Independent Contractor Agreement
Exhibit 99.1
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1.
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Parties
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This
Independent Contractor Agreement (“Agreement”) is between Trussnet U.S.A., Inc.,
a Nevada corporation, with offices at located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxx (“Trussnet”), and Xxxxxxx X. Xxxxxx, an individual,
residing at 0000 Xxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxx (“Independent
Contractor”). Trussnet and Independent Contractor are each sometimes
referred to as a “Party” and, together, as the “Parties.”
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2.
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Term
of this Agreement
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The term
of this Agreement shall be effective as of January 1, 2008 and shall continue in
effect until December 31, 2009 (“the Term”). While contracts such as
this have been renewed in the past for other Independent Contractors of
Trussnet, renewals depend upon the current needs of
Trussnet. The past pattern or practice of Trussnet in renewing
Independent Contractor Agreements is no assurance that this Agreement will be
renewed beyond the Term.
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3.
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Services
to be Performed by Independent Contractor;
Title
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Independent
Contractor shall perform professional computer services (“individually,
“Service” and collectively, “Services”) of the following general description as
an independent contractor to Trussnet:
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a)
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Management
of its computer network;
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b)
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Procurement
services;
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c)
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Remote
monitoring and problem resolution;
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d)
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Security
and permissions control;
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e)
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Policy
and process planning;
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f)
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Security
updates and patch management;
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g)
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E-mail
and mobile support;
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h)
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Virtual
help desk;
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i)
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ISP
and ASP management;
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j)
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Preventative
maintenance;
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k)
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Scheduled
on site visits;
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l)
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Data
backup and recovery; and
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m)
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Such
other computer and network-related services as Trussnet may
direct.
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4.
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Compensation
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Upon
execution of this Agreement and in consideration for the Services, Trussnet
shall pay Independent Contractor at the rate of One Hundred Fifty Dollars
($150.00) an hour. Independent Contractor shall submit to Trussnet on
a periodic basis, not more frequently than monthly, an itemized statement
indicating the date on which Services are performed, the amount of time spent on
Services on each such date, a description of said Services performed, and the
reimbursable expenses incurred in connection with Independent Contractor’s
performance under this Agreement. Subject to the approval of these
statements and the receipt by Trussnet of adequate substantiation of the time
spent and expenses incurred, Trussnet shall pay Independent Contractor the
amount shown on such statements within thirty (30) days following Trussnet’s
receipt thereof.
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5.
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State
and Federal Taxes
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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 Trussnet
with regard to any such payments.
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6.
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Fringe
Benefits
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Independent
Contractor shall not be eligible to receive any employee benefits from Trussnet,
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 Trussnet 401 (k) plan.
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7.
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Independent
Contractor Status
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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 Trussnet is relying on
Independent Contractor to consult, when appropriate, with employees of Trussnet
and its subsidiary and affiliated companies. Independent Contractor
shall, for the duration of this Agreement, have log-on privileges to Trussnet’s
computer system and telephone mail system, and shall have access to Trussnet’s
other resources regarding the matters for which he is providing
Services.
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8.
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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 Services.
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9.
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Expenses
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Independent
Contractor shall be responsible for all expenses required for the performance of
the Services, except for all reasonable expenses approved in advance by the
Chief Administrative Officer of Trussnet, such as travel and out-of-pocket
expenses in connection with the provision of Services. Approved
travel by Independent Contractor using the personal vehicle of Independent
Contractor shall be reimbursed by Trussnet at the rate of forty-two cents (42¢)
per mile.
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10.
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Confidential
Information
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In order
to assist Independent Contractor in the performance of the Services, Trussnet
may supply Independent Contractor, from time to time, with information
concerning Trussnet and its subsidiary and affiliate companies, 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 Trussnet before and during the term of this Agreement, unless the
same have been furnished directly to Independent Contractor by Trussnet and
Independent Contractor is advised in writing by Trussnet that such information
is not Confidential Information. Independent Contractor acknowledges that the
terms and conditions of this Agreement are deemed confidential by Trussnet and
agrees not to disclose any information regarding it to any third party without
Trussnet’s prior written consent. All documents containing
Confidential Information shall be returned to Trussnet, 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
Trussnet’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
Trussnet’s prior written consent thereto. All such data and information shall be
delivered to Trussnet by Independent Contractor at Trussnet’s
request.
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11.
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Dispute
Resolution
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If a
dispute arises relating to this Agreement or the termination or expiration
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 11.
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.
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12.
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Assignment
of the Agreement; Successors and
Assignees
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Independent
Contractor shall not assign any of its rights under this Agreement without the
prior written consent of Trussnet, 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 12.
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13.
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Notices
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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
e-mail notice, when sent and there is a confirmation by the sending Party that
the e-mail transmission was received by the other Party. Notices
shall be addressed as follows:
Trussnet
U.S.A., Inc.
Attention:
Xxxxxxx X. Xxxxxxxx
Vice
President and General Counsel
0000
Xxxxxx Xxxxxx Xxxxx
Xxxxx
000
Xxxxxx,
Xxxxxxxxxx 00000
xxxxxxxxx@xxxxxxxxxxx.xxx
Xxxxxxx
X. Xxxxxx
0000
Xxxxx Xxxx
Xxx
Xxxxxx, Xxxxxxxxxx 00000
xxxxxxx@xxxxxxxxx.xxx
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14.
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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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15.
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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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16.
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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 its 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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17.
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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.
18. Entire Agreement and
Modification
This
Agreement supersedes all prior agreements between the Parties with respect to
the subject matter of this Agreement 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.
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Trussnet
U.S.A., Inc.
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Dated:
February __, 2009
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By:
/s/Xxxxxx
Xxxxxxx
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Xxxxxx
Xxxxxxx
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Title: Chief
Executive Officer
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Xxxxxxx X.
Xxxxxx
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Dated:
February ___, 2009
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/s/Xxxxxxx X. Xxxxxx
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