EXHIBIT 4.17
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 15th day of January
1998 (the "Effective Date"), by and between OCET Corporation, a Delaware
Corporation ("OCET") and ▇▇▇▇ ▇▇▇▇▇▇ ("Consultant").
1. Performance by Consultant. Consultant agrees to provide consulting services
(the "Services") per the attached Addendum. 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 by ▇▇▇▇▇▇ ▇▇▇▇▇ and Consultant.
2. Payment for Services.
a. Consulting Fee. OCET agrees to pay Consultant for the Services at the rate
of ______________Dollars ($_____) per hour, not to exceed Four Thousand Dollars
($4,000.00) per month. The compensation shall be paid in cash. Consultant shall
be paid by OCET within fifteen (15) days of receipt of an acceptable invoice
from Consultant.
b. Expenses. Consultant shall be reimbursed for reasonable expenses, including,
but not limited to, travel, long distance telephone charges, materials and
supplies used in the performance of his duties, and mileage at the rate of $.30
a mile for all business travel.
c. Invoices. Consultant shall invoice OCET monthly for Services rendered during
each 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 OCET may audit the billing and
expense documentation for a period of one year from the date of the invoice
submittal. All invoices will be paid as described above.
3. Personal Service Contract. OCET and Consultant agree or waived in writing
prior to the performance of the work, that the Services will be performed
personally by Consultant unless otherwise agreed in writing, prior to the
performance of the work. If the services are not performed by Consultant, then
OCET has the right to terminate this Agreement immediately.
4. Obligations of OCET. OCET agrees to make available to Consultant, upon
reasonable notice, computer programs, data, and any documentation required by
Consultant to complete the Services.
5. Term. This Agreement shall be effective and shall continue for a period of
six months unless terminated in writing by either party.
6. Ownership. Consultant agrees that OCET is the owner of all right, title and
interest in the technical information and data (the "Technical Information")
relating to the processing of oil, resid and other carbonaceous material and oil
materials, and to the drying, cleaning and other processing of coal, bitumen,
crude as well as any developments or improvement related thereto, and as well as
any related process control technology, computational techniques or related
trade secrets or intellectual property. OCET shall also own all other technical
information and 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. Confidentially and Disclosure.
a. Disclosure. Consultant desires to have the Technical Information disclosed
to him to enable him to render the Services to OCET, including but not limited
to, the following: evaluation and development of OCET's OCET Technology,
which can be used, among other things, for precipitating asphaltenes out of
Resid and for converting bitumens and heavy oils to clean solid fuels,
transportation fuels, light distillates, and other uses. OCET 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 the Agreement:
The term "Technical Information" shall not include any information which:
(i) is "publicly available" information. The phrase "publicly available"
information shall mean readily accessible to the public in 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 OCET or its Affiliates
prior to the receipt of the same hereunder from OCET 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 OCET shall mean any person or entity directly or
indirectly controlling, controlled by or under common control with OCET.
(v) "Developments" shall mean and include inventions, discoveries,
modifications, and improvements, whether patentable or not, together with the
physical embodiment of the same whether copyrightable or not, related to OCET'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 obligation 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
OCET.
c. Usage. Both parties agree that the Consultant may use such Technical
Information in connection with, but only in connection with, providing
Services to OCET.
8. Developments 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 OCET's
Technical Information in trust for the use and benefit of OCET, and hereby
assigns and agrees to assign all such Developments to OCET.
b. Consultant Disclosure. Consultant shall promptly disclose in writing
to OCET any and all Developments made by Consultant, and or by 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 OCET. All such Developments shall be
treated as Technical Information of OCET and the obligations of Consultant under
this Agreement shall apply thereto. Consultant further agrees to and does hereby
assign to OCET 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
obligation of Sections 7 and 8 are continuing and shall survive the termination
of this 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 OCET, at OCET's expense, shall deem proper or necessary to apply
for, obtain and enforce letters patent and/or copyrights of the United States
or of any foreign country or otherwise to protect OCET's interest in such
Developments.
d. Retention. Unless otherwise authorized in writing by OCET, all documents,
drawings and writings provided to Consultant by OCET hereunder or developed by
Consultant hereunder, and all copies thereof shall be returned promptly to OCET
upon completion or termination of Services.
9. Warranties. Consultant hereby warrants that he will carry out his work in
accord with generally accepted practices.
10. Termination. This Agreement shall be effective on the Effective Date and
continue in full force and effect until terminated in writing by either party,
upon five days written notice.
11. Independent Contractor. Consultant is and at all times during the term of
this Agreement shall be an independent contractor providing professional
consulting services to OCET. 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 OCET in any manner whatsoever.
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.
13. Injunctive Relief. It is hereby understood and agreed that damages are an
inadequate remedy in the event of a breach by Consultant of this Agreement and
that any such breach by Consultant will cause OCET great and irreparable injury
and damage. Accordingly, Consultant agrees that OCET shall be entitled, without
waiving any additional rights or remedies otherwise available to OCET at law or
in equity or by statute, and without posting any bond for injunctive and other
equitable relief in the event of a breach or intended or threatened breach by
Consultant of this Agreement.
14. Assignment.
a. Consent Required. Consultant shall not assign or subcontract the whole or
any part of this Agreement without OCET's written consent, which can be
withheld for any reason.
b. Subcontracting. Any subcontract made by Consultant with the consent of OCET,
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 conflicting assignments, which would put Consultant in a position
where he would be rendering advice or providing information to any party who
might be a potential competitor of OCET presently or in the future, nor shall
Consultant provide any advice, which might disclose any Developments or
Technical Information related to the OCET Technology.
16. 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 making an
application to the San Diego Superior Court to order an appointment. Reasonable
discovery, including but not limited to depositions and interrogatories, 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.
17. 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 from time to
time designate in writing to the other party.
OCET: OCET Corporation
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Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Consultant: ▇▇▇▇ ▇▇▇▇▇▇
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Phone:
18. Applicable Law. The provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of California.
19. 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.
20. 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.
21. 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.
OCET Consultant
OCET Corporation
a Delaware Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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