EXCLUSIVE TECHNICAL CONSULTING SERVICE AGREEMENT
Exhibit
10.1
THIS EXCLUSIVE TECHNICAL CONSULTING
SERVICE AGREEMENT (the “Agreement”) is entered into by
and between the following parties effective as of March 25, 2010.
Party
A: Beijing CHENGMUJINMING Technology Service Co., Ltd
Registered
Address: 1704F1 17th
floor Tsing Wun Contemporary Building, Mantingfangyuan housing estate,
Qingyunli, Haidian District, Beijing, China.
Party
B: Weifang Jinzheng Poultry Co., Ltd.
Registered
Address: Daokou Industry Park, Yingli Town, Shouguang, Shandong Province
China
(each a
“Party” and collectively
the “Parties”)
WHEREAS,
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1.
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Party A, a wholly foreign-owned
enterprise duly established and valid existing under the laws of the PRC,
possesses professional knowledge, facilities, resources and skills to
provide Party B with technical consulting services relevant to the
development and operation of Party B’s
business.
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2.
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Party
B, a limited liability company duly established and valid existing under
the laws of the PRC agrees to accept the technical consulting services
provided by Party A in accordance with this
Agreement.
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NOW THEREFORE, intending to be
bound hereby, the Parties hereto agree as follows:
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1.
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Technical
Consulting Services;
Exclusivity
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1.1
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During the term of this
Agreement, Party A shall provide the following technical consulting
services to Party B in accordance with this
Agreement:
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(i)
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Provision of advanced management
skills to offer a framework for the construction of a new management
platform;
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(ii)
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Provision of technology
information and materials related to Party B’s business development and
operation. The contents of the technology information and documents may be
enhanced or diminished during the performance of this Agreement and upon
mutual agreement to address each Party’s requirements;
and
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(iii)
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Training of technical and
managerial personnel for Party B and provision of required training
documents. Party A will send technologists and managerial personnel to
Party B to provide related technology and training services as
necessary.
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1.2
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Party
B hereby agrees to accept the technical consulting services provided by
Party A. Party B further agrees that, during the term of this Agreement,
it shall not accept technical consulting and services from any other party
without the prior written consent of Party
A.
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1.3
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Party
A shall be the sole and exclusive owner of all right, title and interests
to any and all intellectual property rights arising from the performance
of this Agreement, including but not limited to, copyrights, patent,
know-how and commercial secrets, whether such intellectual property is
developed by Party A or Party B.
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2.
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Consulting
Fees
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2.1
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As
consideration for the services provided by Party A under this Agreement,
Party B shall pay a consulting fee to Party A equal to 85% of Party B’s
annual net profit (the “Consulting
Fee”).
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2.2
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In
addition to the Consulting Fee mentioned above, Party B agrees to
reimburse Party A for all necessary expenses related to the performance of
this Agreement before the payment of such Consulting Fee, including but
not limited to, travel expenses, expert fees, printing fees and mail
costs.
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2.3
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Party
B also agrees to reimburse Party A for taxes (not including income tax),
customs and other expenditures related to Party A’s performance of this
Agreement.
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2.4
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Party
B shall pay such service fees to Party A on half a year basis, with any
over or underpayment by Party B to be reconciled once the annual net
profit of Party B is determined at the end of Party B’s fiscal year.
During the term of this Agreement, Party B shall make payments to Party
A’s appointed bank account within three (3) working days after the
end of the each half a year, and the parties shall complete any
reconciliation payment within three (3) days after the determination
described in this Section 2.1. Party B shall send Party A a written
report of service fees on a half a year basis. Party B shall fax or mail
the copies of the remittance. In the event that Party B should fail to
make timely payment of the Consulting Fee and other necessary expenses in
accordance with this Agreement, Party B shall pay Party A a late fee based
on twelve percent (12%) compound annual interest from the date of
such default.
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2.5
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Party B shall open a separate
bank account for the Consulting Fees under this Agreement. Party A is
entitled to appoint its own employee, PRC accountant or an international
accountant to review or audit Party B’s account books in relation to the
services provided hereunder from time to time. Any fees payable to such an
accountant shall be paid by Party A. Party B shall provide any and all
documents, account books, records, materials and information, as well as
necessary assistance to the employee or accountant designated by Party A.
The audit report issued by Party A’s employee shall be final and
conclusive unless Party B gives written objection within seven
(7) days after receiving such report. An audit report issued by Party
A’s appointed accountant shall be deemed final and conclusive. Party A is
entitled to serve Party B with a written request for payment at any time
after receiving the audit report confirming the amount of the Consulting
Fee. Party B shall pay within seven (7) days after receiving the
notice in accordance with Article
2.4.
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3.
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Representations and
Warranties
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3.1
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Representations and Warranties of
Party A
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Party A
hereby represents and warrants as follows:
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3.1.1
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It
has the power to enter into and perform this Agreement in accordance with
its constitutional documents and business scope, and has taken all
necessary action to obtain all consents and approvals necessary to execute
and perform this Agreement.
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3.1.2
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The
execution and performance of this Agreement by Party A does not and will
not result in any violation of enforceable or effective laws or
contractual limitations.
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3.1.3
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Upon
execution, this Agreement shall constitute the legal, valid and binding
obligation of Party A and may be enforceable in accordance with the terms
hereof.
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3.2
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Representations
and Warranties of Party B
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Party B
hereby represents and warrants as follows:
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3.2.1
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Party
B is a company that is duly registered, validly existing under the laws of
the PRC and is authorized to enter into this
Agreement.
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3.2.2
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Party
B has the power to execute and perform this Agreement in accordance with
its constitutional documents and business scope, has taken all necessary
action to obtain all consents and approvals necessary to execute and
perform this Agreement and the execution and performance of this Agreement
does not and will not result in any violation of enforceable or effective
laws or contractual limitations.
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3.2.3
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Upon
its execution, this Agreement shall constitute the legal, valid and
binding obligation of Party B, enforceable against it in accordance with
the terms hereof.
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4.
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Confidentiality
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4.1
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Party B agrees to use all
reasonable and best efforts to protect and maintain the confidentiality of
Party A’s confidential information received in connection with this
Agreement. Party B shall not disclose, grant or transfer such confidential
information to any third party. Upon termination of this Agreement Party B
shall, upon Party A’s request, destroy or return to Party A any documents,
materials or software containing any such confidential information, shall
completely delete any such confidential information from any memory
devices and shall not use or permit any third party to use such
confidential information.
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4.2
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Pursuant to this Agreement, the
term “confidential information” shall mean any technical information or
business operation information which is unknown to the public, can bring
about economic benefits, has practical utility and about which a Party has
adopted secret-keeping
measures.
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4.3
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Both Parties agree that the
provisions of Article 4 shall survive notwithstanding the alteration,
revocation or termination of this
Agreement.
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5.
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Indemnities
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5.1
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Party B shall indemnify Party A
against any loss, damage, liability or expenses suffered or incurred by
Party A as a result of or arising out of any litigation, claim or
compensation request relating to the technical consulting services
provided by Party A to Party B under this
Agreement.
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6.
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Effectiveness and Term of this
Agreement
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6.1
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This
Agreement shall be executed and come into effect as of the date first set
forth above. The term of this Agreement shall be ten (10) years
unless earlier termination as set forth in this Agreement or upon the
mutual written agreement of the Parties
hereto.
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6.2
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This
Agreement may be extended prior to termination for one or more ten
(10) year terms upon written notice by Party A, provided such
extension is permitted by law and subject to the approval of the
registration administration for the extension of Party B’s business
duration. The parties will cooperate to renew this Agreement if such
renewal is legally permitted at the
time.
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7.
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Termination of the
Agreement
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7.1
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The
Agreement shall terminate automatically on the expiration date unless it
is otherwise renewed in accordance with this
Agreement.
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7.2
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Throughout
the term of this Agreement, Party B may not terminate this Agreement
absent of gross negligence, bankruptcy, fraud or illegal action on the
part of Party A. Notwithstanding the above, Party A may terminate this
Agreement by providing written notice to Party B thirty (30) days
before such termination.
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7.3
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The
rights and obligations of both Parties under Article 4 and Article 5 of
this Agreement shall survive after the termination of this
Agreement.
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8.
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Dispute
Settlement
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8.1
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The Parties shall strive to
settle any dispute arising from the interpretation or performance, or in
connection with this Agreement through mutual negotiation. In case no
settlement can be reached through negotiation, either Party may submit
such dispute to the China International Economic and Trade Arbitration
Committee for arbitration according to its current effective arbitration
rules. The arbitration shall be held in Beijing, PRC. The arbitration
proceedings shall be conducted in Chinese. The arbitration award shall be
final and binding upon the
Parties.
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9.
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Force
Majeure
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9.1
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A
“Force Majeure Event” means any event which is out of the control of each
party and that would be unavoidable or insurmountable even if the party
affected by such event paid reasonable attention to it. Force Majeure
Events shall include, but not be limited to, government actions, natural
disasters, fire, explosion, typhoons, floods, earthquakes, tide, lightning
or war. However, any lack of credit, assets or financing shall not be
deemed a Force Majeure Event.
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9.2
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If
the fulfillment of this Agreement is delayed or prevented due to a Force
Majeure Event as defined above, the party affected by such a Force Majeure
Event shall be free from any obligation to the extent of the delay or
holdback. The party claiming the occurrence of a Force Majeure Event shall
provide the other party with the steps of fulfilling the obligations of
this Agreement.
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9.3
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Performance
under this Agreement shall be suspended during the existence of such Force
Majeure Event, provided the Party claiming the existence of the Force
Majeure Event has notified the other Party of the existence of such Force
Majeure Event and has used reasonable best efforts to to perform under the
Agreement. Both Parties further agree to use reasonable best efforts to
resume performance of this Agreement if the reason for exemption has been
corrected or remedied.
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10.
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Notices
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10.1
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Any
notice or other communication under this Agreement shall be in Chinese and
be sent to the addresses first written above or other addresses as may be
designated from time to time by hand delivery or mail or facsimile. Any
notice required or given hereunder shall be deemed to have been served:
(a) on the same date if sent by hand delivery; (b) on the tenth
date after posting if sent by air-mail, (c) on the fourth date if
sent by the professional hand delivery which is acknowledged worldwide;
and (d) the receipt date displayed on the transmission confirmation
notice if sent by facsimile.
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11.
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Assignment
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11.1
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Party
B may not assign or transfer any rights or obligations under this
Agreement to any third party without prior written consent from Party
A.
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12.
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Severability
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12.1
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If
any of the terms of this Agreement are invalid, illegal or unenforceable,
the validity and enforceability of the other terms hereof shall
nevertheless remain unaffected.
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13.
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Amendments and
Supplement
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13.1
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Any
amendment or supplement of this Agreement shall be effective only if it is
made in writing and signed by both Parties hereto. The amendment or
supplement duly executed by the Parties hereto shall be made a part of
this Agreement and shall have the same legal effect as this
Agreement.
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14.
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Governing
Law
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14.1
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This Agreement shall be governed
by and construed in all respects in accordance with the laws of the
PRC.
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[THIS
SPACE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the
Parties have executed this Agreement on the date first above
written.
Party
A: Beijing CHENGMUJINMING Technology Service Co., Ltd
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By:
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/s/
Shan Junfeng
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Name:
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Shan
Junfeng
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Its:
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Chief
Executive Officer
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Party
B: Weifang Jinzheng Poultry Co., Ltd.
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By:
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/s/
Shan Junfeng
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Name:
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Shan
Junfeng
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Its:
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Chief
Executive Officer
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