Exhibit 2.1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made this 4th day of
April, 2006, among REFLECT SCIENTIFIC, INC., a Utah corporation ("Reflect" or
"Buyer"); JM SciTech, LLC, a limited liability company organized under the
laws of the State of Colorado, and doing business as JMST SYSTEMS ("JMST");
Xxxxx Xxxxxx, an individual ("Xxxxxx"); and, Xxxxx Xxxxxx, an individual
("Xxxxxx"), JMST, Xxxxxx and Xxxxxx hereinafter referred to collectively as
"Sellers."
W I T N E S S E T H:
RECITALS
WHEREAS, the respective Boards of Directors of Reflect and JMST
and the Members of JMST have adopted resolutions pursuant to which Reflect
shall buy and JMST shall sell all right, title and interest in and to the JMST
Technology as defined herein and related technologies and rights of every kind
and nature, subject to certain reserved royalties described below, all of
which is more particularly described in Exhibit "A" hereof (hereinafter the
"JMST Technology"), and which is incorporated herein by reference; and
WHEREAS, JMST has determined to forego future use of the JMST
Technology and to refrain from disclosure and further development, manufacture
or sale of the JMST Technology; and
WHEREAS, Xxxxxx further desires to convey and assign any rights he
has in and to certain patents (the "Xxxxxx Patents") and related intellectual
assets as listed herein or in Exhibit A (collectively, including the Xxxxxx
Patents, referred to herein as the "Xxxxxx Technology"), and has agreed not to
use or disclose the Xxxxxx Technology to the detriment of Reflect;
NOW, THEREFORE, for and in consideration of the mutual covenants
and promises contained herein, it is agreed:
Section 1
Purchase and Sale of the Technology
1.1 Purchase and Sale. Reflect hereby agrees to purchase and
JMST, Xxxxxx and Xxxxxx, respectively, as applicable herein, hereby agree to
sell the JMST Technology and Xxxxxx Technology, together with all
instrumentation, designs, plans, charts, specifications, data on uses of the
JMST Technology, improvements or other written or oral information respecting
the JMST Technology, including customer lists, correspondence, inquiries,
reports on performance, mailing lists or otherwise, together with all
trademarks, service marks, patents, copyrights or similar rights, proprietary
or otherwise, without qualification or limitation, all as outlined in Exhibit
A.
1.2 Consideration for the JMST Technology. The consideration
paid for the JMST Technology shall consist of Two Hundred Thousand (200,000)
shares of Reflect common stock (United States Securities and Exchange
Commission Rule 144 "restricted securities") to be assigned to the Sellers at
the closing.
1.3 Consideration for Xxxxxx Technology. Reflect shall pay to
Xxxxxx the sum of Two Hundred Fifty Thousand Dollars ($250,000) for the
transfer and assignment of patents 6,530,286; 5,969,812; 5,699,156; 5,694,215,
(the "Xxxxxx Patents") and all related patent applications, continuation
applications and divisional applications in process.
1.4 Royalty Payments for Xxxxxx Technology Sales. In any year
for which there is a valid Xxxxxx Patent and in which the gross annual revenue
derived from Xxxxxx Technology, or any and all derivatives of the Xxxxxx
Technology, is projected to exceed Five Hundred Thousand Dollars ($500,000),
Xxxxxx shall receive quarterly royalty payments equal to two and one-half
percent (2.5%, the "Royalty") of each dollar of that quarter's gross revenues
in excess of Five Hundred Thousand Dollars ($500,000) as derived from sales of
the Xxxxxx Technology. Said Royalty shall be payable in equivalent shares of
Reflect common stock (United States Securities and Exchange Commission Rule
144 "restricted securities") until a maximum of Five Hundred Thousand
(500,000) shares has been paid. The common stock will be paid on an annual
basis three months after close of the Reflect fiscal year and shall be valued
at $3.00 per share.
1.5 Additional New Products. Each of the new products listed below
will be subject to the following incentives: (A) a three percent (3%) royalty
will be paid on gross revenues above One Hundred Thousand Dollars ($100,000)
annual gross revenue and (B) a royalty of 5% on annual gross revenues in
excess of Six Hundred Thousand Dollars ($600,000) in a similar manner as
stipulated in paragraph (1.4);
(a) VUV-40; and
(b) CEC
Section 2
Closing
The Closing contemplated hereby shall be held at the offices of
Xxxxxxx X. Xxxxxxxxxx, Esq., 455 East 000 Xxxxx, #000, Xxxx Xxxx Xxxx, Xxxx
00000, within five days of the date hereof.
Section 3
Representations and Warranties of Reflect
Reflect represents and warrants to, and covenants with, JMST as
follows:
3.1 Corporate Authority and Due Authorization. Reflect is a
corporation duly organized and in good standing under the laws of the State of
Utah and has full corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder. Execution of this Agreement and
performance by Reflect hereunder have been duly authorized by all requisite
corporate action on the part of Reflect, including the execution of a
unanimous consent of its Board of Directors, which is attached hereto as
Exhibit "B" and incorporated herein by reference; and this Agreement
constitutes a valid and binding obligation of Reflect; and performance
hereunder will not violate any provision of the Articles of Incorporation,
Bylaws, agreements, mortgages or other commitments of Reflect.
3.2 Best Efforts to Promote the Technology. Reflect shall use
reasonable business efforts to promote the future development, manufacture and
sale of the JMST Technology and the Xxxxxx Technology.
Section 4
Representations and Warranties of Sellers
JMST, Xxxxxx and Xxxxxx represent and warrant to, and covenant
with, Reflect as follows:
4.1 Ownership of JMST Technology. JMST owns the JMST
Technology, free and clear of any liens or encumbrances of any type or nature
whatsoever.
4.2 Ownership of Xxxxxx Technology. Xxxxxx owns the Xxxxxx
Technology, free and clear of any liens or encumbrances of any type or nature
whatsoever, and Xxxxxx was the inventor of the Xxxxxx Technology, personally
or through the aid and assistance of engineers and others specifically engaged
and directed by him.
4.2 Corporate Authority and Due Authorization. JMST is a
Limited Liability Corporation duly organized and in good standing under the
laws of the State of Colorado and has full corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder.
Execution of this Agreement and performance by JMST hereunder has been duly
authorized by all requisite corporate action on the part of JMST, including
the execution of a unanimous consent of its Manager(s) and its Member(s),
which is attached hereto as Exhibit "C" and incorporated herein by reference;
and this Agreement constitutes a valid and binding obligation of JMST and
performance hereunder will not violate any provision of the Articles of
Organization, Member agreements, commercial agreements, mortgages or other
commitments of JMST.
4.3 Further Assurances of JMST. JMST, Xxxxxx and Xxxxxx will
execute such assignment or assignments or other instruments and will perform
such other acts as will enable Reflect to take free and clear title to the
JMST Technology and the Xxxxxx Technology, and to further develop, manufacture
and sell same.
4.4 Investment and Information Representations of the Sellers.
Each of the Sellers represents and warrants that: (I) each understands that
any common stock of Reflect being acquired hereunder are shares that are
unregistered and "restricted securities" and that term is defined in Rule 144
of the Securities and Exchange Commission; (ii) each is an "accredited
investor" or a "sophisticated investor," as those terms are defined in Rule
506 of Regulation D of the Securities and Exchange Commission, and as such,
each, by reason of education, business acumen, investment qualifications,
employment or other experience, is fully capable of evaluating the risks and
merits of an investment in these shares of common stock; (iii) each has had
access to the reports and registration statements of Reflect that have been
filed with the Securities and Exchange Commission and that are contained in
the Xxxxx Archives of the Securities and Exchange Commission at xxx.xxx.xxx;
and (iv) each as had the opportunity to ask questions of and receive answers
to such questions respecting the information contained in such reports or
registration statements from directors and executive officers of Reflect, to
the full satisfaction of each.
Section 5
Covenant of Non-Competition and Confidentiality
5.1 JMST and its Managers, Members and agents will not directly
or indirectly compete with Reflect in the future development, manufacture or
sale of the JMST Technology or Xxxxxx Technology, or in any other use thereof
for a period equal to the duration of the Xxxxxx consulting agreement,
included in Appendix D, or eighteen months whichever is shorter. All parties
agree that Reflect will be entitled to a preliminary injunction in the event
of any direct or indirect violation of this covenant by any party.
5.2 JMST and its Managers, Members and agents, and Xxxxxx and
Xxxxxx, will not divulge any information regarding the JMST Technology or
Xxxxxx Technology to anyone without the prior written consent of Reflect.
Section 6
Termination
Prior to Closing, this Agreement may be terminated (1) by mutual
consent of Reflect and JMST; and (2) by either the directors of Reflect or
Managers of JMST if there has been a material misrepresentation or material
breach of any warranty or covenant by the other party; provided, however, that
all representations and warranties shall survive the termination hereof.
Section 7
General Provisions
7.1 Further Assurances. At any time and from time to time,
after the execution hereof, each party will execute such additional
instruments and take such action as may be reasonably requested by the other
party to carry out the intent and purposes of this Agreement.
7.2 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered in
person or sent by prepaid first-class registered or certified mail, return
receipt requested, as follows:
If to Reflect: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
and
Xxxxxxx X. Xxxxxxxxxx, Esq.
455 East 000 Xxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
If to JMST: JM SCITECH, LLC
XX Xxx 00000
Xxxxxxxx Xxxxxxx, XX 00000
7.3 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
7.4 Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
7.5 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Utah,
except to the extent pre-empted by federal law, in which event (and to that
extent only), federal law shall govern; and the venue for all actions
respecting this Agreement shall be in the federal or state courts in the State
of Utah having applicable jurisdiction thereof.
7.6 Waiver. Any failure on the part of any party hereto to
comply with any of its obligations, agreements or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
7.7 Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
7.8 Default. In the event of default hereunder, the non-
defaulting party shall be entitled to recover reasonable attorney's fees and
costs in enforcing the terms and provisions hereof.
7.9 Savings Clause. If any provision of this Agreement shall be
found to be contrary to law or public policy by any court of competent
jurisdiction, then this Agreement shall be construed as though such provision
was not a part hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective the day and year first above written.
BUYER:
REFLECT SCIENTIFIC, INC.
By /s/ Xxx Xxxxx
Xxx Xxxxx, President
SELLERS:
JM SCITECH, LLC
By /s/Xxxxx Xxxxxx
Xxxxx Xxxxxx, Member
By /s/Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Member
/s/Xxxxx Xxxxxx
Xxxxx Xxxxxx, an Individual
/s/Xxxxx Xxxxxx
Xxxxx Xxxxxx, an Individual
EXHIBIT "A"
TECHNOLOGY
The JMST Technology
All physical and intellectual assets of JMST, including, but not limited to
equipment normally used by JMST in the conduct of the JMST operating business,
customer lists, contracts, and business records from the preceding 12 months
and all rights and title in the "HYPERQUAN", trade name, trademarks (if any)
and associated internet domain.
The Xxxxxx Technology
All intellectual property, technique and know-how, trade secrets, drawings,
plans, specifications, trademarks, internet domain names and other related
intellectual property associated with US Patents assigned to Xxxxx Xxxxxx,
including all UVVIS, Fluorescence, and CE detector technology.
United States patents: 6,530,286; 5,969,812; 5,699,156; 5,694,215, and all
related patent applications, continuation applications and divisional
applications in process.
EXHIBIT "B"
UNANIMOUS CONSENT OF THE BOARD OF DIRECTORS
OF
REFLECT SCIENTIFIC, INC.
CONSENT OF DIRECTORS
OF
REFLECT SCIENTIFIC, INC.
The undersigned, being all of the duly elected and incumbent
directors of Reflect Scientific, Inc., a Utah corporation (the "Company"),
acting pursuant to Section16-10a-821 of the Utah Revised Business Corporation
Act, do hereby unanimously consent to and adopt the following resolutions,
effective as of the latest date hereof unless indicated otherwise:
RECITALS
WHEREAS, the Company has agreed to enter into a Purchase Agreement
(the "Agreement") by and among the Company, JMST Systems, LLC, a Colorado
limited liability company ("JMST") and Xxxxx Xxxxxx ("Xxxxxx") and Xxxxx
Xxxxxx ("Xxxxxx"), individuals, pursuant to which the Company will acquire
certain physical and intellectual assets of JMST (the "JMST Technology") and
certain intellectual assets and patents of Xxxxxx (the "Xxxxxx Technology" and
the "Xxxxxx Patents") will also be acquired by the Company; and
WHEREAS, during the course of its deliberations regarding the
Agreement, the Board considered a number of factors relevant to the Agreement,
such as the business history, financial condition and intellectual property of
JMST and Xxxxxx, the terms of the Agreement and historical information
concerning the business, financial performance and condition, operations,
technology, management and competitive position of JMST, and based thereon,
the Board has deemed that the transactions contemplated by the documents
referenced herein are in the best interests of the Company and its
stockholders;
NOW THEREFORE, BE IT
RESOLVED, that the execution and delivery of the Agreement,
subject to such changes and modifications as the officers of
the Company may consider necessary or appropriate in the
final draft of the Agreement, is hereby authorized and
approved, and the officers of the Company are, and each of
them hereby is, authorized and directed to execute and
deliver on behalf of the Company the Agreement and such
other agreements and such other certificates, instruments
and documents, as may be necessary or appropriate to
consummate the transactions contemplated by the Agreement
(collectively, the "Ancillary Documents"); and
FURTHER RESOLVED, that all prior actions by the officers of
the Company with respect to the preparation and negotiation
of the Agreement, the Consultant Agreement, the Assignment
Agreement, and any other Ancillary Documents, and otherwise
effecting the purposes and intent of the same are hereby
ratified, confirmed and approved; and
FURTHER, RESOLVED, that as consideration for the JMST Technology
as described in Exhibit A to the Agreement, the Company will issue
200,000 shares of its common stock that are "restricted
securities" and are not freely publicly tradeable except in
accordance with the applicable provisions of the Securities Act of
1933, as amended (the "Securities Act"), and/or the general rules
and regulations of the Securities and Exchange Commission
promulgated thereunder; and
FURTHER, RESOLVED, that as consideration for the Xxxxxx Technology
and the Xxxxxx Patents as described in Exhibit A to the Agreement,
the Company shall pay to Xxxxxx the sum of $250,000; and
FURTHER, RESOLVED, in any year for which there is a valid Xxxxxx
Patent and in which the gross annual revenue derived from Xxxxxx
Technology, or any and all derivatives of the Xxxxxx Technology,
is projected to exceed Five Hundred Thousand Dollars ($500,000),
Xxxxxx shall receive quarterly royalty payments equal to two and
one-half percent (2.5%, the "Royalty") of each dollar of that
quarter's gross revenues in excess of Five Hundred Thousand
Dollars ($500,000) as derived from sales of the Xxxxxx Technology.
Said Royalty shall be payable in equivalent shares of Reflect
common stock (United States Securities and Exchange Commission
Rule 144 "restricted securities") until a maximum of Five Hundred
Thousand (500,000) shares has been paid. The common stock will be
paid on an annual basis three months after close of the Reflect
fiscal year and shall be valued at $3.00 per share, and sufficient
shares of the Company's authorized shares shall be reserved for
this purpose; and
FURTHER, RESOLVED, that each of the new products listed below will
be subject to the following incentives: (A) a three percent (3%)
royalty will be paid on gross revenues above One Hundred Thousand
Dollars ($100,000) annual gross revenue and (B) a royalty of 5% on
annual gross revenues in excess of Six Hundred Thousand Dollars
($600,000) in a similar manner as stipulated above:
(a) VUV-40
(b) CEC
and
FURTHER, RESOLVED, that in the good faith judgment of the
directors of the Company, the Agreement is fair, just and
equitable, and in the best interest of the stockholders of the
Company; and
FURTHER, RESOLVED, that the shares to be issued pursuant to the
Agreement, shall be deemed validly issued, fully paid and non-
assessable.
Dated: 4/3/2006 /s/ Xxx Xxxxx
Xxx Xxxxx
Dated: 4/3/2006 /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Dated: 4/3/2006 /s/ Xxx Xxxx
Xxx Xxxx
EXHIBIT "C"
UNANIMOUS CONSENT OF THE BOARD OF DIRECTORS AND STOCKHOLDERS
OF
JMST SYSTEMS LLC
ACTION BY MEMBERS OF
JM SCITECH, LLC
THE UNDERSIGNED, being the members of JM SciTech, LLC, a limited
liability company organized under the laws of the State of Colorado, and doing
business as JMST Systems (the "Company" or "JMST"), acting pursuant to
applicable provisions of the Colorado Limited Liability Company Act, does
hereby adopt the following resolutions, effective as of the latest date
hereof:
WHEREAS, the Company has agreed to enter into a Purchase Agreement
(the "Agreement") by and among the Company, Reflect Scientific, Inc., a Utah
corporation ("Reflect"), and Xxxxx Xxxxxx ("Xxxxxx") and Xxxxx Xxxxxx
("Xxxxxx"), individuals, pursuant to which the Company will sell certain
physical and intellectual assets of JMST (the "JMST Technology") and certain
intellectual assets and patents of Xxxxxx (the "Xxxxxx Technology" and the
"Xxxxxx Patents") will be acquired by Reflect; and
WHEREAS, during the course of its deliberations regarding the
Agreement, the Company considered a number of factors relevant to the
Agreement, such as the business history and financial condition of Reflect,
the terms of the Agreement and historical information concerning the business,
financial performance and condition, operations, technology, management and
competitive position of Reflect, and believes it to be in the best interests
of the Company and its members to enter into the transactions referenced
herein;
NOW THEREFORE, BE IT
RESOLVED, that the execution and delivery of the Agreement,
subject to such changes and modifications as the Members of
the Company may consider necessary or appropriate in the
final Agreement, is hereby authorized and approved, and the
Members of the Company are, and each of them hereby is,
authorized and directed to execute and deliver on behalf of
the Company the Agreement and such other agreements and such
other certificates, instruments and documents, as may be
necessary or appropriate to consummate the transactions
contemplated by the Agreement (collectively, the "Ancillary
Documents"); and
FURTHER RESOLVED, that all prior actions by the Members of
the Company with respect to the preparation and negotiation
of the Agreement, the Consultant Agreement, the Assignment
Agreement, and any other Ancillary Documents, and otherwise
effecting the purposes and intent of the same are hereby
ratified, confirmed and approved; and
FURTHER, RESOLVED, that in the good faith judgment of the Members
of the Company, the Agreement is fair, just and equitable, and in
the best interest of the Company.
Dated: 4/4/2006. /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Managing Member
Dated: 4/4/2006. /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Member
EXHIBIT "D"
XXXXXX CONSULTING AGREEMENT
CONSULTANT AGREEMENT - TECHNICAL
This Agreement is made on this 4th day of April, 2006 (the "Effective Date"),
by and between Reflect Scientific, Inc. , a Utah corporation with offices at
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx (the "Company"), and Xxxxx
Xxxxxx, Ph.D,, an individual with a primary place of business at 0000 Xxxxxx
Xxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000 ("Consultant").
Consultant represents that he has expertise providing certain services
("Services") as more fully described in the attached Exhibit A. Based on
Consultant's expertise and experience, the Company wishes to engage the
consulting Services of Consultant, and in consideration of the covenants and
agreements set forth herein, the parties agree as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date and continue
until completion of the Services provided for in this Agreement or otherwise
terminated in accordance with provisions herein.
2. TERMINATION
A. In General. This Agreement may be terminated by either party upon
written notice if the other party breaches any material term or
condition of this Agreement and such breach remains uncorrected for
thirty (30) days following written notice from the non-breaching party
specifying the breach.
B. Obligations Upon Termination. Upon termination of this Agreement
for any reason, the parties shall have no further obligations pursuant
to the terms of the Agreement except as set forth in Paragraphs 7 and 8.
3. SERVICES AND SYSTEM DEVELOPMENT
A. In General. In consideration of the fees described in Paragraph 4
of this Agreement, Consultant will provide the Services and complete the
work described in this Agreement ("Services") in order to develop and
deliver the technologies, including user and technical documentation
(the "Technology"), as described in Exhibit A attached hereto.
B. Product Technical Design. Consultant shall develop the
technical design for the Technology in accordance with the Functional
Specifications in Exhibit A attached hereto. The Technology design shall
include all necessary hardware and software (if any) specifications,
performance specifications, and definitions and descriptions of all
performance specifications.
C. Milestones and Completion Dates. Company and Consultant shall
set milestones and completion dates for the development of the
Technology. Consultant understands that time is of the essence in
completing the development of the Technology. Such milestones and dates
shall be agreed to in writing by the parties.
D. Manufacturing transfer. Consultant shall provide Company
with time and skills necessary to transfer product design and technology
into commercial manufacturing status.
E. Product Support. Consultant shall provide technical support to
Company for all existing JMST products and Xxxxxx Technology, as defined
in the Asset Purchase Agreement, including, but not limited to, the VUV
and FLD technologies.
4. FEES AND PAYMENT
A. Amount and Dates. Company shall pay Consultant fees upon the event
and in the amounts set forth below.
Date Payment
Monthly Basic Fee commencing at signing $8,000.00
5. REPORTS
Consultant shall deliver to Company monthly Consultant's expenses incurred in
connection with the Technology. Such reports shall be due on the fifteenth day
of each month for the prior month.
6. CHANGE OF SCOPE
At any time during the term of this Agreement, should Company desire
Consultant to provide any additional Services in the form of a modification of
or a change to the Technology provided hereunder, Consultant and Company shall
comply with the following:
A. Submission of Request. Company shall submit to Consultant in
writing all requests by Company for any such additional Services which
alter, amend, add to, or delete from the Technology, (referred to as
"Change Request").
B. Acceptance Procedure. Consultant will evaluate such Change
Request at no additional charge as soon as possible but not later than
ten (10) working days following Consultant's receipt of the Change
Request. Consultant's written response shall include the impact, if any,
on the completion date and the costs.
7. CONFIDENTIALITY AND NON-DISCLOSURE
A. Consultant acknowledges that in performing the Services and
developing the Technology, Company may have to disclose to Consultant
orally and in writing certain confidential information that Company
considers proprietary and has developed at great expense and effort. As
used herein, the term "Confidential Information" means any scientific or
technical data, marketing, operating, financial, business or any other
information, design, process, procedure, formula or improvement that is
commercially valuable to Company and not generally known in the
industry. Consultant further acknowledges that the Services, the
Technology and any deliverables may incorporate Confidential
Information. Consultant agrees that all items of Confidential
Information are proprietary to the Company and shall remain the sole
property of the Company.
B. Consultant agrees as follows:
I. To use the Confidential Information only for the purposes
described herein; to not reproduce the Confidential Information; to hold
in confidence and protect the Confidential Information from
dissemination to and use by anyone not a party to this Agreement; and to
not use the Confidential Information to benefit itself or others.
ii. To restrict access to the Confidential Information to
personnel of Consultant who (a) have a need to have such access and (b)
have been advised of and have agreed in writing to treat such
information in accordance with the terms of this Agreement.
iii. To return all Confidential Information in Consultant's
possession upon termination of this Agreement or upon Company's request,
whichever occurs first.
iv. To hold in confidence information and materials developed
pursuant to this Agreement.
C. Consultant agrees to insure that any Consultant employee, agent or
subcontractor permitted access to any portion of the Confidential
Information in the course of his or her employment is advised of the
proprietary nature of the Confidential Information; and that any such
person shall be required to sign a Non-Disclosure Agreement.
8. OWNERSHIP OF COMPLETED SYSTEM
A. Deliverables. Consultant agrees that upon completion or
termination of this Agreement, for whatever cause, and without regard to
whether the Technology has been completed, one copy of all notebooks,
data, information and other material acquired or compiled by Consultant
in respect to the Services or the Technology, shall be delivered to
Company.
B. Ownership. Full and exclusive rights and ownership in the
Technology and in any and all related patents, trademarks, copyrights,
trade secrets and Confidential Information and other proprietary rights
which Consultant possesses or is entitled to shall vest in and is hereby
assigned to Company as of the date of Acceptance. Except as provided in
this Agreement, Consultant shall retain no right, ownership or title in
the Technology or in any related patents, trademarks, copyrights, trade
secrets, Confidential Information or any other proprietary rights.
C. Cooperation by Consultant. Consultant agrees to cooperate fully
without incremental compensation in providing information, completing
forms, and obtaining the necessary signatures or assignments required by
Company to perfect its rights herein. Consultant hereby irrevocably
appoints Company as Consultant's attorney-in-fact to act for and in
Consultant's behalf to execute and file any such document.
9. INDEPENDENT CONTRACTOR
A. The relationship of the Consultant to the Company is that of an
independent contractor and nothing herein shall be construed as creating
an employment, agency or representative relationship. The Consultant
may adopt such arrangements as he/she may desire with regard to the
details of the Services performed hereunder, the hours during which the
Services are to be provided, and the place or places where the Services
are to be furnished, provided that the Services shall be performed in a
manner calculated to attain the most satisfactory results for the
Company. The Consultant shall be obligated to pay any and all
applicable local, state and federal taxes.
B. Consultant shall not be entitled to any benefits accorded to the
Company's employees including, without limitation, worker's
compensation, disability insurance, vacation or sick pay. Consultant
shall be responsible for providing, at its own expense, disability,
worker's compensation or other insurance as well as licenses and permits
usual or necessary for conducting the Services hereunder. Consultant
shall be obligated to pay any and all applicable local, state and
federal payroll and other taxes incurred as a result of Contractor's
fees hereunder. Consultant hereby indemnifies Company for any claims,
losses, costs, fees, liabilities, damages or penalties suffered by the
Company arising out of Consultant's breach of this provision.
10. CONSULTANT'S EMPLOYEES AND SUBCONTRACTORS
Consultant's use of subcontractors for completion of any outside services must
be approved in advance. Approved subcontractors shall be paid directly by
Company in accordance with Company's standard accounts payable policies and
procedures.
11. GOVERNING LAW
This Agreement shall be governed by and interpreted under the laws of the
State of Utah and the parties submit to jurisdiction in Salt Lake City, Utah,
in the event any action is brought in connection with this Agreement or the
performance thereof.
12. GENERAL PROVISIONS
A. Entire Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings, and negotiations
between the parties with respect to the subject matter hereof. This
Agreement is intended by the parties as the final expression of their
agreement and may not be contradicted by evidence of any prior or
contemporaneous agreement.
B. Modifications. This Agreement may not be modified, changed or
supplemented, nor may any obligations hereunder be waived or extensions
of time for performance granted, except by written instrument signed by
both parties.
C. Assignment. This Agreement and the rights, duties, and obligations
hereunder may not be assigned or delegated by Consultant without the
prior written consent of the Company.
D. Partial Invalidity. Any provision of this Agreement which is
found to be invalid or unenforceable shall be ineffective to the extent
of such invalidity or unenforceability, and the invalidity or
unenforceability of such provision shall not affect the validity or
enforceability of the remaining provisions hereof.
E. Notices. Any notice required to be given hereunder shall be
deemed to have been given either when served personally, by facsimile,
or when sent by first class mail addressed to the parties at the
addresses set forth in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of
the date first written above.
COMPANY CONSULTANT
Xxx Xxxxx, President Xxxxx Xxxxxx, Consultant
IRS Employer I.D. Number
or Social Security Number:
EXHIBIT A: DESCRIPTION OF SERVICES/ TECHNOLOGY
TECHNOLOGY FUNCTIONAL SPECIFICATIONS
CEC instrument
An operational instrument that will function as a capillary electrophoresis
analysis system suitable for general commercial laboratory use. The system
will consist minimally of an autosampler, injector, detector, high voltage
power supply and controlling firmware and software. The primary application is
for the detection of low concentrations of metal ions in power plant cooling
water feeds.
VUV40
A UV-visible scanning detector based on modulated signal. This instrument is a
chromatography detector that shall provide full spectral information.
