INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement ("Agreement") is between ICOA, Inc.
("Company"), with its principal place of business at 000 Xxxxxxx Xxxx, Xxxxxxx,
XX 00000 , and Xxxxxx X. Xxxxxx ("Contractor").
In consideration of the agreements set forth below, the parties agree as
follows:
1.0 SCOPE OF SERVICES
Contractor shall furnish services to the Company as described in Exhibit A,
attached hereto and incorporated herein by this reference (the "Services").
Contractor shall determine the method, details and means of performing the
Services.
2.0 TERM
The Effective Date of the Agreement shall be April 1, 2005.
The term of this Agreement ("Term") shall commence on the Effective Date
and shall continue through October 1, 2005 unless terminated by either party
pursuant to paragraph 7 or extended by written mutual agreement of the parties.
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3.0 CONSIDERATION
Company shall pay to Contractor, as consideration for Contractor's complete
performance of the Services the amount or rate specified in Exhibit A.
Contractor shall xxxx Company monthly, with payment to be made within thirty
days of receipt of the invoice from Contractor. Contractor shall be responsible
for all expenses incurred in association with the performance of the Services;
except to the extent such expenses are approved in advance by the Company, in
which case they shall be reimbursed by the Company.
4.0 TAXES
Contractor shall have sole responsibility for payment of any and all taxes
incurred as a result of Contractor's compensation hereunder, including but not
limited to, estimated, foreign, federal, state, and local taxes or contributions
imposed or required under unemployment insurance, social security and income tax
laws and for filing all required tax forms with respect to any amounts paid by
Company to Contractor hereunder. Contractor further agrees to provide Company
with proof of such payments upon demand. Contractor shall indemnify and hold
Company harmless against any claim of liability, including penalties, damages or
injuries suffered by Company resulting from failure of Contractor to pay such
taxes or contributions, or failure of Contractor to file any such tax forms.
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5.0 INVENTIONS, CREATIONS, IMPROVEMENTS OR OTHER DEVELOPMENTS
Contractor shall disclose and does hereby assign to Company, its successors
and assigns, any and all inventions, creations, improvements, or other
developments, each whether patentable, copyrightable or not, which Contractor
may hereafter make or assist in making and which result from the Services
performed under this Agreement. Contractor hereby assigns to Company, its
successors or assigns, any and all patents, copyrights, and applications
therefore, both in the United States and in any foreign country, in connection
with any such inventions, creations, improvements, or developments, and to do,
and cause its employees to do, any and all acts, and to execute any and all
instruments, which Company may reasonably request to secure for itself, its
successors or assigns, any rights relating to such inventions, creations,
improvements, developments, patents, copyrights, or registrations.
6.0 CONFIDENTIALITY
6.1 Except as hereinafter specifically provided, all information
disclosed by Company to Contractor pursuant to this Agreement shall be in
confidence. Contractor shall not use such information, except as needed to
perform his/her obligations under this Agreement, and shall take all
reasonable precautions to prevent such information from being disclosed to
third parties. All materials containing such information shall be returned
to Company upon termination of this Agreement.
6.2 The following information shall not be considered confidential:
(a) Information which was known by Contractor as of the date of this
Agreement;
(b) Information which is publicly known as of the date of this
Agreement;
(c) Information which hereafter becomes publicly known, unless as a
result of the fault of Contractor; and
(d) Information which Company agrees in writing is not confidential.
6.3 In addition, all information and data developed by Contractor as a
result of performing Services under this Agreement shall be transmitted by
Contractor to Company, shall become the property of Company and shall
likewise be regarded by Contractor as confidential, subject to the same
exceptions as set forth above with respect to information disclosed to
Contractor by Company, provided however, that Contractor shall only be
required to treat such information and such data as confidential for a
period of one year after the termination of this Agreement.
6.4 At the conclusion of Contractor's work under this Agreement, if
Contractor has used a computer to perform its work under this Agreement,
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Contractor agrees to submit such computer to Company to ensure that all
confidential information of Company is erased.
7.0 TERMINATION
This Agreement will terminate upon the completion of the Services, by the
date in Section 2.0 Term or as set forth below. In such case, Company's
obligation to Contractor for performance of the Services shall be limited to
payment to Contractor of amounts due for work completed but not yet paid.
Contractor's obligation shall be limited to providing Company with all
data/services prepared to date and preparation of a final invoice. The
obligations of Contractor under Paragraphs 4.0, 5.0, 6.0, 8.0, 11.0, and 12.0
shall survive any termination of this Agreement.
7.1 Automatic termination upon the occurrence of any of the following:
(a) Bankruptcy or insolvency of either party;
(b) Sale of the business by either party;
(c) Death of either party.
7.2 Termination for Default: If either party defaults in the
performance of this Agreement or materially breach any of the provisions,
the non-breaching party may terminate this Agreement by giving ten days
written notice of such breach. Termination shall be effective five days
from mailing such notice.
8.0 IMPAIRING OBLIGATIONS
Contractor agrees to devote such time as is necessary to the performance of
the Services, as authorized by Company. Contractor may also perform Services or
be employed by other clients provided such obligations would not in any way
prevent, limit or otherwise impair the providing of the Services to Company.
9.0 RELATIONSHIP OF PARTIES
The relationship of Contractor to Company shall at all times be one of
independent Contractor, and neither party shall be nor represent itself to be an
employee, agent, representative, partner or joint venturer of the other, nor
shall either party have the right or authority to assume or create any
obligation on behalf of or in the name of the other or to otherwise act on
behalf of the other. Contractor shall not be entitled to any benefits accorded
to Company's employees, including but not limited to, workers compensation,
disability insurance, vacation, health benefits, 401K participation, or tuition
reimbursement. Contractor shall be responsible for providing, at his/her sole
expense, and in his/her name, State disability insurance, workers compensation
or any other required insurance as well as all licenses and permits usual and/or
necessary for conducting the Services.
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10. ASSIGNMENT
All covenants, stipulations, promises and other terms in this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors in interest, assignees and legal representatives. Although
Contractor may use its employees to perform this Agreement, the parties agree
that Contractor shall not assign this Agreement without the express written
consent of Company.
11. PERSONNEL ON PREMISES OF OTHER PARTY; INDEMNIFICATION
All representatives of either party, while on the premises of, or
designated by, the other party, shall comply with all reasonable rules and
regulations established at such premises. Contractor hereby agrees to indemnify
and hold harmless Company, and its officers, directors, agents and employees,
from and against any and all liabilities, losses, damages, costs and expenses
(including attorneys fees) on account of any claim, suit or action made or
brought against Company, or its officers, directors, agents or employees,
arising from any act of negligence or willful misconduct of Contractor, or
related to any breach or failure of Contractor in connection with the Services.
12. INFRINGEMENT
Contractor warrants that, in rendering the Services hereunder, it shall not
knowingly infringe any patent, copyright, trademark, trade secret, or other
intellectual property right of any third party, and it shall use best efforts to
avoid any such infringement. Contractor hereby agrees to defend Company against
any claim of patent, copyright, trademark, trade secret, or other intellectual
property infringement made against Company on account of the services rendered
by Contractor. Contractor further agrees to indemnify and hold Company harmless
against any loss, damage, award or expense (including reasonable attorneys fees)
resulting from such a claim.
13.0 WAIVERS
A waiver of any breach or default hereunder by any party shall not
constitute the waiver of a subsequent breach or default of the same or a
different provision of this Agreement.
14.0 INVALIDITY
If any provision of this Agreement, shall be held to be invalid, illegal or
unenforceable, that provision shall be deemed modified to the extent necessary
to make it valid and operative, or if it cannot be so modified then it shall be
severed, and the validity, legality or enforceability of the remaining
provisions shall not be affected or impaired thereby.
15.0 ARBITRATION
Should any dispute occur between the parties arising out of or related to
this Agreement, that dispute shall be settled and determined by arbitration
under the then current rules of the American Arbitration Association. The
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decision and award of the Arbitrator shall be final and binding and the award so
rendered may be entered in any court having jurisdiction thereof. The
arbitration shall be held and the award shall be deemed to be made in San
Francisco, California. Further, all questions of law shall be decided in
accordance with the laws of the State of California.
16.0 COMPLETE UNDERSTANDING
Each party acknowledges that it has read this Agreement and agrees that it
is the complete and exclusive understanding between the parties.
"Contractor" "Company"
ICOA, Inc.
a Nevada corporation
By _________________________ By __________________________________
[date] [date]
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APPENDIX A
SERVICES TO BE PROVIDED
Consulting services relating to internet kiosks and network deployments, as
directed by the Company. Company may require up to 90 hours of Contractor's time
during the term of this Agreement, but no more than 30 hours in any thirty day
period.
PAYMENTS TO CONTRACTOR
Contractor shall be paid at the rate of $150 per hour. All amounts due shall be
converted into shares of Company's common stock at the closing bid price of the
last trading day of the month during which such amounts were earned. Company
shall cause all such shares due to be issued at the end of the term of this
Agreement. All such shares issued shall be subject to Sections 2 through 5 of
the Subscription Agreement between the parties of even date herewith.
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Contractor Agreement--3/99
