CONSULTING AGREEMENT
Exhibit
10.14
Dynatronics
Corporation with its principle place of business at 0000 Xxxxx Xxxx
Xxxxx XX, 00000 ("Company") and Xxxxx Xxxxx, a
Consultant located at 00 Xxxxxxxxxxx Xxxxxxx Xxx Xxxxxxxxxxx, XX
("Consultant"),
execute this CONSULTANT AGREEMENT ("Agreement") effective October
8, 2020 ("Effective
Date").
RECITALS
WHEREAS, Company desires to engage
Consultant to perform various services, and Consultant wishes to
provide such services to the Company;
NOW, THEREFORE, in consideration of the
mutual covenants and agreements contained herein, the parties agree
as follows:
1. Services
for Company. Company engages Consultant to provide
consultant services on an as needed basis and/or particularly
described in the Statement of Work submitted from time to time.
("Services").
2. Performance
of Services. Consultant will devote the time and effort
necessary to perform the Services on behalf of Company as assigned.
Consultant at all times, shall promote Company's best interests and
be rendered in conformance with terms hereof, and must not
discredit Company or its services in any way.
3. Compensation
and Expense Reimbursement. In consideration for the Services
to be rendered pursuant to this Agreement, Consultant shall receive
the sum One Hundred Fifty DOLLARS ($150.00) per hour. In addition,
Company shall pay Consultant a monetary stipend of Eight Hundred
Ninety DOLLARS ($890.00) per month for each month Consultant
provides services. Consultant shall also be reimbursed business
expenses as follows:
3.1 Invoices.
During the term of this Agreement, Consultant shall issue invoices
to Company on a weekly basis, during any month in which the
Consultant has provided Services hereunder. Each invoice relating
to this Agreement shall include a description of Services to which
it relates, including a reasonably detailed description of the type
of Services performed and the number of hours spent.
3.2 Payments.
So long as Consultant shall have provided an invoice Company shall
pay each invoice two weeks from the invoice date.
3.3 Stock
Options and Units. As long as Consultant meets the
definition of “Continuous Service” under the
Company’s 2018 Equity Incentive Plan, Consultant will
continue to vest in his granted stock options and restricted stock
units.
4. Term
and Termination. This Agreement shall be effective as of the
date first written above and shall continue in effect until either
Party terminates the Agreement. At any time during the term of this
Agreement either Party may terminate the agreement with a 15 day
written notice to the other Party. Upon termination Consultant
shall only be entitled to be paid for Services rendered and
Expenses incurred up to the point of written notice.
5.
Independent Consultant Status. Parties
understand that Consultant is an independent contractor and all
work performed hereunder shall be deemed a work-for-hire.
Consultant expressly understands and agrees that this Agreement
does not create an employer/employee relationship. Except as
otherwise agreed to in this Agreement or the Separation Agreement
between the parties, Consultant shall not be entitled to
participate in any of the Company’s benefit programs.
Consultant shall be responsible for all tax obligations under
federal and state tax laws and shall provide a completed Form W9
that can be found at xxxxx://xxx.xxx.xxx/xxx/xxx-xxx/xx0.xxx.
6.
Indemnification. Unless due to
Consultant’s gross negligence or willful misconduct, the
Company agrees to indemnify and hold harmless Consultant from and
against any and all losses and otherwise defend Consultant against
all liabilities, claims, actions, proceedings, damages and expenses
arising out of or relating to consulting services and worked
performed on Company’s behalf.
7. Confidential
Information; Proprietary Information and Inventions. The
relationship between the Company and Consultant is one of
confidence and trust. For the avoidance of doubt, the
Confidentiality and Non-Compete Agreement, Employment Agreement and
the Separation Agreement between the parties shall control and
Consultant shall be obligated to their provisions regarding
confidentiality and proprietary information. However, if the
confidentiality and/or proprietary provisions of those agreements
expire, then the confidentiality provision set forth in
Exhibit
A shall control until this Agreement is terminated as set
forth in Section 5 above.
8. Notices.
All communications, requests, consents and other notices under this
Agreement shall be given in writing and delivered by, courier,
registered or certified mail (postage prepaid). Notice shall be
deemed given on the date of delivery as shown by the delivery
receipt. Notices will be addressed to each party as
follows:
Dynatronics
Corporation
Attn:
General Counsel
0000 Xxxxx Xxxx
Xxxxx, XX
00000
Consultant:
Xxxxx
Xxxxx
00 Xxxxxxxxxxx
Xxxxxxx Xxx
Xxxxxxxxxxx, XX
00000
9. Governing
Law; Forum. The laws of the United States of America and the
State of Utah govern all matters arising out of or relating to this
Agreement without giving effect to any conflict of law principles.
The Company and Consultant each irrevocably consent to the
exclusive personal jurisdiction of the federal and state courts
located in Utah, as applicable, for any matter arising out of or
relating to this Agreement, except that in actions seeking to
enforce any order or any judgment of the federal or state courts
located in Utah, personal jurisdiction will be nonexclusive.
Additionally, notwithstanding anything in the foregoing to the
contrary, a claim for equitable relief arising out of or related to
this Agreement may be brought in any court of competent
jurisdiction.
10. Construction
and Interpretation; Miscellaneous. This Agreement was
jointly negotiated and prepared by the parties, so any ambiguity
herein shall not be construed for or against any party. Unless the
context requires otherwise, words denoting the singular may be
construed as denoting the plural and the words of the plural may be
construed as denoting the singular as is appropriate. The terms
"include" and "including" mean "including without limitation". The
term "Law" includes constitutions, statutes, rules, regulations,
codes, plans, injunctions, judgments, orders, decrees, rulings,
judicial opinions, restrictions and charges; a reference to a
specific statute also refers to regulations relating to that
statute; a reference to a specific law refers to that law as
revised or amended at the time that law is being applied. An
"affiliate" of a party means any person (individual or entity) that
directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the
party. The section titles are stated only for convenience and shall
not control or affect the interpretation of construction of any
provision of the Agreement. If any particular provision of this
Agreement is found to be invalid or unenforceable, it is to that
extent deemed to be omitted in the particular jurisdiction(s) where
the provision is invalid or unenforceable and the remaining
provisions of this Agreement shall not be affected by such
omission. No provision of this Agreement shall be altered, amended,
revoked or waived, except by an instrument in writing signed by all
parties. A waiver of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent or
other breach. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute a single instrument; provided, however, that this Agreement
shall not become binding upon any of the parties unless and until
counterparts are executed by all parties. Each such counterpart
shall be considered an original. A facsimile signature shall
constitute an original signature.
11. Restrictive
Covenants. The
parties acknowledge and agree that any confidentiality,
non-disclosure, non-competition, non-solicitation or other
restrictive covenant contained in any prior agreement between the
parties including but not limited to restrictive covenants in the
Confidentiality and Non-compete Agreement, Separation Agreement,
and Employment Agreement shall remain in full force and effect
following the Effective Date of this Agreement, unless otherwise
agreed in writing by the Parties.
12.
Entire Agreement. This
Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter.
IN WITNESS WHEREOF, each party's duly authorized
representative has executed this Agreement after reading and
understanding its terms.
Dynatronics
Corporation
By: /s/
Xxxxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx
Title: General
Counsel
Consultant
Xxxxx Xxxxx
By: /s/ Xxxxx
Xxxxx
Xxxxx
Xxxxx
Title: Principal
Consultant
EXHIBIT A
Confidentiality & Proprietary Rights Provisions
A. Definition. Consultant may have
access to, or Company may provide to Consultant, information that
Company regards as confidential or proprietary. “Confidential
Information” includes information of a commercial,
proprietary, or technical nature and includes, but is not limited
to, the following, whether now in existence or hereafter
created:
i.
any information
about Company’s customers of any nature whatsoever,
specifically including: the fact that someone is a customer or
prospective customer of Company; all lists of customers, former
customers, applicants and prospective customers; and all personal
or financial information relating to and identified with such
persons;
ii.
all business,
financial or technical information of Company (including account
numbers and software licensed from third parties or owned by
Company or its affiliates);
iii.
Company’s
marketing philosophy and objectives, promotions, markets,
materials, financial results, technological developments, and other
similar proprietary information and materials;
iv.
all information
protected by rights embodied in copyrights, whether registered or
unregistered (including all derivative works), patents or pending
patent applications, “know how,” trade secrets and any
other Intellectual Property Rights, as defined below, of
Company;
v.
information with
respect to employees of Company that is non-public, confidential,
business-related, or proprietary in nature, including names of
employees, the employees’ positions within Company, the fact
that they are employees of Company, contact information for
employees, personal employee identification numbers, and any other
information released to Consultant regarding employees in the past
and in the future;
vi.
any other
information that Consultant should, in the exercise of reasonable
business judgment, recognize as confidential; and
vii.
all notes,
memoranda, analyses, compilations, studies and other documents,
whether prepared by Company, Consultant or others, which contain or
otherwise reflect Confidential Information.
B. Essential Obligation.
Consultant shall retain the Confidential Information in secret,
shall not utilize the Confidential Information for the benefit of
Consultant or any third party, and shall not divulge, furnish, or
make accessible Confidential Information to any third party.
Consultant shall use the Confidential Information solely and
exclusively for the purpose of performing under or receiving the
benefit of the Agreement. Upon the earlier of DYNA’s request,
or the date of expiration or termination of this Agreement,
Consultant will return to DYNA all documents, copies thereof,
including electronic or digital copies, and other material fixed in
tangible form in the possession of Consultant that pertains to the
business of DYNA, including, but not limited to, Confidential
Information, as well as all copies, adaptations and independent
compilations thereof in Consultant’s possession.
C. Compelled Disclosure. In the
event Consultant becomes legally compelled to disclose any of the
Confidential Information, Consultant shall provide the Company with
prompt notice so that Company may seek a protective order or other
appropriate remedy. In the event that such a protective order or
other remedy is not obtained, Consultant shall furnish only that
portion of the Confidential Information which in the opinion of
Consultant’s counsel is legally required and shall exercise
commercially reasonable efforts to obtain a protective order or
other reliable assurance that confidential treatment shall be
accorded to the Confidential Information.
D. Return or Destruction of Confidential
Information. Upon termination of this Agreement or a
Statement of Work, or earlier request, Consultant must return or
destroy all Confidential Information of Company, and upon request,
provide Company written certification attesting to its destruction.
E. Exclusions. The term
Confidential Information excludes any portion of such information
that Consultant can prove: (i) was publicly available at the time
the Consultant acquired the information from Company; (ii) has
become publicly available other than by the Consultant’s
breach of this Agreement, but the obligation of confidentiality
shall cease only after the date on which such information has
become publicly available; (ii) was known by Consultant prior to
acquiring the information from Company; (iii) was rightfully
acquired by Consultant from a source other than Company or
Company’s affiliates, directors, employees, agents, or
representatives, provided that such source is not prohibited from
transmitting such information pursuant to any contractual,
fiduciary, or legal obligation; (iv) was independently developed by
Consultant without using the Confidential Information; or (v) was
generally disclosed by Company to third parties without similar
obligations of confidentiality.
F. Remedies. If Consultant
breaches the covenants set forth in this Agreement, irreparable
injury may result to Company or third parties entrusting
Confidential Information to Company. Therefore, Company’s
remedies at law may be inadequate and Company (or such third party)
will be entitled to seek an injunction to restrain any continuing
breach. Notwithstanding any limitation on Consultant’s
liability, Company will further be entitled any other rights and
remedies that it may have at law or in equity.
G. Obligations. Consultant’s
obligations respecting the Confidential Information disclosed by
Company shall remain in effect (a) with respect to a trade secret,
for so long as such information remains a trade secret and (b) for
all other Confidential Information, for a period of seven (7) years
from the date of expiration or termination of this
Agreement.
2. Proprietary
Rights.
A. Consultant
and Company each acknowledge that performance of the Services may
result in the creation of Work Product. Consultant and Company
agree, Company is the sole and exclusive owner of and shall have
all Intellectual Property Rights in the Work Products. Consultant
acknowledges that the Work Products have been developed for Company
for Company’s sole use, and Consultant agrees not to sell,
disclose, use, or otherwise exploit any of the Work Products
without the prior written consent of Company. For purposes of this
Agreement, “Intellectual Property Rights” means all
patents (including originals, divisionals, continuations,
continuations-in-part, extensions, foreign applications, utility
models, and re-issues), patent applications, copyrights (including
all registrations and applications therefore), trade secrets,
trademarks, trademark applications and other proprietary and
Intellectual Property Rights, including moral rights and
“Work Product(s)” means collectively all work,
materials or ideas performed, created or prepared by Consultant for
Company pursuant to this Agreement, and all work, materials or
ideas performed, created or prepared by Consultant pursuant to all
prior agreements, both oral and written, between Consultant and
Company prior to the Effective Date of this Agreement, including
all programs, derivative works, source code, object code,
discoveries, business concepts, inventions, innovations,
improvements, materials, documentation, techniques, methods and
processes that are conceived, made, proposed, or developed by
Consultant, alone or with others, specifically related to any
Statement of Work, whether or not prepared on or off the premises
of Company or during regular work hours, but excluding any Excluded
Invention, as defined below.
B. It is expressly
agreed between Company and Consultant that if any Work Products are
copyrightable and such Work Products fall within the definition of
a “work made for hire” as defined in 17 U.S.C. §
101 and § 201(b), such Work Products will be considered a
“work made for hire” and all copyrights and copyright
registrations related to such copyrightable Work Products will be
the sole and exclusive property of Company. To the extent that any
Work Products do not fall within the definition of a “work
made for hire,” Consultant grants and assigns to Company
without reservation, all of Consultant’s worldwide ownership
rights, title and interest in and to all Intellectual Property
Rights in such Work Products. Such grant of rights by Consultant to
Company includes the exclusive right to make copies, prepare
derivative works from any Work Products, publish, publicly perform,
and publicly display the Work Products with full rights to
authorize others to do the same. Company’s ownership will
include all changes and additions to any Work Products made by
either Party and all derivative works made by either
Party.
During
the term of this Agreement and at all times thereafter, at the
request of Company, Consultant shall execute all papers,
applications, assignments, and other instruments and perform all
other reasonable acts that Company shall deem necessary or
convenient in order to transfer, convey, and assign to Company or
its nominee the sole and exclusive right, title, and interest in
and to and all Intellectual Property Rights to the Work Products,
and to apply for, register, perfect, confirm, establish, enforce,
and protect Company’s rights in the Work Products, and all
expenses reasonably incurred by Consultant pursuant hereto shall be
borne by Company. Consultant shall accept as final the judgment of
Company on these matters. Consultant shall render aid and
assistance to Company in any interference or litigation pertaining
to the Work Products. Consultant will not be required to assign to
Company any invention, discovery, innovation, or improvement that
Consultant: (i) can show was developed prior to the commencement of
Services and developed on Consultant’s own time and without
the use of any Company equipment, supplies, facility or
Confidential Information; and, (ii) was disclosed to DYNA in
writing prior to the commencement of any Services (the "Excluded
Inventions"). Notwithstanding the foregoing, Consultant hereby
grants to Company a non-exclusive, fully paid-up license to use all
such Excluded Inventions throughout the world in perpetuity as part
of the Work Product.
