Independent Contractor Agreement
EXHIBIT
1
1. Parties
This
Independent Contractor Agreement (“Agreement”) is between ChinaTel Group, Inc.
(“ChinaTel”) and Xxxxxx X. Xxxxxxx (“Independent Contractor”).
2. Term
of this Agreement
The term
of this Agreement shall be effective as of April 4, 2008 and shall continue
until December 31, 2009, although this Agreement shall be terminable at the will
of either party with or without cause or advance notice of any
kind. While contracts such as this have been renewed in the past for
other Independent Contractors of ChinaTel, renewals depend upon the current
needs of ChinaTel. The past pattern or practice of ChinaTel in
renewing Independent Contractor Agreements is no assurance that this Agreement
will be renewed beyond its stated term.
3. Services
to be Performed by Independent Contractor
Independent
Contractor shall perform temporary professional services (“the Services”) as an
independent contractor to ChinaTel for wireless telecommunications deployment in
specific markets in China, South America and Europe. Services shall
also include strategic and corporate planning for ChinaTel.
4. Payment
ChinaTel
shall pay Independent Contractor $250.00 per hour for the Services. ChinaTel
shall pay Independent Contractor every 90 days for the Services. Independent
Contractor shall submit an invoice to ChinaTel, describing the work Independent
Contractor has accomplished during the preceding 90-day period and the current
amount due. ChinaTel shall pay Independent Contractor’s invoice for
the Services performed within 30 days of receipt thereof by
ChinaTel.
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
Neither
Independent Contractor nor Independent Contractor’s employees shall 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 affiliates. Independent Contractor shall, for the duration of
this Agreement, have log-on privileges to ChinaTel’s computer system and
telephone mail system; shall be issued a building pass; and shall have access to
ChinaTel’s other resources regarding the matters for which he is providing
Services.
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:
|
(a)
|
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 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.
|
|
(b)
|
Independent
Contractor shall use Independent Contractor’s own letterhead and business
cards, and not those of ChinaTel, when providing service to his 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.
|
|
(c)
|
Independent
Contractor shall not utilize any ChinaTel personnel or resources
(including ChinaTel’s computer system) 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.
|
|
(d)
|
Independent
Contractor shall xxxx any client not associated with this Agreement using
Independent Contractor’s own letterhead or billing
form.
|
|
(e)
|
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.
|
2
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 Services, except for the
following which will be provided by ChinaTel: computer, software,
telephone/cellular telephone, and printer.
11. Expenses
Independent
Contractor shall be responsible for all expenses required for the performance of
the Services, except for the following which will be paid for by ChinaTel:
travel, mileage and business meals in accordance with the amounts allowed by
ChinaTel pursuant to its policies and procedures, as the same may be amended
from time to time at ChinaTel’s sole discretion.
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 Trussgroup, as well as their respective customers or
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
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 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 of this Agreement for a period of 5 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 30 days after it is
referred to the mediator, it shall be resolved through final and binding
arbitration, as specified in this Section 13.
3
Binding
arbitration shall be conducted by the Judicial Arbitration and Mediation
Services, Inc. (“JAMS”), sitting in Orange County, California, for resolution
pursuant to the California Code of Civil Procedure and the California Code of
Evidence. Arbitration shall be by a single arbitrator acceptable to all parties.
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; Successors and Assignees
Independent
Contractor shall not assign any of his rights under this Agreement 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
Except as
otherwise provided herein, 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
Xxxxxx X.
Xxxxxxx
0000
Xxxxxxxxx X
Xxxxx
Xxxx
Xxxxxxxxxx
00000
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.
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.
4
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. 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.
ChinaTel
Group, Inc.
By: /s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
Title:
Chief Executive Officer
Dated:
April 5, 2008
Independent
Contractor
By: /s/ Xxxxxx X.
Xxxxxxx
Xxxxxx X.
Xxxxxxx
Dated:
April 5, 2008
5
