EXHIBIT 4.1
THIS ASSOCIATE AGREEMENT made as of the 7th day of April, 1998.
BETWEEN:
ExpediaCom Global Inc. a Company duly incorporated
under the laws of the State of Nevada, with its head
office in the City of Las Vegas in the State of
Nevada, and its Canadian Division Subsidiary Office
at Unionville, in the Province of Ontario
("ExpediaCom")
OF THE FIRST PART
AND:
JanSus Telecom Services Inc. a Company duly
incorporated under the laws of the Dominion of
Canada, with its head office in the City of Ottawa in
the Province of Ontario
("JanSus")
OF THE SECOND PART
WHEREAS ExpediaCom is engaged in the business of providing consulting
services, including the management of business relationships;
AND WHEREAS JanSus professes an expertise in providing consulting
services in the area of telecommunications strategic market planning,
product planning, product management and various telecommunications
processes including marketing, technology and operations processes and
the implementation of these processes;
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THIS AGREEMENT WITNESSES that JanSus hereby agrees to Associate with ExpediaCom
for the purpose of providing professional services which, upon completion, shall
become the property of ExpediaCom upon the following terms and conditions:
1. PROFESSIONAL SERVICES
(a) The professional services to which this Agreement applies,
shall be in accordance with Schedule "A" attached hereto and
forming part of this Agreement.
(b) In the event that ExpediaCom desires to change the scope of
work as is set out in Schedule "A" attached then in such event
the following shall occur:
(i) Both parties shall agree in writing to any amendment
to either a segment of Schedule "A" or the insertion
of a new segment;
(ii) Remuneration levels will be reviewed and revised in
accordance with the revised scope of work proposed.
2. PERSONAL COVENANT AND DELEGATION
Notwithstanding anything else contained herein, it is in agreement
between the parties that Susanna Letwin shall provide the principal
services on behalf of JanSus as set forth in Schedule "A".
Notwithstanding the same, JanSus shall be at liberty to provide
additional personnel whether by way of employee or subcontractor to
work on the said project on the understanding that the compensation set
forth above shall be billable only by Susanna Letwin on behalf of
JanSus, unless agreed to in writing by ExpediaCom.
3. STATUS OF CONTRACTOR
It is expressly acknowledged by the parties hereto that JanSus is an
"Independent Contractor" with respect to ExpediaCom and nothing in this
Agreement is intended nor shall be construed to create an
employer/employee relationship, a joint venture relationship, or a
partnership relationship, or to allow ExpediaCom to exercise control or
direction over the manner or method by which JanSus performs the
services which are the subject matter of this Agreement, provided
always that the services to be provided hereunder by JanSus shall be
provided in a manner consistent with the standards governing such
services and provisions of this Agreement. ExpediaCom understands and
agrees that:
(a) JanSus' personnel will not be treated as employees of
ExpediaCom for tax purposes;
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(b) ExpediaCom will not withhold on behalf of JanSus or JanSus'
employees pursuant to this Agreement any sums for income tax,
U.I.C., C.P.P. or any other withholdings and benefits, such
sums, if any, are the sole responsibility of JanSus, and;
(c) JanSus will indemnify and hold harmless ExpediaCom from any
and all loss or liability arising with respect to such
payments, withholdings, and benefits, if any, excepting any
fines and levies occasioned by ExpediaCom's failure to timely
notify JanSus thereof. This Agreement strictly prohibits
JanSus from incurring liability, in any form, on behalf of
ExpediaCom in the undertaking of the activities, and as per
the conditions, of this Agreement.
4. EXPEDIACOM OBLIGATIONS
ExpediaCom shall ensure at all times that JanSus has access to such
information, employees of ExpediaCom, customers of ExpediaCom or any
other personnel involved in the project as set out in Schedule "A" as
may be required by JanSus to perform the services set out in the said
Schedule.
5. DURATION OF THIS AGREEMENT
This Agreement shall be for a period of One year (1) year, commencing
retroactively on the 1st day of January, 1998 and ending December 31st,
1998, based on an estimated engagement of Three (3) days per week.
6. COMPENSATION
(a) ExpediaCom shall pay to JanSus a per diem of SIX HUNDRED
($600.00) DOLLARS CDN billable in half day increments. The per
diem is deemed to be Eight (8) hours.
(b) Payment shall be remitted to JanSus net Thirty (30) days of
the invoice date as submitted by JanSus.
(c) The parties agree that the first invoice to be rendered by
JanSus shall include Two and one-half (2.5) days of work
provided to ExpediaCom by JanSus prior to the commencement
date of this Agreement.
(d) JanSus reserves the right to withhold its services in the
event of default of payment of any invoice when due by
ExpediaCom. Such withholding of services shall not constitute
a breach of this Agreement.
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(e) Interest on overdue accounts will be at the rate of One (1%)
percent per month on the outstanding balance.
7. BONUS INCENTIVE
(a) Based on JanSus completing the projects earlier than the
stated due dates in Fifty (50%) percent or more of the
projects set out in Schedule "A" attached, ExpediaCom will pay
JanSus a bonus equivalent to Fifteen (15%) percent of the
amount paid in consulting fees to JanSus during the contract
period as defined in Section 1: Duration of This Agreement,
above.
(b) JanSus shall include the calculation of any bonus incentive
due with the last invoice for that segment which shall be due
and payable Thirty (30) days from the date of invoice.
8. DISBURSEMENTS
ExpediaCom agrees to reimburse JanSus the Associate for out of pocket
disbursements for travel, hotel accommodations, meals, administrative
and other project costs on condition that any single expense which
exceeds Five Hundred ($500.00) Dollars is approved in writing and in
advance by ExpediaCom. ExpediaCom shall not be responsible for any
single disbursement in excess of Five Hundred ($500.00) Dollars to
which it has not given written approval in advance.
9. AMENDMENT OF THIS AGREEMENT
Any changes to this Agreement must be in writing and signed by both
parties in order to be effective. The party wishing to amend this
Agreement shall serve notice on the other party in accordance with the
notice provision set out below.
10. EARLY TERMINATION OF THIS AGREEMENT
Either party to this Agreement may terminate this Agreement, on Thirty
(30) days written notice to the other in accordance with the notice
provision set out below.
In the event that ExpediaCom elects to terminate this Agreement it
shall pay to JanSus the equivalent of Twenty (20) days per diem in lieu
of notice.
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In the event that JanSus elects to terminate this Agreement then JanSus
shall be limited to a maximum of Twenty (20) billable days during the
said Thirty (30) day notice period. ExpediaCom may elect to accept such
notice of termination prior to the expiration of the said Thirty (30)
day period, in which case JanSus shall be entitled to bill and be paid
only to the date of such notice by ExpediaCom of such acceptance.
11. EFFECTS OF TERMINATION
Upon termination of this Agreement, as herein above provided,
neither party shall have any further obligation hereunder
except for:
(a) obligations accruing prior to the date of
termination; or
(b) obligations, promises, or covenants contained herein
which are expressly made to extend beyond the term of
this Agreement, including, without limitation,
confidentiality of information, and indemnities.
12. NOTICE
Any notice of a proposed amendment or notice of termination, early or
otherwise, as set out in the appropriate sections herein, shall require
Thirty (30) days written notice prior to the date on which the
amendment or termination is to take effect and shall be required in
written form, and delivered to the business address of the parties to
this Agreement set forth below:
ExpediaCom Global Inc.
5300 West Sahara
Suite 101
Las Vegas, Nevada
U.S.A. 89102
ExpediaCom Inc.
A Division of ExpediaCom Global Inc.
4261 - A14, Highway 7
Suite 160
Unionville, Ontario
L3R 9W6
JanSus
7 Forsyth Lane
Nepean, Ontario
Canada
K2H 9H1
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Any notice which is required to be served under this Agreement shall be
served by registered mail at the address as set forth above and the
party upon whom the notice is being served shall have been deemed to
have received the notice on the fifth day following the day on which
this notice was mailed.
13. CONFIDENTIALITY
(a) Any information discussed at Business Development Meetings or
any other information obtained by JanSus as a result of this
Agreement shall, at all times, be considered confidential. In
the course of performing professional services for ExpediaCom
and during any Business Development Meetings, JanSus will or
have become aware or have access to financial, business,
marketing and other information, data, reports, tenders,
opinions and other materials and documents, tangible or
intangible, oral or written, which is the proprietary
information of ExpediaCom's clients (Confidential
Information).
(b) JanSus agrees to keep in strictest confidence all Confidential
Information (as defined above) which JanSus may acquire in
connection with or as a result of performance of this
Agreement and agrees not to publish, communicate, divulge or
disclose to any unauthorized third party or parties any
information, without the prior written consent of ExpediaCom,
during the term of this Agreement or at any time subsequent to
it.
(c) JanSus agrees not to use any of the foregoing Confidential
Information except for the furtherance of its obligations
under this Agreement.
14. ASSIGNMENT
No assignment of this Agreement or the rights and obligations hereunder
shall be valid without the specific written consent of both parties
hereto.
15. WAIVER OF BREACH
The waiver by any party of a breach or violation of any provision of
this Agreement shall not operate as, or be construed to be, a waiver of
any subsequent breach of the same or other provision hereof.
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16. GENDER AND NUMBER
Whenever the context hereof requires, the gender of all words shall
include the masculine, feminine and neuter and the number of all words
shall include the singular and the plural.
17. SEVERABILITY
In the event any provision of this Agreement is held to be
unenforceable for any reason, the non enforceability thereof shall not
affect the remainder of this Agreement, which shall remain in full
force and effect and enforceable in accordance with its terms.
18. ARTICLES AND OTHER HEADINGS
The articles and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
19. ENTIRE AGREEMENT
This Agreement supersedes all previous contracts and constitutes the
entire agreement between the parties. No oral statements or prior
written material not specifically incorporated herein shall be of any
force and effect and no changes in or additions to this Agreement shall
be recognized unless incorporated herein by amendment as provided
herein, such amendment(s) to become effective on the date stipulated in
such amendments. ExpediaCom specifically acknowledges that in entering
into and executing this Agreement, JanSus is relying solely upon the
representations and agreements contained in this Agreement and no
others.
20. INTERPRETATION
It is mutually agreed between the parties that this Agreement shall be
interpreted in accordance with the laws of the Province of Ontario and
that the jurisdiction for any action commenced by either party as
against the other shall be the appropriate Court at the City of Ottawa
in the Province of Ontario.
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IN WITNESS WHEREOF the parties hereunto affixed their hands and seals, and the
Corporation has hereunto affixed its corporate seal under the hands of its duly
authorized officers in that behalf.
DATED at Ottawa, this 7th day of April, 1998.
SIGNED, SEALED AND DELIVERED )
in the presence of: ) ExpediaCom Global Inc.
) Per:
)
) _____________________
) JanSus Telecom Services Inc.
) Per:
)
) ______________________
)
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