Exhibit 4.1
CONSULTING AGREEMENT
AGREEMENT made this 1st day of February, 2002, between China Xin
Network Media Corp. ("CXN"), having a principal place of business located at
0000 Xxxx Xxxxxx, Xxx. 000, Xxxxxxxx, Xxxxxx X0X0X0, and Xxxxxxx Xxxxxx
("CONSULTANT").
RECITALS:
A. CONSULTANT is engaged in the business of Internet consulting
services; and
B. CXN desires to retain Consultant for the above purpose as well
as other consulting services; and
C. The parties wish to reduce their agreement to writing.
NOW THEREFORE, in consideration of their mutual promises made herein,
and for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound, hereby
agree follows:
I. Recitals The parties agree that the foregoing recitals are true and
correct and are incorporated herein by reference.
II. Engagement CXN hereby engages Consultant and Consultant hereby
accepts such engagement upon the terms and conditions set forth in this
Agreement.
A. Duties: Consultant is engaged by CXN to perform work and render
services in connection with providing consulting services for the
establishment of a company portal, a company intranet and a company
network and provide consulting services to service same from January
through December, 2002.
B. Terms: Subject to the terms of this Agreement relating to
termination, this Agreement shall continue in full force and effect for
a term of 12 months from the date hereof, and may be renewed for
successive periods of 12 months thereafter by the mutual written
agreement of the parties hereto made at least one (1) month prior to
the expiration of such term.
A. Fee Structure
1. Time is of the Essence: Time is of the essence with respect to
the parties' respective obligations under this Agreement.
2. Amount of Fee: CXN hereby agrees to pay Consultant a fee of
$2,268.00 for initial consulting services and $1890.00 per
month for a period of 12 months. Consultant has agreed to
accept 200,000 shares of CXN Common Stock in lieu of cash.
3. Timing of Payment of Fee: Any and all fees due to Consultant
under this Agreement shall be paid upon execution of this
agreement.
E. Expense Reimbursement CXN shall also reimburse Consultant for all
reasonable expenses incurred. Expenses and materials reimbursements
shall be made promptly upon submission of an expense report to CXN.
F. Independent Contractors In all matters relating to this Agreement
and otherwise, the parties hereto shall be and act as independent
contractors, neither shall be the employee or agent of the other, and
each shall assume any and all liabilities for its own acts. As a result
of its independent contractor status, Consultant shall be responsible
for any and all income taxes, FICA contributions, and any and all other
employment related taxes or assessments which may be required of
Consultant under any federal or state statute, regulation or
administrative ruling. Neither party shall have any authority to create
any obligations, express or implied, on behalf of the other party and
neither party shall have any authority to represent the other party as
an employee or in any capacity other than as herein provided.
III. Termination: This Agreement may be terminated by the written
notice of either party hereto forwarded to the other party hereto. This
Agreement shall be binding on the parties hereto for the Term provided herein,
unless terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or its interpretation or effectiveness,
and which is not settled between the parties themselves, shall be settled by
binding arbitration in Montreal, Quebec and judgment upon the award may be
entered in any court having jurisdiction thereof. Nothing, however, contained
herein shall limit Consultant's rights to injunctive relief as out in Paragraph
V of this Agreement. The prevailing party in any litigation, arbitration or
mediation relating to collection of fees, or any other matter under this
Agreement, shall be entitled to recover all its costs, if any, including without
limitation reasonable attorney's fees, from the other party for all matters,
including, but no limited to, appeals.
V. Injunctive Relief: Consultant agrees that its violation or
threatened violation of any of the provisions of this Agreement shall cause
immediate and irreparable harm to CXN and, in such event, an injunction
restraining Consultant from such violation may be entered against Consultant in
addition to any other relief available to CXN.
VI. Representations and Warranties: Consultant represents, warrants,
covenants and agrees that Consultant has a right to enter into this Agreement;
that Consultant is not a party to any agreement or understanding whether or not
written which would prohibit Consultant's performance of its obligations
hereunder any proprietary information of any other party which Consultant is
legally prohibited from using. A breach of this Paragraph VI shall be ground for
immediate termination of this Agreement.
VII. Indemnification and Hold Harmless Clause: Each party to this
Agreement agrees to indemnify and hold harmless the other party against any
losses, claims, liabilities, damages and the like, joint or several, to which
the other directly or indirectly may become subject to in connection with and
arising out of the services which are the subject of this Agreement, except as
may be the direct cause of the gross negligence or willful misconduct of the
party seeking indemnification.
VIII. Notice: Any notice given or required to be given under this
Agreement shall be in writing and service thereof shall be sufficient if sent be
hand or by telex or telegram, facsimile transmission or other similar means of
communication if confirmed by mail, or by certified mail, return-receipt
requested, with postage prepaid, directly to the parties' respective addresses
herein above set forth. Each party may, from time to time, by like written
notice, designate a different address to which notice should thereafter be sent.
Any notice shall be deemed to have been given when placed in the United States
mail.
IX. Survival: The covenants contained in this Agreement shall survive
the termination of this Consulting Agreement, for whatever reason, and shall be
binding on the parties.
X. Binding Effect: The terms of the Agreement shall be binding upon the
respective parties hereto, their heirs, their owners, co-owners, partners,
associates, employers, affiliates, subsidiaries, parent companies, nominees,
representatives, employees, agents, Consultants, Consultants and successors and
assigns.
XI. Assignment: This Agreement and the rights and obligations hereunder
may not be assigned or delegated by either party without the prior consent of
the other party.
XII. Choice of Law: This Agreement is made in the Province of Quebec,
and all questions related to the execution, construction, validity,
interpretation and performance of this Agreement and to all other issues or
claims arising hereunder, shall be governed and controlled by the laws of the
Province of Quebec.
XIII. Venue: The Province of Quebec shall be proper venue for any and
all litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of this
Agreement.
XV. Severability: In the event that any term, covenant, or condition of
this Agreement or the application thereof to any party or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term, covenant or condition to parties or circumstances
other than those as to which it is held invalid or non enforceable, shall not be
affected thereby; and each term, covenant, or condition of this Agreement shall
be valid and shall be enforced to the fullest extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this
Agreement or any provision hereof shall be valid unless in writing duly signed
by the parties hereto, which writing specifically refers to this Agreement and
states that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the parties to this Agreement concerning its subject matter, and any and
all prior representations and agreements with respect to such subject matter, if
any, are merged herein and are superseded by this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are
not intended to expand or restrict the scope or substance of the provisions of
this Agreement. Whenever used herein, the singular shall include the plural, the
plural shall include the singular, and pronouns shall be read as masculine,
feminine, or neuter as the context requires.
IN WITNESS WHEREOF, the parties have signed this Agreement;
China Xin Network Media Corporation
Date: April 24, 2002 By: /s/ Xxxx-Xxxxxxxx Xxxxx
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Xxxx-Xxxxxxxx Xxxxx, CEO
Consultant
Date: April 24, 2002 By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
