Independent Contractor Agreement
EXHIBIT 99.1
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.
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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:
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(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. |
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(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. |
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(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. |
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(d) |
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) |
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. |
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.
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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.
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
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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.
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
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