Exhibit 10.33
METASYN, INC.
CONSULTING AND CONFIDENTIALITY AGREEMENT
THIS CONSULTING AND CONFIDENTIALITY AGREEMENT is made as of this day of
(the "Effective Date") by and between Metasyn, Inc., a Delaware
corporation (hereinafter referred to as "METASYN"), and ,(hereinafter
referred to as "CONSULTANT"), address.
WHEREAS, the CONSULTANT is a scientist specializing in areas related to
METASYN's Field of Interest (as defined below);
WHEREAS, METASYN wishes to avail itself of the services of the
CONSULTANT to perform certain tasks for the benefit of METASYN, and the
CONSULTANT is willing to perform such services on the terms and conditions set
forth below.
NOW, THEREFORE, METASYN and the CONSULTANT, in consideration of the
mutual promises contained herein, hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
as set forth below:
"METASYN's Field of Interest" means the design, development,
manufacture and use of devices or drugs for medical imaging, together with such
other fields as may be subsequently agreed upon by METASYN and the CONSULTANT in
writing.
"Consultancy" means the current or anticipated or subsequent retention
of the CONSULTANT by METASYN as a CONSULTANT hereunder, or any other period
during which the CONSULTANT receives compensation from METASYN in any capacity.
"Intellectual Property" means any Invention (as defined below),
writing, trade name, trademark, service ▇▇▇▇ or any other material registered or
otherwise protected or protectible under state, federal or foreign patent,
trademark, copyright or similar laws.
"Inventions" includes ideas, concepts, discoveries, inventions,
developments, improvements, data, information, materials, products, models,
writings, drawings or documentation created, developed or otherwise invented by
the CONSULTANT in the course of providing services to METASYN hereunder, whether
or not reduced to practice and whether or not patentable or otherwise within the
definition of Intellectual Property.
"Proprietary Information" includes any scientific, technical, trade or
business secrets of METASYN and any scientific, technical, biological, chemical,
trade or business materials that are treated
by METASYN as confidential or proprietary, including, but not limited to, the
Inventions and confidential information obtained by or given to METASYN about or
belonging to its suppliers, licensors, licensees, partners, affiliates,
customers, potential customers or others.
The definition of "Proprietary Information" herein shall not include
Proprietary Information which (i) was known by the CONSULTANT prior to its
disclosure by METASYN; (ii) is publicly known through publication or otherwise
through no wrongful act of the CONSULTANT; (iii) is received from a third party
who rightfully discloses it to the CONSULTANT without restriction on its
subsequent disclosure; or (iv) is disclosed pursuant to the lawful requirement
of a governmental agency or by order of court of competent jurisdiction,
provided that such disclosure is subject to all applicable governmental or
judicial protection available for like material.
2. SERVICES
2.1. Services. The CONSULTANT's services hereunder shall include:
(a) Advice in METASYN's Field of Interest,
(b) Consultation with METASYN's Board of Directors, officers,
employees and agents, at such time as may be reasonably
requested by METASYN, with respect to the above-mentioned
activity; and
(c) Such other services as shall be mutually agreed upon by
METASYN and the CONSULTANT.
2.2. Status. METASYN and the CONSULTANT agree that the CONSULTANT will
be an independent contractor for all purposes including, but not limited to,
payroll and tax purposes, and that the CONSULTANT shall not in any way
represent himself to be an employee or officer of METASYN.
2.3. METASYN's Field of Interest. The CONSULTANT agrees and
acknowledges that, although METASYN has retained his consulting services on a
non-exclusive basis, during the term of this Agreement, the CONSULTANT will not
enter into any other agreement, arrangement, understanding or other relationship
pursuant to which he is obligated to render advice and services to a commercial
entity in METASYN's Field of Interest and that he will limit the rendering of
advice and services in METASYN's Field of Interest to METASYN.
3. TERM
3.1. Term. This Agreement will be for an initial term beginning as of
the Effective Date and ending on the first anniversary thereof, and may be
extended for an additional period
or periods of one (1) year by mutual written agreement by the CONSULTANT and
METASYN prior to the end of the term set forth above.
3.2. Termination by METASYN. METASYN may terminate this Agreement for
cause at any time by giving 30 days written notice to the CONSULTANT. "Cause"
shall mean: (i) the physical or mental incapacity of the CONSULTANT to perform
substantially all of the duties set forth in or contemplated by the Agreement
for any consecutive three-month period or for any six-month period within any
consecutive twelve-month period; (ii) conviction of any crime constituting a
felony; or (iii) unsatisfactory performance of CONSULTANT's duties, as
determined in good faith by the Board of Directors, which shall continue after
specific notice thereof has been received by the CONSULTANT from the President
or the Board of Directors of METASYN, and a period of 30 days shall have passed
after the receipt of such notice during which the CONSULTANT fails to cure such
specific unsatisfactory performance.
3.3. Termination by Either Party. Either party may terminate this
Agreement by giving sixty (60) days prior written notice to the other.
4. COMPENSATION AND EXPENSES
4.1. Compensation. As full compensation for the CONSULTANT's services
pursuant to subsection 2.1 above, the Company shall pay the CONSULTANT $1,000
per day of service (based on 8 hours of services per day and prorated
accordingly for partial days) payable monthly on the last business day of the
month.
4.2 Expenses. The CONSULTANT shall be entitled to reimbursement for
reasonable travel and other out-of-pocket expenses incurred in the performance
of his duties hereunder, provided such expenses are agreed upon in advance,
following submission of written statements and bills.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
The CONSULTANT hereby represents, warrants and covenants to METASYN
that the CONSULTANT is under no contractual, policy or other restriction or
obligation which is inconsistent with his execution or performance of this
Agreement. During the term hereof, the CONSULTANT will not enter into any
agreement either written or oral in conflict with this Agreement, and will
perform his obligations hereunder in such a manner that his services will not
conflict with his responsibilities under any other agreement, policy,
arrangement or understanding or pursuant to any employment, consulting or other
relationship which the CONSULTANT has at any time with any third party. The
CONSULTANT understands that METASYN does not desire to acquire from him any
trade secrets, know-how or confidential business information that he may have
acquired from others. Therefore, the CONSULTANT agrees that during his
employment with METASYN, he will not improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer, or any other
person or entity with whom he has an agreement or to whom he owes a duty to keep
such information in confidence.
6. OWNERSHIP
6.1. Proprietary Information. METASYN retains all rights of ownership
to all Proprietary Information furnished to the CONSULTANT hereunder. No
proprietary rights or licenses are granted by METASYN under this Agreement.
Furthermore, Proprietary Information shall include any advisory and opinion
documents prepared by the CONSULTANT hereunder at the request of METASYN
related to the CONSULTANT's services hereunder.
6.2. Inventions and Intellectual Property. All Inventions and
Intellectual Property created, developed or otherwise invented by the CONSULTANT
hereunder, including all materials, products, models, data, information,
documentation and other results of the CONSULTANT's services hereunder, are and
shall be the exclusive property of METASYN, and METASYN may use or pursue them
without restriction or additional compensation. The CONSULTANT shall maintain
and furnish to METASYN complete and current records of all such Inventions and
Intellectual Property and disclose to METASYN in writing all such Inventions and
Intellectual Property. The CONSULTANT: (i) hereby assigns, sets over and
transfers to METASYN all of his right, title and interest in and to such
Inventions and Intellectual Property; (ii) agrees that the CONSULTANT and his
agents shall, during and after the period the CONSULTANT is retained by METASYN,
upon reasonable request of METASYN, cooperate fully in obtaining patent,
trademark, service ▇▇▇▇, copyright or other proprietary protection for such
Inventions and Intellectual Property, all in the name of METASYN (but only at
METASYN's expense), and, without limitation, shall execute all requested
applications, assignments and other documents in furtherance of obtaining such
protection or registration and confirming full ownership by METASYN of such
Inventions and Intellectual Property; and (iii) shall, upon termination of his
Consultancy, provide to METASYN in writing a full, signed statement of all
Inventions and Intellectual Property in which the CONSULTANT participated prior
to termination of his Consultancy to METASYN.
6.3. Third Party Claims. Unless covered by an appropriate agreement
between any third party and METASYN, the CONSULTANT shall not engage in any
activities or use any facilities whereby claims of ownership to any results
hereunder may be made by such third party.
7. CONFIDENTIALITY
7.1. CONSULTANT Acknowledgement. METASYN has developed and will
develop its Proprietary Information over a substantial period of time at a
substantial expense, and its Proprietary Information
is integral to the goodwill of METASYN. During the course of Consultancy to
METASYN, the CONSULTANT may develop or become aware of Proprietary Information.
Protection of the Proprietary Information is necessary to conduct METASYN's
business, and METASYN is and shall at all times remain the sole owner of
METASYN's Proprietary Information.
7.2. METASYN and the CONSULTANT agree that any and all Proprietary
Information, specifications, data, know-how, patent applications, materials,
plans and all other communications, oral or written, disclosed or provided to
CONSULTANT by METASYN, whether provided before or after the date hereof,
regarding METASYN'S proprietary magnetic resonance imaging contrast media, other
METASYN products or technology, or any METASYN business plans or financial
information (hereinafter referred to as the "INFORMATION") shall be subject to
the following obligations:
(a) CONSULTANT will keep all Information confidential and will not,
without the prior written consent of METASYN, disclose any INFORMATION to any
third party except to CONSULTANT'S colleagues with a need to know INFORMATION
for the purposes described in (b) below.
(b) CONSULTANT will not, without the prior written consent of METASYN,
use, either directly or indirectly, any INFORMATION for any purpose whatsoever,
other than for the purpose of performing research for METASYN or determining
CONSULTANT'S interest in entering into a further business relationship with
METASYN.
(c) All tangible INFORMATION including, without limitation, monographs,
specifications, flow sheets, descriptions, data, materials, samples, computer
media and other tangible material pertaining thereto shall remain the property
of METASYN. Immediately upon the request of METASYN, CONSULTANT shall return all
tangible INFORMATION, and all copies thereof, to METASYN.
The foregoing obligations of confidentiality and non-use shall not
apply to:
(a) Information which CONSULTANT can demonstrate by documentary evidence was
known to CONSULTANT prior to the date of its disclosure pursuant to the
Agreement and not obtained or derived directly or indirectly from METASYN; or
(b) Information which is or becomes public or available to the general
public otherwise than through CONSULTANT's act or default; or
(c) Information obtained subsequent to disclosure under this Agreement by
METASYN from a third party who is lawfully in possession of same and not under
any obligation of confidence with respect thereto.
7.3. Nothing herein shall be construed as giving CONSULTANT any right,
title, interest in or ownership of INFORMATION or of any right under any patent
or other intellectual property right pertaining thereto.
7.4. METASYN warrants that the INFORMATION is owned by or licensed to
METASYN and that METASYN has full right to disclose it to CONSULTANT for the
purpose of evaluating a business relationship or performing research, and that
to the extent all or part of the INFORMATION is owned by others that METASYN is
the authorized representative of any such persons with full right to make
disclosure to CONSULTANT.
7.5. Non-Solicitation. The CONSULTANT shall not during the term of this
Agreement or at any time during the five (5) years following termination of this
Agreement solicit any person who is employed by or a CONSULTANT to METASYN or
any affiliate or subsidiary of METASYN either during the CONSULTANT's period of
Consultancy or during such five (5) year period, to terminate such person's
employment by or consultancy to METASYN, such affiliate or subsidiary. As used
herein, the term "solicit" shall include, without limitation, requesting,
encouraging, assisting or causing, directly or indirectly, any such employee or
CONSULTANT to terminate such person's employment by or consultancy to METASYN,
affiliate or subsidiary.
7.6. Continued Obligations. The CONSULTANT's obligations under this
Section 7 and Section 6 shall not be affected: (i) by any termination of the
CONSULTANT's Consultancy, including termination upon METASYN's initiative; nor
(ii) by any change in the CONSULTANT's position, title or function with METASYN;
nor (iii) by any interruption in consultancy during which the CONSULTANT leaves
and then rejoins METASYN for any period within a period of one year and for any
reason.
8. NOTICES
For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when delivered personally or by overnight courier with a receipt obtained
therefor or when mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
To METASYN: To CONSULTANT:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President
Metasyn Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other address as either party may furnish to the other in writing in
accordance with this Section, except that notices of changes of address shall be
effective upon receipt.
9. OTHER PROVISIONS
9.1. Publicity. The CONSULTANT consents to the use by METASYN of
his name and likeness in written materials or oral presentations to current or
prospective customers, investors or others; provided that such materials or
presentations accurately describe the nature of the CONSULTANT'S relationship
with or contribution to METASYN.
9.2. Remedies. In the event of any breach by the CONSULTANT of any of
the provisions of this Agreement, METASYN shall be entitled, in addition to
monetary damages and to any other remedies available to METASYN under this
Agreement and at law, to equitable relief, including injunctive relief, and to
payment by the CONSULTANT of all costs incurred by METASYN in enforcement
against the CONSULTANT of the provisions of this Agreement, including reasonable
attorneys' fees.
9.3. No Waiver. Waiver of any provision of this Agreement, in whole or
in part, in any one instance shall not constitute a waiver of any other
provision in the same instance, nor any waiver of the same provision in another
instance, but each provision shall continue in full force and effect with
respect to any other then-existing or subsequent breach.
9.4. Headings. The paragraph headings have been inserted for
purposes of convenience only and shall not be used for interpretive purposes.
9.5. Assignment. Any assignment by CONSULTANT of the rights and
obligations under this Agreement without the prior written consent of METASYN
shall be void. This Agreement is binding upon CONSULTANT for a period of five
(5) years from the date hereof, and inures to the benefit of and shall be
enforceable by METASYN and its successors.
9.6. Entire Agreement. This Agreement constitutes the entire agreement
of the parties with regard to the subject matter hereof, and supersedes all
previous written or oral representations, agreements and understandings between
METASYN and the CONSULTANT, whether expressed or implied. This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which together will constitute one and the same agreement.
9.7. Amendment. Any amendment or modification of this Agreement or
waiver of any right, in whole or in part, will be effective only if it is in
writing and signed by the parties
hereto.
9.8. Applicable Law and Severability. This Agreement shall be governed
by the laws of The Commonwealth of Massachusetts. If a court of competent
jurisdiction determines that any provision of this Agreement is invalid or
unenforceable, then the validity or unenforceability of that provision shall not
affect the validity or enforceability of any other provision of this Agreement,
and all other provisions shall remain in full force and effect. If any of the
provisions of this Agreement is held to be excessively broad, it shall be
reformed and construed by limiting and reducing it so as to be enforceable to
the maximum extent permitted by law.
The CONSULTANT and METASYN have executed and delivered this Agreement
as a document under seal as of the Effective Date.
"METASYN" "CONSULTANT"
Metasyn Inc.
By: By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and CEO Title:
Date: Date:
S.S. No.