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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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, services, and technical knowledge
and which the party considers confidential and proprietary; or (b) has been
labeled as confidential information, is identified in a contemporaneous writing
as confidential information, or is provided under circumstances in which the
parties reasonably should understand that the information is proprietary and
confidential. The term “Confidential Information” shall mean any and all
confidential and/or proprietary knowledge, data or information of either party
or its Affiliates.  By way of
illustration but not limitation, “Confidential Information” includes (a) trade
secrets, inventions, ideas, know-how, improvements, discoveries, developments,
designs and techniques as described in Section 10 herein (together,
“Inventions”); (b) information regarding plans for research and development,
new products marketing and selling, business plans, licenses, records, facility
locations, documentation, software programs, price lists, contract prices for
purchase and sale of services, customer lists, prospect lists, pricing on
business proposals to new and existing customers, network configuration,
supplier pricing, equipment configurations, ledgers and general information, employee
records, mailing lists, accounts receivable and payable ledgers, budgets,
financial and other records; and (c) information regarding the skills and
compensation of other employees of either party.  Notwithstanding the foregoing, it is understood that, at all such
times, each party is free to use information which is generally known in the
trade or industry, which is not gained as result of a breach of this Agreement,
and each party’s own, skill, knowledge, know-how and experience to whatever
extent and in whichever way it wishes. For purposes of this Agreement,
“Affiliate” shall have the same meaning given the term under Rule 405 of the
Securities Act of 1933, and shall include persons or entities controlled by or
under common control with the party or any of its five percent (5%) or greater
stockholders.  Such Confidential
Information will be subject to the following:


 


11.2  Limitations on Use.  The Confidential Information furnished by
the disclosing party (the “Disclosing Party”) may used by the receiving party
(the “Receiving Party”) only in connection with the Services.  Access to Confidential Information must be
restricted to those of the Receiving Party’s personnel engaged in the provision
or receipt of the Services and with a reasonable need to know.  Each party reserves the right to require
that the other party have its personnel read and acknowledge this Section 11
before receiving or having access to any Confidential Information.


 


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11.3  Protection of Confidential Information.  The Receiving Party agrees to protect the
confidentiality of all Confidential Information of the Disclosing Party in the
same manner that it protects the confidentiality of its own proprietary and
confidential information of like kind, but in no event using less than a
reasonable degree of care.


 


11.4  Confidential Information of the Disclosing
Party may be used by the Receiving Party only in connection with the
performance and receipt of the Services under this Agreement, and unless
otherwise agreed in writing by the Disclosing Party, the Receiving Party may
not (a) disclose Confidential Information of the Disclosing Party to any third
party; (b) copy or reproduce any Confidential Information; (c) disclose to any
third party the fact that the Disclosing Party has disclosed or provided any
Confidential Information to the Receiving Party; or (d) disclose to any third
party the existence, nature, or scope of this Agreement other than
subsidiaries, affiliates, agents, auditors, and regulators. Each party agrees
that it will not in any manner use its knowledge of the other’s business for
the benefit of any other person or company or divulge to others information or
data concerning the other’s business affairs, including the names of customers,
names of employees, number or character of contracts, marketing strategies and
prices, terms or particulars of the other’s business. Each party will, in all
things and in good faith, protect the good will of the other’s business and
keep confidential its knowledge of such business affairs acquired prior to and
during the term of this Agreement.


 


11.5  Return of Confidential Information.  Confidential Information made available
under this Agreement, including copies thereof, will be returned to the
Disclosing Party upon the first to occur of (a) completion of the Services or
(b) request by the Disclosing Party. 
Each party may retain, however, subject to the terms of this Section 11,
copies of Confidential Information as required by law.


 


11.6  Exceptions to Confidentiality
Requirements.  Confidential Information
shall not include, and in no event will either party be prohibited from using
or disclosing information (including ideas, concepts, know-how, techniques, and
methodologies) (a) previously known to it without obligation of confidence, (b)
independently developed by it, (c) acquired by it from a third party which is
not under an obligation of confidence with respect to such information, (d)
which is or becomes publicly available through no breach of this Agreement, or
(e) is approved for public release by the Disclosing Party.


 


11.7  Compelled Disclosures.  If either party receives a subpoena or other
validly issued administrative, judicial, or similar process requesting
Confidential Information of the Disclosing Party, the Receiving Party will
provide prompt notice to the Disclosing Party of receipt of the subpoena or
other process.  Unless the Disclosing
Party promptly and successfully takes action to quash the subpoena or to
otherwise challenge the release of Confidential Information, obtains a valid
Order freeing the Receiving Party of its obligation to respond to the subpoena
or other process, and provides timely written notice thereof to the Receiving
Party, then the Receiving Party will thereafter be entitled to comply with such
subpoena or other process, on the date the response is due, to the extent
required by law or regulation.


 


12.                               GENERAL
PROVISIONS


 


12.1
Severability.  If any term or provision
of this Agreement is be found by a court of competent jurisdiction or by an
arbitrator to be invalid, illegal or otherwise unenforceable, such finding will
not affect the other terms or provisions of this Agreement or the whole of this
Agreement, but such term or provision found to be invalid, illegal or otherwise
unenforceable will be deemed modified or narrowed to the extent necessary in
the court’s or arbitrator’s opinion to render such term or provision
enforceable, and the rights and obligations of the parties will be construed
and enforced accordingly, preserving to the fullest permissible extent the
intent and agreements of the parties set


 


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forth in this
Agreement. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND
AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A
LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OF A PARTY
OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED BY THE PARTIES TO BE
SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS
SUCH.  FURTHER, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED
OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF
DAMAGES OR OTHER REMEDIES SET FORTH HEREIN SHALL REMAIN IN EFFECT.


 


12.2  Notices. 
Any notice or other communication given pursuant to this Agreement must
be in writing and will be effective when delivered personally to the party for
whom intended, or when delivered (or delivery is rejected) by messenger or
express courier service (e.g., UPS or Federal Express) or by certified or
registered United States mail, or five (5) days following deposit of the same
into the United States mail, first class postage prepaid, provided that in each
case other than personal delivery the notice is addressed and sent to such
party at the address set forth below.


 


	
  Universal Access, Inc.

  	
   

  	
  Consultant

  
	
   

  	
   

  	
   

  
	
  233 S.
  Wacker Drive, Suite 600

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Chicago,
  Illinois  60606

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:
  (312) 660-5050

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attn.: Chief
  Executive Officer

  	
   

  	
   

  



 


WITH A COPY TO:


 


	
  Universal Access, Inc.

  
	
   

  
	
  233 S.
  Wacker Drive, Suite 600

  
	
   

  
	
  Chicago,
  Illinois 60606

  
	
   

  
	
  Facsimile:
  (312) 660-1290

  
	
   

  
	
  Attn.:  Legal Department

  



 


12.3  Force Majeure.  Neither party will be liable for any delays or
failures in performance of any obligations under this Agreement, other than
payment obligations, due to causes beyond its reasonable control, including,
but not limited to:  acts of God, fire,
explosion, vandalism, storm, extreme temperatures or other similar
catastrophes; any law, order, regulation, direction, action or request of the
United States government, or of any other government, including state and local
governments having  jurisdiction over
either of the parties, or of any department, agency, commission, court, bureau,
corporation or other instrumentality of any one or more said governments, or of
any civil or military authority; national emergencies, insurrections, riots,
wars, or strikes, lock-outs, work stoppages or other labor difficulties.


 


12.4   No Authority to Bind the Other Party.  Neither party will have the authority to
make any statements, representations, or commitments of any kind on behalf of
the other party, or to take any action binding upon the other, except as that
other party’s Designated Representative may specifically authorize in writing.


 


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12.5  Governing Law.  This Agreement will be governed by and
construed in accordance with the laws of the State of Illinois without giving
effect to any choice-of-law rules that may otherwise require application of the
laws of another jurisdiction.


 


12.6  Legal And Equitable
Remedies.  Because Consultant’s services
are unique and because Consultant may have access to and become acquainted with
the Proprietary Information of the Company, or the Company may wish to protect
its interest in its customers and prospects, the Company shall have the right
to enforce this Agreement and any of its provisions by injunction, specific
performance or other equitable relief, without bond and without prejudice to
any other rights and remedies that the Company may have for a breach of this
Agreement by Consultant.


 


12.7  Successors.  This Agreement will inure to the benefit of
and will be binding upon the parties, their respective successors and permitted
assignees and transferees, unless otherwise provided in this Agreement.


 


12.8  Amendments.  The terms and conditions of this Agreement
may not be amended, changed, modified, supplemented or waived without the
signature of an authorized individual of each party. No waiver of any breach,
delay or default under this Agreement will constitute a waiver of any other or
subsequent breach, delay or default hereunder, whether or not similar.


 


12.9 Cooperation and Assistance. 
Each party agrees to provide reasonable cooperation and assistance to
the other to facilitate the successful implementation and completion of the
Services and undertakings contemplated by this Agreement.


 


12.10 Export Controls. The export control laws of the United States and
other jurisdictions regulate the export and re-export of certain technology,
including physical transfer and electronic transmission of certain information,
materials and software to particular foreign countries and foreign nationals.  Both parties agree to comply with all
applicable export control laws and regulations with respect to any work product
developed or produced in connection with this Agreement and hereby give their
written assurance not to transfer, by electronic transmission or otherwise, any
information, software or materials which are governed by or regulated under
such laws to a national or a destination prohibited or restricted under such
laws or regulations without first obtaining any required governmental authorization.  The exporter of record will be responsible
for obtaining any government documents and approvals prior to export of any
information or materials as well as any other actions required to comply with
export control laws and regulations.


 


12.11 No Use of Name or Trademarks. 
Neither party will utilize the names or trademarks of the other in
connection with any advertising, marketing or promotion of any kind without
obtaining the other party’s prior written consent.  Without limiting the foregoing, neither party will publicize,
promote nor disclose that Consultant is providing Services to Company pursuant
to this Agreement without obtaining the other party’s prior written consent.


 


12.12 Waiver.  No waiver by
either party of any breach of this Agreement shall be a waiver of any preceding
or succeeding breach.  No waiver by
either party of any right under this Agreement shall be construed as a waiver
of any other right.  The Company shall
not be required to give notice to enforce strict adherence to all terms of this
Agreement.


 


12.13 No Conflicting Obligation. 
Consultant represents that its performance of all the terms of this
Agreement does not and will not breach any agreement to keep in confidence
information acquired by it in confidence or in trust prior to this Agreement
with the Company.  Consultant has not
entered into, and Consultant agrees that it will not enter into, any agreement
either written or oral in conflict with this Agreement.


 


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12.14 Return Of Company Documents. 
Upon the expiration or termination of this Agreement or when requested
by the Company, Consultant will deliver to the Company any and all drawings,
notes, memoranda, specifications, devices, formulas, and documents, together
with all copies of such items, regardless of the medium upon which it is
stored, and any other property of the Company or its Affiliates which is in
Consultant’s possession or control. 
Consultant further agrees that any property situated on the Company’s
premises and owned by the Company, including disks and other storage media,
filing cabinets or other work areas, is subject to inspection by Company
personnel at any time with or without notice.


 


12.15 No Improper Use of
Information of Others.  During the term
of this Agreement, Consultant will not improperly use or disclose any
confidential information or trade secrets, if any, of any other person to whom
Consultant has an obligation of confidentiality, and Consultant will not bring
onto the premises of the Company any unpublished documents or any property
belonging to any third party to whom Consultant has an obligation of
confidentiality unless consented to in writing by that third party.


 


13.                               COMPLETE
AGREEMENT


 


This Agreement sets forth the
entire understanding between the parties with respect to the performance of the
Services, and the subject matter of this Agreement, and supersedes all prior
and contemporaneous agreements, arrangements, correspondence, requests for
proposals, proposals, and communications, whether oral or written, with respect
to the performance of the Services, or the subject matter of this Agreement.


 


IN WITNESS WHEREOF, by the
authorized signatures below, the parties have executed this Agreement.


 


	
  Consultant

  	
  Universal
  Access Global Holdings Inc.

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  



 


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EXHIBIT “A”


 


INITIAL
SCOPE OF SERVICES


 


I.                                         Services.


 


Consultant’s duties under this
Task Order shall consist of the following (“Services”):


 


a.               Assist Company in reviewing materials or
preparation of materials that will be used to target potential government or
other customers (e.g. overview of opportunity, other company information,
etc.).


b.              Utilize Consultant’s relationships to
introduce the Company to potential government or other customers.


c.               Provide further assistance and
communications between Company and potential government or other customers as
reasonably requested by Company during the solicitation and negotiation
process.


 


II.                                     Compensation.


 


As compensation for the
Services, Company will pay Consultant $10,000 per month.


 


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