Independent Contractor Agreement
Exhibit
99.1
[CHINA
TEL GROUP, INC. LETTERHEAD]
1. Parties
This
Independent Contractor Agreement (“Agreement") is between China Tel Group, Inc.
("ChinaTel") and Xxxxx Xxxxxxx ("Independent Contractor").
2. Term
of this Agreement
The term
of this Agreement shall be for one year, effective as of June 1, 2009, and
expiring on May 31, 2010. This Agreement may be terminated by either
party, with or without cause, upon the giving of thirty (30) days prior written
notice to the other party. 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 the following professional computer services (the
"Services") of the following general description as an independent contractor to
ChinaTel:
·
Assist
and support ChinaTel in-the preparation of financial
statements;
·
Assist
and support ChinaTel in the preparation of Forms 10-K and 10-Q, and other forms
as may be required, for filing with the United States Securities and Exchange
Commission; and
·
Coordination
of ChinaTel accounting and related work with ChinaTel -.audit and legal
personnel.
4. Payment
ChinaTel
shall pay Independent Contractor for the Services at the rate of Five Thousand
Dollars ($5,000.00) per calendar quarter, with the quarters for purposes of this
Agreement defined to end on August 31, 2009; November 30, 2009; February 28,
2.010; and May 31, 2010. Within ten (10) days after the end of each
such quarter during the term of this Agreement, Independent Contractor shall
submit an invoice to ChinaTel describing the Services provided and identifying
the amount of compensation due Independent Contractor for the
Services. ChinaTel shall pay Independent Contractor's invoice for the
Services performed within thirty (30) days of receipt thereof by ChinaTel.
Further, within thirty (30) days after the execution of this Agreement by both
parties, ChinaTel shall pay to Independent Contractor Two Hundred Thousand
(200,000) shares of its Series A common stock.
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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.
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Assistants
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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, 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.
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10.
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Equipment
and Supplies
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Independent
Contractor, at Independent Contractor's sole expense, shall provide all
equipment, tools and supplies necessary to perform the Service.
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11.
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Expenses
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Independent
Contractor shall be responsible for all expenses required for the performance of
the Services, which shall be included in the Independent Contractor
Fee.
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12.
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Confidential
Information
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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.
Notwithstanding 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.
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13.
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Dispute
Resolution
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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.
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 maybe 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.
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14.
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Assignment
of the Agreement; Delegation of Responsibilities; Successorsand
Assignees
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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.
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15.
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Notices
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All
notices, requests and demands to or upon a party hereto, to be effective, shall
be in writing and shall be sent: (a) certified or registered mail, return
receipt requested; (b) by personal delivery against receipt; (c) by overnight
courier; or (d) by facsimile and, unless otherwise expressly provided herein,
shall be deemed to have been validly served, given, delivered and received: (i)
on the date indicated on the receipt, when delivered by personal delivery
against receipt or by certified or registered mail; (ii) one business day after
deposit with an overnight courier; or (iii) 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: Xxxxxxx
X. Xxxxxxxx, Esq.
Xxxxx
Xxxxxxx
0000 Xxx
Xxxxxx Xxxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Fax No.
(000) 000-0000
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16.
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Governing
Law
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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.
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Counterparts
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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.
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18.
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Waiver
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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.
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19.
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Severability
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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.
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20.
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Entire
Agreement and Modification
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This
Agreement supersedes and terminates all prior agreements between the parties
with respect to its subject matter, including, but not limited to, that certain
Independent Contractor Agreement between ChinaTel and Independent Contractor
with a term effective as of April 29, 2009 and continuing until July 30, 2010,
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
Dated:
July 2,
2009
Xxxxx
Xxxxxxx
By: /s/ Xxxxx
Xxxxxxx
Dated:
July 1,
2009
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