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INDEPENDENT CONTRACTOR AGREEMENT
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HiEnergy Technologies, Inc. ("HiEnergy"), a Delaware Corporation and
Radiation
Safety Academy ("RSA"), a Maryland Corporation, hereby enter into
this
independent contractor agreement related to manual and training program
development and services to be provided on the basis of Work Made For Hire as
of
the last date following the signatures below (the "Agreement").
1. DEFINITIONS.
"Agreement" means this Independent Contractor Agreement and any
relevant
Statements of Work ("SOW"), Work Authorizations ("WA"), and
other attachments or
appendices specifically referenced in, and incorporated as part of, this
Agreement.
"Deliverables" means items that RSA prepares for or provides to
HiEnergy as
described in a SOW. Deliverables include Developed Work, Licensed Work,
Preexisting Materials, and Tools.
"Developed Work" means all work product (including Externals),
developed in the
performance of this Agreement as described in a SOW. Developed Work does not
include Licensed Work, Preexisting Materials, Tools, or items specifically
excluded in a SOW.
"Enhancements" means changes or additions, other than Error
Corrections, to the
Developed Work or Licensed Work.
"Error Corrections" means revisions that correct errors and
deficiencies
(collectively referred to as "errors") in the Developed Work or
Licensed Work.
"Externals" means any pictorial, graphic, audiovisual works, reports
or data
generated by execution of software code and any programming interfaces,
languages or protocols.
"Licensed Work" is any material described in or that conforms to the
Description
of Licensed Work in the relevant SOW, associated documentation, Externals,
Error
Corrections, and Enhancements.
"Party" or "Parties" means either of HiEnergy or RSA and
used singularly or
collectively hereinafter.
"Preexisting Materials" means items contained within a Deliverable,
in which the
copyrights are owned by a third party or that RSA prepared or had prepared
outside the scope of this Agreement. Preexisting Materials exclude Tools, but
may include material that is created by the use of Tools.
"Prices" means the agreed upon payments and currency for Deliverables
and
Services, including all applicable fees, royalty payments and taxes, as
specified in the relevant SOW.
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"Products" means an offering by HiEnergy to its customers or other
users,
whether or not branded by HiEnergy or its Affiliates, that includes the
Developed Work, Licensed Work or a derivative work of a Licensed Work.
"Propietary and/or Confidential Information" means any information
identified as
being Propietary and/or Confidential Information by either party, either orally
or in writing, at the time it is disclosed, or designated as confidential in
writing (either electronically or by other means) within 30 days of the
disclosure, provided that the information (a) was not publicly known or
generally in the public domain prior to the disclosure, (b) does not become
generally known or part of the public domain through any improper action or
disclosure by the receiving party, or (c) can be shown to have been in the
rightful possession of the receiving party prior to having been identified as
Propietary and/or Confidential Information by the disclosing party.
"Services" means work that RSA performs for HiEnergy as described in
a SOW.
"Statement of Work" or "SOW" means any document that:
1. identifies itself as a statement of work;
2. is signed by both parties;
3. incorporates by reference the terms and
conditions of this Base
Agreement; and
4. describes the Deliverables and Services,
including any requirements,
specifications or schedules.
"Tools" means software that is not commercially available, and its
Externals,
required for the development, maintenance or implementation of a Deliverable.
"Work Authorization" or "WA" means HiEnergy's authorization
in either electronic
or tangible form for RSA to conduct transactions under this Agreement in
accordance with the applicable SOW (i.e., a purchase order, bill of lading, or
other HiEnergy designated document). A SOW is a WA only if designated as such
in
writing by HiEnergy.
2. WORK MADE FOR HIRE / RIGHTS TO
WORK.
a) RSA understands and agrees that it is to
perform and/or provide
Services and Deliverables as
detailed in the SOW(s) as Work Made for
Hire.
b) RSA understands and agrees that the (i)
Developed Work and any work
product shall be the sole and
exclusive property of HiEnergy (ii)
RSA shall have no other
rights whatsoever in or to the Developed
Work, and any work product,
including Error Corrections and
Enhancements to Developed
Work, delivered under the Agreement; and
(iii) RSA shall not
distribute, sell, or incorporate the Developed
Work, and any derivative
modifications or extensions of them.
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c) RSA agrees not to attach to the Developed
Work any statements
appearing thereon regarding
copyright or proprietary rights of RSA.
RSA shall not copy (in any
form), distribute, sell, lease, assign,
encumber, license or
sub-license the Developed Work, and any work
product to anyone other than
HiEnergy. RSA hereby acknowledges and
agrees that the Developed
Work is to be incorporated into Products
and sold and/or distributed
to other users for commercial purposes
by HiEnergy.
3. TITLE AND COPYRIGHT ASSIGNMENT
a) The Developed Work, and any work product,
including Error
Corrections and Enhancements
to Developed Work, delivered under the
Agreement, and the results of
the Services to be rendered by RSA
hereunder, are Work Made for
Hire. RSA acknowledges and agrees that
the Developed Work (and all
rights therein, including, without
limitation, copyright)
belongs to and shall be the sole and
exclusive property of
HiEnergy, subject to HiEnergy meeting its
obligations herewith.
b) If for any reason the Developed Work would
not be considered a work
made for hire under
applicable law, RSA does hereby sell, assign,
and transfer to HiEnergy, its
successors and assigns, the entire
right, title and interest in
and to the copyright in the Developed
Work and any registrations
and copyright applications relating
thereto and any renewals and
extensions thereof, and in and to all
works based upon, derived
from, or incorporating the Developed Work,
and the entire right to all income,
royalties, damages, claims and
payments now or hereafter due
or payable with respect thereto, and
in and to all causes of
action, either in law or in equity for past,
present, or future
infringement based on the copyrights, and in and
to all rights corresponding
to the foregoing.
c) If the Developed Work is one to which the
provisions of 17 U.S.C.
106A apply, the RSA hereby
waives and appoints HiEnergy to assert on
RSA's behalf the author's
moral rights or any equivalent rights
regarding the form or extent
of any alteration to the Developed Work
(including, without
limitation, removal or destruction) or the
making of any derivative works based on
the Developed Work,
including, without
limitation, any reproductions of the Developed
Work in any medium.
d) RSA agrees to execute all papers and to
perform such other proper
acts as HiEnergy may deem necessary
to secure for HiEnergy or its
designee the rights herein
assigned.
4. INDEPENDENT CONTRACTOR.
a) Nothing in this Agreement shall be
construed to make the Parties
partners, joint venturers,
representatives, or agents of each other,
nor shall either Party so
hold itself out.
b) RSA shall be an independent contractor with
respect to HiEnergy.
HiEnergy shall not be
responsib






