INDEPENDENT CONTRACTOR SERVICES AGREEMENT (Aytu BioScience, Inc. purchases services)
Exhibit 10.1
(Aytu BioScience, Inc. purchases services)
This
Independent Contractor Services Agreement (“Agreement”) is made on the
1st day of
May 2019 (“Effective
Date”), by and between Aytu BioScience, Inc.
(“Company”) and
Averaden, LLC (“Contractor”).
Engagement of Services. Company may issue Project
Assignments to Contractor in the form attached to this Agreement as
Exhibit A (“Project Assignment”). Subject to the terms
of this Agreement, Contractor will render the services set forth in
Project Assignment(s) accepted by Contractor (“Services”) by the completion dates
set forth therein.
1.
Compensation. Company will pay
Contractor the fees set forth in each Project Assignment for
Services rendered pursuant to this Agreement and to any such
Project Assignment. Contractor will be reimbursed only for expenses
which are expressly provided for in a Project Assignment or which
have been approved in advance in writing by Company, within
forty-five (45) days of receipt of Contractor’s invoice,
provided Contractor has furnished such documentation for authorized
expenses as Company may reasonably request. Upon termination of
this Agreement for any reason, Contractor will be paid fees on the
basis stated in the Project Assignment(s) for work which has been
completed.
2.
Independent Contractor
Relationship. Contractor’s relationship with Company
is that of an independent contractor, and nothing in this Agreement
is intended to, or should be construed to, create a partnership,
agency, joint venture or employment relationship. Contractor shall
control the manner and means of performing Contractor’s
obligations hereunder, including retention of third parties to act
on Contractor’s behalf (“Contractor’s Agents”), provided, however, that
Contractor shall cause Contractor’s Agents to observe the
provisions of Section 4 (Confidential Information) of this
Agreement and Contractor shall be responsible for the performance
of Contractor’s Agents. Contractor will not be entitled to
any of the benefits that Company may make available to its
employees, including, but not limited to, group health or life
insurance, profit-sharing or retirement benefits. Contractor is not
authorized to make any representation, contract or commitment on
behalf of Company unless specifically requested or authorized in
writing to do so by a Company manager. Contractor is solely
responsible for, and will file, on a timely basis, all tax returns
and payments required to be filed with, or made to, any federal,
state or local tax authority with respect to the performance of
services and receipt of fees under this Agreement. Contractor is
solely responsible for, and must maintain adequate records of,
expenses incurred in the course of performing services under this
Agreement. No part of Contractor’s compensation will be
subject to withholding by Company for the payment of any social
security, federal, state or any other employee payroll taxes.
Company will regularly report amounts paid to Contractor by filing
Form 1099-MISC with the Internal Revenue Service as required by
law.
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3.
Confidential
Information.
3.1 Definition
of Confidential Information. “Confidential Information” as used in this
Agreement shall mean any and all technical and non-technical
information including patent, copyright, trade secret, and
proprietary information, techniques, sketches, drawings, models,
inventions, know-how, processes, apparatus, equipment, algorithms,
software programs, software source documents, and formulae related
to the current, future and proposed products and services of
Company, its suppliers and customers, and includes, without
limitation, its respective information concerning research,
experimental work, development, design details and specifications,
engineering, financial information, procurement requirements,
purchasing manufacturing, customer lists, business forecasts, sales
and merchandising and marketing plans and information.
“Confidential Information” also includes proprietary or
confidential information of any third party who may disclose such
information to Company or Contractor in the course of
Company’s business.
3.2 Nondisclosure
and Nonuse Obligations. Contractor will use the Confidential
Information solely to perform Project Assignment(s) for the benefit
of Company. Contractor agrees that it shall treat all Confidential
Information of Company with the same degree of care as it accords
to its own Confidential Information, and Contractor represents that
it exercises reasonable care to protect its own Confidential
Information. If Contractor is not an individual, Contractor agrees
that it shall disclose Confidential Information of another party
only to those of its employees who need to know such information
and certifies that such employees have previously agreed, either as
a condition of employment or in order to obtain the Confidential
Information, to be bound by terms and conditions substantially
similar to those of this Agreement. Contractor will immediately
give notice to Company of any unauthorized use or disclosure of the
Confidential Information. Contractor agrees to assist Company in
remedying any such unauthorized use or disclosure of the
Confidential Information. If, in connection with providing services
hereunder, Contractor desires to disclose Confidential Information
to third parties, Contractor may do so only with the prior written
consent of Company and after providing Company with a copy of an
executed confidentiality agreement binding such third party to
terms at least as stringent as the confidentiality terms contained
in this Section 4.
3.3 Exclusions
from Nondisclosure and Nonuse Obligations.
Contractor’s obligations under Section 3.2
(Nondisclosure and Nonuse Obligations) with respect to any portion
of Confidential Information shall terminate when Contractor can
document that: (a) it was in the public domain at or
subsequent to the time it was communicated to Contractor by the
disclosing party through no fault of Contractor; (b) it was
rightfully in Contractor’s possession free of any obligation
of confidence at or subsequent to the time it was communicated to
Contractor by the disclosing party; (c) it was developed by
employees or agents of Contractor independently of and without
reference to any information communicated to Contractor by the
disclosing party; or (d) the communication was in response to
a valid order by a court or other governmental body, was otherwise
required by law, or was necessary to establish the rights of either
party under this Agreement.
(a) Disclosure
of Third-Party Information. Neither party shall communicate
any information to the other in violation of the proprietary rights
of any third party.
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4. Ownership
Rights in Company Property. Company shall be the sole and
exclusive owner of Company Property. “Company Property” means (a) all
materials (including, without limitation, all documents, data,
reports, drawings, analyses, equipment, products, prototypes,
services and other work) furnished to Contractor by Company or
produced by Contractor in the performance of this Agreement or
pursuant to any Project Assignment; and (b) all copyrights,
patents, trade secrets, inventions, and other proprietary rights
produced by Contractor in the performance of this Agreement or
pursuant to any Project Assignment. The term “Company
Property” does not include any general know-how, methodology,
processes, products, devices or experience of Contractor gained
prior to performance of the Services or from experience gained
parallel to performance of the Services from unrelated sources. To
the fullest extent permitted by law, all Company Property produced
by Contractor shall be deemed to be “Works for Hire” for the benefit of Company,
as U.S. federal and international copyright law defines that term.
To the extent Company Property may not be considered Works for
Hire, Contractor hereby sells, assigns, and transfers all of its
rights, title, and interest in Company Property to Company, without
additional consideration. Contractor shall promptly execute and
deliver any documents or instruments reasonably requested by
Company to evidence such transfers and Contractor shall be
reimbursed for reasonable expenses incurred by compliance with this
obligation.
5.
Return of Company’s
Property. Contractor agrees to promptly deliver the original
and any copies of the Company Property to Company at any time upon
Company’s request. Upon termination of this Agreement by
either party for any reason, Contractor agrees to promptly deliver
to Company or destroy, at Company’s option, the original and
any copies of the Company Property. Contractor agrees to certify in
writing that Contractor has so returned or destroyed all such
Company Property if Company so requests.
6.
Unique Nature of Contractor’s
Services. Contractor represents and agrees that the Services
to be performed pursuant to this Agreement and to any applicable
Project Assignment are of a special and unique character that gives
them special value to Company. Therefore, Contractor shall not
assign the Services or any portion of this Agreement to be
performed by any individual without the prior written consent of
Company.
7.
Term and
Termination.
7.1 Term.
This Agreement is effective as of the Effective Date set forth
above and will terminate on the date set forth in the Project
Assignment, unless terminated earlier as set forth below
(“Term”).
7.2 Termination
by Company. Company may terminate this Agreement, with or
without cause, at any time upon thirty (30) days prior written
notice to Contractor.
7.3 Termination
by Contractor. Except during the term of a Project
Assignment, Contractor may terminate this Agreement, with or
without cause, at any time upon thirty (30) days’ prior
written notice to Company.
7.4 Survival.
The rights and obligations contained in Sections 3 (Confidential
Information) and 4 (Ownership Rights in Company Property) will
survive any termination or expiration of this
Agreement.
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8.
Notices. Any notice which a
party is required or permitted to give to another party shall be
given by personal delivery, email, or registered or certified mail,
return receipt requested, addressed to the other party at the
appropriate address set forth in this Section 9 below, or at such
other address as the other party may from time to time designate in
writing. The date of personal delivery or the date of mailing of
any such notice shall be deemed to be the date of delivery
thereof.
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If to
Company:
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000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
XX
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XXX
00000
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If to
Contractor:
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9.
Warranty.
9.1 Quality.
Contractor warrants to Company that the Services performed under
this Agreement shall be performed with the degree of skill and care
that is required by current, good and sound professional procedures
and practices, and in conformance with generally accepted
professional standards prevailing at the time the work is performed
so as to ensure that the services performed are correct and
appropriate for the purposes contemplated in this Agreement and
related Project Assignments.
9.2 Infringement.
Contractor represents to Company that the material, products,
services, or other work assignments to be furnished, produced or
performed under this Contract will not infringe any copyright,
patent, trade secret, or license, or otherwise violate the
intellectual property or proprietary rights, of any person or
entity. Contractor agrees to indemnify and hold Company harmless
from and against any and all liabilities, costs and damages arising
out of any such infringement and from any suit, demand or claim
made against Company alleging any such infringement. Contractor
agrees to defend Company against any such suit, demand or claim, at
Contractor’s expense. Contractor further agrees to pay any
judgment or reasonable settlement offer resulting from such suit,
demand or claim, and to pay all damages and attorney’s fees.
If there is such a claim, Contractor agrees to either procure for
Company the right to continue using the material, replace them with
non-infringing material, or modify them so that they become
non-infringing.
10.
Conflicts of Interest.
Contractor shall exercise reasonable care and diligence to prevent
any actions or conditions that could result in a conflict with any
Company interest. During the Term, Contractor shall not accept any
employment or engage in any consulting work that creates a conflict
of interest with Company or in any way compromises the services to
be performed under this Agreement. Contractor shall immediately
notify Company of any and all violations or potential violations of
this clause upon becoming aware of such violation. Termination,
expiration, or completion of this contract immediately releases
Contractor from this obligation.
11.
Waiver. The failure of either
party to insist on strict compliance with any of the terms,
covenants, or conditions of this Agreement by the other party shall
not be deemed a waiver of that term, covenant or condition nor
shall any waiver or relinquishment of any right or power at any one
time or times be deemed a waiver or relinquishment of that right or
power for all or any other times
12.
Governing Law. This Agreement
shall be governed by the laws of the State of
Colorado.
13.
Entire Agreement. This
Agreement constitutes the entire agreement between the parties
relating to this subject matter and supersedes all prior or
contemporaneous oral or written agreements concerning such subject
matter. The terms of this Agreement will govern all Project
Assignments and Services undertaken by Contractor for Company. This
Agreement may only be changed by mutual agreement of authorized
representatives of the parties in writing.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
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COMPANY:
By:
_____________________________
Name:
Aytu BioScience, Inc.
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CONTRACTOR:
Xxxx
Xxxxxxxx
Averaden,
LLC
By:_________________________________
Name:
Averaden, LLC
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EXHIBIT A
PROJECT ASSIGNMENT
Services:
Scope of Work: Aytu BioScience is engaging Averaden, LLC to
assist in corporate business development activities. Specifically,
Averaden, LLC will assist Aytu’s senior management in
identifying potential product and business acquisitions or
licensing opportunities that fit within the company’s current
or future commercial strategies. On-market or near-market
therapeutic opportunities will be prioritized as targets. Averaden
will work directly with Aytu’s CEO, COO, and CFO and, if
product or business targets are presented and moved forward,
Averaden, LLC will assist in due diligence, financial analysis, and
negotiation of deal terms.
Timeline: One year from the commencement of this
agreement
Objectives/Deliverables:
●
Identify products
and businesses that are available for in-licensing or acquisition.
On-market or near-market opportunities will be
prioritized
●
Work with Aytu
senior management to perform diligence and commercial assessments
and, if the opportunities move forward, develop and negotiate deal
terms
●
Evaluate business
development priorities and targets periodically with Aytu senior
management
Project
Termination Date: May 15, 2020
*If
extension is required for any reason, email approval by Xxxxxx
Xxxxxxx, CEO at Aytu BioScience, Inc., must be
obtained.
Payment of Fees:
Rate:
$8,400.00/month
Estimated
time/cost to complete: 12 months
Not to
exceed amount (without Aytu approval): $110,000
A
detailed invoice must be submitted to Aytu at least monthly.
Invoice to be paid within 45 days of receipt. If submitted by
email, direct to xxxxxxxxxxxxxxx@xxxxxxx.xxx
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Expenses: Company will reimburse Contractor for all
reasonable, ordinary, and necessary expenses, which shall be billed
at cost, incurred in connection with this Project Assignment upon
receipt of proper documentation of those expenses from Contractor,
as determined and approved by sponsor. Expenses require prior
written approval for reimbursement:
■
Travel, lodging,
transportation, and meal expenses
■
Miscellaneous
business expenses incurred in the completion of tasks for
Company
NOTE: This Project
Assignment is governed by the terms of an Independent Contractor
Services Agreement in effect between Company and Contractor. Any
item in this Project Assignment that is inconsistent with that
Agreement is invalid.
IN
WITNESS WHEREOF, the parties have executed this Project Assignment
as of the 30th day of April
2019.
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COMPANY:
By:
_________________________________
Name:
Aytu BioScience, Inc.
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CONTRACTOR:
Xxxx
Xxxxxxxx
Averaden,
LLC
By:_________________________________
Name:
Averaden, LLC
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