Exhibit 10.8
Vital Health Technologies, Inc.
Form 10-KSB
File No. 000-15243
INDEPENDENT CONTRACTOR / CONSULTANT AGREEMENT
This agreement, dated Oct 8, 1999 between Vital Health
Technologies, L.L.C. ("VHT") a Minnesota Limited
Liability Company, and Xxx Xxxxx and North Pole
Engineering ("CONTRACTOR"), an individual and company.
Period of agreement: To begin as of the date above.
Services to be provided: Engineering and management
consulting
1. Engagement of contractor. VHT hereby engages
CONTRACTOR on a work-for - as needed to provide
services as listed above. VHT shall pay compensation to
CONTRACTOR as itemized in Exhibit A.
* CONTRACTOR shall determine CONTRACTOR'S own working hours.
If working at VHT's premises, time schedules will be agreed on
between VHT and CONTRACTOR.
* CONTRACTOR shall be assigned the Work, but shall be
responsible for and will conduct all of CONTRACTOR'S business in
CONTRACTOR'S own name and in such manner as it may see fit.
* CONTRACTOR will pay all expenses whatever of CONTRACTOR'S
activities and be responsible for the acts and expenses of
CONTRACTOR'S employees, and CONTRACTOR'S own profits and losses.
* Nothing in this Agreement shall be construed to constitute
CONTRACTOR as the partner, employee or agent of VHT nor shall
either party have any authority to bind the other in any respect,
it being intended that each shall remain as an independent
contractor responsible only for its own actions.
* CONTRACTOR Agrees to indemnify VHT against all claims based
on or arising out of this Agreement, including limitation claims
for taxes.
* CONTRACTOR shall not be considered an employee and shall
have no right to any employee benefits. As neither CONTRACTOR nor
its personnel are VHT's employees. VHT shall not take any action
or provide CONTRACTOR'S personnel with any benefits or
commitments inconsistent with any of such undertakings by
CONTRACTOR. In particular:
* VHT will not withhold FICA (Social Security) from
CONTRACTOR'S payments.
* VHT will not make state of federal unemployment insurance
contributions on behalf of CONTRACTOR or its personnel.
* VHT will not withhold state and federal income tax from
payment to CONTRACTOR. VHT will not make disability insurance
contributions on behalf of CONTRACTOR. VHT will not obtain
worker's compensation insurance on behalf of CONTRACTOR or its
personnel.
E-51
2. Trade Secrets., This Agreement is intended to
establish and protect the rights of VHT with
respect to confidential information, including
without limitation, undisclosed financial
information, customer lists, business plans,
product development plans, computer software
source code, hardware engineering designs,
inventions, developments and other work product,
pending trademark, copy or patent applications,
contents or ideas contained therein, know how and
show how or other confidential or secret
information concerning the business and affairs of
the corporation and/or its directors, officers or
employees which is directly or indirectly useful
to VHT in any aspect of VHT's business
(collectively referred to for purposes of this
Agreement, but without changing their respective
legal character, as Trade Secrets") for which the
CONTRACTOR will be paid compensation as an
independent contractor of VHT. CONTRACTOR
therefore agrees that CONTRACTOR will not, during
the term of this Agreement or at any time
thereafter, use for CONTRACTOR or for others, any
information and material which is identified by
VHT or third parties as Trade Secrets or which the
CONTRACTOR has reason to believe is of a
confidential or secret nature, and will not
disclose during the term of this Agreement or at
any time thereafter, directly or indirectly, to
any person outside the employ of VHT any such
Trade Secrets without the express consent of an
OFFICER of VHT and that CONTRACTOR will use such
Trade Secrets exclusively in furtherance of
CONTRACTOR'S lawful duties under this agreement.
VHT and CONTRACTOR further agree to treat this
agreement, the work to be performed, and the Work
Product as confidential and shall disclose the
same to CONTRACTOR'S employees only on a need to
know basis.
CONTRACTOR agrees that VHT' Trade Secrets
constitute unique and valuable assets of VHT and
represent a substantial investment of time and
expense by VHT and its predecessors, and that any
disclosure or other use of such knowledge or
information other than for the sole benefit of VHT
would be wrongful and would cause irreparable harm
to VHT. The foregoing obligations of
confidentiality, however, shall not apply to any
knowledge or information which is now published or
which subsequently becomes generally publicly
known in the form in which it was obtained from
VHT, other than as a direct or indirect result of
the breach of this Agreement by CONTRACTOR.
3. Ownership of Work Product. All copyrights,
patents, trade secrets, or other intellectual
property rights associated with any ideas,
concepts, techniques, inventions, processes, or
works of authorship developed or created by
CONTRACTOR or its personnel during the course of
performing VHT's Work (collectively, the "Work
Product") shall belong exclusively to VHT and
shall, to the extent possible, be considered a
work made for hire for VHT within the meaning of
title 17 of the United States Code. CONTRACTOR
herewith automatically assigns and irrevocably
transfer and shall cause its personnel
automatically to assign and irrevocably transfer
at the time of creation of the Work Product,
without any requirement of further consideration,
any right title, or interest it or they may have
in such Work Product, including any copyrights or
other intellectual property rights pertaining
thereto. Upon request of VHT, CONTRACTOR shall
take such further actions, and shall cause its
personnel to take such further actions, including
execution and delivery of instruments of
conveyance, as may be appropriate to give full and
proper effect to By virtue of this Agreement, all
rights, title, and interest to all Work Product of
CONTRACTOR, and confidential information, and all
improvements developed within the course and scope
of the performance by CONTRACTOR of this
Agreement, whether or not patentable or
copyrightable, including without limitation source
code computer programs, manuals and related
materials is hereby assigned to and shall become
the property of VHT. CONTRACTOR shall promptly
disclose to VHT all such Work Product,
confidential information and improvements. To the
extent reasonably required by VHT, CONTRACTOR
shall cooperate with VHT in connection with any
application for patenting or copyrighting any such
Work Product, confidential information and
improvements and shall execute all documents
tendered by VHS to evident its ownership thereof
E-52
and will cooperate with VHT in obtaining,
defending and enforcing VHT's rights therein.
4. Pre-existing Works License. CONTRACTOR claims
and hereby reserves and retains ownership of the
works identified in Exhibit B attached hereto,
which CONTRACTOR created before entering into this
Agreement. With respect to such works, and without
further charge, to the extent the same are
utilized, are necessary for or otherwise relate to
the Work, VHT shall have a non-exclusive license
to use such works in machine-readable form
throughout VHT's organization. Pursuant to such
license, VHT may also modify and make additional
copies of such works for internal use and
installation by VHT CONTRACTOR shall also make
available the source code version of such works,
as requested by VHT for support and maintenance
purposes, provided that the use and handling of
all source code shall be subject to strict
confidentiality procedures. VHT is cautioned
against making unreviewed changes to such works
that could disrupt or impair the functioning of
the Software.
5. Noncompetition. During the term of this
Agreement and for the (6) month period following
the termination of this Agreement, CONTRACTOR will
not directly or indirectly:
* Own, manage operate or control, be employed by or act as a
consultant, director agent or advisor to, or in any other manner,
perform any services for any corporation, partnership, person,
firm or other business or business entity that is engaged in
competition with any part of VHT's business, including without
limitation, the business of manufacture, development, design,
marketing, distribution, or sale of variance cardiographs and/or
such other products as VHT designs, manufactures, develops,
distributes, sells or markets during the Term or has proposed to
design, manufacture, develop, distribute, sell or market during
the six month period after the expiration of the Tenn.
* Interfere with the actual or prospective relationship of VHT
for any competitive reason induce or attempt to induce any
employee or consultant of VHT to do any of the foregoing or to
induce any employee of VHT to his/her employment, or to otherwise
discontinue or interfere with the relationship of VHT (whether
contractual or otherwise) with any customer or any other
employee's employment with VHT for any competitive reason.
6. Term and Termination. This Agreement will
become effective on the date first, shown above
and will continue in effect until terminated as
provided by law for termination or removal of
Independent Contractors, Officers, Directors,
Consultants or other.
7. CONTRACTOR'S Obligations on Termination of
Agreement. Upon completion of the Work Product or
earlier termination of this Agreement, the
CONTRACTOR will deliver to VHT and will not keep
in its possession nor deliver to anyone else, the
originals or copies of any and all information and
material referred to in the Agreement, including
Work Product of the CONTRACTOR, and all notes,
memoranda, specifications, devices, documents,
electronic media furnished to CONTRACTOR, or any
other material containing or disclosing any such
information or material, including specifically
source code or other hard copy output embodying
the Work Product developed by CONTRACTOR pursuant
to this Agreement. CONTRACTOR is specifically
prohibited from using the Work Product for any
other purpose whatsoever. All Work Product and
confidential information of VHT shall be and are
the sole and exclusive property of VHT whether or
not made or developed by the CONTRACTOR.
E-53
8. Representations and Warranties of CONTRACTOR.
CONTRACTOR warrants that:
* CONTRACTOR'S performance of the services called for by this
Agreement do not violate any applicable law, rule, or regulation;
any contracts with third-party rights in any patent, trademark,
copyright, trade secret, or similar right; and
* CONTRACTOR has read and understands this Agreement and has
sufficient right, title, and interest to grant and convey the
rights accorded to VHT under section 4 hereof.
* CONTRACTOR wan-ants that all Work under this Agreement
shall be performed in a workmanlike manner and in substantial
conformity with the specifications published by CONTRACTOR with
respect thereto, if any.
9. Benefit. The obligations under this Agreement
shall be binding upon and shall inure to the
benefit of VHT its successors and assigns and
shall be binding upon and shall inure to the
benefit of CONTRACTOR, and CONTRACTORS, heirs,
successors, and legal representatives of
CONTRACTOR.
10. Attorney's fees; remedies. In the event of any
legal action, whether in law or by equity, or
pursuant to any type of alternative dispute
resolution mechanism, the prevailing party shall
be awarded its costs, disbursements and expenses
of such action, including reasonable attorney's
fees.
11. General Provisions. This Agreement sets forth
the entire understanding of the parties with
respect to the matters herein. No amendment or
modification to this Agreement shall be effective
unless the same shall be reduced to writing and
executed by the parties hereto. Should any portion
of this Agreement be determined by the courts to
be in conflict with any applicable law, the
validity of the remaining portions shall not be
affected thereby. Each of the rights and remedies
enumerated herein shall be independent of the
other and shall be separately enforceable, and all
of such rights and remedies shall be in addition
to, and not in lieu of any other rights and
remedies available to VHT at law or in equity, all
of which shall be cumulative.
12. The validity and interpretation of this
Agreement shall be governed by the laws of the
state of Minnesota. This Agreement may not be
assigned by CONTRACTOR. Any litigation relating to
the interpretation and/or enforcement of this
Agreement shall be exclusively Venued in the state
or federal courts sitting in Hennepin or Xxxxxx
County Minnesota and CONTRACTOR consents to this
exclusive venue and agrees that the forum is
convenient to both parties and waives any right to
contest the same. The provisions of Section 2 - I
I this Agreement shall survive termination of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been executed as
of the date first above written.
Vital Health Technologies, L.L.C.
(Contractor) NPE INC.
Xxxxxx Xxxxx
E-54
EXHIBIT A
Compensation
1.) Contractor will receive compensation as outlined in the
attached agreement.
2.) Cash compensation will be equal to 75% of
billing. 25% of billing will be awarded in the
form of warrants.1.5 warrants will be awarded for
each $1.00 of billing up to 25% of total.
3.) Bonus warrants will be awarded for xxxxxxxx
less than the maximum range quoted. 2 bonus
warrants will be awarded for each dollar less than
the maximum cost estimate of $78,900. For example:
If total xxxxxxxx amount to $65,900 then the
difference between the maximum of $78,900 would be
$13,000 and 26,000 bonus warrants would be earned.
4.) Warrants will have a 5 year duration and each
warrant will convert into I share of Vital Health
Technologies, Inc. common stock at 50 cents.
This compensation plan is understood and accepted by:
/s/Xxxxxx Xxxxxx Date : 00- 0-00
(Xxxxxxxxxx)
Witnessed by:
/s/ Vital Health Technologies Date 10/8/99
Vital Health Technologies, L.L.C.
E-55
