CONSULTANT AGREEMENT
Exhibit 10.60
This
Agreement made as of this 20th day of November, 2018,
(“Effective Date”) between ChromaDex, Inc. (hereinafter
referred to as “ChromaDex”), having its principal
offices located 00000 Xxxxxxxxx Xxxx, Xxxxx X, Xxxxxx, XX 00000,
and Xxxx Xxxxxxxx (hereinafter referred to as
“Consultant”), with a notice address of 00000 Xxxx
Xxxx, Xxxxxxx Xxxxx XX 00000.
WITNESSETH:
WHEREAS:
ChromaDex desires to have Consultant perform services detailed in
the Scope of Work (attached hereto as Exhibit A) and Consultant
desires to perform such services.
NOW,
THEREFORE, for and in consideration of the mutual covenants herein
contained, receipt of which is hereby acknowledged, the parties
hereto mutually agree as follows:
1.
Period of Performance. This
Agreement shall commence on the Effective Date and shall remain in
full force and effect for a term (the “Term”) of
fourteen (14) months from the Effective Date at which time it will
automatically terminate.
2.
Consideration and Payment.
ChromaDex shall pay Consultant one thousand dollars ($1,000) during
any month where Consultant performs services for a total of five
(5) hours or less. In any month where Consultant performs services
in excess of five (5) hours, ChromaDex shall pay Consultant one
thousand dollars ($1,000) for all hours up to five (5), and two
hundred dollars ($200) per hour for each additional hour over five
(5), or as otherwise agreed to in writing by the parties. Payment
shall be made monthly, within fifteen (15) days of receipt of
invoice. Additionally, Consultant shall be reimbursed at cost for
reasonable out of pocket expenses, phone calls, mileage, air fare,
and per diem for travel which has been preauthorized in writing by
ChromaDex.
3.
Liaison. The ChromaDex
representatives responsible for the supervision and approval of the
work described herein shall be Xxx Xxxxx and Xxxx Xxxxxxxx, or
other individuals who may be designated by ChromaDex from time to
time.
4.
Warranty; Care of ChromaDex’s
Property. Consultant represents and warrants that the
execution, delivery and performance of this Agreement will not
violate and/or conflict with any other agreement that the
Consultant is a party to and that the Services to be performed by
Consultant hereunder will be performed competently and in
accordance with the standard of care usually and reasonably
expected in performance of the Services. Consultant covenants to
protect all property of ChromaDex including ChromaDex’s
Information (as defined below) and its customers, vendors, and
other affiliates and partners to which such Consultant has access,
as a result of Consultant’s consulting under this Agreement,
with the same level of care he/she would provide to his/her own
property and confidential information, and in no event less than an
objectively reasonable standard of care. This Section applies
during and after termination of this Agreement based on obligations
further set forth herein.
5.
Termination. Either party shall
have the right to terminate this Agreement for cause, if the other
Party commits a material breach of this Agreement, and does not
cure such breach within thirty (30) days following such
Party’s receipt of notice of such breach from the
non-breaching Party.
6.
Hold Harmless. Consultant shall
indemnify and hold harmless and defend ChromaDex, its agents,
servants, affiliates, parent company (including its officers,
directors and stockholders) and employees from and against any
claim demand or cause of action of every name or nature arising out
of or through the negligence of Consultant, along with any
intentional wrongful acts, in the performance of services under
this Agreement. Other than as a result of the willful misconduct or
gross negligence of Consultant, ChromaDex shall indemnify and hold
harmless Consultant from and against any claim demand or cause of
action of every name or nature arising out of or through the
negligence of ChromaDex, its agents, servants, or employees in the
performance of services under this Agreement.
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7.
Insurance and Taxes. ChromaDex
and Consultant will be responsible for maintaining their own
separate insurance policies including, without limitation,
Comprehensive General and Automobile Liability, Workmen’s
Compensation and other necessary insurance coverage. The Consultant, as an independent
agent, agrees that he/she will not to be entitled to file any claim
for Workers’ Compensation or any other claim under
ChromaDex’s insurance policies and will be responsible for
his/her own Workers’ Compensation Insurance Coverage. The
Consultant will also be responsible for payment of any State,
local, or federal taxes resulting from work under this
Agreement.
PLEASE
NOTE: CHROMADEX IS REQUIRED TO SUBMIT TO THE INTERNAL REVENUE
SERVICE AN ANNUAL FORM 1099 STATEMENT OF INCOME FOR ALL PAYMENTS,
AND AS SUCH CONSULTANT MUST PROVIDE A TAX IDENTIFICATION NUMBER TO
CHROMADEX.
8.
Non-Solicitation; No Rights to
ChromaDex’s Intellectual Property. For a period
of five (5) years after the termination of this Agreement,
Consultant agrees not to attempt in any manner to persuade or
attempt to persuade any such customer to cease to do business or to
reduce the amount of business which such customer has customarily
done or might do with ChromaDex.
Consultant
further agrees that Consultant shall have no right to any of
ChromaDex’s intellectual property (including, without
limitation, Inventions (as defined in Section 11) and work made for
hire (as contemplated in Section 11) and, accordingly, Consultant
agrees that Consultant shall have no rights whatsoever to
ChromaDex’s intellectual property and shall not produce,
market, or sell products or services based on the Information
and/or ChromaDex’s intellectual property. In addition,
Consultant agrees not to sell the Information to any third
party.
9.
Confidential Information.
ChromaDex and/or its affiliates have developed and possesses
certain confidential scientific and/or business information
(“Information”). ChromaDex shall disclose to the
Consultant the Information necessary or useful to perform the
services, subject to the following:
a.
Consultant shall
not use the Information for any purpose except in furtherance of
this Agreement and shall not reveal to any third party or permit
any third-party access to, any of the Information furnished
pursuant to this Agreement unless the Consultant obtains, in each
case, the prior written consent of ChromaDex. It is, however,
understood that the obligation of nondisclosure under this
Agreement shall not apply to Information which:
i.
Is or becomes
generally available to the public (which for the purposes of this
Agreement shall not include customers of ChromaDex) without breach
of this Agreement by the Consultant or his/her agents or advisors
and without violation of any agreement by any other third
party;
ii.
Is or becomes
available to the Consultant on a non-confidential basis, other than
by or on behalf of ChromaDex, provided that such source obtains and
discloses such information lawfully and without breach of any
confidentiality agreement or obligation;
iii.
Was in the
Consultant’s possession, as evidenced by documented proof,
prior to its being furnished to the Consultant by or on behalf of
ChromaDex; provided that the source of such information obtained
and disclosed such information lawfully and without breach of any
confidentiality or obligation.
Information
will not be deemed to be in the public domain merely because any
part of the information is embodied in general disclosures or
because individual features, components, or combinations thereof
are now or may later become known to the public. Furthermore, even
if any portion of information provided by or on behalf of ChromaDex
to Consultant falls within any one of the above exceptions, the
remainder will continue to be confidential Information subject to
the restrictions of this Agreement.
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b.
All disclosures are
made to the Consultant for the sole purpose of enabling the
Consultant to provide the Services.
c.
Consultant shall
not, during the term of this agreement, hold any other positions,
as a consultant or otherwise, with any company or organization that
is a direct or indirect competitor of ChromaDex in the NR or NAD
space, and may not perform any work, provide services or engage in
conduct that could be deemed a conflict of interest.
d.
The
Consultant’s obligations according to this Agreement to keep
the Information secret and confidential shall remain in effect
indefinitely regarding trade secret and know-how, and for a period
of seven (7) years from the date of this Agreement for all other
Information.
10.
Rights in
Inventions.
a.
Assignment of IP Rights to
ChromaDex. In performing the Services, Consultant hereby
assigns to ChromaDex all rights in all inventions, developments and
discoveries, including derivatives and improvements thereto,
whether or not patentable, and all patent rights related to the
foregoing including rights to make priority claims in any country
(“Inventions”), and all suggestions, proposals, written
works of authorship, and computer programs, and all copyrights
whether or not registered related to the foregoing (collectively
with Inventions, the “Work Product”), which Consultant
authors, invents, discovers, develops, conceives or makes, either
solely or jointly with others, while consulting with ChromaDex, or
which involve Information or equipment, supplies, facilities,
direct or indirect funding, or materials owned or provided by or on
behalf of ChromaDex. The rights granted to ChromaDex in the Work
Product include the right to disclose or publish, or not to do so,
and to pursue patents and assert other intellectual property rights
related thereto. Consultant will execute all documents and take all
other actions as may be necessary (at no out-of-pocket expense to
Consultant) to assign all rights to or otherwise vest good title to
ChromaDex in all Work Product, and Consultant will not use any
Information for Consultant’s own benefit or for that of any
other business entity or person except as permitted in writing by
ChromaDex.
b.
Work-Made-For-Hire.
Additionally, any work of authorship prepared by Consultant in
connection with efforts under this Agreement or related to or
arising from Information that Consultant has access to in
connection with this Agreement, will be considered a work made for
hire pursuant to this Agreement and be the sole and exclusive
property of ChromaDex, free and clear of any claims by
Consultant.
c.
Disclosure Obligation of
Consultant. Consultant will disclose promptly in writing
(which writing may take the form of a patent application or similar
document prepared by ChromaDex’s counsel with
Consultant’s cooperation and assistance) to ChromaDex all
Inventions and other Work Product developed, made, or conceived
either solely or in collaboration with others under, or arising
from or related to, this Agreement. Consultant hereby assigns to
ChromaDex its, his, or her entire right, title, and interest in and
to any and all such Inventions and other Work Product. Consultant
hereby agrees to execute all such documents, testify in all legal
or quasi-legal proceedings requested, and otherwise take all such
action as may be required to effectuate or evidence such assignment
and/or to cooperate with ChromaDex in filing applications, and
pursuing and enforcing patents and copyright registrations in any
and all countries. As such, Consultant hereby irrevocably appoints
ChromaDex, and its duly authorized officers and agents, as
Consultant’s attorney to execute and deliver any documents
needed and to do all other lawfully permitted acts to secure such
intellectual property rights with the same legal force and effect
as if executed by Consultant.
11.
Reasonable Restrictions.
Consultant acknowledges that the restrictions imposed by this
Agreement are reasonable and necessary to protect ChromaDex’s
intellectual property assets. When for any reason this Agreement
terminates, Consultant hereby represents to ChromaDex that
Consultant has the ability to earn a livelihood without violating
such restrictions.
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12.
Injunctive Relief; Other
Remedies. Consultant recognizes that the remedy at law for
any breach or violation, or threatened breach or violation, by
Consultant of this Agreement will be inadequate and ChromaDex would
suffer continuing and irreparable injury to its business as a
direct result of such violations. If Consultant breaches, or
threatens to breach, any material obligation contained herein, then
ChromaDex at its sole discretion will be entitled to institute and
prosecute proceedings in any court of competent jurisdiction or in
a binding arbitration, either in law or in equity, to obtain the
specific performance thereof by Consultant or to enjoin Consultant
from violating the provisions hereof. If court proceedings or an
arbitration are instituted by reason of a breach or violation
hereof the prevailing party will receive, in addition to any
damages awarded, its reasonable attorney’s fees, court costs
and related expenses.
13.
Representation. Consultant
represents that there is no conflict of interest between its
performance of this Agreement and its employment and/or any other
agreement with others. In the event Consultant believes that there
is presently any such conflict, or any such conflict arises during
this Agreement or extensions thereof, it will advise ChromaDex
immediately in writing.
14.
Non-Assignment. Neither party
may assign this Agreement, or any rights and duties hereunder,
without written consent of the other; provided that ChromaDex may
assign or otherwise transfer this Agreement to its affiliates and
otherwise incident to the transfer, sale, acquisition, or merger of
substantially all the assets of ChromaDex, or by operation of
law.
15.
Integration. This Agreement
sets forth the entire and only agreement and understanding between
ChromaDex and the Consultant relative to the subject matter hereof.
Any representation, promise, or condition, whether oral or written,
that is not incorporated herein shall not be binding upon either
party. Thus, this Agreement supersedes any prior agreements between
the parties regarding the subject matter hereof. No waiver,
modification, or amendment of the terms of this Agreement shall be
effective unless made in writing and signed by an authorized
representative of the party sought to be bound hereby.
18.
Severability.
The sections of this Agreement will be enforceable to the fullest
extent permissible under applicable law, but the unenforceability
(or modification to conform to such law) of any provision(s) hereof
will not render unenforceable or impair the remainder thereof. If
any provision(s) hereof are deemed invalid, illegal, or
unenforceable, the offending provision(s) should be deleted or
modified, as minimally as possible and as necessary, to retain as
much of the provision and this Agreement valid and enforceable as
possible.
19.
Ethics. Consultant shall be
responsible for knowing and shall comply, in all material respects,
with all applicable laws, rules, and regulations governing the
ethics and operations of organizations affected by Consultant's
activities.
20.
Authority. Consultant
acknowledges that he/she is neither an Officer nor a Director of
ChromaDex and does not have the authority to bind ChromaDex or its
affiliates to any contract, lease, or agreement in any form.
Consultant also agrees that he will inform any entity or individual
who wishes to enter into any contract or other binding agreement
with ChromaDex that he does not have the authority to execute
documents or bind ChromaDex or its affiliates without specific
written authorization.
21.
Independent Counsel
and Joint Drafting. Each party
acknowledges and agrees that it: (a) is aware that this Agreement
affects its legal rights; (b) has had the opportunity to seek
advice regarding this Agreement from independent counsel of its own
choosing; and (c) understands and voluntarily enters this Agreement
of its own free will and choice. Thus, this Agreement should be
construed to have been drafted jointly and will not be strictly
construed against either party.
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22.
Action on Termination. Upon
termination of this Agreement for any reason, with or without
cause: (a) at the request of ChromaDex, each Consultant must
deliver immediately to ChromaDex all work product, images,
writings, lists, samples, experimental results, data, quotations,
books, records, files, computer software, drawings, other tangible
manifestations of ChromaDex’s Information, keys, access
codes, and other property of ChromaDex and its vendors, customers,
and affiliates that Consultant had access to as a result of
consulting under this Agreement, that are in Consultant’s
possession, custody or control; and (b) at the request of
ChromaDex, Consultant will execute such documents and take such
other actions as necessary in order to reaffirm the covenants and
obligations set forth in this Agreement; provided, however that
failure to request such reaffirmation will not waive any
requirements of this Agreement. Consultant understands that failure
to perform these obligations may result in ChromaDex, at its sole
discretion, withholding payment of any remaining compensation or
taking any other legal action necessary to protect its
rights.
23.
Notices. All notices, requests,
demands and other communications required or permitted hereunder
shall be given in writing and shall be deemed to have been duly
given if delivered or mailed, postage prepaid, by certified or
registered mail or by use of an independent third party commercial
delivery service for same day or next day delivery and providing a
signed receipt to the address set forth above or to such other
address as either party shall have previously specified in writing
to the other. Notice by mail shall be deemed effective on the
second business day after its deposit with the United States Postal
Service, notice by same day courier service shall be deemed
effective on the day of deposit with the delivery service and
notice by next day delivery service shall be deemed effective on
the day following the deposit with the delivery
service.
24.
Independent Contractor.
Consultant shall act at all times hereunder as an independent
contractor as that term is defined in the Internal Revenue Code of
1986, as amended, with respect to ChromaDex, and not as an
employee, partner, agent or co-venturer of or with ChromaDex.
Except as set forth herein, ChromaDex shall neither have nor
exercise control or direction whatsoever over the operations of
Consultant, and Consultant shall neither have nor exercise any
control or direction whatsoever over the employees, agents or
subcontractors hired by ChromaDex.
25.
No Agency Created. No agency,
employment, partnership or joint venture shall be created by this
Agreement, as Consultant is an independent contractor. Consultant
shall have no authority as an agent of ChromaDex or to otherwise
bind ChromaDex to any agreement, commitment, obligation, contract,
instrument, undertaking, arrangement, certificate or other matter.
Each party hereto shall refrain from making any representation
intended to create an apparent agency, employment, partnership or
joint venture relationship between the parties.
26.
Counterparts. This Agreement
may be executed in counterparts, each of shall constitute an
original, whether actual original or a copy, and all of which shall
constitute one and the same instrument.
27.
The validity and
interpretation of this Agreement and the legal relations of the
parties to it shall be governed by the laws of California, U.S.A.
without giving effect to its choice of laws
principles.
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CHROMADEX,
INC.
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CONSULTANT
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BY: /s/ Xxxx
Xxxxxxxx
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BY:
/s/
Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx,
General Counsel
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Xxxx
Xxxxxxxx
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DATE: 11/19/2018
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DATE:
11/20/2018
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Exhibit A: Scope of Work
●
Provide advice and
counsel with respect to ongoing business ventures, product
development, intellectual property, corporate matters and other
functions for ChromaDex
●
Helping to
negotiate deal terms with key ingredient supplier(s)
●
Product development
with respect to the fermentation process for NR
●
Make himself
reasonably available to confer, in person or otherwise, with other
ChromaDex consultants and advisors
●
Attend meetings as
needed regarding the above
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