Exhibit 10.1
INTELLECTUAL PROPERTY AGREEMENT
THIS AGREEMENT (the "Agreement"), dated June 16, 2004, is made and entered
into by and between VISUALANT INCORPORATED, a Nevada corporation (the "Company")
and KENNETH TURPIN ("Turpin"),
WHEREAS, the Company is in the business of researching, developing,
acquiring, and commercializing products and services related to color technology
outside the visible spectrum, using specialized narrow band N-IR and N-UV
sensors and spatial analysis software modeling which translate the invisible
into the visible (the "Business"), and involving specialized and proprietary
information and trade secrets which the Company considers to be amongst its most
sensitive, confidential, and proprietary information;
WHEREAS, Turpin has identified, researched and is developing the Business
for and on behalf of the Company;
NOW THEREFORE, in consideration of the sum of $10.00 paid by each party to
the other, and the representations, warranties and covenants contained herein,
the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. In this Agreement, the following words and phrases shall have
the following meanings:
(a) "Affiliate" shall have the same meaning as contained in the Canada
Business Corporations Act; "Company Affiliate" shall mean any
Affiliate of the Company;
(b) "Company Property" means any and all information, equipment, hardware,
components, documents and other property of the Company or any Company
Affiliate provided to or used by Turpin, including all computers,
monitors, laptops, personal digital assistants, mobile computing
devices, computer peripherals, cell phones and other telephones,
pagers, storage media, security cards, keys, calling cards, charge
cards, reference materials, designs, specifications, schematics,
drawings, diagrams, pictures, notes, memoranda, papers, manuals,
records, and the like;
(c) "Intellectual Property Rights" means any and all copyrights, design
rights, trade-marks, trade secrets and confidential information,
patent rights, and all other proprietary rights, which may subsist
anywhere in the world, whether registered or unregistered, including
all applications for registration or issuance of any of the foregoing,
all priority and convention rights in any of the foregoing, and all
rights to file any such applications;
(d) "Research and Development" means information pertaining to any
research, development, investigation, study, analysis, experiment or
test carried on or proposed to be carried on by the Company or any
Company Affiliate;
(e) "Software" means any and all algorithms, data structures, code,
instructions, scripts, tables, data, and other information used by a
computer or processor to process information, such Software including,
without limitation, (i) all source code, object code and executable
code, and (ii) all routines, subroutines, program material, computer
files, system architectures, models, flowcharts, requirements,
specifications, notes, outlines, papers, descriptions and other
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documents created or developed in connection with any of the
foregoing, the resulting screen formats and other visual effects of
the Software, and any formulae, processes, or ideas, whether or not
protected by copyright;
(f) "Work" means, with respect to the Business, any and all inventions,
discoveries, designs, developments, modifications, improvements,
products, methods, trade secrets, mid know- how that Turpin, solely or
with others, conceives of, modifies, develops, contributes to, or
reduces to practice, including without limitation Software, records,
documents, photographs, video recordings, sound recordings, images,
designs, animations, drawings, sketches, diagrams, plans,
compilations, and analyses, and all parts, elements, combinations and
derivative works thereof, and
(g) "Work Product" means any and all Work and other items in any form
that Turpin, solely or with others, conceives of, modifies, develops,
contributes to, or reduces to practice during the period of Turpin's
employment with the Company and which:
(i) relate, directly or indirectly, to the Company's present or
future foreseeable Business or Research and Development; or
(ii) result from any work performed by Turpin for the Company;
whether or not such are made during or after working hours, on or off
the Company's premises.
2. Ownership by the Company. Turpin acknowledges and agrees that all Work
Product have been made for the Company and that the Company shall be the
exclusive owner of all right, title, and interest in and to the Work
Product and all Intellectual Property Rights therein. Turpin does hereby
assign and transfer to the Company, effective upon creation, all right,
title, and interest that Turpin may have in and to the Work Product and all
Intellectual Property Rights therein and does hereby assign all of Turpin's
future right, title, and interest that Turpin may have in and to each of
the Work Product and Intellectual Property Rights therein, effective at the
time each is created. Turpin hereby irrevocably and expressly waives as
against any person all moral rights Turpin may have in any and all Work
Product.
3. Disclosure of Work Product. Turpin agrees to maintain at all times adequate
and current records relating to the creation and development of the Work
Product and Intellectual Property Rights therein, which records and all
copies thereof shall be and shall remain the exclusive property of the
Company, and to disclose all such records and copies to the Company
promptly.
4. Assistance. Turpin shall, at the Company's request, assist with, execute
and deliver all further documents, applications, declarations,
verifications, submissions, transfers and assignments and do all other
things requested by the Company, acting reasonably, during the term hereof
and thereafter, at the expense of the Company, but without additional
compensation, to enable the Company or its nominees to apply for, acquire,
prosecute, perfect, enforce and/or maintain any and all right, title and
interest, in any country, in and to the Confidential Information, the Work
Product and the Intellectual Property Rights in same.
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5. Protection of Work Product. Turpin covenants that Turpin shall not at any
time directly or indirectly contest or assist any third party in contesting
the Company's right, title, and interest in and to the Work Product or any
Intellectual Property Rights therein. Turpin shall not, directly or
indirectly, apply for or seek registration of any Intellectual Property
Rights in any Work Product in any jurisdiction without the express written
approval of the Company. Turpin waives any and all existing and future
moral rights with respect to the Work Product and all Intellectual Property
Rights therein.
6. Return of Company Property. Turpin shall deliver to the Company all Work
Product and Company Property, including all originals and copies thereof,
in Turpin's possession and/or control, at the request of the Company, or,
in the absence of such a request, upon the termination of Turpin's
employment with the Company.
7. Term and Termination. This Agreement shall continue until terminated as
provided herein. This Agreement may, with written notice, be terminated by
either party should Turpin's employment with the Company terminate for any
reason. Termination under this Section 12 shall be effective from the date
written notice is delivered or the date specified in the written notice.
whichever is later.
8. Injunctive Relief. Turpin acknowledges that monetary damages would be
inadequate to compensate the Company for any breach by Turpin of this
Agreement and that any such breach would constitute irreparable harm to the
Company. Accordingly, Turpin agrees that upon the breach or threatened
breach of any terms of this Agreement, the Company shall, in addition to
all other remedies, be entitled to an immediate injunction enjoining any
breach of this Agreement or a decree for specific performance.
9. Amendment. Waiver. Variation. No amendment, waiver, or variation of the
terms, conditions, warranties, covenants, agreements or undertakings set
out herein shall be of any force or effect unless reduced to writing duly
executed by all parties hereto in the same manner and with the same
formality as this Agreement is executed.
10. Successors and Assigns. This Agreement shall be binding upon Turpin and the
heirs and legal representatives of Turpin, and shall be binding upon and
ensure to the benefit of the Company and its successors and assigns,
including any corporation with which or into which the Company or its
successors may be merged or which may succeed, to its assets or business.
11. Employment by Affiliates. Turpin acknowledges and agrees that Turpin's
employment with the Company may be succeeded by employment with a Company
Affiliate, in which case the terms of this Agreement shall continue in
effect with respect to such employment until an agreement relating to this
subject matter is signed between Turpin and the Company Affiliate.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia (without
regard to its conflict of laws provisions) which shall be deemed to be the
proper law thereof. All disputes or claims arising out of or in relation to
the Agreement may be submitted to and resolved by the Courts of the
Province of British Columbia (including the Supreme Court of Canada). The
parties hereby irrevocably submit and attorn to the non-exclusive
jurisdiction of such Courts to finally adjudicate or determine any suit,
action, or proceeding arising out of or in relation to this Agreement.
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13. Terms Paramount. The terms of this Agreement are in addition to any other
existing terms (the "Existing Terms") between the Company and Turpin. In
the event of any inconsistency or conflict between the terms of this
Agreement and any Existing Terms, the terms of this Agreement shall be
paramount and shall supersede the Existing Terms to the extent of the
inconsistency or conflict.
14. Time. Time shall be of the essence for each and every term and condition
hereof.
15. Severability. The provisions of this Agreement, whether or not contained in
the same section, are independent and separable. If any of the provisions
of this Agreement shall be invalid or unenforceable under the laws of the
jurisdiction where enforcement is sought, such invalidity or
unenforceability shall not invalidate or render unenforceable the entire
Agreement but rather the entire Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or provisions
and the rights and obligations of the parties shall be construed and
enforced accordingly, with the invalid or unenforceable provision modified
so as to be limited and enforced to the fullest extent possible under the
laws of that jurisdiction, with retroactive effect to the date of this
Agreement.
16. Interpretation. The language in all parts of this Agreement shall be in all
cases construed simply according to its fair meaning and not strictly for
or against any of the parties hereto. Any rule of construction that any
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement. Each of the terms
"including", "include" and "includes", when used in this Agreement, is not
limiting whether or not non-limiting language (such as "without limitation"
or "but not limited to" or words of similar import) is used with reference
thereto.
17. Headings and Gender. The headings and subheadings contained in this
Agreement are used solely for convenience and do not constitute a part of
the Agreement, nor should they be used to aid in any manner in the
construction or interpretation of this Agreement. Unless the context
requires otherwise, words importing the singular include the plural and
vice versa and words importing gender include all genders.
18. Counterparts and Execution by Fax. This Agreement may be executed in any
number of counterparts with the same effect as if' all the parties have
signed the same document. All counterparts shall be construed together and
shall constitute one agreement. This Agreement may be validly executed by
means of transmission of signed facsimile.
19. Acknowledgement. Turpin has carefully read and considered the terms of this
Agreement and, having done so, understands the terms and agrees that the
terms herein are fair and reasonable and are reasonably required for the
protection of the interests of the Company.
IN WITNESS WHEREOF the parties have duly executed this Agreement on the
date first above written.
VISUALANT INCORPORATED
PER /s/ RONALD P. ERICKSON
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RONALD P. ERICKSON
Authorized Signatory
/s/ KENNETH TURPIN
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KENNETH TURPIN
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