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:
The following named individuals are
Authorized Representative(s) of Consultant:
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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or jointly with others, during the
term of its work for or at Company, which inventions, innovations
or ideas relate to the products, processes, developments, research
activities, or other business activities of Company, or result from
work which it performed at or for Company. All rights, title
and interest in such inventions shall be vested in Company
immediately upon such development or conception. Consultant further
agrees that, when requested, Consultant will without charge to
Company, but at Company’s expense, sign all papers, take all
rightful oaths, and do all acts which may be necessary, desirable
or convenient for securing and maintaining the patents, copyrights
and legal protection for inventions or innovations in any and all
countries and for vesting title in Company, its successors,
assigns, and legal representatives or nominees.
10.3 If Consultant, during the
course of performing the Services for the Company, discovers,
invents, or produces, without limitation, any information, computer
programs, software or other associated intangible property, network
configuration, formulae, product, device, system, technique,
drawing, program or process which is a “trade secret”
within the meaning of the Illinois Trade Secret Act (irrespective
of where Consultant performs the Services), such information,
formulae, product, device, system, technique, drawing, program or
process shall be assigned to the Company. Consultant agrees
to fully cooperate with the Company in protecting the value and
secrecy of any such trade secret, and further agrees to execute any
and all documents the Company deems necessary to document any such
assignment to the Company. Consultant appoints the Company as
its attorney-in-fact to execute any documents the Company may deem
necessary that relates to any such trade secret or assignment
thereof to the Company.
11.
CONFIDENTIAL
INFORMATION
11.1 During the course of this
Agreement, each party may be given access to information that (a)
relates to the other’s past, present, and future research,
development, business activities, products,
