Exhibit 10.2
INDEPENDENT CONTRACTOR
AGREEMENT
BETWEEN:
DAVID
WARKENTIN of 20580
Powell Ave Maple Ridge, B.C.V2X3M2
AND:
SMARTIRE
SYSTEMS INC. INC. , a
company incorporated under the laws of British Columbia (the
“ Company ”)
IN
CONSIDERATION OF the covenants and agreements contained in this
Agreement, the Contractor and the Company agree as
follows:
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The Company
engages the Contractor to provide consulting services in the nature
and amount requested by the Company (the “ Services
”) relating to the Company’s patent infringement
litigation. The Contractor represents and warrants to the Company
that the Contractor has and will have the required skills and
experience to perform the Services. The Contractor
hereby accepts such engagement.
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The Contractor
will provide progress reports every 2 weeks and will seek approvals
for litigation strategy and settlement negotiations.
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Nothing herein
shall preclude the Contractor from acting in a similar or any other
capacity for any other person, firm or company so long as such
activities do not prevent the Contractor from fulfilling all of the
Contractor’s obligations to the Company under this Agreement
and the Contractor does nothing in connection with such activities
that adversely affects the interests of the Company.
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The Contractor
may add or substitute another individual to perform all or part of
the Services only with the prior written consent of the
Company. Such consent may be granted or withheld at the
sole discretion of the Company and on any such conditions as the
Company may determine.
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Term and
Scope of Agreement
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This Agreement
will be effective commencing Monday, May 4, 2009 and will continue
in force until terminated pursuant to the provisions of Section 7
of this Agreement.
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The provisions
of this Agreement shall govern all transactions between the Company
and the Contractor and his employees, unless otherwise agreed to in
writing by both parties.
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Fee and
Expenses for Services
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The Company
shall pay to the Contractor for the provision of the Services a fee
of USD$3000.00 per month and 5% of any proceeds realized by the
company from any patent litigations efforts that have been
initiated prior to the termination of this agreement.
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The Contractor
shall remit invoices to the Company for the Services
provided on on the first of each month. The Company shall pay such
invoices within 5 days of receipt.
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The Contractor
shall be responsible for the payment of all expenses incurred by
the Contractor in providing the Services, including without
limitation, office, telephone, travel, entertainment, mileage and
vehicle expenses unless agreed to in advance by the Company. The
Company will be responsible for out of province travel expenses
which will be agreed upon in advance by both parties.
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The Contractor
shall indemnify and save harmless the Company and any related or
associated companies and their respective boards of directors,
officers, employees or agents, from and against all claims,
actions, demands, suits, liabilities, losses, expenses, costs or
damages (“ Claims ”) of every nature and kind
whatsoever which the Company, or any related or associated
companies, and their respective boards of directors, officers,
employees or agents may have or suffer arising out of:
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claims
regarding the failure of the Contractor or any of his employees to
comply with applicable laws, regulations or orders;
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claims
regarding any act, omission or misconduct on the part of the
Contractor or any of his employees;
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claims
regarding any breach of any obligation of the Contractor contained
in this Agreement;
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claims
regarding workplace safety insurance benefits, bodily injury, death
or property damage of or caused by the Contractor or any of his
employees; and
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claims
regarding the employment and/or termination of employment of any
person employed by the Contractor including any claim by such
person based on any alleged employment relationship between such
person and the Company.
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In the
performance of this Agreement, the Contractor will at all times act
in the Contractor’s own capacity and right as an independent
contractor. The Company will not be required to pay for
or maintain any employee benefits including but not limited to
workplace safety insurance, Canada Pension Plan, employer health
tax, employment insurance and other similar levies nor to make
withholdings and remittances for income tax in respect of any
remuneration payable by the Company to the Contractor or by the
Contractor to any person employed by the Contractor, pursuant to
this Agreement or otherwise. The Contractor will be
solely responsible for making all such contributions, premium
payments and income tax remittances in conformity with all
applicable statutory requirements.
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The Contractor
and his employees are not employees of the Company and shall not be
entitled to receive from the Company any benefits
whatsoever. The Contractor agrees that neither the
Contractor or any of his employees are entitled to any of the
rights and benefits afforded to the Company’s employees,
including but not limited to participation in any of the
Company’s group insurance plans, vacation pay, overtime pay,
termination pay or severance pay.
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Unless
authorized in writing by the Company, the Contractor and any of his
employees shall not act nor purport to be acting as the legal agent
of the Company and shall not enter or purport to enter into any
agreements on behalf of the Company or otherwise bind or purport to
bind the Company.
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As a term and
condition of this Agreement, the Contractor shall sign and abide
by, and the Contractor shall cause any person employed by the
Contractor in performing the Services to sign and abide by, a
Restrictive Covenant Agreement in the form attached hereto as
Appendix “B”.
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