Exhibit 10.1
CONSULTING, CONFIDENTIALITY AND PROPRIETARY
RIGHTS AGREEMENT
This
Consulting, Confidentiality and Proprietary Rights Agreement
(“Agreement”) is entered into as of the 31st day of
October, 2006, by and between VIASPACE Inc., a Nevada Corporation
and Denda Associates Co., Ltd.
(“Consultant”).
WHEREAS, Company desires to engage Consultant to
provide certain services as set forth on the Schedule.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants and conditions contained herein, the parties hereto agree
as follows:
1. Engagement. The Company hereby
engages Consultant to perform those duties set forth in the
Schedule attached hereto and such other duties as may be requested
from time to time by the Managers of the Company. Consultant hereby
accepts such engagement upon the terms and subject to conditions
set forth in this Agreement.
2. Compensation. For the services
rendered by Consultant under this Agreement, the Company shall pay
to Consultant the compensation specified in the Schedule, subject
to the terms and conditions set forth in this Agreement.
3. Term and Survivability. The term
of this Agreement shall be for a period of as specified in the
Schedule beginning on the Effective Date. Notwithstanding the
foregoing, either party shall have the right to terminate this
Agreement at any time, with or without cause, effective immediately
upon 30 days written notice to the other party.
Upon
termination of this Agreement the following sections of this
Agreement shall survive such termination: Sections 3, 5, 6, 7,
8, 10, 12 and 13.
4. Costs and Expenses of
Consultant’s Performance. All costs and expenses of
Consultant’s performance hereunder shall be borne by
Consultant, unless the Company agrees in writing to reimburse or
pay such costs and expenses or as set forth on the Schedule
attached hereto.
5. Taxes . As an independent
contractor, Consultant acknowledges and agrees that he is solely
responsible for the payment of any taxes and/or assessments imposed
on account of the payment of compensation to, or the performance of
services by Consultant pursuant this Agreement, including, without
limitation, any unemployment insurance tax, federal and state
income taxes, federal Social Security (FICA) payments, and
state disability insurance taxes. The Company shall not make any
withholdings or payments of said taxes or assessments with respect
to amounts paid to Consultant hereunder; provided, however, that if
required by law or any governmental agency, the Company shall
withhold such taxes or assessments from amounts due Consultant, and
any such withholding shall be for Consultant’s account and
shall not be reimbursed by the Company to Consultant. Consultant
expressly agrees to make all payments of such taxes, as and when
the same may become due and payable with respect to the
compensation earned under this Agreement.
6. Confidentiality. Consultant
agrees that Consultant will not, except when required by applicable
law or order of a court, during the term of this Agreement or
thereafter, disclose directly or indirectly to any person or
entity, or copy, reproduce or use, any Trade Secrets (as defined
below) or Confidential Information (as defined below) or other
information treated as confidential by the Company known, learned
or acquired by the Consultant during the period of the
Consultant’s engagement by the Company. For purposes of this
Agreement, “Confidential Information” shall mean any
and all Trade Secrets, knowledge, data or know-how of the Company,
or of third parties in the possession of the Company, and any
nonpublic technical, training, financial and/or business
information treated as confidential by the Company, whether or not
such information, knowledge, Trade Secret or data was conceived,
originated, discovered or developed by Consultant hereunder. For
purposes of this Agreement, “Trade Secrets” shall
include, without limitation, any formula, concept, pattern,
processes, designs, device, software, systems, list of customers,
training manuals, marketing or sales or service plans, business
plans, marketing plans, financial information, or compilation of
information which is used in the Company’s business. Any
information of the Company which is not readily available to the
public shall be considered to be a Trade Secret unless the Company
advises Consultant in writing otherwise. Consultant acknowledges
that all of the Confidential Information is proprietary to
the Company and is a special, valuable and unique asset of the
business of the Company, and that Consultant’s past, present
and future engagement by the Company has created, creates and will
continue to create a relationship of confidence and trust between
the Consultant and the Company with respect to the Confidential
Information. Furthermore, Consultant shall immediately notify the
Company of any information which comes to his attention which might
indicate that there has been a loss of confidentiality with respect
to the Confidential Information. In such event, Consultant shall
take all reasonable steps within his power to limit the scope of
such loss.
7. Return of the Company‘s
Proprietary Materials. Consultant agrees to deliver promptly to
the Company on termination of this Agreement for whatever reason,
or at any time the Company may so request, all documents, records,
artwork, designs, data, drawings, flowcharts, listings, models,
sketches, apparatus, notebooks, disks, notes, copies and similar
repositories of Confidential Information and any other documents of
a confidential nature belonging to the Company, including all
copies, summaries, records, descriptions, modifications, drawings
or adaptations of such materials which Consultant may then possess
or have under his control. Concurrently with the return of such
proprietary materials to the Company, Consultant agrees to deliver
to the Company such further agreements and assurances to ensure the
confidentiality of proprietary materials. Consultant further agrees
that upon termination of this Agreement, Consultant shall not
retain any document, data or other material of any description
containing any Confidential Information or proprietary materials of
the Company.
8. Assignment of Proprietary
Rights. Other than the Proprietary Rights listed on the
Schedule attached hereto, Consultant hereby assigns and transfers
to the Company all right, title and interest that Consultant may
have, if any, in and to all Proprietary Rights (whether or not
patentable or copyrightable) made, conceived, developed, written or
first reduced to practice by Consultant, whether solely or jointly
with others, during the period of Consultant’s engagement by
the Company which relate in any manner to the actual or anticipated
business or research and development of the Company, or result from
or are suggested by any task assigned to Consultant or by any of
the work Consultant has performed or may perform for the
Company.
Consultant acknowledges and agrees that the
Company shall have all right, title and interest in, among other
items, all research information and all documentation or manuals
related thereto that Consultant develops or prepares for the
Company during the period of Consultant’s engagement by the
Company and that such work by Consultant shall be work made for
hire and that the Company shall be the sole author thereof for all
purposes under applicable copyright and other intellectual property
laws. Other than the Proprietary Rights listed on the Schedule
attached hereto, Consultant represents and covenants to the Company
that there are no Proprietary Rights relating to the
Company’s business which were made by Consultant prior to
Consultant’s engagement by the Company. Consultant agrees
promptly to disclose in writing to the Company all Proprietary
Rights in order to permit the Company to claim rights to which he
may be entitled under this Agreement. With respect to all
Proprietary Rights which are assigned to the Company pursuant to
this Section 8, Consultant will assist the Company in any
reasonable manner to obtain for the Company’s benefit patents
and copyrights thereon in any and all jurisdictions as may be
designated by the Company, and Consultant will execute, when
requested, patent and copyright applications
