INDEPENDENT CONTRACTOR AGREEMENT

Exhibit 10.7

 

INDEPENDENT CONTRACTOR AGREEMENT

 

This Agreement is entered into as of this 1st day of November, 2003 (“Effective Date”) between Universal Access Global Holdings Inc., whose principal place of business is 233 South Wacker Drive, Suite 600, Chicago, Illinois 60606 (“the Company”) and Anthony Coelho, whose principal place of business is                                                                                               (hereinafter “Consultant”).

 

1.                                      PERFORMANCE OF SERVICES

 

1.1         Scope of Services. Consultant will perform the services (“Services”) described in the task orders (“Task Orders”) negotiated by the parties and attached hereto and incorporated herein as Exhibit A(s).  The scope of Services will be determined by the mutual agreement of the Company and Consultant, and Company will provide supervision and direction to the Consultant personnel performing the Services.

 

1.2         Task Orders.  The scope of Services and compensation for Services shall be set forth in the individual Task Orders.  Each Task Order shall include the following information as necessary:

 

(i)                                     a description of the services to be provided by Consultant;

(ii)                                  the fees for such services;

(iii)                               the extent to which expenses incurred by Consultant in performing the services shall be reimbursed by Company;

(iv)                              the recommended amount of time to be spent performing the services and the allocation of expenses in performing the services;

(v)                                 the anticipated completion date of the services; and

(vi)                              The identification and description of any Consultant proprietary or third party software and/or technical data to be licensed to the Company.

 

1.3         Performance.  Consultant shall perform these Services in a competent and workmanlike manner in conformance with the specifications and descriptions contained in the Task Order.

 

1.4         Term.  The term of this Agreement will commence on the Effective Date and terminate upon the earlier of one year thereafter or the completion of all of Consultant’s Services for the Company.

 

2.                                      PAYMENT FOR PERSONNEL AND EXPENSES

 

2.1. Payment.  Company will pay Consultant for the Services in the amounts specified in each Task Order.

 

2.2.  Invoicing, Late Payments.  Consultant will invoice monthly for the Services.  Company will pay the amounts invoiced within thirty (30) days of Company’s receipt of the invoice.  Interest will accrue at one (1) percent per month compounded monthly on amounts not paid within thirty (30) days of the invoice due date.

 

2.3.  Expenses.  Company will reimburse Consultant for all reasonable expenses incurred by Consultant in connection with the engagement and approved in advance by the Company, including travel and lodging expenses.  Travel shall be conducted in accordance with Company’s travel policies and procedures.

 

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3.                                      INDEPENDENT CONTRACTOR RELATIONSHIP

 

Consultant will undertake the Services provided for in this Agreement as an independent contractor.  Consultant will determine the manner and method of its performance of the Services, and Company’s general right to supervise the Services will not make Consultant, or its agents or personnel, the agents or employees of Company.  The provision of Services under this Agreement will not result in any partnership, joint venture, or trust relationship between Consultant and Company.

 

4.                                      AUTHORIZED REPRESENTATIVES

 

The authorized representatives of Consultant and Company (“Authorized Representatives”) shall have the authority to bind their respective companies to the terms and conditions of the Task Order(s) they execute.

 

The following named individuals are Authorized Representative(s) of Company:

 

Randy Lay
Marcia Hale

 

 

The following named individuals are Authorized Representative(s) of Consultant:

 

Anthony Coelho

 

5.                                      DISCLAIMER OF WARRANTIES

 

5.1 SERVICES WARRANTY. Consultant warrants that it will perform its services hereunder in a competent and workmanlike manner utilizing reasonable care and skill in conformance with the specifications and descriptions contained in the Task Orders under this Agreement.  In the event that Consultant breaches this warranty, Company will promptly notify Consultant in writing and will specifically describe the deficiency.  Consultant agrees to promptly, in its discretion (a) reperform at its sole cost that aspect of its Services which failed to meet the standard of care set forth in this Section 5.1; or (b) refund to Company that amount paid by Company for the deficient Services. Company must make any claim for breach of this warranty by written notice to Consultant within sixty (60) days of the date the Company knows or should have know of such deficiency.

 

5.2 EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 5.1, ABOVE, CONSULTANT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND OR NATURE WITH RESPECT TO THE SERVICES PERFORMED BY IT AND ANY OBLIGATION, LIABILITY, PERFORMANCE, NONPERFORMANCE, AND ANY OTHER MATTER IN CONJUNCTION WITH THIS AGREEMENT, WHETHER EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE.

 

6.                                      LIMITATION OF LIABILITY

 

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSES (INCLUDING LOST PROFITS OR SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE OCCURRENCE. IN NO EVENT WILL EITHER PARTY’S LIABILITY, IF ANY, UNDER EACH TASK

 

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ORDER EXCEED THE AMOUNTS PAID TO CONSULTANT BY THE COMPANY UNDER SUCH TASK ORDER.

 

7.                                      INDEMNIFICATION

 

EACH PARTY WILL INDEMNIFY AND HOLD HARMLESS THE OTHER FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, AND LIABILITIES (OR ACTIONS IN RESPECT THEREOF THAT MAY BE ASSERTED BY ANY THIRD PARTY) THAT MAY RESULT FROM ANY CLAIMS ARISING OUT OF OR RELATING TO THE NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFYING PARTYAND WILL REIMBURSE THE INDEMNIFIED PARTY FOR ALL EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES AND COURT COSTS) AS INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY SUCH ACTION OR CLAIM, EXCEPT TO THE EXTENT THAT SUCH LOSS, CLAIM, DAMAGE OR LIABILITY IS PROXIMATELY CAUSED BY THE NEGLIGENCE, WILLFUL MISCONDUCT OR INTENTIONAL WRONGDOING OF THE INDEMNIFIED PARTY IN ITS PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT.

 

8.                                      TERMINATION

 

8.1. Termination.  Either party may at any time and without cause terminate this Agreement by giving fourteen days written notice of termination.  In the event of such termination, Company will pay Consultant for all Services rendered, product ordered and reasonable expenses incurred by Consultant prior to the expiration of such period.  To the extent Consultant has partially completed one or more deliverables as specified in the Task Order as of the effective date of any termination, Company will pay Consultant a portion of the amount that would have been payable upon completion of such deliverable(s), such portion to be agreed upon equitably and in good faith by the parties, taking into consideration the amount of work completed by, and the amount of expenses incurred by, Consultant.

 

8.2. Survival.  Any terms of this Agreement that should survive the termination or expiration of this Agreement in order to give effect to the parties’ intentions, will survive the termination or expiration of this Agreement for any reason.

 

9.                                      ASSIGNMENT

 

Neither this Agreement nor any interest in this Agreement nor any claim arising under or in connection with or relating to this Agreement may be assigned by Consultant without the Company’s prior written consent, and any attempted assignment without such consent will be void.  Company may assign this Agreement without the consent of Consultant.

 

10.                               INVENTIONS AND DATA RIGHTS

 

10.1 Consultant agrees that all notes, notebooks, designs, drawings, models, writings, reports, sketches, formulas, specifications, memoranda, computer source code and documentation and other data prepared and/or produced by Consultant in the performance of this Agreement and all derivative works thereof are works made for hire and are assigned to and shall become the sole property of Company, including all rights therein of whatever kind or nature, and Consultant agrees not to disclose same to any other person, firm or corporation.  Upon termination of its work on the project, or upon the termination or expiration of this Agreement, Consultant agrees to promptly deliver to Company all documents and other records that relate to the business activities of Company, and all other materials which belong to Company.

 

10.2 Consultant agrees and does hereby assign to Company as its exclusive property, its entire right, title and interest in those inventions, innovations or ideas developed or conceived by it solely

 

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