Hi I really need some help because I know I'm doing something that's not exactly nice but need some advice.
I decided to take on an internship in Shanghai that starts on Feb 1st and the manager wanted me to give him proof that I would stick to my decision. SO I downloaded an "Expatriate Contract" edited out a few things to make it fit our specs, signed it and emailed it to him. Below I have attached the full contract as it was signed.
But suddenly I'm offered a much better position and now want to take it on. Now the guy from the first internship has given me the invitation letter and everything but I have not used it to get an F Visa yet. Also I do not know if this "Expatriate Contract" is even legal since I'm not on a Z vista. My question is, if I take on the new position and leave the first behind, what are the consequences?
the contract is shown below. Many thanks
EXPATRIATE CONTRACT OF EMPLOYMENT
Long form of contract containing 9 clauses plus a schedule which will contain specific details of salary, housing, travel and other benefits. This contract is suitable for a company in one country that employs foreign nationals to work for it.
The formal contract has 16 clauses covering the appointment of the employee, basic duties, contract period, salary and benefits as well as termination provisions. The schedule contains a menu of benefits with a number of alternatives (e.g. provision of furnished accommodation or a housing grant) and such matters as settling-in grant, bonus, travel allowances etc. From the information available the company can prepare its own particular schedule.
DATE: 12/14/2009
PARTIES:
(1) [insert name ] of [ Company name]
(2) [ insert name ]
THE PARTIES AGREE as follows:
1. APPOINTMENT
The Company engages the Employee and the Employee undertakes to serve the Company in the capacity of [consultant intern] in [China]("Shanghai").
2. DUTIES OF EMPLOYEE
During his employment under this Agreement the Employee shall: -
2.1 work for the Company anywhere within the Territory or elsewhere as may required by the Company from time to time;
2.2 work for the Company in the capacity specified in Clause 1 or in another capacity which the Company may from time to time reasonably require;
2.3 devote the whole of his time and attention to the business of the Company, use his best endeavours to promote the interests of the Company, and comply with all lawful instructions given to him by the Company or any of its duly authorised representatives;
2.4 not be engaged or interested in any other business or occupation without the prior written consent of the Company;
2.5 at all times observe and respect the laws and customs of the Territory.
3. CONTRACT PERIOD
3.1 The Employee's engagement shall commence on the date of his arrival in the Territory (as agreed with the Company in advance) and shall continue for the initial contract period stipulated in the Schedule.
4. SALARY
Subject to the performance of his obligations under this Agreement, the Employee shall be entitled to: -
4.1 a monthly salary of the amount specified in the Schedule which shall be paid on the last day of each calendar month (according to the Gregorian Calendar). However, salary will not be payable during absence from work unless the absence is due to:-
5.1.1 ill-health duly certified by a qualified medical practitioner approved by the Company or
5.1.2 leave periods authorised in advance by the Company.
5. DISMISSAL
5.1 The Company may terminate this Agreement:
5.1.1 at any time within the first three months if the Employee is in the opinion of the Company incompetent or unsuited to the tasks assigned to him. In that case, if the Employee is found to have given false information to the Company, whether in regard to his qualifications or otherwise, the Company may recover from him the cost of all airfares and other expenses incurred in connection with his engagement; or
5.1.2 at any time without notice or salary in lieu of notice if the Employee is guilty of misconduct (including but not limited to breach of contract, dishonesty, drunkenness, absence without leave, or failure to comply with lawful instructions) or if he conducts himself in a manner calculated to bring the Company or its employees into disrepute; or
5.1.3 upon one month's written notice if a qualified medical practitioner approved by the Company certifies that the Employee through no fault of his own is by reason of ill health or accident unable to perform his duties. However, no such notice shall be given unless the Employee has been incapacitated for not less than 60 days in the six months immediately preceding the date of the notice.
6. CONFIDENTIALITY
6.1 The Employee shall not at any time either during this Agreement (except in the normal course of his duties) or after its termination without the prior written consent of the Company use or disclose or allow to be disclosed to any third party any information concerning the business of the Company.
6.1 Upon termination of this Agreement the Employee must return to the Company all documents in his possession relating to the Company's affairs.
7. GOVERNING LAW
This Agreement is governed by the laws of [China].
8. CONDITIONAL AGREEMENT
This Agreement is conditional upon and shall only take effect if: -
8.1 the Company is able to obtain a work permit and other consents relevant to the Employee's engagement by the Company in the Territory; and
9. ENTIRE AGREEMENT
This Agreement and the Schedule comprise the entire Agreement between the parties. Neither party shall be bound by any representations, statements or understandings not set out in this Agreement. No change in the terms of this Agreement shall be effective unless in writing and signed by both parties.
SIGNED by a duly authorised representative of the Employer and by the Employee.
SIGNED )
for and on behalf of )
the Company )
SIGNED )
by the Employee )
THE SCHEDULE
EMPLOYEE DETAILS
Full Names:.[Insert name.....................................................]
Nationality:.[American.............].. Passport No.[........]..
Status: Bachelor
Wife/family accompanying him: (Names & Relationship) [...............................................................................
.....................................................................................................................]
SALARY
Currency: Yuan................ Amount XXXX yuan per month/year
INITIAL CONTRACT PERIOD 6 months
Intended Commencement Date : 02/2009
Actual Commencement/Date of arrival in Territory: 02/2009
EXPLANATORY NOTES
This Employment Contract is designed for use by a company employing a national of another country to come and work for it. As will be seen, the contract is in a form where the terms and conditions are contained in the body of the contract, with the schedule which sets out numerous details concerning salary, start date, benefits etc. Clearly, the schedule may need to be quite substantially adapted depending on the extent of the benefits the Employer will provide.
The contract is reasonably self-explanatory but a few notes are set out on the contract clauses:
1. APPOINTMENT
This establishes the basic contract between the Company and the Employee, leaving details of job title and territory to be inserted. (Alternatively, job title and territory could be dealt with in the Schedule.)
2. DUTIES OF EMPLOYEE
This is wide ranging and requires the Employee to work in the territory or elsewhere if so required and stipulating that he must devote the whole of his time to the business of the company.
2.4 contains a restriction on him from engaging in other activities and 2.5 makes it clear that he must comply with the laws and customs in the territory.
3. CONTRACT PERIOD
The initial contract period is specified in the Schedule but this clause makes it clear when the contract starts and in 3.2 specifies that the first 3 months will be a probationary period.
5. SALARY
Here again, details are in the Schedule but this clause makes it clear that salary will be payable monthly.
6. DISMISSAL
This gives the Company the right to terminate the agreement at any time if the Employee is unsuitable or is guilty of misconduct. An Employee who provides false information in order to get the job may have to refund air fares and other expenses which the Company has paid (10.1.1).
In 10.1.3 the Company can terminate the contract on 1 months notice if the Employee suffers from ill health.
7. CONFIDENTIALITY
As with most employment contracts, it is sensible to include a provision requiring the Employee to keep confidential any information which he gains in his employment.
8. CONDITIONAL AGREEMENT
This makes is clear that the appointment is subject to the Employee undertaking a medical examination and is dependent on all the necessary formalities to enable him to work in the country as well as satisfactory references being obtained.
9. ENTIRE AGREEMENT
This is a standard "boilerplate" clause which makes it clear that only the terms of this agreement apply to the appointment and not any exchange of letters or verbal agreements or understandings made before the formal contract.
THE SCHEDULE
As will be seen, this contains a wide range of details to be inserted and these will, of course, vary depending on the Employer's requirements and the benefits to be provided. In other words, the Schedule should be treated as a "menu" from which the benefits appropriate to that particular Employer and Employee can be selected.
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