EXCLUSIVE TECHNOLOGY CONSULTING SERVICES AGREEMENT
This
Exclusive Technology Consulting Services Agreement (hereinafter referred to
as
“this Agreement”) is entered into in ShenZhen on February 08, 2007
between the following two parties:
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd. (经纬恒通科技
(
深 圳 ) 有限公司)
Registration
Address: Xxxx 0000 X,Xxxxxx Xx-xxxx Xxxxx Xxxxx X,Xxxx An Cyber Park,Futian
District,Shenzhen,China
Party
B:
ShenZhen JingWei Communication Co., Ltd. (深圳经纬通信技术有限公司)
Registration
Address: Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
WHEREAS:
(1)
Party
A
is a wholly foreign-owned enterprise duly incorporated under the People’s
Republic of China (the “PRC”) law, which has the technology expertise and the
practical experience on the development and design of computer software, and
rich experience and professional technicians on information technology and
services;
(2)
Party
B
is a limited liability company duly incorporated in ShenZhen, which is licensed
by relevant government authorities to engage in the internet information service
value-added telecommunication service;
(3)
Party
A
has been providing exclusive technology consulting services and relevant
services to Party B and Party B agrees to accept such technology consulting
the
services from signed this Agreement. Both Parties wish to continue the
cooperation and sign the written agreement to stipulate their own rights and
obligation.
NOW
THEREFORE, both Parties through mutual negotiation agree as
follows:
1.
Exclusive
Technology Consulting and Services; Sole and Exclusive Interests
1.1
During
the term of this Agreement, Party A agrees to, as the exclusive technology
consulting and services provider of Party B, provide the exclusive technology
consulting and services to Party B (the content of services is specified in
Appendix 1).
1.2
Party
B
agrees to accept the exclusive technology consulting and services provided
by
Party A and further agrees that, during the term of this Agreement, it shall
not
accept such technology consulting and services for the aforesaid business
provided by any third party without the prior written consent of Party
A.
2.
Payment
and Guarantee of the Fees for Technology Consulting and Services (the
“Fee”)
2.1
Both parties agree that Party A shall carry the operation cost raised from
operating of Party B, and Party B shall pay all incomes from main business
operations to Party A, and subsequently the daily operation of Party B will
have
a material impact on its payment capacity to Party A;
2.2
Party
B
is obligated to provide respective Sales and Marketing data and materials on
Party A’s demand at any time and Party A has the right to examine or check with
such data and materials at any time.
2.3
The
parties agree that Party B shall pay Party A the fee for technical consultating
and services provided by Party A to Party B for each two months. Party B shall
pay such fee to Party A within 15 days upon receipt of payment notice given
by
Party A.
2.4
Party
B’s
shareholder shall pledge the equity interests of Party B to Party A for securing
the Fee that should be paid by Party B pursuant to this Agreement.
3.
Intellectual
Property
3.1
Party
A
shall be the sole owner of the copyrights of the software designed by Party
A
and other relevant software, any intellectual property obtained through the
research and development by Party A and any derivative rights arising from
the
performance of this Agreement or any other agreement reached by both parties,
including but not limited to, the patent application right, copyright of the
software, technical documents and materials, or other intellectual property
rights and the right to license or transfer such intellectual properties,
etc.
3.2
During
the execution of this Agreement, if Party B needs to use Party A’s software
program or system, both parties shall sign a separate agreement on the scope,
method and fee of such license.
4.
Representations
and Warranties
4.1
Party
A
hereby represents and warrants as follows:
4.1.1
Party
A
is a wholly foreign-owned enterprise duly incorporated and validly existing
under the PRC law;
4.1.2
Party
A,
subject to its company power and business scope, has taken necessary company
actions to get the proper authorization and the necessary consents or approvals
from other third party or governments, without violating the restriction of
the
laws and company which binds or influences Party A to execute and perform this
Agreement;
4.1.3
The
Agreement will constitute a legal, valid and binding agreement of Party A and
will be enforceable against Party A in accordance with its terms upon its
execution.
4.2
Party
B
hereby represents and warrants as follows:
4.2.1
Party
B
is a limited liability company duly incorporated and validly existing under
the
PRC law, which is licensed by relevant government authorities to engage in
the
internet information service value-added telecommunication service;
4.2.2
Party
B,
subject to its company power and business scope, has taken necessary company
actions to get the proper authorization and the necessary consents or approvals)
from other third party or governments, without violating the restriction of
the
laws and company which binds or influences Party A to execute and perform this
Agreement;
4.2.3
The
Agreement will constitute a legal, valid and binding agreement of Party B and
will be enforceable against Party B in accordance with its terms upon its
execution.
5.
Confidentiality
5.1
Party
B
agrees to take all reasonable manners to protect and maintain the
confidentiality of the confidential data and information acknowledged or
received by Party B through accepting the exclusive consulting and services
from
Party A (collectively the “Confidential Information”). Party B shall not
disclose, give or transfer any Confidential Information to any third party
without Party A’s prior written consent. Upon termination of this Agreement,
Party B shall, at Party A’s request, return all and any documents, information
or software contained any of such Confidential Information to Party A or destroy
it at its own discretion, and delete all of such Confidential Information from
any memory devices, and cease to use such Confidential Information.
5.2
Both
parties acknowledge and confirm that any oral or written materials exchanged
pursuant to this Agreement are confidential documents. Both parties shall keep
secrets of all such documents and not disclose any such documents to any third
party without prior written consent from the other party unless under the
following conditions: (a) such documents are known or shall be known by the
public (excluding the receiving party discloses such documents to the public
without authorization); (b) any documents disclosed in accordance with
applicable laws or rules or regulations of stock exchange; (c) any documents
need required to be disclosed by any party to its legal counsel or financial
consultant for the purpose of the transaction of this Agreement by any Party,
and such legal counsel or financial consultant shall also comply with the
confidentiality as stated hereof. Any disclosure by employees or agencies
employed of any party shall be deemed as the disclosure of such party and such
party shall assume the liabilities for its breach of contract pursuant to this
Agreement.
5.3
Both
parties agree that Article 5 shall survive whatever this Agreement is void,
amended, cancelled, terminated or unable to perform.
6.
Indemnity
Party
B
shall indemnify and hold harmless Party A on a full indemnity basis against
any
loss, damage, liability, and fee arising from any litigation, claims or other
legal procedures against Party A, which is caused by the content of consulting
and service required by Party B.
7.
Effective
Date and Term
7.1
This
Agreement shall be signed and it shall take into effect as of the date first
set
forth above.
7.2
The
term
of this Agreement is ten (10) years unless early terminated as set forth herein
or in accordance with the terms set forth in other agreements entered into
by
both Parties.
7.3
This
Agreement may be extended with the written consent of both parties at its
expiration, and the extended term shall be determined by both parties through
the manner of negotiation. If both parties have not reached any agreement on
such extension, this Agreement shall be extended for one (1) year automatically
at its expiration (including any expiration of extended term) unless Party
A
informs of the termination of this Agreement with the written notice before
the
expiration.
7.4
During
the terms set forth in Article 7.2 and 7.3 hereof, if any party is terminated
at
the expiration of operation term (including any extension of such term) or
by
any other reason, this Agreement shall be terminated upon such termination
of
the party, unless such party has already assigned its rights and obligations
in
accordance with Article 13 hereof.
8.
Termination
8.1
Termination
on Expiration
This
Agreement shall expire on the date due unless this Agreement is extended in
accordance with relevant provisions hereof.
8.2
Early
Termination
During
the term of this Agreement, Party B shall not terminate this Agreement unless
Party A engages in any gross negligence, fraud, other illegal acts or is
confronted with the bankruptcy. Notwithstanding the aforesaid provisions, Party
A may terminate this Agreement at any time with a written notice to Party B
within thirty (30) days in advance. During the term of this Agreement, if Party
B breaches the contract and has not rectified its breach within fourteen (14)
days upon receipt of Party A’s written notice for such breach, Party A shall
inform Party B with a written notice to terminate this Agreement.
8.3
Survival.
The
rights and obligations to both Parties under Article 5, 10 and 12 shall continue
to be effective upon the termination of this Agreement.
9.
Governing
Law
This
Agreement shall be governed by, construed and enforced in accordance with the
PRC laws.
10.
Settlement
of Disputes
The
parties shall strive to settle any dispute arising from the interpretation
or
performance in connection with this Agreement through friendly consultation.
In
case no settlement can be reached through consultation within thirty (30) days
after such dispute is raised, each party can submit such matter to China
International Economic and Trade Arbitration Commission (the “CIETAC”) in
accordance with its rules. The arbitration shall take place in Beijing and
the
proceedings shall be conducted in Chinese. The arbitration award shall be final
conclusive and binding upon both parties.
11.
Force
Majeure
11.1
Force
Majeure, which includes but not limited to acts of governments, acts of nature,
fire, explosion, typhoon, flood, earthquake, tide, lightning or war, means
any
event that is beyond the party’s reasonable control and cannot be prevented with
reasonable care of the affected party. However, any shortage of credit, capital
or finance shall not be regarded as an event beyond the party’s reasonable
control. The party affected by Force Majeure and seeks for the exemption from
performing the obligations under this Agreement shall inform the other party
of
such exemption and any action taken by it for performing this
Agreement.
11.2
In
the
event that the affected party is delayed in or prevented from performing its
obligations under this Agreement by Force Majeure, only within the scope of
such
delay or prevention, the affected party will not be responsible for any damage
by reason of such a failure or delay of performance. The affected party shall
take appropriate manners to minimize or remove the effects of Force Majeure
and
attempt to resume the performance of the obligations delayed or prevented by
the
event of Force Majeure. Once the event of Force Majeure is removed, both parties
agree to resume the performance of this Agreement with their best
efforts.
12.
Notices
Notices
or other communications required to be given by any party pursuant to this
Agreement shall be written in English and Chinese and delivered personally
or
sent by registered mail or postage prepaid mail or by a recognized courier
service or by facsimile transmission to the address of relevant each party
or
both parties set forth below or other address of the party or of the other
addressees specified by such party from time to time. The date when the notice
is deemed to be duly served shall be determined as the follows: (a) a notice
delivered personally is deemed duly served upon the delivery; (b) a notice
sent
by mail is deemed duly served the tenth (10th) day after the date when the
air
registered mail with postage prepaid has been sent out (as is shown on the
postmark), or the fourth (4th) day after the delivery date to the
internationally recognized courier service agency; and (c) a notice sent by
facsimile transmission is deemed duly served upon the receipt time as is shown
on the transmission confirmation of relevant documents.
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd.
Address:
Room 1605 B,Tianan Hi-tech Plaza Tower A,Tian An Cyber Park,Futian
District,Shenzhen,China
Attn:
Ms.
Xxx Xxxxx
Fax: 00-0000-00000000 Tel:
00-0000-00000000
Party
B:
ShenZhen JingWei Communication Co., Ltd.
Address:
Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
Attn:
Mr.
Xxx Xx
Fax: 00-0000-00000000 Tel:
00-0000-00000000
13.
Assignment
13.1
Party
B
shall not assign its rights or obligations under this Agreement to any third
party without the prior written consent of Party A.
13.2
Party
B
hereby agrees that Party A may assign its rights and obligations under this
Agreement as its needs and such transfer shall only be subject to a written
notice sent to Party B by Party A, and no any further consent from Party B
will
be required.
14.
Entire
Agreement
Notwithstanding
Article 7.1 hereof, both parties confirm that this Agreement shall constitute
the entire agreement of both Parties with respect to the subject matters therein
and supersedes and replaces all prior or contemporaneous verbal and written
agreements and understandings.
15.
Severability
If
any
clause hereof is judged as invalid or non-enforceable according to relevant
laws, such clause shall be deemed invalid only within the applicable area of
the
Laws and without affecting other clauses hereof in any way.
16.
Amendment
and Supplement
Any
amendment and supplement of this Agreement shall be made in writing by both
Parties. The amendment and supplement duly executed by both Parties shall be
deemed as a part of this Agreement and shall have the same legal effect as
this
Agreement.
17.
Copies
This
Agreement is executed in duplicate, each party holds one and each original
has
the same legal effect.
IN
WITNESS THEREOF both parties hereto have caused this Agreement to be duly
executed by their legal representatives and duly authorized representatives
on
their behalf as of the date first set forth above.
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd.
Legal
or Authorized Representative:
Seal:
Party
B:
ShenZhen JingWei Communication Co., Ltd.
Legal
or Authorized Representative:
Seal:
Appendix
1: The Content list of Technical Consulting and Services
Party
A
shall provide technical consulting and services as follows:
| 1. |
Provision
and maintenances of the office
network;
|
| 2. |
Design,
implementation and support of the Virtual Operator Services, including
Operation Analysis System, Telecom Consultation, Telecom Marketing,
Value-Added Services;
|
| 3. |
Development
and test of new products;
|
| 4. |
Marketing
plan of new products;
|
| 5. |
Maintain
and manage the network platform;
|
| 6. |
Develop
and update the internet applications of the server, and its
application;
|
| 7. |
Maintenance
of the clients service platform;
|
| 8. |
Study
and analysis on market;
|
| 9. |
Public
relationship service
|
| 10. |
Training
of technology and technicians;
|
| 11. |
To
support Party B’s needs for personnel, including but not limited to the
secondment of Party A’s personnel to Party B (but Party B shall bear the
cost and expenses of the
personnel);
|
| 12. |
Other
services recognized by both
parties.
|
