Independent Contractor Agreement
EXHIBIT
10.20
1. Parties
This
Independent Contractor Agreement (“Agreement”) is between China Tel Group, Inc.
(“ChinaTel”) and Negotiart of America Inc. (“Independent
Contractor”).
2. Term
of this Agreement
The term
of this Agreement shall be effective as of January 1, 2009 and shall expire
December 31, 2011 (“Term”).
3. Services
to be Performed by Independent Contractor
Independent
Contractor shall perform the following professional services (the “Services”) of
the following description as an independent contractor to ChinaTel: (i) wireless
telecommunications deployment and development of strategic partners, joint
ventures, mergers and acquisitions for ChinaTel worldwide; (ii) assist legal
counsel with due diligence of potential acquisitions of companies or assets of
companies in the broadband wireless telecommunications sector worldwide; and
(ii) review and analysis of existing and proposed business plans and market
studies associated with the development of strategic partners, joint ventures,
mergers and acquisitions for ChinaTel worldwide.
4. Payment
ChinaTel
shall pay Independent Contractor a fixed fee for the Services in the amount of
Two Million Five Hundred Thousand (2,500,000) restricted shares of ChinaTel
Series A common stock (“Independent Contractor Fee”). ChinaTel shall
pay Independent Contractor’s Fee no later thirty (30) days after this Agreement
has been signed by Independent Contractor and received by ChinaTel at its
corporate offices identified in Section 15 of this Agreement.
5. State and Federal
Taxes
Independent
Contractor shall assume full responsibility for the payment of any taxes (or any
other obligations or payments) that may be claimed as owed by any unit of
government, as a result of remuneration paid to Independent Contractor for the
performance of the Services. This includes income, Social Security,
Medicare and self-employment taxes. Independent Contractor shall also
pay all unemployment contributions related to the performance of the
Services. Independent Contractor shall defend and indemnify ChinaTel
with regard to any such payments.
6. Fringe
Benefits
Independent
Contractor shall not be eligible to receive any employee benefits from ChinaTel,
including, but not limited to, medical, dental, vision, long-term disability,
accidental death and dismemberment, flexible spending account, mental health
services, family and medical care leave benefits, vacation benefits and
participation in any ChinaTel 401 (k) plan.
7. Independent Contractor
Status
The
parties intend Independent Contractor to act as an independent contractor in the
performance of the Services. Independent Contractor shall have the
right to control and determine the methods and means of performing the
Services. Independent Contractor shall use his own expertise and
judgment in performing the Services, recognizing that ChinaTel is relying on
Independent Contractor to consult, when appropriate, with employees of ChinaTel
and its subsidiaries and affiliated companies.
8. Other Clients of
Independent Contractor
ChinaTel
understands that, in addition to providing services to ChinaTel on its matters,
Independent Contractor may be retained, directly or indirectly, by other
entities or individuals to provide services separate and apart from the
Services. Independent Contractor shall be responsible for following appropriate
procedures to avoid any breach of client confidentiality or any conflicts of
interest on the part of Independent Contractor which regard to the performance
of the Services. These procedures include, but are not limited to,
the following:
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a.
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The
parties associated with any matter for which Independent Contractor is
retained outside of the Services must be processed in advance for
conflicts with ChinaTel and any of its subsidiaries and affiliated
companies (collectively, “ChinaTel Group”). If a conflict of interest
exists or appears to exist, Independent Contractor shall not perform any
services for such third party, unless and until the conflict is
resolved.
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b.
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Independent
Contractor shall use Independent Contractor’s own letterhead and business
cards, and not those of ChinaTel, when providing service to its clients
outside of this Agreement. Independent Contractor’s shall use
Independent Contractor’s own letterhead for engagement letters and all
other correspondence on matters not associated with the
Services.
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c.
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Independent
Contractor shall not utilize any ChinaTel personnel or resources on any
matters for a client outside of this Agreement. Should
Independent Contractor desire to utilize the services of such personnel or
resources on any such matter, Independent Contractor must first obtain
prior written approval from the Chief Executive Officer of
ChinaTel.
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d.
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Independent
Contractor shall xxxx any client not associated with this Agreement using
Independent Contractor’s own letterhead or billing
form.
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e.
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Independent
Contractor shall not discuss with his other clients the Services being
performed pursuant to this Agreement; likewise, Independent Contractor
shall not discuss with any ChinaTel personnel issues
pertaining to Independent Contractor’s work for his other
clients.
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9. Assistants
Independent
Contractor, at Independent Contractor’s sole expense, may employ assistants as
Independent Contractor deems appropriate to perform the Services. Independent
Contractor shall be responsible for paying these assistants and expenses
attributable to them, including income, Social Security, Medicare taxes and
unemployment contributions. Independent Contractor shall maintain
Worker’s Compensation Insurance for all his employees in connection with their
work on the Services.
10. Equipment and
Supplies
Independent
Contractor, at Independent Contractor’s sole expense, shall provide all
equipment, tools and supplies necessary to perform the Service.
11. Expenses
Independent
Contractor shall be responsible for all expenses required for the performance of
the Services, which shall be included in the Independent Contractor
Fee.
12. Confidential
Information
In order
to assist Independent Contractor in the performance of the Services, ChinaTel
may supply Independent Contractor, from time to time, with information
concerning ChinaTel and the ChinaTel Group, and their respective customers and
suppliers, hereinafter referred to as “Confidential
Information.” Independent Contractor shall hold confidential and not
disclose to others, either directly or indirectly, any and all Confidential
Information, propriety information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
customers, customer lists, markets, software, developments, inventions,
processes, formulas, technology, designs, financial data and other business
information which may be learned from ChinaTel and/or the ChinaTel Group before
and during the term of this Agreement, unless the same have been furnished
directly to Independent Contractor by ChinaTel and Independent Contractor is
advised in writing by ChinaTel that such information is not Confidential
Information. Independent Contractor acknowledges that the terms and conditions
of this Agreement are deemed confidential by ChinaTel and agrees not to disclose
any information regarding it to any third party, without ChinaTel’s prior
written consent. All documents containing Confidential Information
shall be returned to ChinaTel, and no copies shall be retained by Independent
Contractor on the termination or expiration of this Agreement. Not
withstanding the foregoing, such duty of confidentiality shall not extend to
information which is or comes into the public domain, is rightfully obtained for
third parties under a duty of confidentiality, or which is independently
developed without reference to ChinaTel’s Confidential
Information. The duties of confidentiality imposed by this Agreement
shall survive any termination or expiration of this Agreement for a period of
three (3) years. All data and information developed by Independent Contractor
(including notes, summaries, and reports), while performing the Services, shall
be kept strictly confidential and shall not be revealed to third parties,
without ChinaTel’s prior written consent thereto. All such data and information
shall be delivered to ChinaTel by Independent Contractor at ChinaTel’s
request.
13. Dispute
Resolution
If a
dispute arises relating to this Agreement or the termination thereof, claims for
breach of contract or breach of the covenant of good faith and fair dealing,
claims of discrimination or any other claims under any federal, state or local
law or regulation now in existence or hereinafter enacted, and as amended from
time to time (“Dispute), the parties shall attempt in good faith to settle the
Dispute through mediation conducted by a mediator to be mutually selected by the
parties. The parties shall share the costs of the mediator
equally. Each party shall cooperate fully and fairly with the
mediator, and shall reach a mutually satisfactory compromise of the
Dispute. If the Dispute is not resolved within thirty (30) days after
it is referred to the mediator, it shall be resolved through final and binding
arbitration, as specified in this Section 13.
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Binding
arbitration shall be conducted by the Judicial Arbitration and Mediation
Services, Inc. (“JAMS”), sitting in Orange County, California, for resolution by
a single arbitrator acceptable to both parties. If the parties fail
to agree to an arbitrator within ten (10) days of a written demand for
arbitration being sent by one party to the other party, then JAMS shall select
the arbitrator according to the JAMS Rules for Commercial
Arbitration. The arbitration shall be conducted pursuant to the
California Code of Civil Procedure and the California Code of
Evidence. The award of such arbitrator shall be final and binding on
the parties, and may be enforced by any court of competent jurisdiction. In the
event of arbitration to resolve a Dispute, the prevailing party shall be
entitled to recover its attorney’s fees and other out-of-pocket costs incurred
in connection therewith from any non-prevailing party involved
therein.
14. Assignment
of the Agreement; Delegation of Responsibilities; Successors and
Assignees
Independent
Contractor shall not assign any of his rights under this Agreement or delegate
any of his responsibilities without the prior written consent of ChinaTel, which
may be exercised in its sole discretion. This Agreement binds and benefits the
heirs, successors and assignees of the parties to this Agreement, subject to the
prohibition on assignments contained in this Section 14.
15. Notices
All
notices, requests and demands to or upon a party hereto, to be effective, shall
be in writing and shall be sent: (i) certified or registered mail, return
receipt requested; (ii) by personal delivery against receipt; (iii) by overnight
courier; or (iv) by facsimile and, unless otherwise expressly provided herein,
shall be deemed to have been validly served, given, delivered and received: (a)
on the date indicated on the receipt, when delivered by personal delivery
against receipt or by certified or registered mail; (b) one business day after
deposit with an overnight courier; or (c) in the case of facsimile notice, when
sent. Notices shall be addressed as follows:
ChinaTel
Group, Inc.
0000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Fax No.
(000) 000-0000
Attention: Xxxxxx
Xxxxxxx
Negotiart
of America Inc.
000 Xxxx
Xxxxxxxx
Xxxxx
X000
Xxx
Xxxxx, Xxxxxxxxxx 00000
Fax No.
(000) 000-0000
Attention:
Xxxx Xxxxx
16. Governing
Law
This
Agreement shall be governed by and construed in accordance with the laws of the
State of California, without resort to California’s conflict-of-laws
rules.
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17. Counterparts
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original copy of this Agreement and all of which, when taken
together, shall be deemed to be one and the same agreement.
18. Waiver
If one
party waives any term or provision of this Agreement at any time, that waiver
will be effective only for the specific instance and specific purpose for which
the waiver was given. If either party fails to exercise or delays
exercising any of his or her rights or remedies under this Agreement, the party
retains the right to enforce that term or provision at a later
time.
19. Severability
If any
court determines that any provision of this Agreement is invalid or
unenforceable, any invalidity or unenforceability will affect only that
provision and will not make any other provision of this Agreement invalid or
unenforceable, and such provision shall be modified, amended or limited only to
the extent of necessary to render it valid and enforceable.
20. ChinaTel’s
Responsibilities
ChinaTel
shall be responsible to keep Independent Contractor apprised of facts pertinent
to the Services and to review and comment concerning documents prepared by
Independent Contractor.
21. Entire
Agreement and Modification
This
Agreement supersedes all prior agreements between the parties with respect to
its subject matter and constitutes a complete and exclusive statement of the
terms of this Agreement with respect to its subject matter. This Agreement may
not be amended, except in writing signed by both parties.
China
Tel Group, Inc.
By:
/s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
Title:
Chief Executive Officer
Negtiart
of America Inc.
By:
/s/ Xxxx
Xxxxx
Xxxx
Xxxxx
Title:
Chief Executive Officer
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