Exhibit 10.2
INDEPENDENT CONTRACTOR 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
E-VISION TECHNOLOGIES INC., a British Columbia company (the "Contractor").
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, the Contractor has resources and staff to research and develop 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 the Contractor, 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
documents created or developed in connection with any of the
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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, and know- how that the Contractor,
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
the Contractor, solely or with others, conceives of, modifies,
develops, contributes to, or reduces to practice during the period of
the Contractor's engagement under this Agreement and which:
(i) related directly to the Company's present or future foreseeable
Business or Research and Development, or
(ii) result from any work performed by the Contractor for the Company.
2. Duties. Subject to the terms and conditions of this Agreement, the Company
hereby engages the Contractor as an independent contractor to conduct
Research and Development in respect of the Business for and on behalf of
the Company, and the Contractor hereby accepts such engagement. The parties
will discuss, define and document the scope of the Contractor's duties from
time to time during the term of this engagement.
3. Compensation. As full compensation for the services rendered under this
Agreement the Contractor shall forward an estimated monthly budget to the
Company. The budgeted funds will be progress billed and paid to the
Contractor at least two weeks in advance of any work being performed. Full
reconciliation of actual hours worked versus budget estimates will be
performed every quarter.
4. Expenses. During the term of this Agreement, the Contractor shall further
bill and the Company shall reimburse the Contractor for all reasonable and
approved out-of-pocket expenses which are incurred in connection with the
performance of the duties hereunder.
5. Ownership by the Company. The Contractor 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. The Contractor does
hereby assign and transfer to the Company, effective upon creation, all
right, title, and interest that the Contractor may have in and to the Work
Product and all Intellectual Property Rights therein and does hereby assign
all of the Contractor's future right, title, and interest that the
Contractor may have in and to each of the Work Product and Intellectual
Property Rights therein, effective at the time each is created. The
Contractor hereby irrevocably and expressly waives as against any person
all moral rights the Contractor may have in any and all Work Product.
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6. Disclosure of Work Product. The Contractor 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.
7. Assistance. The Contractor 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, 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 Work Product and the
Intellectual Property Rights in same.
8. Protection of Work Product. The Contractor covenants that the Contractor
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. The Contractor
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. The Contractor waives
any and all existing and future moral rights with respect to the Work
Product and all Intellectual Property Rights therein.
9. Return of Company Property. The Contractor shall deliver to the Company all
Work Product and Company Property, including all originals and copies
thereof, in the Contractor's possession and/or control, at the request of
the Company, or, in the absence of such a request, upon the termination of
the Contractor's engagement under this Agreement.
10 Confidentiality. The Contractor acknowledges that during the engagement it
will have access to and become acquainted with various trade secrets,
inventions, innovations, processes, information, records and specifications
owned or licensed by the Company and/or used by the Company in connection
with the operation of its business including, without limitation, the
Company's business and product processes, methods, customer lists, accounts
and procedures. The Contractor agrees that it will not disclose any of the
aforesaid, directly or indirectly, or use any of them in any manner, either
during the term of this Agreement or at any time thereafter, except as
required in the course of this engagement with the Company. All files,
records, documents, blueprints, specifications, information, letters,
notes, media lists, original artwork/creative, notebooks, and similar items
relating to the business of the Company, whether prepared by the Contractor
or otherwise coming into its possession, shall remain the exclusive
property of the Company. The Contractor shall not retain any copies of the
foregoing without the Company's prior written permission. Upon the
expiration or earlier termination of this Agreement, or whenever requested
by the Company, the Contractor shall immediately deliver to the Company all
such files, records, documents, specifications, information, and other
items in its possession or under its control. The Contractor further agrees
that it will not disclose its retention as an independent contractor or the
times of this Agreement to any person without the prior written consent of
the Company and shall at all times preserve the confidential nature of its
relationship to the Company and of the services hereunder.
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11. Term and Termination. This Agreement shall continue until terminated as
provided herein. This Agreement' may be terminated by either party for any
reason. Termination shall be effective from the date written notice is
delivered or the date specified in the written notice, whichever is later.
12. 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.
13. Conflicts of Interest. The Contractor represents that it is free to enter
into this Agreement, and that this engagement does not violate the terms of
any agreement between the Contractor and any third party. Further, the
Contractor, in rendering its duties shall not utilize any invention,
discovery, development, improvement, innovation, or trade Secret in which
it does not have a proprietary interest. During the term of this agreement,
the Contractor shall devote as much of its productive time, energy and
abilities to the performance of its duties hereunder as is necessary to
perform the required duties in a timely and productive manner. The
Contractor is expressly free to perform services for other parties while
performing services for the Company.
14. Independent Contractor. This Agreement shall not render the Contractor an
employee, partner, agent of, or joint venturer with the Company for any
purpose. The Contractor is and will remain an independent contractor in its
relationship to the Company. The Contractor shall have no claim against the
Company hereunder or otherwise for vacation pay, sick leave, retirement
benefits, social security, worker's compensation, health or disability
benefits, unemployment insurance benefits, or employee benefits of any
kind.
15. Assignment. The Contractor shall not assign any of its rights under this
Agreement, or delegate the performance of any of its duties hereunder,
without the prior written consent of the Company.
16. Successors and Assigns. All of the provisions of this Agreement shall be
binding upon and enure to the benefit of the parties hereto and their
respective heirs, if any, Successors and assigns
17. 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.
18. Terms Paramount. The terms of this Agreement are in addition to any other
existing terms (the "Existing Terms") between the Company and the
Contractor. 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.
19. Time. Time shall be of the essence for each and every term and condition
hereof.
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20. 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.
21. 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.
22. 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.
23. 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
sha1l constitute one agreement. This Agreement may be validly executed by
means of transmission of signed facsimile.
24. Acknowledgement. The Contractor 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.
VISULANT INCORPORATED
Per: /s/ Ronald P. Erickson
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Authorized Signatory
E-VISION TECHNOLOGIES INC.
/s/ Kenneth Turpin
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Authorized Signature
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