EXHIBIT 4.33
[Translated from Chinese Original]
TECHNICAL SUPPORT AGREEMENT
between
FORTUNE SOFTWARE (BEIJING) CO., LTD.
and
XXXXXXX XXXXX XX., XXX.
Xxxxxxxxx, 0000
XXXXXXX, XXXXX
TECHNICAL SUPPORT AGREEMENT
This Technical Support Agreement ("this Agreement") is entered into in Beijing,
the People's Republic of China (the "PRC") on this September 10, 2007 between:
Party A: Fortune Software (Beijing) Co., Ltd.
Address: Xxxx 000, Beijing Hangtian Jingmi Mansion, Xx. 00 Xxxxxxx Xxxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Postal code: 100080
Party B: Beijing Glory Co., Ltd.
Address: Xxxx 000, Beijing Hangtian Jingmi Mansion, Xx. 00 Xxxxxxx Xxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Postal code: 100080
WHEREAS,
(1) Party A is a wholly foreign owned enterprise duly organized and validly
existing under the laws of the PRC, and has expertise and resources in
developing and manufacturing computer hardware and software, system software,
and application software; Party A desires to provide to Party B relevant
services, including without limitation technical support services, in connection
with developing and manufacturing computer hardware and software, system
software, and application software;
(2) Party B is a company with limited liability duly organized and validly
existing under the laws of the PRC. In order to expand Party B's business in the
aspects of developing and manufacturing computer hardware and software, system
software and the network operation of application software, Party B engages
Party A to provide the technical support services in connection with the
foregoing.
NOW AND THEREFORE, in accordance with the principle of sincere cooperation,
mutual benefit and joint development and after friendly negotiations, the
parties hereby enter into the following agreements pursuant to the provisions of
relevant laws and regulations of the PRC.
ARTICLE 1. DEFINITIONS
The terms used in this Agreement shall have the meanings set forth below:
1.1 "This Agreement" means this Technical Support Agreement and all appendices
thereto, including written instruments as originally executed and as may from
time to time be amended or supplemented by the parties hereto through written
agreements.
1.2 "The PRC" means, for the purpose of this Agreement, the People's Republic of
China, excluding Hong Kong, Taiwan and Macao.
1.3 "Date" means the year, month and day. In this Agreement, "within" or "no
later than", when used before a year, month or day, shall always include the
relevant year, month or day.
ARTICLE 2. TECHNICAL SUPPORT SERVICES
2.1 The technical support services (the "Services"): Party A agrees to provide
to Party B the relevant services requested by Party B, which are specified in
Exhibit 1 attached hereto ("Exhibit 1").
2.2 Exclusive Services Provider: Party A is the exclusive services provider of
Party B. Without the written consent of Party A, Party B shall not entrust any
other third party to provide the Services stated herein.
ARTICLE 3. TECHNICAL SUPPORT SERVICES FEE
3.1 Amount and payment: Party B shall pay certain fees in accordance with the
provisions of Exhibit 2 to Party B in consideration of the technical support
service provided by Party A (the "Service Fee").
3.2 Reasonable expenses: besides the Service Fee, Party A shall charge Party B
for all the reasonable expenses relating to the Services, including but not
limited to travel, accommodation, traffic and communication expenses.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.1 Each party hereto represents to the other party that:
4.1.1 it has all the necessary rights, powers and authorizations to enter into
this Agreement and to perform its duties and obligations hereunder; and
4.1.2 the execution or performance of this Agreement shall not violate any
significant contract or agreement to which it is a party or by which it is or
its assets are bounded.
ARTICLE 5. CONFIDENTIALITY
5.1 Each party shall keep confidential all the content of this Agreement.
Without the prior consent of all parties, no party shall disclose any content of
this Agreement to any other party or make any public announcements with respect
to any content of this Agreement. Notwithstanding the forgoing provisions of
this Article 5, the following disclosure shall be permitted: (i) disclosure made
pursuant to any applicable laws or any rules of any stock exchange of US, PRC or
relevant countries; (ii) disclosure of information which has become public
information other than due to any breach by the disclosing party; or (iii)
disclosure to any party's shareholders, legal counsel, accountants, financial
advisors or other professional advisors who bear the obligation of
confidentiality to such party.
5.2 The parties agree this Article 5 will survive any invalidity, modification,
cancellation or termination of this Agreement, if applicable.
ARTICLE 6. GOVERNING LAW AND EVENTS OF DEFAULT
6.1 The execution, effectiveness, interpretation, performance and dispute
resolution of this Agreement shall be governed by the laws of the PRC.
6.2 Any violation of any provision hereof, incomplete performance of any
obligation provided hereunder, any misrepresentation made hereunder, material
concealment or omission of any material fact or failure to perform any covenant
provided hereunder by any party shall constitute an event of default. The
defaulting party shall assume all the legal liabilities pursuant to the
applicable laws.
ARTICLE 7. DISPUTE RESOLUTION
7.1 Any dispute arising from the performance of this Agreement shall be first
subject to the parties' friendly consultations. If the parties fail to make an
written agreement within thirty days after consultation, such dispute will be
submitted to the China International Economic and Trade Arbitration Commission
("CIETAC") in accordance with its arbitration rules/procedures.
7.2 The arbitration shall be administered by the Beijing branch of China
International Economic and Trade Arbitration Commission in accordance with the
then effective arbitration rules of the Commission in Beijing. The tribunal will
be composed of one (1) arbitrator appointed by the chairman of CIETAC
7.3 The arbitration award shall be final and binding on the parties. The costs
of the arbitration (including but not limited to arbitration fee and attorney
fee) shall be borne by the losing party, unless the arbitration award stipulates
otherwise.
ARTICLE 8. EFFECTIVENESS
8.1 This Agreement shall become effective upon the execution by both parties
hereto.
8.2 The term of this Agreement shall be ten (10) years. Party B shall not
terminate this Agreement during this term.
8.3 Unless Party A notifies Party B of no renewal of this Agreement by giving a
thirty (30) days prior notice, this Agreement will be renewed for one year
automatically after the expiry of the term hereof. This provision will apply to
all the subsequent renewal.
ARTICLE 9. NO SUBSEQUENT OBLIGATION
9.1 Once this Agreement is terminated, Party A will not have any obligation of
providing to Party B any Service hereunder.
ARTICLE 10. TRANSFER LIMITATION
10.1 Without the prior written consent of the other party, neither party shall
transfer any of their rights or obligations hereunder.
ARTICLE 11. AMENDMENT
11.1 Both parties hereto shall fulfill their respective obligations hereunder.
No amendment to this Agreement shall be effective unless such amendment has been
made in written form, and agreed by both parties and both parties have obtained
necessary authorization and approvals with respect to such amendment. Any
modification and supplementary to this Agreement after signed by both parties,
become an integral part of this Agreement, and has the same legal force with
this Agreement.
ARTICLE 12. COUNTERPARTS
12.1 This Agreement is executed in two counterparts, with Party A and Party B
each hold a counterpart. Each counterpart has the same legal force.
ARTICLE 13. MISCELLANEOUS
13.1 The title and headings contained in this Agreement are for convenience of
reference only and shall not in any way affect the meaning or interpretation of
any provision of this Agreement;
13.2 The parties may enter into supplementary agreements to address any issue
not covered by this Agreement. The supplementary agreements so entered shall be
an appendix hereto and shall have the same legal effect as this Agreement.
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Exhibit 1
Content of the Technical Support Services
Party A shall provide the following technical support services to Party B to the
extent permitted by PRC laws:
(1) providing the technical support and professional trainings necessary for
Party B to operate its business;
(2) maintaining the computer system of Party B;
(3) providing Party B with website design, and the design, installation,
adjustment and maintenance services of Party B's computer network system;
(4) providing comprehensive security services of Party B's websites;
(5) providing database support and software services;
(6) other services in connection with Party B's business;
(7) providing labor support upon requested by Party B, including but not
limited to sending or dispatching relevant personnel to Party B (provided
however that Party B shall bear the relevant labor costs); and
(8) other services agreed to by the parties.
Exhibit 2
Technical Support Service Fee
The Service Fee in consideration of provision of the Service provided by Party A
shall be 30% of the "profits" of Party B in such year. The "profits" of Party B
in such year should be equal to gross revenue of Party B in such year minus (the
sales tax, sales expenses, management fees, financial expenses and other
expenses resulting from the daily operation and other business operation of
Party B, and such "profit" shall be the profit before paying for other service
fees as specified by the Binding Agreements. Such expenses shall be determined
by both parties every quarter in written form, and shall be paid by Party B
within three (3) months after the accounting date.
[execution page only]
This Agreement is executed by the following parties as of the date listed first
above.
Party A: Fortune Software (Beijing )Co. Limited
Seal:
Authorized Representative (Signature):
Party B: Beijing Glory Co, Ltd.
Seal:
Authorized Representative (Signature):
