EXHIBIT 10.2
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT ("Agreement") is entered into on the
15th day of November, 2004 by and between BRAMPTON CREST INTERNATIONAL, INC., a
Nevada corporation, its successors and assigns maintaining its principal offices
Miami Beach. Florida, (hereinafter referred to as "BRAMPTON" or the "Company")
and [Xxxxx Xxxxxxx] and [Xxxxxxx Xxxxxxxx] (hereinafter referred as
"Consultant").
RECITALS
WHEREAS, Consultant is engaged in the business of distributing consumer
personal care products and has knowledge and expertise to render the requisite
services to BRAMPTON; and
WHEREAS, BRAMPTON is desirous of retaining Consultant for the purpose
of obtaining these services so as to better, more fully and more effectively
deal more effectively in the financial services and business community.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, it is agreed as follows:
AGREEMENT
1. INDEPENDENT CONTRACTOR. It is agreed between the parties that:
(a) Consultant will act at all times as an independent contractor
hereunder and shall hold itself out to third parties as an independent
contractor of the Company. Consultant shall never be deemed to be an employee of
the Company.
(b) Consultant is available to provide the Services hereunder.
Consultant warrants that Consultant shall not breach any agreement with any
third party as a consequence of providing the Services hereunder.
(c) The Company shall not be liable for the payment of any federal,
state, local income, social security, or any other taxes arising out of or
related to Consultant's work for the Company.
(d) Except to the extent provided herein, Consultant shall not
receive or be entitled to any consideration, compensation, or benefits of any
kind from the Company, including, but not limited to, pension, profit sharing or
similar plans or benefits, accident, health, medical, life or disability
insurance benefits or coverage.
(e) Consultant shall set, at his own discretion, the hours, the
order, the strategy, and the methods necessary to provide the Services required
of Consultant hereunder.
(f) Consultant has sufficient ability, training, and knowledge to
carry out satisfactorily the Services to be provided pursuant to this Agreement
without any control on the part of the Company and, based on this expertise,
shall determine the strategies needed to accomplish the work and to achieve
satisfactory results for the Company.
(g) Consultant shall be reimbursed for all pre-approved and
reasonable costs and expenses incurred in connection with the performance of the
duties required of Consultant not to exceed $500.00 US Dollars per month.
2. SCOPE OF SERVICES.
(a) During the Term (as such term is defined below) of this
Agreement, Consultant shall use his best efforts to distribute BRAMPTON`S
consumer personal care products to the Territory; specifically:
o Creams and lotions.
o Micro Dermabrasion motorized scrubbing and cleaning system.
o Develop a national sales organization as provided in (b) below.
o Develop and market own private label products.
"Territory" shall mean the Eastern United States (those states in the Eastern
Time Zone).
(b) Consultant has no authority to enter into contracts or
agreements on behalf of the Company, except with the written authority of
BRAMPTON. This Agreement does not create a partnership between the parties.
(c) Consultant agrees to provide assurances of performance to the
Company, including but not limited to providing the Company with all information
related to the performance by Consultant of the Services, such assurances to
demonstrate that Consultant is using Consultant's reasonable best efforts to
perform the obligations hereunder in accordance with all necessary care, skill,
and diligence (the "Assurances"). Such requests for Assurances by the Company
shall be provided to the Company upon written request by the Company.
(d) Consultant acknowledges and agrees that it will not make any
oral or written warranties or representations regarding the Services of the
Company, without the approval of the Company.
(e) Consultant represents and warrants that the Consultant has 250
active accounts.
3. TERM. This Agreement shall commence on the Effective Date and shall
continue in effect for a term of one year (the "Term"), unless earlier
terminated pursuant to Section 5.
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5. COMPENSATION.
(a) For the services to be rendered and performed by Consultant in
the sale of the creams and lotions, Consultant shall receive 30% of the whole
sale price, after expenses, from the sale of the creams and lotions. Such fees
shall be paid by the 5th day of the month following receipt by the Company of
the funds from the sale of the creams and lotions.
(b) For the services to be rendered and performed by Consultant in
the sale of the Micro Dermabrasion motorized device, Consultant shall receive
30% of the whole sale price, after expenses. Such fees shall be paid by the 5th
day of the month following receipt by the Company of the funds from the sale of
the Micro Dermabrasion device.
c) For the services to be rendered and performed by Consultant in
the sale of the Micro Dermabrasion motorized scrubbing and cleaning system by
the parties independently contracted by the Consultant, Consultant shall receive
a override percentage from the sale of the creams and lotions by parties
independently contracted by the Consultant (less any fees paid pursuant to (a)
and (b) herein). Any additional compensation and or an override percentage for
organizing a national sales force will be discussed at a later date or when the
company is financially capable of the undertaking.
d) If and when the Company has an employee stock option plan, the
same plan will be offered to the consultant.
5. TERMINATION. The Company may terminate this Agreement under the
following conditions:
(a) By the Company at will in writing. The Consultant will be paid
all commissions owed and as further consideration the Consultant will be paid
$5,000 US dollars upon termination of this agreement.
(b) By either the Company or Consultant, upon a material breach of
any representation, warranty, covenant or agreement on the part of the Company
or Consultant respectively, set forth in this Agreement, or if any
representation or warranty of the Company or Consultant, respectively, shall
have become untrue, (a "Terminating Breach"), and such breach shall, if capable
of cure, not have been cured within ten (10) days after receipt by the party in
breach of a notice from the non-breaching party setting forth in detail the
nature of such breach.
(c) By mutual written consent of both parties.
(d) Upon a change of control transaction. "Change of Control
Transaction" means the occurrence after the date hereof of any of (i) an
acquisition after the date hereof by an individual or legal entity or "group"
(as described in Rule 13d5(b)(1) promulgated under the Securities Exchange Act
of 1934, as amended) of effective control (whether through legal or beneficial
ownership of capital stock of the Company, by contract or otherwise) of in
excess of 33% of the voting securities of the Company, including, but not
limited, to a merger, sale, transfer or share exchange or (ii) the execution by
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the Company of an agreement to which the Company is a party or by which it is
bound, providing for any of the events set forth above in (i).
(e) Upon written notice to Consultant exercising or confirming the
right of termination hereunder, as of the date such termination is effective,
the Company shall be released from all obligations hereunder immediately upon
any such termination, including, but not limited to, the obligation to
compensate Consultant pursuant to the terms of Section 4.
6. REPRESENTATIONS AND WARRANTIES OF CONSULTANT. Consultant warrants to
The Company that:
(a) Consultant is not currently under any contract or agreement with
any party that will prevent Consultant from performing Consultant's duties under
this Agreement;
(b) Consultant is not, and by the performance of Consultant's duties
under this Agreement will not be, in breach of any agreement with respect to any
trade secrets or confidential information owned by any other party;
(c) Consultant has not entered into, and will not enter into, any
agreement, either written or oral, in conflict with this Agreement.
7. CONFIDENTIALITY AND DEVELOPMENT.
(a) Consultant acknowledges that in order for Consultant to perform
the duties hereunder properly, the Company must necessarily entrust Consultant
with certain Trade Secrets and Confidential Information (as such terms are
defined below) belonging to the Company. Consultant further acknowledges that
the Trade Secrets and Confidential Information are within the exclusive
knowledge and possession of the Company, are not generally available to the
public, are protected and kept secret by the Company and constitute a valuable
asset of the Company which gives the Company an advantage over its competitors.
Consultant further acknowledges that the development or acquisition of such
Trade Secrets or Confidential Information is the result of great effort and
expense by the Company, that the Trade Secrets and Confidential Information are
critical to the success and survival of the Company, and that the unauthorized
disclosure or use of the Trade Secrets or Confidential Information would cause
the Company irreparable harm. Accordingly, Consultant requires and agrees that
the restrictions contained in this Agreement are reasonable and necessary to
protect the Company's legitimate business interests. Except as may be required
in connection with Consultant's services to the Company's business, Consultant
will not at any time, whether during or after the termination of services with
the Company, use or reveal to any person or entity any of the Trade Secrets or
Confidential Information of the Company or of any third party which belongs to
or is used by the Company for which the Company is under an obligation to keep
confidential, except as may be required in the ordinary course of performing the
duties described in Section 2. Consultant further agrees to keep secret all
matters entrusted to Consultant and shall not use or disclose or attempt to use
or disclose any such information in any manner which, among other things, may be
calculated to injure or cause loss whether directly or indirectly to the
Company.
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(b) Further, Consultant agrees that during the Term, Consultant
shall not make, use or permit to be used any notes, memoranda, reports, lists,
records, drawings, sketches, pictures, specifications, software programs, data,
documentation or other material containing the Trade Secrets or Confidential
Information of or concerning any of its dealings or affairs of the Company
(collectively, the "Company Property") other than for the benefit of the
Company.
(c) As used herein, "Trade Secrets" means information, without
regard to form, including without limitation a formula, pattern, compilation,
program, device, method, technique, or process that: (i) derives independent
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. As used
herein, "Confidential Information" means information, other than Trade Secrets,
that is of value to the Company and is treated as confidential. Trade Secrets
and Confidential Information may include, without limitation, information with
respect to the Company's organization, business, finances, inventions, products,
designs, methods, know-how, techniques, systems, processes, software programs,
works of authorship, customer lists, projects, plans, proposals, computer
password(s), access number(s) and/or alarm code(s).
(d) Consultant's obligations with respect to (i) Trade Secrets will
survive for so long as such information constitutes a Trade Secret, and (ii)
Confidential Information will survive indefinitely following the termination of
Consultant's service with the Company.
8. INDEMNIFICATION.
(a) Consultant shall indemnify and hold the Company and its
affiliates' directors, officers, employees, and agents harmless from and against
any and all claims that result from a breach by Consultant of this Agreement
including, but not limited to, any representations, warranties, or covenants of
Consultant provided herein or any damages caused to any property of the Company
or his affiliates, or injury to persons caused by the willful misconduct or
gross negligence of Consultant. The Company shall give Consultant prompt written
notice of the assertion of any such claim. Consultant shall assume the defense
of such claim at his own expense, with counsel of his own choosing (subject to
the Company's reasonable approval), and shall have complete control over the
claim, provided that Consultant shall not settle the claim without the Company's
prior written approval, which approval shall not be unreasonably withheld. The
Company shall be entitled to participate in any such defense at its own expense
with counsel of its own choosing.
(b) The Company shall indemnify and hold Consultant harmless from
and against any and all claims that result from a breach by the Company of this
Agreement including, but not limited to, any representations, warranties, or
covenants of the Company provided herein or any damages caused to any property
of Consultant, or injury to persons caused by the willful misconduct or gross
negligence of the Company. Consultant shall give the Company prompt written
notice of the assertion of any such claim. The Company shall assume the defense
of such claim at his own expense, with counsel of its own choosing (subject to
Consultant's reasonable approval), and shall have complete control over the
claim, provided that the Company shall not settle the claim without Consultant's
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prior written approval, which approval shall not be unreasonably withheld.
Consultant shall be entitled to participate in any such defense at his own
expense with counsel of his own choosing.
9. EQUITABLE RELIEF. The parties to this Agreement acknowledge that a
breach by Consultant of any terms or conditions of this Agreement shall result
in irreparable harm to the Company and that the remedies at law for such breach
may not adequately compensate the Company for damages suffered. Accordingly,
Consultant agrees that in the event of such breach, the Company shall be
entitled to injunctive relief or such other equitable remedy as a court of
competent jurisdiction may provide. Nothing contained herein will be construed
to limit the Company's right to any remedies at law, including the recovery of
damages for breach of this Agreement. Therefore, the Company shall be entitled
to specific performance and injunctive and other forms of equitable relief
without the requirement to post a bond or other form of security in addition to
the Company's remedies at law, including an injunction restraining Consultant
from committing or continuing such breach.
10. SEVERABILITY. Consultant hereby agrees that each provision herein
shall be treated as a separate and independent clause, and that the
unenforceability of any one clause shall in no way impair the enforceability of
any of the other clauses herein. Moreover, if one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to scope, activity, or subject so as to be unenforceable at law, such
provision or provisions shall be construed by the appropriate judicial body by
limiting and reducing it or them, so as to be enforceable to the maximum extent
compatible with the current applicable law.
11. NOTICES. Any notice to be given by either party to the other hereunder
shall be sufficient if in writing and sent by registered or certified mail,
return receipt requested, addressed to such party at the address specified on
the first page of this Agreement or such other address as either party may have
given to the other in writing.
Any party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, facsimile, ordinary mail or electronic mail), but no such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received or refused by the intended
recipient. Any party may change the address to which notices, requests, demands,
claims and other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
12. MISCELLANEOUS. This Agreement shall not be amended or modified except
by a writing executed by both parties. This Agreement shall be binding upon and
inure to the benefit of the Company. Due to the personal nature of this
Agreement, Consultant shall not have the right to assign Consultant's rights or
obligations under this Agreement without the prior written consent of the
Company, which consent may be withheld in the Company's sole and absolute
discretion. Any waiver by the Company of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of such provision or any other provision hereof. This Agreement shall be
governed by the laws of the State of Florida, without regard to conflicts of
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laws principles. Any suit, action, or proceeding arising out of or relating to
this Agreement shall be commenced and maintained in any court of competent
jurisdiction in the State of Florida, with exclusive venue in Miami-Dade County
and the parties consent to jurisdiction there. All communications required or
otherwise provided under this Agreement shall be in writing and shall be deemed
given when delivered to the last known address of the party by hand, by courier
or express mail, or by registered or certified United States mail, return
receipt requested, postage prepaid. Consultant's obligations under this
Agreement shall survive the termination of Consultant's service regardless of
the manner of such termination and shall be binding upon Consultant's heirs,
executors, administrators, and legal representatives.
Neither party shall have the right to assign this Agreement without the
written consent of the other party, except that the Company may assign this
party to a successor entity and all covenants and agreements hereunder shall
inure to the benefit of and be enforceable by the assignee. This Agreement
represents the entire understanding of the parties regarding the terms and
conditions of Consultant's service or prospective service to the Company, and
supersedes and terminates all prior communications, agreements and
understandings, whether oral or written, relating to the subject matter hereof.
Consultant acknowledges that Consultant has not been represented by the
Company's attorney in connection with this Agreement, and that Consultant has
been advised and has had an opportunity to seek separate legal counsel and
representation in this matter. Consultant shall be obligated to pay all
incidental and consequential damages which the Company may sustain by reason of
Consultant's breach of any provision of this Agreement, including without
limitation, all legal fees and other expenses incurred by the Company. In the
event of any litigation arising out of the services or covenants contemplated in
this Agreement, the costs of such litigation, including reasonable attorneys'
fees (through all levels of appeals) of the prevailing party, shall be paid by
the non-prevailing party. This Agreement may be executed in one or more
counterparts, each counterpart to be considered an original portion of this
Stipulation and all of which shall constitute a singular document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
CONSULTANT: THE COMPANY:
BRAMPTON CREST INTERNATIONAL, INC.
By: Xxxxxxx Xxxxxxxx By:
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Name: Name:
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Title: Title:
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CONSULTANT:
By: Xxxxx Xxxxxxx
Name:
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Title:
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