term
life insurance, paid vacation days, paid sick leave days and paid holidays,
except as otherwise specifically provided herein. Contractor agrees to
provide worker's compensation and unemployment insurance coverage for itself
and for all employees and agents employed by the Contractor as required by
law and agrees to hold harmless and indemnify VL for any and all claims
arising out of any injury, disability or death of Contractor and any of
Contractor's employees or agents. Contractor is responsible for all federal
and state income and employment taxes attributable to compensation received
pursuant to this Agreement.
8. Confidentiality. In connection with this Agreement, Contractor
will develop, acquire, or be granted access to trade secrets and other
information that is confidential and proprietary to VL or to third parties.
Such information includes but is not limited to designs, methods and
processes, know-how, business or marketing strategies, product plans,
research plans, development work, development tools, financial information,
sales data, customers lists and information and supplier lists and
information. Contractor will not at any time during or after termination of
this Agreement, directly or indirectly, divulge, use or permit the use of any
confidential or proprietary information, except as required in the course of
this Agreement. Contractor may disclose confidential information to its
employees or agents who need access to such confidential information;
provided, however, that such employees or agents are informed of the
confidential nature of the information and have entered into an agreement
with Contractor regarding VL's confidential and proprietary information not
less restrictive than the requirements of this paragraph of this Agreement.
Upon termination of this Agreement, Contractor will immediately turn over to
VL all materials generated by Contractor or provided to Contractor by VL or
used by Contractor in connection with this Agreement, including all copies
thereof or notes relating thereto, in Contractor's possession or otherwise
subject to Contractor's control. The obligations of this Paragraph will
survive the termination of this Agreement. Notwithstanding the above, the
following materials will not be deemed confidential:
a. Information, which was in the public domain at the time of
disclosure (provided, however, that collection or compilation of publicly
available information will be considered proprietary if VL's collection or
organization of the material would be difficult or time-consuming to
replicate);
b. Information which was published or otherwise became part of
the public domain after disclosure to Contractor through no fault of
Contractor (but only after, and only to the extent that, it is published or
otherwise becomes a part of the public domain); and
c. Information, which was, received from a third party who did
not acquire it, directly or indirectly, from VL under an obligation of
confidence except where required by law.
Contractor will have the burden of establishing the existence of these
conditions by objective or verifiable evidence. If Contractor believes that
one of these conditions applies, he will promptly so notify VL, stating the
basis for his belief, and will not disclose or use any such information for
30 days following such notice.
d. Contractor understands that VL is a publicly traded company
and that Contractor will be privy to non-public information. Contractor
agrees that by signing this agreement, Contractor agrees not to trade Vital
Living shares based upon any non-public information that may be directly or
indirectly disclosed. Additionally, consultant agrees, based upon the
confidentiality portion of this agreement that he will not share any
information of a confidential or non-public nature with anyone.
Contractor further agrees that it will not use any confidential information
disclosed by Vital Living in any manner that would violate (a) the Securities
Act of 1933, as amended, and any of the rules and regulations promulgated
thereunder; (b) the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder; (c) any applicable state
securities laws; or (d) any successor statute or regulation to any of the
foregoing.
9. Ownership. All content, designs, drawings, concepts, products,
methods, or other developments, including all content or other material
("Developments") that Contractor conceives, assists in conceiving, improves,
creates or otherwise develops during the term of this Agreement, relating in
any way to the business of VL, whether or not developed during working hours
or using supplies of VL, will be the exclusive property of VL, and Contractor
assigns any rights he has or may have therein to VL. Contractor is promptly
disclosing to VL any Developments of any kind that relate to VL's business or
that the Contractor conceives, makes, develops, or acquires within the scope
of this Agreement. Contractor will prepare, maintain, and make available to
VL adequate and current written records of any Developments and all
modifications, research, and studies made or undertaken by Contractor
relating thereto. Contractor further agrees to execute any documents
necessary to prefect VL's rights in and title to the Developments and to
assist VL with any patent application or any related proceeding or
litigation, subject to compensation for Contractor's efforts.
10. Warranty and Indemnification. Contractor warrants that any
marketing material and content developed by Contractor is original and will
not infringe any copyright, patent, trade secret, or any other intellectual
property right of any third-party. Contractor will indemnify, defend, and
hold harmless VL from any claim (1) that such material or content infringes
any copyright, patent, trade secret or other intellectual property right of
any third party, or (2) arising out of any third-party's use or reliance on
the material or content provided by Contractor.
11. Exclusive Dealing. Contractor further agrees not to be employed,
provide consulting services, or otherwise work in any capacity in which he
use or disclosure of confidential or proprietary information received from VL
or as a result of his work with VL would be inevitable or highly likely
during the term of this Agreement and for a period of twelve months after
returning all materials to VL as required by Paragraph 6, anywhere in the
United States. The parties agree that this covenant does nor preclude all
employment with companies that compete with some aspect of VL's business, but
that it does prohibit Contractor from working for a competitor on development
of marketing materials, content and other marketing or advertising for
Nutraceutical Products for the time period specified. Contractor
acknowledges and agrees that this covenant is reasonably necessary to protect
VL's legitimate interests and does not unduly restrict Contractor's ability
to earn a livelihood. Contractor acknowledges that this restriction is fair
and reasonable and necessary for the protection of VL's business.
Notwithstanding these acknowledgements, the parties agree that should any
court determine that any of the covenants in this Paragraphs 9 is
unreasonable as to duration or scope, the covenant shall be enforceable as
provided herein with respect to such duration and scope as the court
determines to be reasonable. The parties further acknowledge that any breach
of this Paragraph 9 will give rise to irreparable injury that cannot be
adequately compensated by damages and that either party is entitled to obtain
injunctive relief against a breach or threatened breach of the provisions of
such paragraphs, in addition to any other legal remedies that may be
available.
12. Miscellaneous.
(a) Severability. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision will not
affect the validity or enforceability of the other provision hereof.
(b) Governing Law. This Agreement will be deemed to be a contract made
under the laws of the State of Arizona, and for all purposes, it, plus any
related or supplemental documents and activities, will be construed in
accordance with and governed by the laws of such state.
(c) Entire Agreement. This Agreement constitutes and expresses the
entire agreement and understanding between the parties hereto with respect to
the subject matter, all revisions discussions, promises, representation, and
understanding relative thereto, if any, being herein merged.
(d) Notices. All notices and communications under this Agreement will
be in writing and will be delivered in person, faxed or mailed, postage
prepaid, by overnight express carrier, to the address of the parties listed
herein, or to any other address, as such party will designate in a written
notice to the other party hereto. All notices sent pursuant to the terms of
this section will be deemed received if personally delivered or faxed, then
on the date of delivery, or if sent by overnight express carrier, on the next
business day immediately following the day sent.
(e) Arbitration. The parties intend to negotiate in good faith and
resolve any dispute arising under this Agreement. In the event the parties
are unable to resolve any such dispute, the dispute will be submitted to
binding arbitration in accordance with the rules of the American Arbitration
Association in Phoenix, Arizona or as otherwise agreed to by the parties.
The arbitrator will determine the manner in which the parties are to pay the
costs of such arbitration, including awarding reasonable attorneys' fees.
(f) Assignment. Contractor may not assign to any person any duties or
obligations arising under this Agreement without VL's prior written consent.
(g) Successors. This Agreement will extend to and be binding on the
Contractor and the Contractor's legal representatives, heirs, assigns and
distributees, and on VL and VL's successors and assigns.
VITAL LIVING, INC. CONTRACTOR
CIDCO Investment Company, LLC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its C.E.O. Managing Director
Address: Address:
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