INDEPENDENT CONTRACTOR AGREEMENT
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HiEnergy Technologies, Inc. ("HiEnergy"), a Delaware Corporation and Radiation
Safety Academy ("RSA"), a Maryland Corporation, hereby enter into this
independent contractor agreement related to manual and training program
development and services to be provided on the basis of Work Made For Hire as of
the last date following the signatures below (the "Agreement").
1. DEFINITIONS.
"Agreement" means this Independent Contractor Agreement and any relevant
Statements of Work ("SOW"), Work Authorizations ("WA"), and other attachments or
appendices specifically referenced in, and incorporated as part of, this
Agreement.
"Deliverables" means items that RSA prepares for or provides to HiEnergy as
described in a SOW. Deliverables include Developed Work, Licensed Work,
Preexisting Materials, and Tools.
"Developed Work" means all work product (including Externals), developed in the
performance of this Agreement as described in a SOW. Developed Work does not
include Licensed Work, Preexisting Materials, Tools, or items specifically
excluded in a SOW.
"Enhancements" means changes or additions, other than Error Corrections, to the
Developed Work or Licensed Work.
"Error Corrections" means revisions that correct errors and deficiencies
(collectively referred to as "errors") in the Developed Work or Licensed Work.
"Externals" means any pictorial, graphic, audiovisual works, reports or data
generated by execution of software code and any programming interfaces,
languages or protocols.
"Licensed Work" is any material described in or that conforms to the Description
of Licensed Work in the relevant SOW, associated documentation, Externals, Error
Corrections, and Enhancements.
"Party" or "Parties" means either of HiEnergy or RSA and used singularly or
collectively hereinafter.
"Preexisting Materials" means items contained within a Deliverable, in which the
copyrights are owned by a third party or that RSA prepared or had prepared
outside the scope of this Agreement. Preexisting Materials exclude Tools, but
may include material that is created by the use of Tools.
"Prices" means the agreed upon payments and currency for Deliverables and
Services, including all applicable fees, royalty payments and taxes, as
specified in the relevant SOW.
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"Products" means an offering by HiEnergy to its customers or other users,
whether or not branded by HiEnergy or its Affiliates, that includes the
Developed Work, Licensed Work or a derivative work of a Licensed Work.
"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.
"Services" means work that RSA performs for HiEnergy as described in a SOW.
"Statement of Work" or "SOW" means any document that:
1. identifies itself as a statement of work;
2. is signed by both parties;
3. incorporates by reference the terms and conditions of this Base
Agreement; and
4. describes the Deliverables and Services, including any requirements,
specifications or schedules.
"Tools" means software that is not commercially available, and its Externals,
required for the development, maintenance or implementation of a Deliverable.
"Work Authorization" or "WA" means HiEnergy's authorization in either electronic
or tangible form for RSA to conduct transactions under this Agreement in
accordance with the applicable SOW (i.e., a purchase order, xxxx of lading, or
other HiEnergy designated document). A SOW is a WA only if designated as such in
writing by HiEnergy.
2. WORK MADE FOR HIRE / RIGHTS TO WORK.
a) RSA understands and agrees that it is to perform and/or provide
Services and Deliverables as detailed in the SOW(s) as Work Made for
Hire.
b) RSA understands and agrees that the (i) Developed Work and any work
product shall be the sole and exclusive property of HiEnergy (ii)
RSA shall have no other rights whatsoever in or to the Developed
Work, and any work product, including Error Corrections and
Enhancements to Developed Work, delivered under the Agreement; and
(iii) RSA shall not distribute, sell, or incorporate the Developed
Work, and any derivative modifications or extensions of them.
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c) RSA agrees not to attach to the Developed Work any statements
appearing thereon regarding copyright or proprietary rights of RSA.
RSA shall not copy (in any form), distribute, sell, lease, assign,
encumber, license or sub-license the Developed Work, and any work
product to anyone other than HiEnergy. RSA hereby acknowledges and
agrees that the Developed Work is to be incorporated into Products
and sold and/or distributed to other users for commercial purposes
by HiEnergy.
3. TITLE AND COPYRIGHT ASSIGNMENT
a) The Developed Work, and any work product, including Error
Corrections and Enhancements to Developed Work, delivered under the
Agreement, and the results of the Services to be rendered by RSA
hereunder, are Work Made for Hire. RSA acknowledges and agrees that
the Developed 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 Developed Work would not be considered a work
made for hire under applicable law, RSA 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 Developed
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 Developed Work,
and the entire right 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) If the Developed Work is one to which the provisions of 17 U.S.C.
106A apply, the RSA hereby waives and appoints HiEnergy to assert on
RSA's behalf the author's moral rights or any equivalent rights
regarding the form or extent of any alteration to the Developed Work
(including, without limitation, removal or destruction) or the
making of any derivative works based on the Developed Work,
including, without limitation, any reproductions of the Developed
Work in any medium.
d) RSA 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.
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) RSA shall be an independent contractor with respect to HiEnergy.
HiEnergy shall not be responsible for withholding taxes with respect
to RSA's compensation hereunder. RSA 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.
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5. PAYMENT AND CONSIDERATION TERMS.
a) Prices for Deliverables and Services are presented in the SOW.
b) Deliverables and Services HiEnergy may be paid or prepaid in the
form of restricted stock, which is to be filed under a Registration
Statement on Form S-8, with value equivalent to six (6) months of
the above stated retainer, the pro-rata portion of time not served
would be cancellable, or refundable to the Company, if RSA voluntary
resigns and/or cancels the engagement, or RSA fails to perform the
Services under the Engagement. In the event that the value of the
stock falls between the date of receipt and the date you are able to
liquidate such shares lawfully in the public market, the Company
agrees to issue to you for no further consideration such additional
number of shares as is equal to the dollar balance of compensation
earned for which payment has not then been received directly or
through the sale of stock. RSA is not obligated to sell the shares
and, in the event the value of shares appreciates above the value
equivalent to three (3) months of the above stated retainer, RSA
shall not be obligated to pay any surplus to HiEnergy.
c) All invoices with claims for reimbursable expenses shall include
sufficient detail and documentation to allow for verification of
proper allocation of charges.
d) Both Parties may modify at any time the amounts to be paid by
HiEnergy to RSA, 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 RSA enters
into an agreement with a third party in which RSA performs work to an entity
involved in explosive bomb detection, RSA shall give notice to HiEnergy of that
agreement at or before the time RSA enters into such agreement. Nothing in this
Section 6 limits or supercedes any other provision herein.
7. CONFIDENTIALITY
a) Both HiEnergy and RSA agree that during the term of this 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.
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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
xxx.xx 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.
8. QUALITY AND ACCEPTANCE.
a) RSA will provide the Deliverables and Services to HiEnergy in
accordance with the specifications and timeline established in the
SOW.
b) HiEnergy will review all Deliverables using its own quality
assurance procedures, and may reject any Developed Work it
reasonably believes does not meet its specifications.
c) In the event that errors or deficiencies are discovered in the
Deliverables, RSA will use its best efforts to provide Error
Corrections in an expeditious manner.
d) Payment by HiEnergy for Deliverables and Services by RSA shall not
be deemed to be acceptance by HiEnergy thereof.
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9. LIMITED WARRANTY.
a) RSA warrants that the best technical practices, skills, procedures,
care and judgment will be employed and that the Developed Work will
be completed in the most expeditious and economical manner in
satisfaction of the SOW(s).
b) RSA warrants that it has the right and authority to enter into this
Agreement, and that, to the best of RSA's knowledge, (i) the
Developed Work will not infringe upon any copyright or other
intellectual property interest of any third party and (ii) RSA will
take all due and reasonable care to avoid infringing any copyright
or other intellectual property interest of any third party.
ALL WARRANTIES UNDER THIS AGREEMENT SHALL SURVIVE INSPECTION AND
ACCEPTANCE, AND PAYMENT AND SHALL RUN TO HIENERGY, ITS AFFILIATES,
SUCCESSORS AND ASSIGNS.
10. ADDITIONAL OBLIGATIONS.
HiEnergy shall supply RSA with all technical and other documents deemed
necessary to enable RSA to fulfill its obligations; the failure of which shall
not prejudice RSA, nor be the cause of any forfeiture of any consideration due
RSA, insofar as (i) said failure was the cause of non-performance of RSA and
(ii) RSA satisfactorily performed its obligations upon reconcile.
11. TERM AND TERMINATION.
This Agreement shall begin upon execution of both Parties ("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 thirty (30) days' written (electronic or other means) notice of
termination. HiEnergy shall pay RSA for any outstanding consideration owed RSA
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
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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 RSA from and
against any liability, suits, claims, losses, damages and judgments
filed against RSA made in the United States related to this
Agreement, provided that RSA 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 RSA
related to actions taken by RSA 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.
15. 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 RSA shall be
delivered to Xxxx Xxxxxxx, Radiation Safety Academy, 000 X.
Xxxxxxxxx Xxxxxx, Xxx. 000, Xxxxxxxxxxxx, XX 00000.
b) This Agreement, including all SOW(s) and WA(s), 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.
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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) Neither Party shall subcontract or assign this Agreement to any
third party without the express written consent of other.
f) 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 RSA and to HiEnergy shall include
their heirs, successors, assigns, and personal representatives.
IN WITNESS WHEREOF, the parties have duly executed this agreement.
RADIATION SAFETY ACADEMY HIENERGY TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxx Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Director Title: Chairman & CEO
Date: February 7, 2006 Date: Feb. 8, 2006
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