INDEPENDENT CONTRACTOR AGREEMENT
--------------------------------
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.
Page 1 of 8
<PAGE>
"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.
Page 2 of 8
<PAGE>
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 responsible for withholding taxes with
respect
to RSA's compensation hereunder. RSA shall ha
