**Exhibit 10.4**

 

**INDEPENDENTCONTRACTOR SERVICES AGREEMENT**

 

**THISAGREEMENT** is between **CALIPER LIFE SCIENCES,INC.**, a Delaware corporation, and its successors or assignees (“Client”)and the undersigned individual orentity (the “Contractor”), and shall be effective as of April 5,2008 (the “Effective Date”).

 

**1.             ENGAGEMENTOF SERVICES.**  Clientmay from time to time issue Project Assignment(s) in the form attached tothis Agreement as Exhibit A. Subject to the terms of this Agreement, Contractor will, to the best ofits ability, render the services set forth in Project Assignment(s) acceptedby Contractor (the “Project(s)”) by the completion dates set forththerein.  The manner and means by whichContractor chooses to complete the Projects are in Contractor’s sole discretionand control.  Contractor agrees toexercise the highest degree of professionalism, and to utilize its expertiseand creative talents in completing such Projects.  In completing the Projects, Contractor shallhave access to Client tools and equipment as mutually agreed.  Client may make its facilities and equipmentavailable to Contractor when necessary. Contractor shall perform the services necessary to complete the Projectsin a timely and professional manner consistent with industry standards,and at a location, place and time that the Contractor deemsappropriate.  Contractor may notsubcontract or otherwise delegate its obligations under this Agreement withoutClient’s prior written consent.  IfContractor is not a natural person, then before any Contractor employee orconsultant performs services in connection with this Agreement, the employee orconsultant and Contractor must have entered into a written agreement expresslyfor the benefit of Client and containing provisions substantially equivalent tothis Section 1 and to Section 4 below.

 

**2.             COMPENSATION.** Client will payContractor a fee for services rendered under this Agreement as set forth in theProject Assignment(s) undertaken by Contractor. Such payments shall be subject to standard payroll deductionsand withholdings. Upon termination of this Agreement for any reason,Contractor will be paid fees and expenses on a proportional basis as stated inthe Project Assignment(s) for work which is then in progress, up to andincluding the effective date of such termination.  Unless other terms are set forth in theProject Assignment(s) for work which is in progress, Client will pay theContractor for services and will reimburse the Contractor for previouslyapproved expenses within thirty (30) days of the date of Contractor’s invoice.

 

**3.             INDEPENDENTCONTRACTOR RELATIONSHIP.** Contractor’s relationship with Client will bethat of an independent contractor and nothing in this Agreement should beconstrued to create a partnership, joint venture, or employer-employeerelationship.  Contractor is not theagent of Client and is not authorized to make any representation, contract, orcommitment on behalf of Client.  Contractorwill not be entitled to any of the benefits that Client may make available toits employees, such as group insurance, profit sharing or retirement benefits.Contractor is free to enter any contract to provide services to other businessentities, except any contract that would induce Contractor to violate thisAgreement.

 

**4.****                                      TRADESECRETS - INTELLECTUAL PROPERTY RIGHTS.**

 

**4.1          Proprietary Information.**  Contractor agrees during the term of thisAgreement and thereafter that it will take all steps reasonably necessary tohold Client’s Proprietary Information in trust and confidence, will not useProprietary Information in any manner or for any purpose not expressly setforth in this Agreement, and will not disclose any such Proprietary Informationto any third party without first obtaining Client’s express written consent ona case-by-case basis.  By way ofillustration but not limitation “Proprietary Information” includes (a) tradesecrets, inventions, mask works, ideas, processes, formulas, source and objectcodes, data, programs, other works of authorship, know-how, improvements, discoveries,developments, designs and techniques (hereinafter collectively referred to as “Inventions”);and (b) information regarding plans for research, development, newproducts, marketing and selling, business plans, budgets and unpublishedfinancial statements, licenses, prices and costs, suppliers and customers; and (c) informationregarding the skills and compensation of other employees of Client.  Notwithstanding the other provisions of thisAgreement, nothing received by Contractor will be considered to be ClientProprietary Information if (1) it has been published or is otherwisereadily available to the public other than by a breach of this Agreement; (2) ithas been rightfully received by Contractor from a third party withoutconfidential limitations; (3) it has been independently developed forContractor by personnel or agents having no access to the Client ProprietaryInformation; or (4) it was known to Contractor prior to its first receiptfrom Client.

 

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**4.2          Third Party Information.**  Contractor understands that Client mayreceive from third parties confidential or proprietary information (“ThirdParty Information”) subject to a duty on Client’s part to maintain theconfidentiality of such information and use it only for certain limitedpurposes.  Contractor agrees to holdThird Party Information in confidence and not to disclose to anyone (other thanContractor personnel who need to know such information in connection with theirwork for Client) or to use, except in connection with Contractor’s work forClient, Third Party Information unless expressly authorized in writing by anofficer of Client.

 

**4.3          No Conflict of Interest.**  Contractor agrees during the term of thisAgreement not to accept work or enter into a contract or accept an obligation,inconsistent or incompatible with Contractor’s obligations under this Agreementor the scope of services rendered for Client. During the first six (6) monthsafter the Effective Date, or such longer period as the Company is payingContractor on at least a half-time basis as set forth in Appendix A, Contractorshall not engage in any employment or business activity that is competitivewith, or would conflict with, any business activity in which Client is engaged.Contractor further agrees not to disclose to Client, or bring onto Client’spremises, or induce Client to use any confidential information that belongs toanyone other than Client or Contractor.

 

**4.4          Disclosure of Work Product.**  As used in this Agreement, the term “WorkProduct” means any Invention, whether or not patentable, and all relatedknow-how, designs, mask works, trademarks, formulae, processes, manufacturingtechniques, trade secrets, ideas, artwork, software or other copyrightable orpatentable works.  Contractor agrees todisclose promptly in writing to Client, or any person designated by Client, allWork Product that is solely or jointly conceived, made, reduced to practice, orlearned by Contractor in the course of any work performed for Client (“ClientWork Product”).  Contractor agrees thatany and all Client Work Product shall be the sole and exclusive property ofClient.

 

**4.5          Assignment of Client Work Product.**  Contractor irrevocably assigns to Client allright, title and interest worldwide in and to the Client Work Product and allapplicable intellectual property rights related to the Client Work Product,including without limitation, copyrights, trademarks, trade secrets, patents,moral rights, contract and licensing rights (the “Proprietary Rights”).  Except as set forth below, Contractor retainsno rights to use the Client Work Product and agrees not to challenge thevalidity of Client’s ownership in the Client Work Product

 

**4.6          Waiver or Assignment of Other Rights.**  If Contractor has any rights to the ClientWork Product that cannot be assigned to Client, Contractor unconditionally andirrevocably waives the enforcement of such rights, and all claims and causes ofaction of any kind against Client with respect to such rights, and agrees, atClient’s request and expense, to consent to and join in any action to enforcesuch rights.  If Contractor has any rightto the Client Work Product that cannot be assigned to Client or waived byContractor, Contractor unconditionally and irrevocably grants to Client duringthe term of such rights, an exclusive, irrevocable, perpetual, worldwide, fullypaid and royalty-free license, with rights to sublicense through multiplelevels of sublicensees, to reproduce, create derivative works of, distribute, publiclyperform and publicly display by all means now known or later developed, suchrights.

 

**4.7          Assistance.**  Contractor agrees to cooperate with Client orits designee(s), both during and after the term of this Agreement, in theprocurement and maintenance of Client’s rights in Client Work Product and toexecute, when requested, any other documents deemed necessary by Client tocarry out the purpose of this Agreement.

 

**4.8          Enforcement of Proprietary Rights.**  Contractor will assist Client in every properway to obtain, and from time to time enforce, United States and foreignProprietary Rights relating to Client Work Product in any and allcountries.  To that end Contractor willexecute, verify and deliver such documents and perform such other acts (includingappearances as a witness) as Client may reasonably request for use in applyingfor, obtaining, perfecting, evidencing, sustaining and enforcing suchProprietary Rights and the assignment thereof. In addition, Contractor will execute, verify and deliver assignments ofsuch Proprietary Rights to Client or its designee.  Contractor’s obligation to assist Client withrespect to Proprietary Rights relating to such Client Work Product in any andall countries shall continue beyond the termination of this Agreement, butClient shall compensate Contractor at a reasonable rate after such terminationfor the time actually spent by Contractor at Client’s request on suchassistance.

 

**4.9          Execution of Documents.**  In the event Client is unable for any reason,after reasonable effort, to secure Contractor’s signature on any documentneeded in connection with the actions specified in the preceding Sections 4.7and 4.8, Contractor hereby irrevocably designates and appoints Client and itsduly authorized officers and agents as its agent and attorney in fact, whichappointment is coupled with an interest, to act for and in its behalf toexecute, verify and file any such documents and to do all other lawfullypermitted acts to further the purposes of the preceding paragraph 

 

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with the same legal forceand effect as if executed by Contractor. Contractor hereby waives and quitclaims to Client any and all claims, ofany nature whatsoever, which Contractor now or may hereafter have forinfringement of any Proprietary Rights assigned hereunder to Client.

 

**5.****                                      TERMINATION.**

 

**5.1          Termination by Client.**  Client may terminate this Agreement upon (i) breachof this Agreement by Contractor, including Contractor’s refusal to performservices hereunder as requested by Caliper, or (ii) Contractor engaging inany employment or business activity that is competitive with, or would conflictwith, any business activity in which Client is engaged, in each case uponfifteen (15) days’ prior written notice to Contractor.

 

**5.2          Termination by Contractor.**  Contractor may terminate this Agreement atany time upon fifteen (15) days’ prior written notice to Client.

 

**5.3          Noninterference with Business.**  During and for a period of two (2) yearsimmediately following termination of this Agreement by either party, Contractoragrees not to solicit or induce any employee or independent contractor toterminate or breach an employment, contractual or other relationship withClient.

 

**5.4          Return of Client Property.**  Upon termination of the Agreement or earlieras requested by Client, Contractor will deliver to Client any and all drawings,notes, memoranda, specifications, devices, formulas, and documents, togetherwith all copies thereof, and any other material containing or disclosing anyClient Work Product, Third Party Information or Proprietary Information ofClient.  Contractor further agrees thatany property situated on Client’s premises and owned by Client, including disksand other storage media, filing cabinets or other work areas, is subject toinspection by Client personnel at any time with or without notice.

 

**6.****                                      GOVERNMENTOR THIRD PARTY CONTRACTS.**

 

**6.1          Government Contracts.**  In the event that Contractor shall performservices under this Agreement in connection with any Government contract inwhich Client may be the prime contractor or subcontractor, Contractor agrees toabide by all laws, rules and regulations relating thereto.  To the extent that any such law, rule orregulation requires that a provision or clause be included in this Agreement,Contractor agrees that such provision or clause shall be added to thisAgreement and the same shall then become a part of this Agreement.

 

**6.2          Security.**  In the event the services of the Contractorshould require Contractor to have access to Department of Defense classifiedmaterial, or other classified material in the possession of Client’s facility,such material shall not be removed from Client’s facility.  Contractor agrees that all work performedunder this Agreement by Contractor which involves the use of classifiedmaterial mentioned above shall be performed in a secure fashion(consistent with applicable law and regulations for the handling of classifiedmaterial) and only at Client’s facility.

 

**6.3          Ownership.**  Contractor also agrees to assign all of itsright, title and interest in and to any Work Product to a Third Party,including without limitation the United States, as directed by Client.

 

**7.             GENERAL PROVISIONS.**

 

**7.1          Governing Law.**  This Agreement will be governed and construedin accordance with the laws of the Commonwealth of Massachusetts as applied totransactions taking place wholly within Commonwealth of Massachusetts.

 

**7.2          Severability.**  In case any one or more of the provisionscontained in this Agreement shall, for any reason, be held to be invalid,illegal or unenforceable in any respect, such invalidity, illegality orunenforceability shall not affect the other provisions of this Agreement, andthis Agreement shall be construed as if such invalid, illegal or unenforceableprovision had never been contained herein. If moreover, any one or more of the provisions contained in thisAgreement shall for any reason be held to be excessively broad as to duration,geographical scope, activity or subject, it shall be construed by limiting andreducing it, so as to be enforceable to the extent compatible with theapplicable law as it shall then appear.

 

**7.3          No Assignment.**  This Agreement may not be assigned byContractor without Client’s consent, and any such attempted assignment shall bevoid and of no effect.

 

**7.4          Notices.**  All notices, requests and othercommunications under this Agreement must be in writing, and must be mailed byregistered or certified mail, postage prepaid and return receipt requested, ordelivered by hand to the party to whom such notice is required or permitted tobe given.  If mailed, any such noticewill be considered to have been given five (5) business days after it wasmailed, as evidenced by the postmark.  Ifdelivered by hand, any such notice will be 

 

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considered to have beengiven when received by the party to whom notice is given, as evidenced bywritten and dated receipt of the receiving party.  The mailing address for notice to eitherparty will be the address shown on the signature page of thisAgreement.  Either party may change itsmailing address by notice as provided by this section.

 

**7.5          Legal Fees.**  If any dispute arises between the partieswith respect to the matters covered by this Agreement which leads to aproceeding to resolve such dispute, the prevailing party in such proceedingshall be entitled to receive its reasonable attorneys’ fees, expert witnessfees and out-of-pocket costs incurred in connection with such proceeding, inaddition to any other relief it may be awarded.

 

**7.6          Injunctive Relief.**  A breach of any of the promises or agreementscontained in this Agreement may result in irreparable and continuing damage toClient for which there may be no adequate remedy at law, and Client istherefore entitled to seek injunctive relief as well as such other and furtherrelief as may be appropriate.

 

**7.7          Survival.**  The following provisions  shall survive termination of this Agreement: Section 4,Section 5, Section 6 and Section 7.3.

 

**7.8          Export.**  Contractor agrees not to export, directly orindirectly, any U.S. source technical data acquired from Client or any productsutilizing such data to countries outside the United States, which export may bein violation of the United States export laws or regulations.

 

**7.9          Waiver.**  No waiver by Client of any breach of thisAgreement shall be a waiver of any preceding or succeeding breach.  No waiver by Client of any right under thisAgreement shall be construed as a waiver of any other right.  Client shall not be required to give noticeto enforce strict adherence to all terms of this Agreement.

 

**9.10        Entire Agreement**.  ThisAgreement is the final, complete and exclusive agreement of the parties withrespect to the subject matter hereof and supersedes and merges all priordiscussions between us.  No modificationof or amendment to this Agreement, nor any waiver of any rights under thisAgreement, will be effective unless in writing and signed by the party to becharged.  The terms of this Agreementwill govern all Project Assignments and services undertaken by Contractor forClient.  In the event of any conflictbetween this Agreement and a Project Assignment, the Project Assignment shallcontrol, but only with respect to the services set forth herein.

 

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**IN WITNESS WHEREOF,** the parties have caused this IndependentContractor Services Agreement to be executed by their duly authorizedrepresentative.

 
| **CALIPER LIFE SCIENCES, INC.:** | **CONTRACTOR:** |
|----------------------------------|-----------------|
|                             |
| /s/ Paula J. Cassidy             |            | /s/ Thomas C. Higgins |
|                                  |                 |  |

 

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# **EXHIBITA**

# ** **

**PROJECT ASSIGNMENT**

 
| **Services  to be Provided**                                          | ** ** | **Completion  Date**  |
|-----------------------------------------------------------------------|------------|-----------------------|
| Consulting  services as requested by Kevin Hrusovsky or his designee. |       | October 4,  2008 |

 

**A.            Feesfor services under this Agreement will be**:

 

Contractorshall provide consulting services as requested by Client at a rate per hour of$200.

 

**B.            Expenses:**

 

Contractorwill be reimbursed for any reasonable expenses incurred in connection with theperformance of services under this Agreement provided Contractor submitsverification of such expenses as Client may require.

 

**C.            Termination:**

 

Ifthis Project Assignment or the Independent Contractor Services Agreement whichgoverns it is terminated for any reason, fees will be paid based on contractortime spent

 

**D.            Term ofAgreement:**

 

The term of this Agreement begins on the Effective Date, and ends on**October 4, 2008.**

 

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