Exclusive Technical Services Agreement
[Reference
Translation]
between
Jinan
Youxiantong Network Technology Co., Ltd.
and
Hubei
Chutian Video Communication Network Co., Ltd.
June
2008
Table
Of Contents
|
Articles
|
|
Pages | ||
|
1.
|
ENGAGEMENT
|
2
|
||
|
2.
|
SCOPE
OF SERVICES
|
3
|
||
|
3.
|
GENERAL
OBLIGATIONS OF PARTY A
|
3
|
||
|
4.
|
OBLIGATIONS
OF PARTY B IN RELATION TO THE SERVICES
|
3
|
||
|
5.
|
CONSIDERATION
|
3
|
||
|
6.
|
METHOD
OF RELATED FINANCING PAYMENT FOR THE TECHNICAL SERVICE
|
4
|
||
|
7.
|
EXCLUSIVITY
|
4
|
||
|
8.
|
REPRESENTATIONS
AND WARRANTIES
|
5
|
||
|
9.
|
BREACH
AND INDEMNIFICATIONS
|
5
|
||
|
10.
|
TERM
|
6
|
||
|
11.
|
CONSEQUENCES
OF TERMINATION
|
6
|
||
|
12.
|
CONFIDENTIALITY
|
6
|
||
|
13.
|
DISPUTE
RESOLUTION
|
7
|
||
|
14.
|
MISCELLANEOUS
|
7
|
Appendix
I Form
of
Service Fee Payment Notice
Technical Services Agreement
-
1
-
This
Exclusive Technical Services Agreement (Agreement)
is
entered into in
Wuhan,
Hubei Province, the People's Republic of China (PRC)
on this
fifth day of June 2008.
by
and between
| (1) |
Jinan
Youxiantong Network Technology Co., Ltd.
a
legal entity established pursuant to the relevant laws and regulations
with its registered address at Suite 1014, Wenjiao Tower, No. 1
Qingnian
East Road, Jinan, Shandong Province, PRC, whose legal representative
is Pu
Yue. (Party
A)
|
and
| (2) |
Hubei
Chutian Video Communication Network Co., Ltd.,
a
legal entity established pursuant to the relevant laws and regulations
with its registered address at 12th Floor, Block B, Chutian Urban
Garden,
1 Zhongbei Avenue, Wuchang, Wuhan, Hubei Province, the PRC, whose
legal
representative is Xxxxxxxx XXXXX. (Party B).
|
(Individually
a "Party"
and
collectively the “Parties”)
BACKGROUND
| A. |
Party
B engages primarily in
cable TV projects; management of the business with respect to
analog TV,
digital networks and digital TV, consultation, software, system
integration and construction and other value-added business with
respect
to the cable digital TV in
Hubei Province (Business).
|
| B. |
Party
A possesses certain technologies involved in the Business as
well as
related expertise and resources.
|
| C. |
Party
B agrees to retain Party A as its service provider of marketing,
strategic
consulting and technical support and services with respect to the
Business
(Services)
for certain service fee, and Party A agrees to provide the
Services.
|
NOW,
THEREFORE,
the
Parties agree as follows:
|
1.
|
ENGAGEMENT
|
Party
B
hereby engages Party A to be its provider of the Services. Party B accepts
such
engagement and agrees to provide the Services according to the terms and
conditions set forth herein.
Technical Services Agreement
-
2
-
| 2. |
SCOPE
OF SERVICES
|
Party
B
hereby appoints Party A, effective as of the date hereof, as its exclusive
provider of the Services, as agreed by the parties from time to time, including
but not limited to, the following:
| 2.1 |
Management,
operation and maintenance of relevant networks and
equipment;
|
| 2.2 |
Consulting
services for operation, business development, sales and planning,
market
research, data collection and
analysis;
|
| 2.3 |
Training
for management personnel;
|
| 2.4 |
Report
to Party A on international developments and advanced technology
regarding
the Business;
|
| 2.5 |
Provide
developed systems and financial support software;
and
|
| 2.6 |
Provide
financing for the Services, and any related troubleshooting plans,
software and technical services.
|
|
3.
|
GENERAL
OBLIGATIONS OF
PARTY A
|
Party
A
shall be required throughout the term of this Agreement to perform the following
obligations:
| 3.1 |
act
in good faith towards Party B and use its best efforts to fulfill
any and
all duties and obligations arising under this
Agreement;
|
| 3.2 |
act
in the long-term, best interests of Party B;
and
|
| 3.3 |
attempt
to minimize the costs for providing the Services in accordance with
the
provisions of this Agreement.
|
|
4.
|
OBLIGATIONS
OF PARTY B IN RELATION TO THE
SERVICES
|
Party
B
shall be required throughout the term of this Agreement to provide Party A
with
such assistance as may be requested by Party A in order to provide the Services
in an efficient and effective manner in accordance with the provisions of this
Agreement.
|
5.
|
CONSIDERATION
|
During
the term of this Agreement, Party B shall pay to Party A, in RMB, a service
fee
equivalent to 11% of Party B‘s net profit during the said term, which shall be
calculated in accordance with the following formula: the Service Fee Payable
is
equal 11% of the revenue of Party B minus the total costs of Party B minus
again
the tax payable. Total costs does not comprise any Service Fee Payable mentioned
hereof.
Technical Services Agreement
-
3
-
In
the
above formula,
| 5.1 |
the
revenue of Party B means any revenue collected from any third party
in the
course of the Business;
|
| 5.2 |
the
tax payable includes without limitation business tax, tax, value-added
tax, urban maintenance and construction tax, and educational
surtax;
|
| 5.3 |
the
total costs of Party B include any costs and fees incurred in the
course
of Party B’s business operations, such as costs incurred in the sale of
goods; and
|
| 5.4 |
Party
B’s net profit shall be determined by a study conducted by a reputable
CPA
that is designated by the shareholder’s
meeting of Party B.
|
|
6.
|
METHOD
OF RELATED FINANCING PAYMENT FOR THE TECHNICAL
SERVICE
|
Party
A
shall provide to Party B, within 6 months of the execution hereof, an amount
of
RMB 363 million by a method confirmed by the Parties pursuant to the Framework
Agreement and Finance Support Agreement.
|
7.
|
EXCLUSIVITY
|
| 7.1 |
Party
B appoints Party A as its exclusive provider of the Services. During
the
term of this Agreement, Party B shall not engage any third party
to
provide any services similar to the Services arising from this Agreement,
without Party A’s prior written
consent.
|
| 7.2 |
Party
A’s acceptance of the appointment to provide the Services shall be
non-exclusive and shall not restrict Party A from acting for any
other
third party with respect to similar or different
services.
|
| 7.3 |
Party
A shall be the sole and exclusive owner of all rights, title and
interests
to any and all intellectual property rights arising from the performance
of this Agreement, including, but not limited to, any copyrights,
trademarks, patents, know-how and otherwise, whether developed by
Party A
in its performance hereof or developed by Party B based on Party
A’s
intellectual property.
|
Technical Services Agreement
-
4
-
|
8.
|
REPRESENTATIONS
AND WARRANTIES
|
| 8.1 |
Party
A hereby represents and warrants as
follows:
|
| 8.1.1 |
Party
A is a company duly registered and validly existing under the laws
of the
PRC;
|
| 8.1.2 |
Party
A has full right, power, authority and capacity and all consents
and
approvals of any other third party and the relevant governmental
authorities that are necessary to execute, deliver and perform this
Agreement, which shall not violate or infringe any enforceable and
effective laws or contracts;
|
| 8.1.3 |
The
Agreement shall constitute a legal, valid and binding agreement of
Party A
and is enforceable against it in accordance with the terms upon its
execution.
|
| 8.2 |
Party
B hereby represents and warrants as
follows:
|
| 8.2.1 |
Party
B is a company duly registered and validly existing under the relevant
laws and regulations and is licensed to engage in the business described
on its business license, as set forth in Item B in the Background
Section
above.
|
| 8.2.2 |
Party
B has full right, power, authority and capacity and all consents
and
approvals of any other third party and the relevant governmental
authorities, that are necessary to execute, deliver and perform this
Agreement, which shall not violate or infringe any enforceable and
effective laws or contracts;
|
| 8.2.3 |
The
Agreement shall constitute a legal, valid and binding agreement of
Party B
and is enforceable against it in accordance with the terms upon its
execution.
|
|
9.
|
BREACH
AND INDEMNIFICATIONS
|
| 9.1 |
If
either Party (Breaching
Party)
violates any provision of this Agreement, fails to perform its obligations
hereunder, or performs its obligations contrary to the provisions
hereunder, which results in a material economic loss for the other
party
(Non-Breaching
Party),
it shall be deemed to have committed a breach of this Agreement
(Breach).
In such case, the Non-Breaching Party shall be entitled to issue
a written
notice to the Breaching Party requiring rectification of the Breach
within
10 days after receipt.
|
Technical Services Agreement
-
5
-
| 9.2 |
The
Breaching Party shall be liable to indemnify the Non-Breaching party
for
any and all losses, claims or damages sustained as a result of the
Breach.
The damages payable by the Breaching Party to the Non-Breaching shall
be
equal to the losses incurred by the Non-Breaching Party as a result
of the
Breach.
|
|
10.
|
TERM
|
This
Agreement shall come into effect as of the date first written above and shall
continue to be effective unless terminated:
| 10.1 |
by
Party A serving a 30 days prior written notice;
or
|
| 10.2 |
in
the event of Breach, by the Non-Breaching Party, if the Breaching
Party
has not made rectification 30 days after receipt of the notice from
the
Non-Breaching Party.
|
|
11.
|
CONSEQUENCES
OF TERMINATION
|
| 11.1 |
In
the event that this Agreement is terminated, Party B agrees that
it shall
remain liable to Party A for any payment owing and outstanding, including
the expenses and indemnities under this Agreement prior to the date
of
such termination.
|
| 11.2 |
The
termination of this Agreement, for any reason whatsoever, shall not
affect
the respective rights, obligations and liabilities of each of the
Parties
accrued prior to such termination.
|
|
12.
|
CONFIDENTIALITY
|
Each
Party shall maintain as strictly confidential the provisions and existence
of
this Agreement and any information relating to the business of the other Party
to which it might have access including, but not limited to, databases,
financial and business plans, and any other information deemed to be
confidential by the other Party, unless the said confidential information has
already entered the public domain or was disclosed by the other Party pursuant
to a court order or the applicable laws of the relevant
jurisdiction.
Technical Services Agreement
-
6
-
|
13.
|
DISPUTE
RESOLUTION
|
|
13.1
|
Governing
Law.
This Agreement shall be governed by PRC law.
|
|
13.2
|
Dispute
Resolution.
|
| 13.2.1 |
If
any dispute arises in connection with this Agreement, the Parties
shall
attempt in the first instance to resolve such dispute through friendly
consultation or mediation.
|
| 13.2.2 |
If
the dispute cannot be resolved in the above manner within thirty
(30) days
after the commencement of consultations, either Party may submit
the
dispute to arbitration as follows:
|
| 13.2.2.1 |
all
disputes arising out of or in connection with this Agreement shall
be
submitted to China International Economic and Trade Arbitration Commission
which shall be conducted by three (3) arbitrators in Beijing in accordance
with the Commission’s arbitration rules;
and
|
| 13.2.2.2 |
the
arbitration shall be conducted in the Chinese language, with the
arbitral
award being final and binding upon the Parties. The cost of
arbitration shall be allocated as determined by the arbitrators.
|
| 13.2.3 |
When
any dispute is submitted to arbitration the Parties shall continue
to
perform this Agreement.
|
|
14.
|
MISCELLANEOUS
|
| 14.1 |
Party
A hereby agrees that Party B shall, at its sole discretion, determine
the
performance of any and all of its obligations in the manner as it
deems
fit, provided that it does not violate the applicable laws and regulations
or the provisions of this
Agreement.
|
| 14.2 |
Party
B shall, for the purposes of this Agreement and applicable laws,
constitute an independent contractor supplying services to Party
A
pursuant to the terms and conditions of this Agreement.
|
| 14.3 |
Party
A shall not assign any of its rights or obligations under this
Agreement.
|
Technical Services Agreement
-
7
-
| 14.4 |
The
invalidity or unenforceability of any provision of this Agreement
shall
not affect the validity and enforceability of any other provision
of this
Agreement, provided that the material interests of the Parties are
not
affected.
|
| 14.5 |
This
Agreement and the Schedules hereto constitute the entire agreement
between
the Parties with respect to the subject matter hereof, and shall
supersede
any prior expression of intent or understanding relating hereto and
may
only be modified or amended by a written instrument signed by the
authorized representatives of the
Parties.
|
| 14.6 |
This
Agreement has been prepared in Chinese in 2 sets of originals. Each
Party
shall hold 1 set of original.
|
| 14.7 |
The
failure of any Party to enforce or require performance of any of
the
provisions of this Agreement, or to exercise any rights provided
herein,
shall in no way be construed as a waiver of such provision, right,
or
thereafter affect such Party's right to enforce any provision of
this
Agreement.
|
| 14.8 |
All
notices or other communications sent by either Party shall be written,
and
delivered in person (including by courier), by mail, or fax, to the
other
Party at the following addresses. The date at which the communication
shall be deemed to be duly given or made shall be confirmed as follows:
(a) for notices delivered in person, the day when the notice is received;
(b) for notices delivered by mail, 10 days after the delivery date
for air
certified mail with postage prepaid (as shown on stamp); and (c)
for
notices by fax, the receipt date shown on the delivery confirmation
paper
of the relevant document.
|
|
If
to Party A:
|
Jinan
Youxiantong Network Technology Co., Ltd.
|
|
|
Attention:
|
PU
Yue
|
|
|
Telephone
Number:
|
0000-00000000
|
|
|
Fax:
|
0000-00000000
|
|
|
E-mail
Address:
|
xxxxxxxx@xxxxx.xxx
|
|
|
Address:
|
Suite
1014, Wenjiao Tower, No. 1 Qingnian East Road, Jinan, Shandong
Province,
PRC
|
|
|
If
to Party B:
|
Hubei
Chutian Video Communication Network Co.,
Ltd.
|
Technical Services Agreement
-
8
-
|
Attention:
|
XXXXX
Xxxxxxxx
|
|
|
Telephone
Number:
|
[Ÿ]
|
|
[Ÿ]
|
||
|
[Ÿ]
|
||
|
Address:
|
12th
Floor, Block B, Chutian Urban Garden, 1
Zhongbei Avenue, Wuchang, Wuhan, Hubei Province,
PRC
|
[The
space below has been intentionally left blank.]
Technical Services Agreement
-
9
-
IN
WITNESS WHEREOF,
the
Parties have caused this Agreement to be executed by their duly authorized
representatives on the date first written above.
|
For
and on Behalf of
|
||
|
Party
A: Jinan
Youxiantong Network Technology Co., Ltd.
|
||
|
Company
seal
|
||
|
By:
|
|
|
|
Name:
|
PU
Yue
|
|
|
Title:
|
General
Manager
|
|
|
Date:
|
||
|
For
and on Behalf of
|
||
|
Party
B: Hubei
Chutian Video Communication Network Co., Ltd.
|
||
|
Company
seal
|
||
|
By:
|
|
|
|
Name:
|
XXXXX
Xxxxxxxx
|
|
|
Title:
|
Chairman
of the Board
|
|
|
Date:
|
||
Technical Services Agreement
-
10
-
