Exhibit 10.2
INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT ("Agreement") is entered into by and
between APPLIED DNA SCIENCES, INC. a Nevada corporation with its offices located
at 9229 Sunset Blvd., Suite 830, West Hollywood, CA 90069 ("Company"), and Karin
Lise Klemm an individual residing at 26500 W. Agoura Road Suite 870, Calabasas,
CA 91302 ("Contractor"), effective October 18, 2005, for the purpose of setting
forth the terms and conditions by which Company will acquire Contractor's
services on a temporary basis.
1. Engagement of Services.
1.1 Attached to this Agreement as Exhibit "A" is a statement of the
work to be performed by Contractor, Contractor's rate of payment for such work,
the maximum price Company shall be obligated to pay under this Agreement, the
specific Company facilit(ies) and work area(s) which shall be made accessible to
Contractor and such other terms and conditions as shall be deemed appropriate or
necessary for the performance of the work. Company is not obligated to issue any
additional orders for work by Contractor under this Agreement.
1.2 Company has selected Contractor to perform these services to the
special order of the Company. As a result, Contractor may not subcontract or
otherwise assign his obligations under this Agreement without Company's prior
consent. Contractor agrees to perform the services in a professional manner.
Contractor and the Company understand that the services rendered hereunder shall
be deemed "work for hire" within the meaning of the U.S. Copyright Act and the
Company shall be the author thereof and owner of all rights therein and thereto
including the copyright thereof and all derivative works thereof throughout the
world in all media now or hereafter known or devised in perpetuity.
2. Term. This Agreement shall commence upon execution hereof and continue until
each of the services provided by Contractor under Exhibit "A" are completed or
January 15, 2006, whichever is sooner. This Agreement may be terminated at any
time in accordance with Section 6 hereunder.
3. Compensation. The Company will compensate the Contractor as set forth in
Exhibit "B" for services rendered by Contractor pursuant to this Agreement.
Contractor will be reimbursed for any reasonable, approved expenses incurred in
connection with the performance of services under this Agreement and including
any and all travel, if required by Company. The Company will compensate
Contractor for services and will reimburse Contractor for previously approved
expenses, if any, within fifteen (15) days of the date of Contractor's invoice.
4. Independent Contractor Relationship. Contractor and the Company understand,
acknowledge, and agree that Contractor's relationship with Company will be that
of an independent contractor in accordance with the provisions of Nevada law,
and nothing in this Agreement is intended to or should be construed to create a
partnership, joint venture, or employment relationship. Contractor is not an
agent of Company and is not authorized to act on behalf of Company. Consultant
will not be eligible for any employee benefits, nor will Company make deductions
from any amounts payable to Contractor for taxes. Any and all tax consequences
resulting from payment under this Agreement shall be the sole responsibility of
Contractor.
5. Trade Secret /Intellectual Property Rights.
5.1 Disclosure.
(a) Contractor agrees to disclose promptly in writing to the Company,
or any person designated by the Company all work product,
including but not limited to computer programs, processes,
know-how and other copyrightable material, that is conceived,
developed, made or reduced to practice by Contractor within the
scope of the Project.
(b) Contractor represents that his or her performance of all the
terms of this Agreement does not and will not breach any
agreement to keep in confidence proprietary information,
knowledge or data of a third party and Contractor will not
disclose to the Company, or induce the Company to use, any
confidential or proprietary information belonging to third
parties unless such use or disclosure is authorized in writing by
such owners.
5.2 Confidential Information. Contractor agrees during the term of this
Agreement and thereafter to take all steps reasonably necessary to hold in
trust and confidence information which he knows or has reason to know is
considered confidential by Company ("Confidential Information"). Contractor
agrees to use the Confidential Information solely to perform the services
hereunder. Confidential Information includes, but is not limited to,
technical and business information relating to Company's inventions or
products, research and development, manufacturing and engineering
processes, and future business plans. Contractor's obligations with respect
to the Confidential Information also extend to any third party's
proprietary or confidential information disclosed to Contractor in the
course of providing services to Company. This obligation shall not extend
to any information which becomes generally known to the public without
breach of this Agreement. This obligation shall survive the termination of
this Agreement.
5.3 No Conflict of Interest. Contractor agrees during the term of this
Agreement not to accept work or enter into a contract or accept an
obligation, inconsistent or incompatible with Contractor's obligations or
the scope of services rendered for Company under this Agreement including
but not limited to any work for other company's working on the development
or distribution of DNA markers or related technology.
5.4 Return of Company's Property. Contractor acknowledges that Company's
sole and exclusive property includes all documents, such as drawings,
manuals, notebooks, reports, sketches, records, computer programs, employee
lists, customer lists and the like in his custody or possession, whether
delivered to Contractor by Company or made by Contractor in the performance
of services under this Agreement, relating to the business activities of
Company or its customers or suppliers and containing any information or
data whatsoever, whether or not Confidential Information. Contractor agrees
to deliver promptly all of Company's property and all copies of
Contractor's property in Contractor's possession to Company at any time
upon Company's request.
5.5 Work for Hire; Ownership of Work Product.
(a) "Work Product" means the computer software, designs, discoveries,
works of authorship, formulae, processes, manufacturing
techniques, graphic design, interfaces, inventions, improvements
and ideas solely or jointly conceived, developed or reduced to
practice by Contractor during the Project. The Company and the
Contractor understand, acknowledge and agree that all of
Contractor's work product shall be deemed "work for hire" within
the meaning of the U.S. Copyright Laws and that the Company shall
be deemed the Author thereof and Owner of all rights therein and
thereto, including without limitation the copyright thereof and
all derivative works thereto throughout the world in all media in
perpetuity.
(b) To the extent any of Contractor's work product is not deemed
"work for hire", Contractor hereby irrevocably assigns, conveys
and otherwise transfers to the Company, and its respective
successors and assigns, all rights, title and interest worldwide
in and to the Work Product and all proprietary rights therein,
including, without limitation, all copyrights, trademarks, design
patents, trade secret rights, moral rights, and all contract and
licensing rights, and all claims and causes of action of any kind
with respect to any of the foregoing, whether now known or
hereafter to become known.
(c) In the event Contractor has any rights in and to the Work Product
that cannot be assigned to the Company, Contractor hereby
unconditionally and irrevocably waives the enforcement of all
such rights, and all claims and causes of action of any kind with
respect to any of the foregoing against the Company, its
distributors and customers, whether now known or hereafter to
become known and agrees, at the request and expense of the
Company and its respective successors and assigns, to consent to
and join in any action to enforce such rights and to procure a
waiver of such rights from the holders of such rights.
(d) In the event Contractor has any rights in and to the Work Product
that cannot be assigned to the Company and cannot be waived,
Contractor hereby grants to Company, and its respective
successors and assigns, an exclusive, worldwide, royalty-free
license during the term of the rights to reproduce, distribute,
modify, publicly perform and publicly display, with the right to
sublicense and assign such rights in and to the Work Product
including, without limitation the right to use in any way
whatsoever that Work Product. Contractor retains no rights to use
the Work Product and agrees not to challenge the validity of the
ownership by the Company in the Work Product.
(e) Contractor agrees to assist the Company in any reasonable manner
to obtain and enforce for the Company's benefit patents,
copyrights, and other property rights covering the Work Product
in any and all countries. Contractor agrees to execute, when
requested, patent, copyright, or similar applications and
assignments to the Company, and any other lawful documents deemed
necessary by the Company to carry out the purpose of this
Agreement. Contractor further agrees that the obligations and
undertaking stated in this Section 5.5 (E) will continue beyond
the termination of Contractor's service to the Company.
(f) In the event that the Company is unable for any reason whatsoever
to secure Contractor's signature to any lawful and necessary
document required to apply for or execute any patent, copyright,
or other applications with respect to any Work Product (including
improvements, renewals, extensions, continuations, divisions or
continuations in part thereof), Contractor hereby irrevocably
designates and appoints the Company and its duly authorized
officers and agents as his or her agents and attorneys-in-fact to
act for and in his or her behalf and instead of Contractor, to
execute and file any such application and to do all other
lawfully permitted acts to further the prosecution and issuance
of patents, copyrights or other rights therein with the same
legal force and effect as if executed by Contractor.
6. Termination.
6.1. Termination. Either party may terminate this Agreement at any time
upon fifteen (15) days prior written notice to the non-terminating
party.
7. General Provisions.
(a) This Agreement will be governed by and construed in accordance
will the laws of the United States and the State of California.
(b) This Agreement including all Exhibits to this Agreement
constitutes the entire agreement between the parties relating to
this subject matter and supersedes all prior or simultaneous
representations, discussions, negotiations and agreements,
whether written or oral. No term or provision hereof will be
considered waived by either party and no breach excused by either
party, unless such waiver or consent is in writing signed on
behalf of the party against whom the waiver is asserted. No
consent by either party to, or waiver of, a breach by either
party, whether express or implied, will constitute a consent to,
waiver of, or excuse of any other, different, or subsequent
breach by either party. Contractor may not assign his rights or
obligations arising under this Agreement without Company's prior
written consent. Company may assign its rights and obligations
under this Agreement.
(c) This Agreement will be for the benefit of Company' successors and
assigns and will be binding on Contractor's heirs, legal
representatives and permitted assignees.
(d) If any dispute arises between the parties with respect to the
matters covered by this Agreement which leads to a proceeding to
resolve such dispute, such dispute will be resolved by binding
arbitration pursuant to then current commercial arbitration rules
of the American Arbitration Association in the State of
California before a sole arbitrator in Los Angeles, California.
The prevailing party in such arbitration shall be entitled to
receive its reasonable attorneys' fees, expert witness fees and
out-of-pocket costs incurred in connection with such proceeding,
in addition to any other relief to which it may be entitled.
(e) All notices, requests and other communications required to be
given under this Agreement must be in writing, and must be mailed
by registered or certified mail, postage prepaid and return
receipt requested or delivered by hand to the party to whom such
notice is required or permitted to be given. Any such notice will
be considered to have been given when received, or if mailed,
five (5) business days after it was mailed, as evidenced by the
postmark. The mailing address for notice to either party will be
the address shown on the signature page of this Agreement. Either
party may change its mailing address by notice as provided by
this Section. The following provisions shall survive termination
of this Agreement: Section 5.2 and Section 5.5(b).
WHEREAS, the parties have read and agreed to the terms herein they set
their hand below.
FOR: APPLIED DNA SCIENCES, INC.
By: /s/ JAMES A. HAYWARD By: /s/ KARIN KLEMM
-------------------- ---------------
Name: James A. Hayward Name: Karin Lise Klemm
Title: Chief Executive Officer
EXHIBIT "A"
Project and Specifications
1. Contractor Services:
Duties of the Contractor. The following are the duties of Contractor
for performance under the Agreement:
a. Contractor shall assist Company during the Term in the
preparation of Company's pending SB-2 registration statement to be
amended and filed with the Securities and Exchange Commission
("Commission").
b. Contractor shall assist Company in the preparation of its
forthcoming 10K annual report filing with the Commission.
EXHIBIT "B"
Contractor Compensation
1. Compensation Provisions: In consideration for services rendered under the
Agreement, the Company hereby agrees to compensate Contractor as follows:
a. Payment terms:
i. Company shall pay to Contractor a per diem fee equal to $500
per day for each day worked under this Agreement in the
State of California. Company shall pay to Contractor a per
diem fee equal to $750 per day for each day worked under
this Agreement outside the State of California at the
Company's request, if any.