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EXHIBIT 10.119
INDEPENDENT CONSULTANT AGREEMENT
THIS INDEPENDENT CONSULTANT AGREEMENT ("this Agreement") is
made effective this 5th day of August, 1998 ("the Effective Date") by and
between WILSHIRE TECHNOLOGIES, INC. ("Company"), a California corporation with
its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, and Percura, Inc. ("Consultant"), a California corporation with a
principal place of residence at 00000 X. Xxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx
00000.
RECITAL
Consultant desires to perform, and Company desires to have Consultant
perform, certain services as an independent Consultant to Company.
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, the Company and Consultant hereby agree as follows:
1. Duties and Performance. Consultant will perform the
services (the "Services") for the Company described in Exhibit A to this
Agreement, as may be amended from time to time. Consultant will make regular
reports to Company concerning the progress of the Services and may be required
to perform the Services at Company's offices in Carlsbad, California, at the
Company's manufacturing facility in Tijuana, Mexico, or such other places as
Company may specify. Until Company advises Consultant otherwise, Consultant's
primary contact at Company will be Xxxx Xxxxxxx. While Consultant will perform
the Services under the general direction of Company, Consultant will determine
the manner and means by which the Services are accomplished.
2. Payment. As compensation for the performance of the
Services, the Company will (i) pay fees to Consultant at the hourly rate of
$125.00 per hour during the term of this Agreement, and (ii) reimburse
Consultant for all expenses incurred by Consultant in performing the Services,
as further specified in Section 3 below. All such payments will be made by
Company no later than fifteen (15) days following Company's receipt of
Consultant's invoice.
3. Reimbursement of Expenses. Consultant shall be entitled to
prompt reimbursement for reasonable travel and other business expenses incurred
in connection with the performance of the Services, provided, however, that (i)
Company shall have the right to require Consultant to supply reasonable
documentation supporting the incurrence of such expenses, (ii) Consultant shall
obtain the approval of the Company prior to incurring any individual expense in
an amount greater than $250.00, and (iii) all travel arrangements must be made
by Company through Company's travel vendors unless otherwise agreed by Company.
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4. Term and Termination. This Agreement shall commence on the
Effective Date and have a term of approximately five (5) months, expiring
automatically upon the completion of two hundred (200) hours of work.
Thereafter, this Agreement may be extended for additional periods by mutual
agreement in writing of Company and Consultant. Notwithstanding the foregoing,
Company shall have the right to terminate this Agreement for convenience at any
time during the term of the Agreement, with or without cause, upon thirty (30)
days prior written notice to Consultant. Either party may terminate this
Agreement prior to its expiration in the event of a breach by the other party of
this Agreement if such breach continues uncured for a period of seven (7) days
after written notice.
5. Relationship of Parties.
(a) Independent Consultant. Consultant's
relationship to the Company under this Agreement shall be solely that of an
independent Consultant, and the parties shall conduct themselves accordingly.
All services which Consultant renders to any customer of the Company during the
term of this Agreement shall be rendered on behalf of the Company, and
Consultant's sole compensation for all such services shall be from the Company
pursuant to this Agreement. This Agreement is not intended to create an
employment relationship, nor do the parties intend to create a partnership or
joint venture.
(b) Taxes. Inasmuch as Consultant is an independent
Consultant and not an employee of Company, no amounts shall be withheld from any
payments under this Agreement for federal, state, local, FICA, FUTA, hospital
insurance, SDI or other taxes unless required by applicable law. Consultant
assumes full responsibility for, and shall indemnify and hold harmless Company
against, the payment of all taxes, penalties and interest arising from the
payments made to Consultant under this Agreement.
6. Company Property.
(a) Definition. For the purposes of this Agreement,
"Company Property" shall mean all computer programs, product specifications,
technical data, formulas, concepts, compilations of information, marketing
plans, equipment, strategies, forecasts and customer lists (and documentation
related to the foregoing), provided to Consultant by Company, or any other work
made or developed by Consultant in connection with the performance of the
Services.
(b) Ownership of Company Property. To the extent
that the Company Property delivered hereunder includes material subject to
copyright, Consultant agrees that the such work is done as a "work for hire" as
that term is defined under U.S. copyright law, and that as a result, Company
shall own all copyrights in the work. To the extent that the Company Property
does not qualify as a work for hire under applicable law, and to the extent that
the Company Property includes material subject to copyright, patent, trade
secret, or other proprietary right protection, Consultant hereby irrevocably
transfers and assigns to Company, its successors and assigns, all right, title,
and interest in and to the Company Property, including but
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not limited to all copyrights, patents, trade secrets, trademarks, and other
proprietary rights therein (including renewals thereof). Consultant shall
execute and deliver such instruments and take such other action as may be
required and requested by Company to carry out the assignment contemplated by
this paragraph, including requiring any of its employees to execute and deliver
such instruments for the benefit of Company. Any documents, magnetically or
optically encoded media, or other materials created by Consultant pursuant to
this Agreement shall be owned by Company and subject to the terms of this
paragraph.
(c) Agreement to Treat Confidential. Consultant
agrees to treat all Company Property as "Confidential Information," as defined
in Section 7 below.
(d) Return of Materials. Upon termination or
expiration of this Agreement, Consultant shall deliver promptly to Company all
Company Property in Consultant's possession or under Consultant's control.
7. Confidential Information. Consultant acknowledges that
Consultant will acquire information and materials from Company and knowledge
about the technology, business, products, strategies, customers, clients and
suppliers of Company and that all such knowledge, information and materials
acquired and the existence, terms and conditions of this Agreement are and will
be trade secrets and confidential and proprietary information of Company
(collectively "Confidential Information"). Consultant agrees to hold all such
Confidential Information in strict confidence, not to disclose it to others or
use it in any way, commercially or otherwise, except in performing the Services,
and not to allow any unauthorized person access to such Confidential
Information. Notwithstanding the foregoing, Consultant will have no obligation
to maintain the confidentiality of any information which is (b) generally known
in the industry in which the Company transacts business, (b) acquired from
public sources, or (c) becomes part of the public domain without fault of
Consultant.
8. Proprietary Information of Others. Consultant hereby agrees
that he will not intentionally bring into the Company premises or use in any way
for the benefit of the Company any information which Consultant has reason to
believe is or may be the confidential information of a past employer or any
other third party.
9. Injunctive Relief. Consultant acknowledges and agrees that
it would be difficult to fully compensate the Company for damages resulting from
the breach or threatened breach of the foregoing provisions of this Sections 6,
7, or 8 and, accordingly, that the Company shall be entitled to seek temporary
and injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions, to enforce such provisions upon proving
that it has suffered or that there is a substantial probability that it will
suffer irreparable harm and without the necessity of posting any bond or other
undertaking.
10. Notices. Any notices under this Agreement will be sent by
certified or registered mail, return receipt requested, to the address set forth
on the first page of this Agreement or to any other address designated by the
other party in writing.
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11. Assignment. Consultant may not assign Consultant's rights
or delegate Consultant's duties under this Agreement either in whole or in part
without the prior written consent of Company. Further, Consultant shall not
retain the services or assistance of any third party independent contractor to
perform the Services without the prior written consent of Company.
12. Governing Law; Severability. This Agreement will be
governed by and construed in accordance with the laws of the State of California
excluding that body of law pertaining to conflicts of law. If any provision of
this Agreement is for any reason found to be unenforceable, the remainder of
this Agreement will continue in full force and effect.
13. Complete Understanding; Modification. This Agreement,
together with each version of Exhibit A executed by the parties, constitutes the
complete and exclusive understanding and agreement of the parties and supersedes
all previous negotiations, agreements and other communications, whether oral or
written, with respect to the subject matter hereof. This Agreement shall not be
modified in any way except in a writing signed by both parties.
14. Survival. Consultant's obligations under Sections 5(b),
6(b), 6(c), 6(d), 7 and 9 shall survive expiration or termination of this
Agreement.
15. Attorneys' Fees. The prevailing party in any suit or other
proceeding brought to enforce any provisions of this Agreement, shall be
entitled to recover from the other party all costs and expenses of the
proceeding and investigation (not limited to court costs), including attorneys'
fees at the hourly rates usually charged by that party's attorneys.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
WILSHIRE TECHNOLOGIES, INC. PERCURA, INC.
By: /s/ Xxxx Xxx Xxxxxx By: /s/ Xxxxx Xxxxxx
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Title: President & CEO Title: President
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INDEPENDENT CONSULTANT AGREEMENT
BETWEEN WILSHIRE TECHNOLOGIES AND PERCURA
EXHIBIT A
Description of the Services to be Performed:
See Attached Letter to Xxx Xxxxxx from Xxxx Xxxxxxx dated August 5, 1998
Wilshire Technologies, Inc.
By: /s/ Xxxx Xxx Xxxxxx
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Title: President & CEO
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Percura, Inc.
By: /s/ Xxxxx Xxxxxx
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Title: President
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