EXHIBIT 10.126
INDEPENDENT CONTRACTOR AGREEMENT
HiEnergy Technologies, Inc. ("HiEnergy"), a Delaware Corporation, on the one
hand, and Metaskill, Inc.("Metaskill"), a California Corporation, hereby enter
into this independent contractor software development and services agreement on
the basis of Work Made For Hire as of the last date following the signatures
below (the "Agreement").
1. DEFINITIONS.
a) "Binary Code" means software in machine-readable form that is not
easily understood by a human knowledgeable in the art of computer
programming, but which is understood and used by a computer to run
the software.
b) "Bugs" means errors in a software program that cause the software
to fail to function as intended.
c) "Party" or "Parties" means either of HiEnergy or Metaskill and used
singularly or collectively hereinafter.
d) "Propietary and/or Confidential Information" means any information
identified as being Propietary and/or Confidential Information by
either party, either orally or in writing, at the time it is
disclosed, or designated as confidential in writing (either
electronically or by other means) within 30 days of the disclosure,
provided that the information (a) was not publicly known or
generally in the public domain prior to the disclosure, (b) does
not become generally known or part of the public domain through any
improper action or disclosure by the receiving party, or (c) can be
shown to have been in the rightful possession of the receiving
party prior to having been identified as Propietary and/or
Confidential Information by the disclosing party.
e) "Software" means any and all software developed and provided to
HiEnergy by Metaskill pursuant to this Agreement.
f) "Source Code" means software in written form which is the preferred
form for making modifications to the software and which is easily
understood by a human knowledgeable in the art of computer
programming.
2. WORK MADE FOR HIRE / RIGHTS TO WORK.
a) Metaskill shall perform and/or provide the software development and
consulting services as work made for hire as detailed in Addendum
I, which is incorporated as a part of this Agreement.
Page 1 of 8
b) Metaskill understands and agrees that the (i) Software, Source
Code, Binary Code and any work product shall be the sole and
exclusive property of HiEnergy (ii) Metaskill shall have no other
rights whatsoever in or to the Software, Source Code, Binary Code
and any work product such as patches/fixes, delivered under the
Agreement; and (iii) Metaskill shall not distribute, sell, or
incorporate the Software, Source Code, Binary Code and any
derivative modifications or extensions of them.
c) Metaskill agrees not to attach to the Software any statements
appearing thereon regarding copyright or proprietary rights of
Metaskill. Metaskill shall not copy (in any form), distribute,
sell, lease, assign, encumber, license or sub-license the Software,
Source Code, Binary Code and any work product to anyone other than
HiEnergy. Metaskill hereby acknowledges and agrees that the
Software is to be licensed and/or distributed to other users for
commercial purposes by HiEnergy .
3. TITLE AND COPYRIGHT ASSIGNMENT
a) The Software, Source Code, Binary Code and the results of the
services to be rendered by Metaskill hereunder are work made for
hire (the "Work"). Metaskill acknowledges and agrees that the Work
(and all rights therein, including, without limitation, copyright)
belongs to and shall be the sole and exclusive property of
HiEnergy, subject to HiEnergy meeting its obligations herewith.
b) If for any reason the Work would not be considered a work made for
hire under applicable law, Metaskill does hereby sell, assign, and
transfer to HiEnergy, its successors and assigns, the entire right,
title and interest in and to the copyright in the Work and any
registrations and copyright applications relating thereto and any
renewals and extensions thereof, and in and to all works based
upon, derived from, or incorporating the Work, and in an to all
income, royalties, damages, claims and payments now or hereafter
due or payable with respect thereto, and in and to all causes of
action, either in law or in equity for past, present, or future
infringement based on the copyrights, and in and to all rights
corresponding to the foregoing.
c) Metaskill also acknowledges that any manuals and related data which
comprise or are related to the Work are deemed proprietary products
of HiEnergy, which shall retain all rights, title and interest,
including copyright to these products.
d) If the Work is one to which the provisions of 17 U.S.C. 106A apply,
the Metaskill hereby waives and appoints HiEnergy to assert on
Metaskill's behalf the author's moral rights or any equivalent
rights regarding the form or extent of any alteration to the Work
(including, without limitation, removal or destruction) or the
making of any derivative works based on the Work, including,
without limitation, any reproductions of the Work in any medium.
e) Metaskill agrees to execute all papers and to perform such other
proper acts as HiEnergy may deem necessary to secure for HiEnergy
or its designee the rights herein assigned.
Page 2 of 8
4. INDEPENDENT CONTRACTOR.
a) Nothing in this Agreement shall be construed to make the Parties
partners, joint venturers, representatives, or agents of each
other, nor shall either party so hold itself out.
b) Metaskill shall be an independent contractor with respect to
HiEnergy. HiEnergy shall not be responsible for withholding taxes
with respect to Metaskill's compensation hereunder. Metaskill shall
have no claim against HiEnergy for vacation pay, sick leave,
retirement benefits, social security, worker's compensation, health
or disability benefits, unemployment insurance benefits, or
employee benefits of any kind.
5. PAYMENT AND CONSIDERATION TERMS.
a) In consideration for the work outlined in this Agreement, HiEnergy
shall pay Metaskill on a hourly basis in the amount of $125 per
hour.
b) As additional consideration, HiEnergy shall issue Metaskill, or its
designee, warrants to purchase 10,000 shares of common stock at
$0.75 per share for each milestone accomplished without delay and
on time.
c) Metaskill shall not expend more than $1,500 per each week of travel
for related expenses. This not to exceed amount includes per diem,
airfare, lodging, other associated costs, and any applicable
indirect burden rate. Reimbursements shall be made.
d) Payment for all services and work, as well as travel and approved
equipment reimbursements, shall be made within 15 calendar days of
the date of invoice submitted by Metaskill. Any balance invoiced
and not paid within 15 calendar days shall accrue interest at 10%
per annum. Any rights to purchase shares of common stock in
HiEnergy earned will be immediately recorded in the warrant
register of HiEnergy.
e) All invoices with claims for reimbursable expenses shall include
sufficient detail to allow verification of proper allocation of
charges.
f) Both Parties may modify at any time the amounts to be paid by
HiEnergy to Metaskill, so long as any and all such modifications
shall be in writing and executed in acceptance by the Parties in
order to be effective.
6. NON-EXCLUSIVITY.
This Agreement is a non-exclusive agreement, and both parties remain free to
enter into similar agreements with third parties. In the event that Metaskill
enters into an agreement with a third party in which Metaskill performs software
development, consulting, or other services to an entity involved in a similar
line of business, Metaskill shall inform HiEnergy of that agreement at or before
the time he enters into such agreement.
Page 3 of 8
Nothing in this Section 6 limits or supercedes any other provision herein.
7. CONFIDENTIALITY
a) Both HiEnergy and Metaskill agree that during the term of his
Agreement, each Party, may disclose to the other certain Propietary
and/or Confidential Information. Either Party may designate any
information it provides to the other as Propietary and/or
Confidential Information, and the receiving party shall not
disclose that information to third parties without the express
permission of the disclosing party. Information designated as
Propietary and/or Confidential Information shall remain
confidential until the disclosing party designates it as
non-confidential or until the information becomes public through no
fault of the receiving party or illegal action.
b) With regard to Propietary and/or Confidential Information disclosed
by either Party, the receiving Party agrees to take all steps
necessary to:
i. to protect such information to the extent normally used in
safeguarding its own proprietary information but in no event
less than a standard of reasonable care; and
ii. to protect and prevent disclosure to and/or use by third
parties of any proprietary information of the other party; and
iii. to hold all said proprietary information in confidence and not
to, directly or indirectly, copy, publish, summarize or
disclose to any person or entity such information without the
other party's prior written consent; and
iv. to notify the Disclosing Party in writing within two (2)
working days of discovery of any inadvertent or accidental
disclosure of Propietary and/or Confidential Information,
without in any way limiting the other rights or remedies of
the Disclosing Party hereunder, and the Receiving Party shall
take all necessary precautions to avoid further dissemination
of the information disclosed, as well as corrective
precautions to prevent disclosure of any additional Propietary
and/or Confidential Information.
c) The Parties understand and agree that in the event either party
breaches or threatens to breach the provisions of this section,
such breach or threatened breach would cause irreparable harm to
the non-breaching party, and that monetary damages would not be a
sufficient remedy and that each Party shall be entitled to specific
performance, including, without limitation, injunctive relief, as a
remedy for any such breach by the other Party. Such remedy shall
not be deemed to be the exclusive remedy for any breach but shall
be in addition to all other remedies available at law or equity.
Page 4 of 8
8. QUALITY, TESTING AND ACCEPTANCE.
a) Metaskill will thoroughly test the quality of all Software, Source
Code and Binary Code product it delivers to HiEnergy in accordance
with customary practice within the industry.
b) HiEnergy will test all such code pursuant to its own quality
assurance procedures, and may reject any code it reasonably
believes does not meet its specifications.
c) In the event that Bugs are discovered in the Software, Metaskill
will use his best efforts to correct the Bugs in an expeditious
manner.
d) Payment for services and deliverables by Metaskill shall not be
deemed to be acceptance by HiEnergy thereof.
9. LIMITED WARRANTY.
a) Metaskill warrants that the best technical practices, skills,
procedures, care and judgment will be employed and that the
Software will be developed in the most expeditious and economical
manner in satisfaction of the deliverables and milestones in
Addendum I, which is incorporated as part of this Agreement.
b) Metaskill warrants that he has the, right and authority to enter
into this Agreement, and that, to the best of his knowledge, (i)
the Software will not infringe upon any patent, copyright, trade
secret, or other intellectual property interest of any third party
and (ii) Metaskill will take all due and reasonable care to avoid
infringing any patent, copyright, trade secret, or other
intellectual property interest of any third party.
ALL WARRANTIES UNDER THIS AGREEMENT SHALL SURVIVE INSPECTION,
TESTING, ACCEPTANCE, AND PAYMENT AND SHALL RUN TO HIENERGY, ITS
AFFILIATES, SUCCESSORS AND ASSIGNS.
10. ADDITIONAL OBLIGATIONS.
a) In the event that Metaskill requires additional computer hardware
in order to perform its responsibilities under this Agreement,
HiEnergy will purchase or reimburse Metaskill for the cost of such
hardware. All such hardware purchases must be approved in advance
by HiEnergy, and HiEnergy agrees to provide it to Metaskill at no
charge to Metaskill during the term of this Agreement. Upon the
termination of this Agreement for any reason, Metaskill shall
return to HiEnergy all such hardware.
b) HiEnergy shall supply Metaskill with all technical and other
documents deemed necessary to enable Metaskill to fulfill its
obligations; the failure of which shall not prejudice Metaskill,
nor be the cause of any forfeiture of any consideration due
Metaskill, insofar as (i) said failure was the cause of
non-performance of Metaskill and (ii) Metaskill satisfactorily
performed its obligations upon reconcile.
Page 5 of 8
11. TERM AND TERMINATION.
This agreement shall begin on the date work was commenced by Metaskill
("Effective Date") through termination in accordance with the terms of
this Agreement. Time is of the essence in performance of this
Agreement. HiEnergy may terminate this Agreement by 30 day's written
(electronic or other means) notice of termination. HiEnergy shall pay
Metaskill for any outstanding consideration owed Metaskill for all
services performed pursuant to the Agreement through the effective date
of termination.
12. DISPUTES BETWEEN THE PARTIES.
a) The Parties will attempt in good faith to resolve, by negotiation
or mediation, any controversy or claim regarding the rights and
obligations under this Agreement or its breach. If the Parties are
unable to do so, and regardless of the causes of action alleged,
the claim will be resolved by arbitration in before a single
arbitrator who is knowledgeable in independent contractor software
development. Such arbitration will be conducted pursuant to the
then current Commercial Rules of the American Arbitration
Association and the federal substantive and procedural law of
arbitration. The arbitrator's award will be final and binding, and
may be entered in any court having jurisdiction thereof. The
arbitrator shall not have the power to award punitive or exemplary
damages. Each Party will bear its own attorneys' fees and costs
related to the arbitration. Any claim or action must be brought
within two years after the cause of action
b) The rights and obligations of this Disputes section herein shall
survive expiration, termination, or final payment under this
Agreement.
13. INDEMNITY.
a) HiEnergy shall defend, indemnify, and hold harmless Metaskill from
and against any liability, suits, claims, losses, damages and
judgments filed against Metaskill made in the United States related
to this Agreement, provided that Metaskill promptly notifies
HiEnergy of any and all such claims and provided that HiEnergy is
given control over the defense of any and all such claims. The
provisions of this Section shall survive the termination of this
Agreement.
b) HiEnergy shall not be responsible for any claims brought against
Metaskill related to actions taken by Metaskill outside the
Agreement.
14. LIMITATION ON LIABILITY.
To the extent allowed by applicable law,
EXCEPT FOR THE EXPRESS LIABILITIES HEREIN, IN NO EVENT WILL EITHER
PARTY BE LIABLE FOR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR
SAVINGS) OR INCIDENTAL DAMAGES, EVEN IF INFORMED OF THEIR POSSIBILITY;
AND IN NO EVENT SHALL EITHER PARTY, ITS AGENTS, SUPPLIERS,
DISTRIBUTORS, OR RESELLERS, BE LIABLE FOR ANY REPRESENTATION OR
WARRANTY MADE TO ANY THIRD PARTY BY THE OTHER PARTY OR ITS AGENTS.
Page 6 of 8
EXCEPT AS PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL METASKILL, OR
ITS AGENTS, BE LIABLE FOR ANY CLAIM AGAINST HIENERGY BY ANY THIRD PARTY
FOR FAILURE OF THE SOFTWARE OR THE PRODUCT TO PERFORM; OR THE RESULTS
OR INFORMATION OBTAINED OR DECISIONS MADE BY END USERS OF THE SOFTWARE
OR THE PRODUCTS OR THE DOCUMENTATION. THIS LIMITATION OF LIABILITY IS
AN ESSENTIAL PART OF THE BARGAIN UNDER THIS AGREEMENT.;
THIS PROVISION REPRESENTS AN OFFENDING PARTY'S ENTIRE LIABILITY AND THE
OFFENDED PARTY'S EXCLUSIVE REMEDY.
15. FORCE MAJEURE.
To the extent allowed by applicable law,
NEITHER PARTY IS LIABLE FOR FAILING TO FULFILL ITS OBLIGATIONS DUE TO
CAUSES BEYOND ITS REASONABLE CONTROL AND WITHOUT ITS FAULT OR
NEGLIGENCE. EXAMPLES OF SUCH CAUSES INCLUDE BUT ARE NOT LIMITED TO (1)
ACTS OF GOD OR OF THE PUBLIC ENEMY, (2) ACTS OF THE GOVERNMENT IN
EITHER ITS SOVEREIGN OR CONTRACTUAL CAPACITY, (3) FIRES, (4) FLOODS,
(5) EPIDEMICS, (6) QUARANTINE RESTRICTIONS, (7) STRIKES, (8) FREIGHT
EMBARGOES, AND (9) UNUSUALLY SEVERE WEATHER. A PARTY MUST USE BEST
EFFORTS TO PROMPTLY NOTIFY THE OTHER OF CONDITIONS THAT WILL RESULT IN
A DELAY IN OR FAILURE OF PERFORMANCE.
Page 7 of 8
16. MISCELLANEOUS.
a) Any notice under this Agreement shall be in English, in writing,
and shall be deemed to be given upon receipt. Notices to HiEnergy
shall be delivered to Contracts Manager, HiEnergy Technologies,
Inc., 0000-X Xxxxx Xxxxxxx, Xxxxxx, XX 00000, XXX. Notices to
Metaskill shall be delivered to Xxxxxx Xxxxxx, Metaskill, Inc., 000
Xxxxxxxxx Xxxxx, Xxxxx Xxx Xxxxxxxxx, XX 00000-0000
b) This Agreement, including all Addendums, constitutes the entire
understanding of the Parties. This Agreement supersedes and
terminates all prior representations, warranties and agreements,
written or oral, regarding the subject matter of this Agreement.
Any modification to this Agreement must be in a writing and
executed by both Parties.
c) The headings within this Agreement are for convenience only and
will not affect the interpretation of this Agreement. If one or
more of the provisions contained in this Agreement is held invalid,
illegal or unenforceable in any respect by any court of competent
jurisdiction, such holding will not impair the validity, legality,
or enforceability of the remaining provisions.
d) Failure or delay on the part of any party to exercise any right,
remedy, power or privilege hereunder will not operate as a waiver.
Any waiver must be in writing and signed by the party granting such
waiver in order to be effective.
e) In the event that HiEnergy is merged with or consolidated into any
other entity, or in the event that substantially all of the assets
of HiEnergy are sold or otherwise transferred to any other entity,
the provisions of this Agreement will be binding upon, and inure to
the benefit of, such other entity.
f) Neither Party shall subcontract or assign this Agreement to any
third party without the express written consent of other.
g) This agreement shall be construed and interpreted according to the
laws of the State of California and shall be binding upon the
parties hereto, their heirs, successors, assigns, and personal
representatives; and references to Metaskill and to HiEnergy shall
include their heirs, successors, assigns, and personal
representatives.
IN WITNESS WHEREOF, the parties have duly executed this agreement.
METASKILL, INC. HIENERGY TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------- ----------------------
Name: Xxxxxx Xxxxxx Name: Xx. Xxxxxx X. Xxxxxxx
Title: President Chairman & CEO
Date: 9-15-05 as of 7-20-05 Date : 9-12-05
Page 8 of 8
