Exhibit
10.4
INDEPENDENT
CONTRACTOR AGREEMENT
THIS
INDEPENDENT CONTRACTOR (“Agreement”) is
made and entered into this 1st day of January 2013 (“Effective
Date”) by and between America Greener Technologies Corporation., an Arizona corporation (the
“Company”) and Xxxxx Xxxx (“Independent Contractor”).
NOW
THEREFORE, for valuable
consideration receipt of which is hereby acknowledged, and
in consideration of the mutual promises and covenants contained herein, the
parties agree as follows:
| 1. | Scope
of Services. Subject to the terms and conditions of this Agreement, Independent Contractor
shall provide the Contracted Services as requested by the Company subject to the terms
and conditions of this Agreement, including section 11, hereunder. |
| 2. | Compensation.
As full consideration for the performance of the Contracted Services performed by Independent
Contractor, the Company shall pay Independent Contractor at the rate of $4,000.00 per
month. |
| 3. | Travel.
In the event Independent Contractor is required to travel for a particular matter or
project for the Company, the
Independent Contractor shall be reimbursed under an “Expenses” model. The
Independent Contractor shall pay for travel expenses and then submit for reimbursement
from the Company for actual travel costs proved by receipts. |
| 4. | Invoices
and Timing of Payments. Independent Contractor shall provide the Company with
a monthly invoice
detailing the charges for services performed by Independent Contractor. The Company shall
pay the fees specified in Independent Contractor’s invoices by cash or check within
twenty (20) days of the date each invoice is issued for the term of this Agreement. Checks
should be made out to Xxxxxxx Xxxxx. |
| 5. | Liability
for Taxes.
Independent Contractor shall be liable for all taxes, excises, assessments and other
charges levied
by any government agency on the amounts paid to Independent Contractor and/or his or
her employees hereunder. |
| 6. | Location
and Hours. Independent Contractor shall conduct all work from its desired location
(unless travel is required) and shall set own hours and schedule. |
| 7. | Direction
and Instruction. Independent Contractor shall determine the best methodology to complete
each required task and shall not by subject to direction and control by Company. |
| 8. | Training
Not Required. Independent Contractor needs no training by Company. |
| 9. | Assignment
within Independent Contractor.
Independent Contractor is free
to assign any particular matter
to a partner, associate
or employee of Independent Contractor as it deems best. Company may not require a particular
partner, associate or employee of Independent Contractor to complete a certain task. |
| 10. | Reports.
Independent Contractor shall not be required to submit regular oral or written reports
to the Company. |
| 11. | Tools,
Materials and Equipment. Company shall not provide Independent Contractor with any
tools, materials, or equipment. |
| 12. | Benefits.
Independent Contractor shall not be eligible for, and shall not participate in, any employee
pension, health, welfare, or other fringe benefit plan of the Company. No workers’
compensation insurance shall be obtained by the Company covering Independent Contractor
and/or its employees. |
| 13. | Worker’s
Compensation. If independent Contractor has employees, Independent Contractor represents
and warrants to the Company that it has workers’ compensation insurance in amounts
necessary to comply with all applicable laws. |
| 14. | Relationship
of the Parties/Independent Contractor. This Agreement is not intended to create,
and shall not be construed to create a relationship of principal and agent, master and
servant, employer and employee, joint venture, partnership, nor any other relationship
other than that of independent contracting parties. Neither party shall have authority
to make or imply any commitments that are binding upon the other party. Independent Contractor
represents and warrants to the Company that it holds itself out as available to provide
various services to other customers and businesses other than the Company and does, in
fact, provide services for customers and businesses other than the Company. Independent
Contractor and its employees shall be independent of the Company and shall at all times
be free to exercise their independent business judgment. Neither Independent Contractor,
nor its employees, are required to work exclusively for the Company. The Company shall
judge Independent Contractor’s work based solely on whether Independent Contractor
delivers the results desired by the Company. The Company shall not provide a performance
evaluation to Independent Contractor, and Independent Contractor shall be free to achieve
the Company’s desired results in whatever way Independent Contractor deems appropriate.
The Company shall not dictate how Independent Contractor performs its work under this
Agreement. |
| 15. | Term.
Either party may terminate this Agreement, without cause, upon thirty (30) days written
notice to the other party. |
| 16. | Authorization
to Work. The Immigration Reform and Control Act of 1986 requires Independent Contractor
to present appropriate documentation demonstrating Independent Contractor is authorized
to work in the United States. The execution of this Agreement by the Company is contingent
upon Independent Contractor presenting the required documentation. |
| 17. | Standard
of Conduct. In rendering services under this Agreement, Independent Contractor shall
conform to the highest professional standards of work and business ethics and shall endeavor
to respect the needs and expectations of clients and help xxxxxx and maintain healthy,
loyal and mutually beneficial arrangements. |
| 11.1. | “Confidential
Information”. Confidential Information covered by this Agreement includes,
but is not limited to, all trade secrets, technical, business, and financial information
relating to the Company’s and its clients’ business models, business plans,
processes, workflow, ideas, models, devices, plans, specifications, products, materials,
computer programs, price lists, customer lists and financial performance. Confidential
Information also includes all technical, business and financial information received
from any third party who is not party to this Agreement under an obligation of confidentiality,
and all information which a party should reasonably expect to be considered Confidential
Information. Confidential Information further includes any information developed by Employee
on behalf of the Company in connection with services rendered under this Agreement. Confidential
Information shall not include information that Independent Contractor can demonstrate
(i) has been previously disclosed to Independent Contractor by outside third parties
who were not bound to maintain its confidentiality, (ii) is in, or becomes available
in, the public domain (other than as a result of a disclosure by Independent Contractor
in contravention of this Agreement), or (iii) is independently developed by Independent
Contractor without reference to the Confidential Information. |
| 11.2. | Independent
Contractor agrees not to disclose to third parties any Confidential Information belonging
to the Company or its clients without the prior written consent of the Company. In the
event that Confidential Information is lost or misplaced, Independent Contractor shall
immediately notify the Company of such loss or misplacement. |
| 11.3. | All
Confidential Information, whether or not formally marked or identified as such, is and
shall remain the exclusive property of the Company or its clients. Independent Contractor
shall take all reasonable steps and precautions to prevent unauthorized disclosure to
any third party. |
| 11.4. | Independent
Contractor shall not use Confidential Information for any purpose other than to perform
work for the Company or as the Company may otherwise direct. Independent Contractor may
not sell, license, market or otherwise exploit any Confidential Information. |
| 11.5. | Upon
termination of this Agreement, or at the request of the Company, Independent Contractor
shall return to the Company all tangible materials received pursuant to this Agreement
that contain Confidential Information. Independent Contractor shall not retain any copies
of the above-described materials, and will make reasonable efforts to ensure that their
officers, agents and employees do not retain any such copies. |
| 12. | Property
of America Greener Technologies Corporation. Independent Contractor agrees that all
Confidential Information, as defined in Section 11.1, shall constitute the exclusive
property of the Company. Promptly upon the expiration or termination of this Agreement,
or upon the earlier request of the Company, Independent Contractor shall return to the
Company all documents and tangible items, including samples, computer files, documents,
and paper files provided to Independent Contractor or created by Independent Contractor
in connection with services to be rendered hereunder, including without limitation all
Confidential Information, together with all copies and abstracts thereof. |
| 13. | Product
Development by Independent Contractor. During the term of this Agreement, any product,
process,
or invention of any kind whatsoever
developed by Independent Contractor,
whether acting alone or in conjunction
with others, which relates to the Covered Services or the Company’s operations,
shall be the sole and exclusive property of the Company. Independent Contractor agrees
that any contributions by Independent Contractor to any material which might be subject
to copyright, trademark
or patent related to the business of the Company
or incorporated into any product,
process, or
invention of any kind whatsoever developed by Independent Contractor shall be considered
work made-for-hire for the Company or its designee. To the extent that any such contributions
or products, processes or inventions do not qualify as works made for hire under U.S.
copyright law, this Agreement will constitute an irrevocable assignment by Independent
Contractor to Company of the ownership of, and all intellectual property rights in, such
contributions or such products, processes or inventions. Independent Contractor agrees
to give the Company all assistance reasonably required to perfect such rights. Independent
Contractor shall inform the Company of any product developments made or conceived by
Independent Contractor which relate to the Covered Services or the Company’s operations
and shall execute such documents as may be reasonably requested by the Company to evidence
transfer of such property to the Company. |
| 14. | Specific
Performance. Independent Contractor acknowledges and agrees that irreparable injury
to the Company may result if Independent Contractor breaches any covenant of Independent
Contractor contained herein and that the remedy at law for the breach of any such covenant
will be inadequate. Accordingly, if Independent Contractor engages in any act in violation
of the provisions of this Agreement, the Company shall be entitled, in addition to such
other remedies and damages as may be available to it by law or under this Agreement,
to injunctive relief to enforce the provisions of the Agreement. |
| 15. | Compliance
with Laws and Regulations. Independent Contractor shall at all times comply with
all applicable laws, ordinances,
statutes and rules, including those
relating to wages, hours,
fair employment practices, anti-discrimination
and safety. |
| 16.1 | Binding
Effect/Assignment. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, and their respective representatives, successors and permitted
assigns. This Agreement shall not be assignable by either party, without the express
written consent of the other. |
| 16.2 | Attorney’s
Fees. In the event there is any dispute concerning the terms of this Agreement or
the performance of any party hereto pursuant to the terms of this Agreement,
and any party hereto retains counsel
for the purpose of enforcing any of the provisions of this Agreement or asserting the
terms of this Agreement in defense of any suit filed against said party,
the prevailing party in such dispute
shall be entitled to recover, in addition to any other remedy to which such party may
be entitled to recover, all of its costs and attorney’s fees incurred in connection
with the dispute irrespective of whether or not a lawsuit is actually commenced or prosecuted
to conclusion. |
| 16.3 | Governing
Law/Venue. This Agreement shall be construed in accordance with the laws of the State
of Arizona. The venue for any lawsuit arising as a result of this Agreement shall be
Phoenix, Arizona. |
| 16.4 | Counterparts.
This Agreement may be executed in two counterparts, each of which shall be deemed an
original, and all of which shall constitute one agreement. |
| 16.5 | Entire
Agreement. Upon Independent Contractor’s signature, this will become a binding
agreement with respect to the subject matter of this Agreement, superseding any oral
or written proposals, statements, discussions or other agreements before or contemporaneous
to this Agreement. Independent Contractor acknowledges that he or she has not been induced
to enter into this Agreement by any oral or written representations or statements not
expressly contained in the Agreement. This Agreement may be modified only by mutual agreement
of the parties, provided that, before any modification shall be operative or valid, it
must be reduced to writing and executed by both Independent Contractor and the Company. |
| 17. | Waiver.
The failure of any party to insist, in any one or more instances, upon performance of
any of the terms or conditions of this Agreement, shall not be construed as a waiver
or a relinquishment of any right granted hereunder for the future performance of any
such term, covenant or condition. |
| 18. | Severability.
Any term or provision of this Agreement that is invalid or unenforceable in any situation
in any jurisdiction shall not affect the validity or enforceability of the remaining
terms and provisions of this Agreement or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction. If the final judgment
of a court of competent jurisdiction declares that any term or provision of this Agreement
is invalid or unenforceable, the parties hereto agree that the court making the determination
of invalidity or unenforceability shall have the power to reduce the scope, duration
or area of the term or provision, to delete specific words or phrase or to replace any
invalid or unenforceable term or provision with a term or provision that is valid or
enforceable and that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified after the expiration
of the time within which the judgment may be appealed. |
IN
WITNESS WHEREOF, the parties hereto have duly caused this Agreement to be signed by their authorized signatories as of the Effective
Date.
| |
American
Greener Technologies |
Xxxxx Xxxx |
| |
|
|
|
|
|
| |
By: |
/s/ Xxxxxxx X. Xxxxx |
|
/s/ Xxxxx Xxxx |
|
| |
Its: |
CEO |
|
Consultant |
|
| |
|
|
|
|
|
|
|
