This Consulting Agreement ("Agreement") is entered into this ___day of
__________, by and between SGI International, a Utah corporation ("SGI") and
_________________ ("Consultant").
1. Performance by Consultant. Consultant agrees to provide consulting services
(the "Services") relating to the development of the OCET technology. Such
Services will include consultation relative to the performance, data,
measurement, analysis, and recommendations as to the development and improvement
of the OCET technology. The Services shall also include, but not be limited to,
advice, assistance, and information supplied by Consultant, or developed with
the use of any of Consultant's information, equipment, personnel, goods or
facilities. The specific tasks will be agreed to in writing and attached to this
Agreement as a Statement of Work or as a Supplemental Statement of Work by SGI's
Technical Director, Dr. Ernest Esztergar and ______________________.
2. Payment for Services.
a. Consulting Fee. SGI agrees to pay Consultant for the Services at the rate of
_____________a day for an eight hour day. The compensation shall be prorated for
any portion of a day worked by Consultant and shall also be prorated between
payment in cash and in stock as described herein. _____________of such
_______________rate shall be paid in cash and the remainder shall be paid in
stock. The amount of such stock shall be determined by dividing the amount to be
paid in stock by the closing bid price of SGII as of the date of the invoice
submitted by Consultant.
b. Expenses. Consultant shall be reimbursed for reasonable expenses, including
but not limited to travel, long distance telephone charges, and mileage at the
rate of $.315 a mile.
c. Invoices. Consultant shall invoice SGI monthly for Services rendered during
the preceding month. The invoice will describe the work performed during such
period, set out the hours of work by day and by task and reflect the amount and
details of any expenses. Consultant agrees that SGI may audit the billing and
expense documentation for a period of one year from the date of the invoice
submittal. All invoices will be due and payable by SGI within thirty (30) days
after receipt. Payments will be made to ________________________., ADDRESS,
CITY, STATE ZIP
3. Obligations of Consultant.
a. Key Person. SGI and _________ agree that the Services will be performed
personally by ___________________. If the services are not performed by
___________________ then SGI has the right to terminate this Agreement
immediately.
b. Consultations, Reports. Consultant agrees to make available _______________
for any meetings requested by SGI. If SGI requests it, Consultant
shall also prepare and submit to SGI each month a written report setting forth
the status of such work performed by Dolbear in a format to be mutually agreed
upon by Consultant and SGI.
c. Regeneration of Lost or Damaged Data. With respect to any data which
Consultant has lost or damaged, Consultant shall, at its own expenses, promptly
replace or regenerate such data from Consultant's own information, or obtain, at
Consultant's own expense, new data by reperforming work or recovering damaged
data from Consultant's or SGI's data sources.
4. Obligations of SGI. SGI agrees to make available to Consultant, upon
reasonable notice, computer programs, data, and any documentation required by
Consultant to complete the Services.
5. Statements of Work.
a. Supplements. When required by SGI, the parties shall in good faith negotiate
Supplemental Statements of Work ("Supplements"), each of which upon signing
shall be deemed a part of this Agreement. Supplements, which shall be entered
into as required by SGI, shall be substantially in the form of Appendix B
hereto. Unless otherwise agreed in a Supplement, the following provisions shall
govern Supplements generally:
i. Term. In the absence of an express provision for the duration or early
termination of a Supplement, such agreements shall be terminable without cause
on thirty (30) days written notice by either party to the other.
ii. Payment. Supplements may call for lump sum or periodic payments, or payments
against performance milestones, and for compensation based on time and materials
or on a fixed price. In the event the payment defined in a Supplement is
different than the payment described in the body of the Agreement, the terms of
the Supplement shall govern.
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iii. Specifications. Supplements shall include specific descriptions of the
tasks and scope of work to be accomplished by Consultant.
b. Costs of Negotiation. Consultant shall not bill SGI for any of its costs in
putting together a Supplement and if any Supplement is not finalized then
Consultant shall bear its own costs relating to such negotiation. Further, the
fact that the parties negotiate a Supplement, but do not finalize it, shall not
constitute any obligation on the part of SGI to make any payment to Consultant.
c. Other. Each Supplement may contain such additional terms and conditions as
may be mutually agreed to by the parties. In the event of any conflict between
the terms of this Agreement and any Supplement, the terms of the Supplement
shall govern. In the event, there is no conflict then the Supplement shall be
considered an integrated part of this Agreement.
6. Ownership. Consultant agrees that SGI is the owner of all right, title and
interest in the technical information and data (the "Technical Information")
relating to the drying, cleaning and other processing of coal, bitumen, crude
oil, resid and other carbonaceous material and oil materials, as well as any
developments or improvements related thereto, as well as any related process
control technology, computational techniques or related trade secrets or
intellectual property. SGI shall also own all other related material used by,
developed for, or paid for, by it in connection with the performance of any
Services provided by Consultant before or after the date set forth above.
7. Confidentiality and Disclosure.
a. Disclosure. Consultant desires to have the Technical Information disclosed to
him to enable him to render the Services to SGI, including but not limited to
the following: evaluation and development of SGI's OCET Technology, which can be
used for converting bitumens and heavy oils to clean solid fuels, transportation
fuels, light distillates, and other uses. SGI is prepared to make such Technical
Information as it deems necessary available to Consultant for the aforesaid
purpose on the following understanding:
For the purpose of this Agreement:
The term "Technical Information and Data" shall not include any information
which:
(i) is "publically available" information. The phrase "publically available"
information shall mean readily accessible to the public in a written
publication, and shall not include information which is only available by a
substantial searching of the published literature, and information the substance
of which must be pieced together from a number of different publications and
sources;
(ii) is known to Consultant from sources other than SGI or its Affiliates prior
to the receipt of the same hereunder from SGI or its Affiliates;
(iii) is received by Consultant without restriction on disclosure from a third
party who is legally in possession of such information and has a right to reveal
the same to Consultant.
(iv) Affiliate(s)" of SGI shall mean any person or entity directly or indirectly
controlling, controlled by or under common control with SGI.
(v) "Developments" shall mean and include inventions, discoveries,
modifications, and improvements, whether patentable or not, together with the
physical embodiment of same whether copyrightable or not, related to SGI's
business.
Notwithstanding anything herein to the contrary in this Agreement, Consultant
shall have the right to use general skills and capabilities developed as a
result of his performance of Services for his own benefit or the benefit of
others subject to the obligations of Consultant set forth hereinafter.
b. Confidentiality. Consultant agrees to hold the Technical Information in
confidence and not to reproduce or disclose it to others nor to use it, except
as herein authorized in writing or as may later be authorized in writing by SGI.
c. Usage. Both parties agree that the Consultant may use such Technical
Information in connection with, but only in connection with, the purpose
previously stated herein.
8. Development and Assignment.
a. Developments. Consultant recognizes that Developments have occurred and/or
are expected and likely to occur in the future as the result of the performance
of Consultant's Services, and Consultant covenants and agrees to hold all
Developments as a result of the performance of such Services or based on SGI's
Technical Information IN TRUST for the use and benefit of SGI, and hereby
assigns and agrees to assign all such Developments to SGI.
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b. Consultant Disclosure. Consultant shall promptly disclose in writing to SGI
any and all Developments made by Consultant, and or any members of his staff,
incident to or as a result of the performance of such Services; and Consultant
hereby assigns and agrees to assign all of its right, title and interest, in all
such Developments to SGI. All such Developments shall be treated as Technical
Information of SGI and the obligations of this Agreement shall apply thereto.
Consultant further agrees to and does hereby assign to SGI all right, title and
interest in and to the intellectual property, rights, and processes or
techniques embodying the Developments, including all rights of copyright or
rights to patent or use as a trade secret such Developments, both within the
United States and throughout the world. The obligations of Section 7 and 8 are
continuing and shall survive the termination of the Agreement.
c. Assignment Consultant shall execute and/or require his agents, servants or
employees to execute all applications, assignments, or other instruments of any
kind which SGI, at SGI's expense, shall deem proper or necessary to apply for,
obtain and enforce letters patent and/or copyright of the United States or any
foreign country or otherwise to protect SGI's interest in such Developments.
d. Retention. Unless otherwise authorized in writing by SGI, all documents,
drawings and writings provided to Consultant by SGI hereunder or developed by
Consultant hereunder, and all copies thereof shall be returned promptly to SGI
upon completion or termination of the Services hereunder.
9. Warranties. Consultant hereby warrants that he will carry out his work in
accord with generally accepted practices. SGI's sole remedy shall consist of the
reperformance of any disputed work. SGI must notify Consultant of any
dissatisfaction with the work of Consultant within sixty (60) days after
completion of the work in question.
10. Termination. This Agreement shall be effective on the Effective Date and
continue in full force and effect until terminated by either party. Either party
may terminate this Agreement on thirty (30) days notice to the other party.
11. Status, Liability, Indemnity.
a. Independent Contractor. Consultant is and at all times during the term of
this Agreement shall be an independent contractor providing professional
consulting services to SGI. Nothing contained in this Agreement shall be
construed to create a relationship of principal and agent, employer and
employee, servant and master, partnership or joint venture between the parties.
Consultant shall have no power to commit or bind SGI in any manner whatsoever.
b. Liability-Indemnity. SGI shall have no liability to Consultant or to others
for acts of Consultant. Consultant shall defend, indemnify, and hold harmless
SGI from and against any and all claims of whatsoever kind and nature arising
out of the negligent acts or omissions of Consultant, Consultant's employees or
others acting for or representing Consultant.
12. Limitation of Liability. In no event shall either of the parties hereto be
liable to the other for the payment of any consequential, indirect, or special
damages, including lost profits. The provisions of this Section, shall not apply
in any way to Consultant's obligations to replace, regenerate or obtain lost or
damaged data or to indemnify any indemnified party.
13. Injunctive Relief. It is hereby understood and agreed that damages shall be
an inadequate remedy in the event of a breach by Consultant of this Agreement
and that any such breach by Consultant will cause SGI great and irreparable
injury and damage. Accordingly, Consultant agrees that SGI shall be entitled,
without waiving any additional rights or remedies otherwise available to SGI at
law or in equity or by statute, to injunctive and other equitable relief in the
event of a breach or intended or threatened breach by Consultant of this
Agreement or any Supplement.
14. Assignment.
a. Consent Required. Consultant shall not assign or subcontract the whole or any
part of this Agreement without SGI's written consent, which can be withheld for
any reason.
b. Subcontracting. Any subcontract made by Consultant with the consent of SGI,
which must be obtained before Consultant enters into any subcontract, shall
incorporate by reference all of the terms of this Agreement. Consultant agrees
to guarantee the performance of any subcontractor used in the performance of the
Services.
15. Conflicting Assignments. During the term of this Agreement, Consultant shall
not accept any conflicting assignments, which would put Consultant in a position
where he would be rendering advice to a potential competitor of the OCET
Technology or providing advice, which might disclose any of the techniques or
Technical Information related to the OCET Technology.
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16. Conformity with Laws. Consultant shall be responsible for compliance with
all laws or regulations applicable to the Services being provided under this
Agreement. Consultant shall directly receive, respond to, defend and be
responsible for any citation, assessment, fine or penalty because of its failure
to comply with such laws or regulations. Consultant also shall defend, indemnify
and hold SGI harmless against any losses, costs, damages, or fines resulting
from Consultant's failure to comply with such laws or regulations.
17. Disputes. If any dispute of any kind arises between the parties with respect
to the Consultant's performance under this Agreement, then the dispute shall be
submitted to arbitration in San Diego, California to the American Arbitration
Association ("AAA"). The dispute shall be submitted to an arbitrator selected
from a panel of arbitrators submitted to the parties by the AAA. If the parties
fail to agree on an arbitrator, the AAA shall appoint an arbitrator and in the
absence of such appointment, the parties may request an appointment by request
to the San Diego Superior Court. Reasonable discovery shall be allowed in any
such arbitration. The decision of the arbitrator shall be binding to the same
extent as if the award were made by a court of competent jurisdiction.
18. Insurance Coverage. During the term of this Agreement Consultant shall
obtain at its own expense and maintain in full force and effect the following
insurance coverage in the amounts specified.
18.1 Employer's Liability Insurance. Consultant shall obtain, if applicable, and
maintain Statutory Worker's Compensation and Employers Liability Insurance as
required by law.
18.2 Automobile Bodily Injury and Property Damage Liability Insurance.
Consultant shall obtain and maintain automobile bodily injury and property
damage liability insurance covering automobiles owned by or hired by Consultant
with limits of at least $100,000 each occurrence for bodily injury and for
property damage.
19. Notices. Any and all notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given or received when delivered
personally or forty-eight (48) hours after being mailed, via first class,
postage prepaid, to the addresses set forth immediately below of the parties
hereto or to such other addresses as either of the parties hereto may from time
to time designate in writing to the other party.
SGI: SGI International
1200 Prospect, Suite 325
La Jolla, California 90037
Attn.: Ernest P. Esztergar
Consultant:
ADDRESS
CITY, STATE ZIP
20. Applicable Law. The provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of California.
21. Entire Agreement and Amendments. This Agreement constitutes the entire
understanding and agreement between the parties relating to the subject matter
hereof and supersedes any prior written or oral understanding or agreement
between the parties relating to the subject matter hereof. This Agreement shall
not be amended, altered, or supplemented in any way except by an instrument in
writing, signed by the duly authorized representative of the parties, that
expressly references this Agreement.
22. Waivers. The failure or delay of either party to exercise or enforce at any
time any of the provisions of this Agreement shall not constitute or be deemed a
waiver of that party's right thereafter to enforce each and every provision of
the Agreement and shall not otherwise affect the validity of this Agreement.
23. Severability. If any provision of this Agreement is finally determined to be
contrary to, prohibited by, or invalid under applicable laws or regulations,
such provision shall become inapplicable and shall be deemed omitted from this
Agreement. Such determination shall not, however, in any way invalidate the
remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and in
the year first above written.
SGI Consultant
SGI International, a Utah Corporation
By: /s/ Ernest P. Esztergar By:
________________________________ ______________________
Ernest P. Esztergar
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