oxysures1051509ex10_7.htm


    
      

      

    

    


    Exhibit
10.7  Subcontractor Agreement and Assignment of Intellectual
Property

    


    AGREEMENT
No.________

    OXYSURE
SYSTEMS, INC.

    SUBCONTRACTOR
SERVICES AGREEMENT

    


    This
Subcontractor Services Agreement (“Agreement”) is entered into and made
effective as of, by and between (“Subcontractor”) and OxySure Systems, Inc.
(“OSI” or “Client”).

    


    1.           CONSULTING
SERVICES

    


    a.
"Subcontractor" shall mean any corporation, partnership, or sole proprietorship,
subject to the limitations of Section 6 of this Agreement, which possesses the
requisite level of knowledge and training and agrees to perform certain
consulting services to be provided to Client (“Services”). Subcontractor shall
also mean any corporation, partnership, or sole proprietorship, subject to the
limitations of Section 6 of this Agreement, which agrees to supply OSI with a
member or members of Subcontractor's staff ("Personnel") to perform such
Services to be provided to Client.

    


    b. From
time to time, on an as-needed basis, as determined by Client in Client’s sole
discretion, Subcontractor agrees to provide such Services as are identified to
Subcontractor by OSI. Subcontractor’s Services shall be provided under the
direction and supervision of Client. Such services, and Personnel, if any, shall
be described in greater detail on Work Schedules to be attached hereto as Exhibit A, as from
time to time amended by the parties hereto ("Work Schedule").

    


    c. All
work performed and services provided hereunder shall be under the direction and
satisfaction of OSI, with or without instructions or supervision from OSI. OSI
shall provide no training, tools, equipment or other materials to Subcontractor,
unless otherwise agreed to in writing.

    


    d.
Subcontractor shall not, except to the extent inconsistent with the requirements
of this Agreement, be prohibited in any way from performing any Services for any
other individual or company during the period of this Agreement. At any time,
OSI may arrange for other subcontractors or OSI’ own employees to provide the
same or similar Services to OSI.

    


    e. The
parties acknowledge and agree that the relationship between Client and
Subcontractor under this Agreement and the fact that Client is using
Subcontractor’s Services is confidential.  Subcontractor may not
disclose this information to others unless it has been approved by OSI in
writing.

    


    f. On
Client’s request, Subcontractor shall answer any questions and/or prepare any
reports or other written documents concerning the Services.

    


    


    
      
        
           


        

        
          1

          
            

          

        

        
           


        

      

    

    


    


    g.
Subcontractor acknowledges and agrees that time is of the essence in the value
of Subcontractor’s services to Client and shall use Subcontractor’s best efforts
to provide all Services requested of Subcontractor by Client efficiently and in
accordance with Client’s specifications and timetable for delivery

    


    2.           COMPENSATION

    


    a.
Subcontractor shall be paid bi-weekly, only for hours actually worked, at an
hourly rate as indicated on the Work Schedule, without reduction for income tax
withholdings or other employee deductions. No amount will be deducted or
withheld from Subcontractor's compensation for state, local or federal taxes. No
FICA, FUTA or state unemployment taxes will be payable by OSI on Subcontractor's
behalf. Subcontractor and Personnel shall receive no other compensation or
benefits for services provided hereunder. In order to be paid, Subcontractor
must submit a time card signed by an authorized representative of OSI each week
in accordance with such procedures as may be established by OSI from time to
time. Subcontractor's time card shall serve as Subcontractor's invoice for
payment and is a prerequisite for receipt of payment from OSI for
Subcontractor's services.

    


    b. All
ordinary business expenses incident to Subcontractor's performance of services
under this Agreement shall be borne by Subcontractor. Any extraordinary business
expenses are to be paid by Subcontractor unless approved in advance by OSI in
writing. Subcontractor shall provide Subcontractor's own equipment and materials
for Services to be rendered hereunder at Contractor's sole cost and
expense.

    


    c.
Notwithstanding any other provision of this Agreement, should Subcontractor fail
to make prompt payment of wages or fees to Personnel performing Services
hereunder, OSI, may at its election, contract directly with Personnel for the
performance of the Services contemplated by any Work Schedule.

    


    d.
Subcontractor shall not, and shall cause Personnel to not, disclose the
existence or the substance of this Agreement, including, but not limited to,
Subcontractor's or Personnel's rate of pay or remuneration details to any third
party, including without limitation, any customer or co-worker. Any such
disclosure may result in Subcontractor's and/or Personnel's immediate
termination.

    


    3.          
RELATIONSHIP/TERM/GUARANTEE

    


    a.
Subcontractor and Personnel shall function under this Agreement solely as
independent contractors performing services for OSI, and not as employees,
agents, representatives, partners or joint venturers of OSI. Subcontractor and
Personnel are not to be deemed employees of Client, and neither Subcontractor
nor Personnel shall have or claim any right arising from employee
status.

    


    


    
      
        
           


        

        
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    b.
Subcontractor's services hereunder shall be "at will" and provided only on an as
needed basis without any commitment as to minimum use by OSI. Subcontractor
acknowledges and agrees that this Agreement and/or any Work Schedule may be
terminated immediately at any time by OSI with or without cause at OSI’s sole
discretion, and that nothing in this Agreement or otherwise shall confer upon
Subcontractor or Personnel any right to provide Services to OSI or restrict the
right of OSI to terminate this Agreement at any time. On termination of this
Agreement, Subcontractor shall have no further obligation to provide Services
for Client and Client shall have no further obligation to pay compensation
beyond that for Services rendered prior to the effective date of termination.
Additionally, upon termination of this Agreement, Subcontractor agrees to sign
and deliver the Termination Certificate attached hereto as Exhibit B.

    


    c.
Subcontractor is not Client’s agent and shall not have any decision-making
authority for any major acquisition, purchase or policy decision relating to
Client's business. Subcontractor is not authorized to render opinions on the
business affairs of OSI or its business, nor is it authorized to affix the name
of OSI to its marketing collateral or other business materials or to otherwise
make use of OSI’s name, unless OSI specifically agrees to in
writing.

    


    d. If for
any reason OSI is dissatisfied with Personnel supplied by Subcontractor,
Subcontractor will remove such person or persons immediately and, if requested
by OSI, provide a replacement or replacements as soon as practicable. If OSI
shall have notified Subcontractor of its dissatisfaction prior to the conclusion
of the person's or persons' third day of work, Subcontractor will not charge OSI
for the first 24 hours worked.

    


    
      	
              4.

            	
              CONFIDENTIAL
      INFORMATION/INTELLECTUAL
  PROPERTY/NON-SOLICITATION

            


    

    


    a.
Subcontractor acknowledges, that in the course of Subcontractor's providing
services hereunder, Subcontractor and Personnel may be provided with, or have
access to, Confidential Information belonging to OSI, or its affiliates or other
parties. Confidential Information includes any and all information which any
party may consider proprietary or otherwise wish to keep confidential,
including, without limitation, business plans, marketing strategies, product
information & specifications, customer lists, vendor lists, computer
programs, schematics, source code, object code, pricing, cost or profit figures
and projections, credit information, current, future or proposed products or
services, plans and technology, business forecasts, financial records,
accounting records, litigation documents and procurement requirements, and
technical information included in or on tracings, flowcharts, software program
code, drawings, field notes, calculations, specifications and engineering data.
Subcontractor agrees to hold in strict confidence all Confidential Information
which Subcontractor or Personnel uses or to which Subcontractor or Personnel
gain access during the course of performance hereunder, and Subcontractor shall
not use, reproduce, publish, disclose, copy, circulate, forward or otherwise
make known to any person or entity any Confidential Information, except to the
extent required in the performance of Subcontractor's and Personnel's Services
to OSI hereunder.

    


    


    
      
        
           


        

        
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    This
confidentiality clause shall not apply to (a) information that is in the public
domain, (b) information that was previously known to Subcontractor before the
engagement, (c) information received from a third party having the right to
lawfully possess and disclose such information without breaching this Agreement,
(d) information approved for release by prior written authorization by OSI, and
(e) information required to be disclosed by a court of competent jurisdiction,
but only to the extent expressly required and only after alerting OSI of such
disclosure requirement.

    


    b.
Subcontractor warrants and represents that any materials used or provided by
Subcontractor for use by Client pursuant to this Agreement shall not contain any
proprietary material or information owned by any other person that is protected
under applicable law.  Subcontractor shall be solely responsible for
ensuring that any materials or information provided by Subcontractor pursuant to
this Agreement satisfy this requirement and Subcontractor agrees to hold Client
harmless from all liability or loss to which Client is exposed on account of
Subcontractor’s
breach of this warranty and representation or failure to perform this
duty.

    


    c. All
rights to ideas, discoveries, inventions, improvements, designs, work product
and innovations (including without limitation all data and records pertaining
thereto) that relate to the business of Client and its affiliates, that are
conceived, developed, written or contributed by Subcontractor pursuant to this
Agreement, either individually or in collaboration with others, whether or not
patentable, copyrightable or reduced to writing (“Inventions”), shall be the exclusive
property of Client. Subcontractor shall maintain current and appropriate notes,
sketches and other records of all Inventions made or conceived by Subcontractor
during the term of this Agreement and those made or conceived after this
Agreement but arising from the Agreement, and all such sketches, notes and other
records shall be the sole property of Client. Subcontractor shall promptly
disclose all Inventions to Client.

    


    d.
Without limiting the generality of section 4c. above, Subcontractor shall assign
and transfer, and does hereby assign and transfer, to Client the world-wide
right, title and interest of Subcontractor in the
Inventions.  Subcontractor agrees that Client may file copyright
registrations and apply for and receive patents (including without limitation
Letters Patent in the United States) for the Inventions in the names of Client
or any of its affiliates in such countries as may be determined solely by
Client.  Subcontractor shall communicate to Client all facts known to
Subcontractor relating to the Inventions and shall cooperate with Client’s
reasonable requests in connection with vesting title to the Inventions and
related copyrights and patents exclusively in Client and in connection with
obtaining, maintaining, protecting and enforcing Client’s exclusive copyrights,
patents and other rights in the Inventions.  Subcontractor shall
execute at the request of Client any assignments or other documents Client may
deem necessary to protect or perfect its rights therein, and shall assist
Client, at Client’s
expense, in obtaining, defending and enforcing the rights of Client
therein.  Subcontractor hereby appoints Client and any of its
affiliates as Subcontractor’s attorney-in-fact to execute on Subcontractor’s
behalf any assignments or other documents deemed necessary by Client and any of
its affiliates to protect or perfect its rights to any Inventions.

    


    


    
      
        
           


        

        
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    e.
Subcontractor’s
obligations under this Section 4 shall inure to the benefit of Client and
its successors and assigns, shall be binding on Subcontractor’s
heirs, legatees, successors and assigns, and shall survive the expiration of the
term of this Agreement for such time as may be necessary to protect the
proprietary rights of Client in the Inventions.

    


    f.
Subcontractor shall perform Subcontractor’s obligations under this
Section 4 at Client's expense, but without any additional or special
compensation therefor.

    


    g. Upon
the termination or completion of services to OSI, Subcontractor agrees
immediately to return, all information, data and any other materials supplied by
or obtained from OSI in the course of Subcontractor's and Personnel's work,
along with all copies thereof in Subcontractor's and Personnel's possession and
control.

    


    h.
Subcontractor acknowledges and agrees that the disclosure of any Confidential
Information or any other violation of the terms of this Section 4 would cause
immediate and irreparable injury, loss and damage to OSI and/or its affiliates
and that an adequate remedy at law for such injury, loss and damage may not
exist, and that in the event of such disclosure or threatened disclosure, OSI
and/or its affiliates shall be entitled to institute and prosecute proceedings
in a court of competent jurisdiction to obtain temporary and/or permanent
injunctive relief to enforce a provision of this Agreement, without the
necessity of proof of actual damage or loss.

    


    i.
Subcontractor further agrees that the provisions of this Section 4 shall be
binding upon not only on Subcontractor and Personnel, but on Subcontractor's and
Personnel's heirs, executors, administrators, successors and assigns, and that
said provisions shall survive the termination of this Agreement for any reason,
for five years after the termination date.

    


    j. During the Term hereof and
for a period of twelve (12) months thereafter, the Subcontractor shall not,
either for itself or on behalf of any third party:  (i) in any manner
induce any employee, agent, customer, representative or supplier of the Company
to terminate such dealings or association with the Company; or (ii) do anything,
directly or indirectly, to interfere with the relationship between the Company
and any such person or concern.

    


    k.
Subcontractor shall obtain the specific written agreement of Personnel to each
of the provisions of this Section 4 prior to commencement of work by
Subcontractor or any member of Subcontractor's staff.

    


    l.
Subcontractor shall be responsible for and indemnify OSI against, any loss,
claims or expenses arising from any breach of this Section 4 by Subcontractor
and Personnel.

    


    


    
      
        
           


        

        
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    5.        REPRESENTATIONS
AND WARRANTIES OF SUBCONTRACTOR

    


    a.
Personnel are the employees of Subcontractor; Personnel are not and shall not be
deemed to be, employees of OSI. Subcontractor shall be solely responsible to
pay, when due, salaries, wages and other forms of compensation or reimbursement
and all applicable federal, state and local withholding taxes and unemployment
taxes, as well as social security, state disability insurance and all other
payroll charges payable to, or on behalf of, Personnel providing services
hereunder. Subcontractor shall indemnify and hold OSI and its affiliates
harmless from and against, and in respect of, any and all Losses (as defined
below) arising out of claims from Personnel. On or before commencement of
services under any Work Schedule, Subcontractor shall deliver to OSI
documentation executed by all Personnel named in each Work Schedule
acknowledging the terms of and agreeing to be bound in all respects by this
Agreement.

    


    b.
Subcontractor represents and warrants that, in the event it is a corporate
entity, it is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation. OSI may elect to contract
with an unincorporated Subcontractor that has not been an independent business
for two years or more, subject to individual review and determination by
OSI.

    


    c.
Subcontractor represents and warrants that it has the full power and authority
to own or lease its properties and to carry on its business as it is now being
conducted, and is qualified to conduct business as a foreign corporation, a
foreign partnership, or sole proprietorship, subject to the limitations of this
Section 5, in all jurisdictions in which the nature of the business contemplated
by this Agreement requires such qualification.

    


    d.
Subcontractor represents and warrants that it maintains books and records in the
ordinary course of its business reflecting Subcontractor's business activities.
Subcontractor's federal tax identification number is set forth on the signature
page to this Agreement. The board of directors, general partner, or other
authorized agent of Subcontractor has taken all actions required by applicable
law, the articles of incorporation or bylaws, partnership agreement or
otherwise, to authorize the transactions contemplated by this
Agreement.

    


    e.
Subcontractor certifies that it is fully in compliance, if applicable, with
Executive Order 11246, The Rehabilitation Act of 1973, as amended, and the
Vietnam Era Veterans Readjustment Assistance Act of 1974. Subcontractor further
certifies that it has maintained records sufficient to document its compliance
with these requirements.

    Both
parties agree to comply with all applicable equal employment opportunity laws,
including Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1991,
the Americans with Disabilities Act, and, if applicable, the affirmative action
requirements of Executive Order 11246, the Rehabilitation Act of 1973, as
amended, and the Vietnam Era Veterans Readjustment Assistance Act of 1974, as
amended.

    


    


    
      
        
           


        

        
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    f.
Subcontractor warrants that all services provided hereunder shall be of the
highest professional standards, quality and workmanship and shall be provided
using Subcontractor's and Personnel's independent skill and judgment in the
means and manner that are most suitable to perform the work contemplated
hereunder. Subcontractor and/or Personnel shall immediately notify OSI if it is
asked to perform services it is not qualified to perform or if it is not capable
of providing any of the services required hereunder. While on the site of OSI's
business, Subcontractor shall, and shall cause Personnel to, abide by OSI's
applicable rules and regulations at all times.

    


    g. All
information provided by Subcontractor and Personnel to OSI or upon which OSI has
relied, including, without limitation, resumes, interviews and references, is
complete, true and correct in all material respects. There is no fact which
materially and adversely affects the ability of Subcontractor and Personnel to
provide the services contemplated hereunder which has not been expressly and
fully set forth to OSI.

    


    h.
Subcontractor shall fully comply, and shall cause Personnel to fully comply,
with the employment eligibility verification and other provisions of the
Immigration Reform and Control Act of 1986 and regulations promulgated
thereunder, as such may be amended from time to time, and Subcontractor shall
not provide to OSI any Personnel if Subcontractor knows, or has any reason to
believe, that such Personnel is not authorized to perform the services required
under the applicable Work Schedule in the United States.

    


    i.
Subcontractor represents and warrants that Subcontractor's and Personnel's
execution and delivery of this Agreement and the performance of its duties
hereunder do not, and will not, breach or conflict with any obligation of
Subcontractor and Personnel to a previous employer, client or other party or any
obligation to keep confidential any information acquired by Subcontractor and
Personnel prior to the date hereof. Subcontractor further represents and
warrants that it will not, and shall cause Personnel not to, make use of any
proprietary information, ideas or material of others in connection with
Subcontractor's engagement by OSI.

    


    6.           INDEMNITY

    


    Subcontractor
agrees that OSI will not be responsible for any losses, damages, expenses or
claims arising from any personal injury, thefts or other property damage
sustained in connection with the provision of Services by Subcontractor and
Personnel. Subcontractor assumes the risk for all such activities and
Subcontractor agrees to indemnify, and hold harmless, OSI from and against any
and all claims, losses, damages, causes of action, suits, and liability of every
kind, including all expenses of litigation, court costs and attorney’s fees
related thereto.

    


    OSI
agrees to indemnify, and hold harmless, the Subcontractor from and against
claims, losses, damages, causes of action, suits, and liability of every kind,
including all expenses of litigation, court costs and attorney’s fees (a)
related to bodily injury or death of any person or damages to real and/or
tangible property incurred by any third party resulting from the gross
negligence or willful misconduct of OSI or its agents, (b) based on a claim that
any materials modified or enhanced by Subcontractor under this Agreement to the
extent such modifications or enhancements are effected in accordance with OSI’s
direction or specifications infringes any United States copyright, patent or
other U.S. intellectual property right of a third party,

    


    
      
        
           


        

        
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    or (c)
that may result from any third party claims arising out of or relating to
Subcontractor’s Services or any use by OSI of any deliverable item except to the
extent any such claim is finally determined to have resulted from the negligence
or willful misconduct of Subcontractor.

    


    


    7.           ATTORNEYS'
FEES AND COSTS

    


    Should
any party be required to bring legal action against the other to enforce the
terms and conditions of this Agreement, the prevailing party shall be awarded
its costs incurred and expended during the pendency of litigation, including
reasonable attorneys' fees.

    


    8.           MISCELLANEOUS

    


    a. The
obligations contained in this Agreement shall be binding upon not only
Subcontractor, but on Subcontractor's Personnel. Subcontractor will advise its
Personnel of the terms of this Agreement and will obtain the written
acknowledgement and agreement of all Personnel to be bound by all of the terms
and conditions of this Agreement.

    


    b. This
Agreement constitutes the entire agreement between the parties with respect to
the matters contained herein and supersedes any and all prior and
contemporaneous agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, with respect to that subject
matter. If any provision of this Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect or impair
the validity or enforceability of the remaining provisions of this
Agreement.

    


    c.
Subcontractor may not, without the express written permission of OSI, assign,
subcontract work or pledge any rights or obligations hereunder.

    


    d. No
amendment or modification of this Agreement shall be valid unless evidenced by a
written instrument executed by the parties hereto. No waiver by OSI of any
provision or condition of this Agreement shall be deemed a waiver of any similar
or dissimilar provision or condition at the same time or any prior or subsequent
time.

    


    e. This
Agreement shall be governed by and construed in accordance with the laws of the
state in which an activity occurred or threatens to occur and with respect to
which legal and/or equitable relief is sought. In no event shall the choice of
law be predicated upon the fact that OSI is incorporated or has its corporate
headquarters in a certain state.

    


    f. Any
and all disputes, controversies and claims arising out of or relating to this
Agreement or concerning the respective rights or obligations hereunder of the
parties hereto shall be settled and determined by arbitration before the
Commercial Panel of the American Arbitration Association in accordance with the
Commercial Arbitration Rules. The arbitrators shall have the power to award
specific performance or injunctive relief and reasonable attorneys' fees and
expenses to any party in any such arbitration. However, in any arbitration
proceeding arising under this Agreement, the arbitrators shall not have the
power to change, modify or alter any express condition, term or provision
hereof, and to that extent the scope of their authority is limited.

    


    
      
        
           


        

        
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          The
arbitration award shall be final and binding upon the parties and judgment
thereon may be entered in any court having jurisdiction thereof.

          


          IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first written above.

          


          Subcontractor                                                                                     OxySure
Systems, Inc.

          


          ___________________________

          Corporate
Name

          


          


          By:
_________________________        By:
______________________

          Signature                                                        Signature

          


          ____________________________        _________________________

          Printed
Name                                                  Printed
Name

          


          ____________________________        _________________________

          Title                                                                 Title

          


          ____________________________

          Federal
I.D. Number

          


        

      

    

    


    
      
        
           


        

        
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      EXHIBIT
A

       

      WORK
SCHEDULE

      


      This
Schedule is issued pursuant to the OSI Subcontractor Services Agreement dated as


      of
_____________________________ by and between _________________________________
("Subcontractor") and OxySure Systems, Inc.

      


      Description
of Work:_________________________.

      


      Work
Location:_____________________________.

      


      Personnel
Name: ____________________________.

      


      Monthly
Pay Rate:  $________________ per month

      


      Expected
Start Date: _________________________.

      


      Expected
Project Length: _____________________.

      


      Client
Project Manager(s) and Phone Number(s): _____________________.

      


      OSI
Contact and Phone Number: _________________.

      


      Travel
Arrangements and Other
Expenses:                          Subject
to prior written approval of OSI.

      


      Accepted
By:

      


      Subcontractor                                                                           OxySure
Systems, Inc.

      


      ______________________________

      Corporate
Name

      


      


      By:
___________________________         By:
___________________________

      Signature                                                             Signature

      


      ______________________________        ______________________________

      Printed
Name                                                       Printed
Name

      


      ______________________________        ______________________________

      Title                             
Title



    


    
      
        
           


        

        
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    EXHIBIT
B

    
      	
               
      

            	
              TERMINATION
      CERTIFICATE

            


    

    


    The
undersigned, on its own behalf and, if applicable, on behalf of its directors,
officers, members, employees, agents contractors and/or affiliates, hereby
certifies that I do not have in my possession, nor has such party failed to
return any Confidential Information (or any copies or reproductions thereof),
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, software, documents, or property, or reproductions of any
aforementioned items belonging OxySure Systems, Inc., a Delaware corporation,
its affiliates, successors, or assigns (together, ”OSI”).

    


    The
undersigned, on its own behalf and, if applicable, on behalf of its directors,
officers, members, employees, agents, contractors and/or affiliates, hereby
certifies that such party has complied with all the terms of that certain
Subcontractor Services Agreement signed by the undersigned, including the
reporting of any Inventions and disclosure and return of all Confidential
Information (as defined therein), conceived or made by such party (solely or
jointly with others) covered by that agreement.

    


    The
undersigned, on its own behalf and, if applicable, on behalf of its directors,
officers, members, employees, agents, contractors and/or affiliates, hereby
agrees, that in compliance with Subcontractor Services Agreement, such party
will preserve as confidential all trade secrets, confidential knowledge, data or
other proprietary information relating to products, processes, designs,
formulas, developmental or experimental work, computer programs, data bases,
other original works of authorship, customer lists, business plans, financial
information or other subject matter pertaining to any business of OSI or any of
its clients, subcontractors of licensees.

    


    Dated
this ____ day of ____________________, 200___.

    


    


    


    (Name of
Subcontractor)

    


    


    By:                                                                          

     

    Name:                                                                      

     

    Title:                                                                      

    


    
      
        
           


        

        
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