09/05/03
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into effective
the ____ day of ____________________, 2003 by and between Capital Research
Group, Inc. (the "Consultant"), whose principal place of business is 0000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 and Health Express USA, Inc. (the "Client"),
whose principal place of business is 0000 X. Xxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxxx Xxxxx, XX 00000.
WHEREAS, Consultant is in the business of providing services for management
consulting, business advisory, shareholder information and public relations; and
WHEREAS, the Client deems it to be in its best interest to retain Consultant to
render to the Client such services as may be needed; and
WHEREAS, Consultant is ready, willing and able to render such consulting and
advisory services to Client.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth
in this Agreement, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. CONSULTING SERVICES. The client hereby retains the Consultant as an
independent consultant to the Client and the Consultant hereby accepts
and agrees to such retention. The services provided by the Consultant
are: disseminate a two page "Highlighter" by means of "Targeted" E-Mail
and operate an intense marketing campaign to new investors.
It is acknowledged and agreed by the Client that Consultant carries no
professional licenses, and is not rendering legal advice or performing
accounting services, nor acting as an investment advisor or
brokerage/dealer within the meaning of the applicable state and federal
securities laws. The services of Consultant shall not be Exclusive nor
shall Consultant be required to render any specific number of hours or
assign specific personnel to the Client or its projects.
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Consulting Agreement for Health Express USA, Inc. (Created 9/5/03) Page 1 of 6
2. INDEPENDENT CONTRACTOR. Consultant agrees to perform its consulting
duties hereto as an independent contractor. Nothing contained herein
shall be considered to as creating an employer-employee relationship
between the parties to this Agreement. The Client shall not make social
security, worker's compensation or unemployment insurance payments on
behalf of Consultant. The parties hereto acknowledge and agree that
Consultant cannot guarantee the results or effectiveness of any of the
services rendered or to be rendered by Consultant. Rather, Consultant
shall conduct its operations and provide its services in a professional
manner and in accordance with good industry practice. Consultant will
use its best efforts and does not promise results.
3. TIME, PLACE AND MANNER OF PERFORMANCE. The Consultant shall be
available for advice and counsel to the officers and directors of the
Client as such reasonable and convenient times and places as may be
mutually agreed upon. Except as aforesaid, the time, place and manner
of performance of the services hereunder, including the amount of time
to be allocated by the Consultant to any specific service, shall be
determined at the sole discretion of the Consultant.
4. TERM OF AGREEMENT. The term of this Agreement shall be three (3)
months, commencing on the date of this Agreement, subject to prior
termination as hereinafter provided.
5. COMPENSATION. In providing the foregoing services, Consultant shall be
responsible for all costs incurred except the Client will be
responsible for mailing out due diligence requests. Client shall pay
Consultant for its services hereunder as follows: to transfer 250,000
restricted shares of Client's stock to Consultant upon signing of this
agreement. Client also agrees to provide legal opinion of counsel and
clear certificates under rule 144 one year from the effective date of
this Agreement. All fees may also be paid in cash by the Client
referring to the price of the offer or ask the day payment is due. For
purposes of this paragraph, the dollar value of any shares given for
compensation shall be the closing price of the Client's common stock as
traded in the over-the-counter market and quoted on the OTC Bulletin
Board on the trading day immediately preceding the compensation due
date.
6. LATE PAYMENT. In the event of late payment of any compensation due
under this Agreement, and in addition to the rights granted the
Consultant under paragraph 8 "Termination" of this Agreement,
Consultant may immediately remove Client's company from xxxxxxxxx.xxx
website until any arrears in compensation are brought current.
7. CLIENT'S REPRESENTATIONS. The Client represents that it is in
compliance with all applicable Securities and Exchange Commission
reporting and accounting requirements and all applicable requirements
of the NASD or any stock exchange. The Client further represents that
it has not been and is not the subject of any enforcement proceeding or
injunction by the Securities and Exchange Commission or any state
securities agency.
8. TERMINATION.
(a) Consultant's relationship with the Client hereunder may be
terminated for any reason whatsoever, at any time, by either
party, upon 3 days written prior notice.
(b) This Agreement shall automatically terminate upon the
dissolution, bankruptcy or insolvency of the Client or
Consultant.
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Consulting Agreement for Health Express USA, Inc. (Created 9/5/03) Page 2 of 6
(c) This Agreement may be terminated by either party upon giving
written notice to the other party if the other party is in
default hereunder and such default is not cured within fifteen
(15) days of receipt of written notice of such default.
(d) Consultant and Client shall have the right and discretion to
terminate this Agreement should the other party in performing
their duties hereunder, violate any law, ordinance, permit or
regulation of any governmental entity, except for violations
which either singularly or in the aggregate do not have or
will not have a material adverse effect on the operations of
the Client.
(e) In the event of any termination hereunder all shares or funds
paid to the Consultant through the date of termination shall
be fully earned and non-refundable and the parties shall have
no further responsibilities to each other except that the
Client shall be responsible to make any and all payments if
any, due to the Consultant through the date of the termination
and the Consultant shall be responsible to comply with the
provisions of section 10 hereof.
9. WORK PRODUCT. It is agreed that all information and materials produced
for the Client shall be the property of the Consultant, free and clear
of all claims thereto by the Client, and the Client shall retain no
claim of authorship therein.
10. CONFIDENTIALITY. The Consultant recognizes and acknowledges that it has
and will have access to certain confidential information of the Client
and its affiliates that are valuable, special and unique assets and
property of the Client and such affiliates. The Consultant will not,
during the term of this Agreement, disclose, without the prior written
consent or authorization of the Client, any of such information to any
person, for any reason or purpose whatsoever. In this regard, the
Client agrees that such authorization or consent to disclose may be
conditioned upon the disclosure being made pursuant to a secrecy
agreement, protective order, provision of statute, rule, regulation or
procedure under which the confidentiality of the information is
maintained in the hands of the person to whom the information is to be
disclosed or in compliance with the terms of a judicial order or
administrative process.
11. ANTI DILUTION. Client shall also arrange for one or more third parties
to transfer 10% of any newly registered or issued securities of the
clients company within the term of this agreement in the form of fully
paid non-assessable free trading registered shares within 5 business
days of registration or issuance. Any shares shall be unrestricted as
to transferability and the Certificates shall not bear any legends or
restrictions and all shares will bear the same requirements as noted in
section five (5) herein.
12. CONFLICT OF INTEREST. The Consultant shall be free to perform services
for other persons. The Consultant will notify the Client of its
performance of consultant services for any other person, which could
conflict with its obligations under the Agreement. Upon receiving such
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Consulting Agreement for Health Express USA, Inc. (Created 9/5/03) Page 3 of 6
notice, the Client may terminate this Agreement or consent to the
Consultant's outside consulting activities; failure to terminate, this
Agreement within seven (7) business days of receipt of written notice
of conflict shall constitute the Client's ongoing consent to the
Consultant's outside consulting services.
13. DISCLAIMER OF RESPONSIBILITY FOR ACT OF THE CLIENT. In no event shall
Consultant be required by this Agreement to represent or make
management decisions for the Client. Consultant shall under no
circumstances be liable for any expense incurred or loss suffered by
the Client as a consequence of such decisions, made by the Client or
any affiliates or subsidiaries of the Client.
14. INDEMNIFICATION.
(a) The client shall protect, defend, indemnify and hold Consultant and
its assigns and attorneys, accountants, employees, officers and
director harmless from and against all losses, liabilities, damages,
judgments, claims, counterclaims, demands, actions, proceedings, costs
and expenses (including reasonable attorneys' fees) of every kind and
character resulting from, relating to or arising out of (a) the
inaccuracy, non-fulfillment or breach of any representation, warranty,
covenant or agreement made by the Client herein, or (b) negligent or
willful misconduct, occurring during the term thereof with respect to
any of the decisions made by the Client (c) a violation of state or
federal securities laws.
(b) The Consultant shall protect, defend, indemnify and hold Client and
its assigns and attorneys, accountants, employees, officers and
director harmless from and against all losses, liabilities, damages,
judgments, claims, counterclaims, demands, actions, proceedings, costs
and expenses (including reasonable attorneys' fees) of every kind and
character resulting from, relating to or arising out of (a) the
inaccuracy, non-fulfillment or breach of any representation, warranty,
covenant or agreement made by the Consultant herein, or (b) negligent
or willful misconduct, occurring during the term thereof with respect
to any of the decisions made by the Consultant (c) a violation of state
or federal securities laws.
15. NOTICES. Any notices required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by
registered or certified mail, or by Federal Express or other recognized
overnight courier to the principal office of each party.
16. WAIVER OF BREACH. Any waiver by either party or a breach of any
provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by any party.
17. ASSIGNMENT. This Agreement and the right and obligations of the
Consultant hereunder shall not be assignable without the written
consent of the Client.
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Consulting Agreement for Health Express USA, Inc. (Created 9/5/03) Page 4 of 6
18. APPLICABLE LAW. It is the intention of the parties hereto that this
Agreement and the performance hereunder and all suits and special
proceedings hereunder be construed in accordance with and under and
pursuant to the laws of the State of Florida and that in any action,
special proceeding or other proceedings that may be brought arising out
of, in connection with or by reason of this Agreement, the law of the
State of Florida shall be applicable and shall govern to the exclusion
of the law of any other forum, without regard to the jurisdiction on
which any action or special proceeding may be instituted.
19. SEVERABILITY. All agreements and covenants contained herein are
severable, and in the event any of them shall be held to be invalid by
any competent court, the Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein.
20. ENTIRE AGREEMENT. This Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces
all other or prior understandings, agreements and negotiations between
the parties.
21. WAIVER AND MODIFICATION. Any waiver, alteration, or modification of any
of the provisions of this Agreement shall be valid only if made in
writing and signed by the parties hereto. Each party hereto, may waive
any of its rights hereunder without affecting a waiver with respect to
any subsequent occurrences or transactions hereof.
22. BINDING ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association under
its Commercial Arbitration Rules, and judgment on the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction
thereof. The arbitration shall be conducted in Miami-Dade County,
Florida.
23. COUNTERPARTS AND FACSIMILE SIGNATURE. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute
one and the same instrument. Execution and delivery of this Agreement
by exchange of facsimile copies bearing the facsimile signature of a
party hereto shall constitute a valid and binding execution and
delivery of this Agreement by such party. Such facsimile copies shall
constitute enforceable original documents.
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Consulting Agreement for Health Express USA, Inc. (Created 9/5/03) Page 5 of 6
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, effective as of the date set forth above.
CONSULTANT:
CAPITAL RESEARCH GROUP, INC.
By:__________________________________ DATE: __________________________
Xxxxxxx X. Xxxxxxxxxx, President/CEO
CLIENT:
HEALTH EXPRESS USA, INC.
By: __________________________________ DATE:___________________________
Xxxxx X'Xxxxxx, President/CEO
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Consulting Agreement for Health Express USA, Inc. (Created 9/5/03) Page 6 of 6
