EXHIBIT 10.15
TECHINICAL SERVICE AGREEMENT
BY AND BETWEEN
HENAN ORIGIN COTTON
TECHNOLOGY DEVELOPMENT LIMITED
AND
BEIJING ORIGIN STATE HARVEST BIOTECHNOLOGY LIMITED
DECEMBER 25, 2004
This Agreement is entered into December 25,2004 in Beijing between the following
parties:
(1) Henan Origin Cotton Technology Development Limited (Hereafter Henan Origin
Cotton") is a limited liability corporation registered in Henan, China,
which is located at Xx.00 Xxxx Xxxxxxx, Xx-Xxxx Xxxxxxxxxxx Xxxx,
Xxxxxxxxx; and
(2) Beijing Origin State Harvest Biotechnology Limited (hereafter " State
Harvest Biotechnology"), a wholly foreign owned enterprise("WFOE") duly
registered in Beijing, whose legal address is Room 201, 2nd floor Area A,
Xxxxxxxxxxxx Xxxxxxxxxxx Xxxxxxxx, Xx.00 Xxxxxxx Information Middle Street,
, Haidian District, Beijing.
(Henan Origin Cotton and State Harvest Biotechnology are referred to
collectively in this agreement as "parties" or "both parties", and individually
as "a Party"
WHEREAS:
(1) Henan Origin Cotton's major business is the research, production, wholesale
and retail of cotton seeds;
(2) State Harvest Biotechnology's major business is technical and consultation
service in connection with the research and development of agricultural
seeds;
(3) State Harvest Biotechnology shall offer such technical service to Henan
Origin Cotton, and Henan Origin Cotton shall receive technical service from
State Harvest Biotechnology, in accordance with the terms of this
agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
I DEFINITION
1. Except as otherwise provided under the terms of this Agreement, the
following terms shall have the meanings set forth below:
"This agreement" shall mean this agreement and its appendix;
"Signing date" shall mean the date of signing this agreement;
"Technical Service" shall mean services to be provided by State Harvest
Biotechnology to Henan Origin Cotton as set out in Article 2;
"Period" shall mean the period during which State Harvest Biotechnology
shall provide Technical Service to Henan Origin Cotton as set out in
Article 3 of this agreement;
"Cost" shall mean the costs set out in Article 4 of this agreement which is
to be paid by Henan Origin Cotton to State Harvest Biotechnology;
"RMB" shall mean Renminbi, the lawful currency of the PRC;
"Business day" shall mean a day other than Saturday, Sunday on which
commercial banks in the PRC are generally open for business;
"China" refers to People's Republic of China, in context of this agreement,
excluding Hong Kong Special Administrative Region, Macau Special
Administrative Region, and Taiwan;
"China law" refers to the effective laws, regulations, policies or other
enforceable legal documentations of People's Republic of China, and future
effecting laws, regulations, policies or other enforceable legal documents.
Moreover, except as otherwise provided, laws refer to the amended and
updated versions (Excluding that of Hong Kong Special Administrative
Region, Macau Special Administrative Region, and Taiwan).
II. TECHNICAL SERVICE
2.1 State Harvest Biotechnology shall provide, with its own technical research
resource and team, according to the terms of this agreement, technical
services for the production and distribution of agricultural seeds during
the period of this agreement, included but not limited:
2.1.1. providing to Henan Origin Cotton technical service and support in
relation to research and development of agricultural seeds during
the process of agricultural seeds production, including analysis of
professional breeding technology and environment and feasibility
suggestions, technical tutorials, revisit and supervision at Henan
Origin Cotton's breeding field,
2.1.2 providing to Henan Origin Cotton regular market survey results
regarding agricultural seeds, market analysis reports and advising
related to production, provide services to assist the promotion and
distribution of Henan Origin Cotton's agricultural seeds;
2.1.3 providing training to Henan Origin Cotton's employees regarding the
relevant producing technology, worm prevention and related
supporting technology, and provide training to Henan Origin Cotton's
distributors on the theory and practice of market distribution
strategy.
2.1.4 at request of Henan Origin Cotton, providing technical support to
the retailers and end-users of Henan Origin Cotton services on
technology consultancy, on-spot instruction, technical education and
anti-counterfeits authentication technique.
2.2 Henan Origin Cotton agrees that during the period of this agreement it will
not receive or require any technical service in any form from any third
party without written consent from State Harvest Biotechnology.
2.3 Henan Origin Cotton shall provide regularly the market information, data,
and necessary plan related to the relevant production, for purpose of
cooperating with State Harvest Biotechnology's technical services.
2.4 State Harvest Biotechnology shall provide services in accordance with laws
of China, terms of this agreement, and requirements of Henan Origin
Cotton's business operation.
III TERM OF AGREEMENT
3.1 Both parties agree that this agreement term shall be three years from the
date of execution. When the agreement term expires, this agreement will be
automatically renewed until otherwise terminated in writing by the parties.
IV FEES
4.1 Henan Origin Cotton agrees to pay service fees to State Harvest
Biotechnology under the terms of this agreement.
4.2 All service fees shall be calculated using the following formula, based on
the different categories of the agricultural seeds including but not
limited to the following.
1) Corn: according to the weight of corn seeds sold by Henan Origin Cotton,
the unit price shall be 1.20 yuan RMB per kilogram.
2) Rice: according to the weight of rice seeds sold by Henan Origin Cotton,
the unit price shall be 6 yuan RMB per kilogram
3) Cotton: according to the weight of cotton seeds sold by Henan Origin
Cotton, the unit price shall be 12 yuan RMB per kilogram
4.3 The services fees shall be calculated at the rates set forth in Article 4.2
and shall be confirmed with written notice no later than the 25th day of
the last month of each season, and shall be paid by Henan Origin Cotton to
the account designated by State Harvest Biotechnology, or by any other
payment method as agreed afterwards.
4.4 Both parties shall achieve the basic goal of providing technological
services worth, and making service fee payments in the amount of 5,000,000
RMB yuan.
4.5 Within agreement period, the parties may adjust the prices or agricultural
varieties with written notice at any time considering the particle business
situation, in accordance with the different categories of the agricultural
seeds and prices provided in Article 4.2. Accordingly, the fee shall be
calculated with the after adjusted price.
V THE PARTIES' PRESENTATION, WARRANTY AND UNDERTATING
5.1 Henan Origin Cotton's presentation, warranty and undertaking.
5.1.1 Henan Origin Cotton is a lawfully existing legal person, who has the
capacity to sign this Agreement, and to perform the terms and
provisions under this Agreement.
5.1.2 Henan Origin Cotton undertakes that it will pay the service fees to
State Harvest Biotechnology in time as provided in this Agreement.
5.1.3 Henan Origin Cotton undertakes that it will not sign any contract or
agreement that is in conflict with this Agreement, and will not
assign the rights and obligations under this Agreement to any third
party.
5.1.4 Henan Origin Cotton's representation, warranty and undertaking do
not contain any inaccurate statement or omission of material fact,
which may mislead the other party.
5.1.5 Henan Origin Cotton undertakes that it will take all necessary
actions, steps and execute all necessary documents to fulfill its
obligations under this Agreement.
5.2 State Harvest Biotechnology's representation, warranty and undertaking:
5.2.1 State Harvest Biotechnology is a lawfully existing legal person, who
has the capacity to sign this Agreement, and to perform the terms
and provisions under this Agreement.
5.2.2 State Harvest Biotechnology shall provide technical services to
Henan Origin Cotton, and undertakes that all services provided by
Henan Origin Cotton is in full compliance with laws of the PRC and
the requirements of Henan Origin Cotton's operation.
5.2.3 State Harvest Biotechnology undertakes that it shall not sign any
contract or agreement that is in conflict with this Agreement, and
shall not assign the rights and obligation to under this Agreement
any third party.
5.2.4 State Harvest Biotechnology's any representation, warranty and
undertaking State do not contain inaccurate statement or omission of
material fact, which may mislead the other party.
5.2.5 State Harvest Biotechnology undertakes that it will take all
necessary actions, steps and execute all necessary documents to
fulfill its obligations under this Agreement.
VI COST
6.1 Except as otherwise agreed by both parties, all taxes and other costs or
expenses incurred in connection with the negotiation, drafting and
performance of this agreement, shall be paid by each party on its own
expenses.
VII CONFIDENTIALITY
7.1 Any information, document, data and material ( collectively the
"confidential information") obtained in the negotiation, execution, and
performance of this Agreement, shall be kept in strict confidence by both
parties. Unless compelled to disclose in judicial or administrative
proceedings, or the disclosure is required by the law, the confidential
information shall not be disclosed to any third party, nor shall the
confidential information be used for purposes other than that of this
Agreement.
7.2 The obligation of confidentiality shall survive of the termination and
expiration of this Agreement.
VIII FORCE MAJEURE
8.1 "Force Majeure" refers to any event, condition, situation or the
combination of events, conditions and situations, which is outside the
direct or indirect reasonable control of affected party, and cannot be
reasonably anticipated or avoided by the affected party, and which prevents
or inevitable postpones either party's performance under this Agreement.
Neither party shall be liable to the other for any delay or failure to
perform its obligation under this Agreement, if such failure or delay is
due to force majeure. However, the affected party shall notify the other
party in writing as soon as practical of any delay or failture to perform
due to force majeure. After the force majeure disappears, each party shall
continue to perform under this Agreement.
IX DEFAULT
9.1 After this Agreement becomes effective, it shall constitute a breach of
this agreement, if either party is in nonperformce, or incomplete
performance of this Agreement, or is otherwise in default of any of this
Agreement. The non-breaching party shall give the breaching party
reasonable time to cure any default. If the breaching party does not cure
the default within the reasonable time, the non-breaching party shall
terminate this agreement, and hold the breaching party liable for all the
damages resulting from breaching party's default. The breaching party is
liable for all damages, including economic loss. The breaching party shall
also be responsible for the other party's attorney fees, litigation and
arbitration costs incurred as a result of the default. However, the damages
shall not exceed a amount that can be reasonably foreseen by the breaching
party at the execution of this Agreement.
X EFFECTIVE DATE
10.1 This agreement is effective on the date of its execution (If it is signed
by an authorized representative, a power of attorney shall be provided).
XI GOVERNING LAW AND DISPUTE RESOLUTION
11.1 The validity, interpretation, performance and dispute resolution with
respect to this Agreement, shall be governed by laws of the People Republic
of China.
11.2 Any dispute arising from this Agreement shall be resolved by both parties
through consultation If the parties can not reach an agreement in 30 days
after the dispute arises, either party may submit it to a court with
jurisdiction.
11.3 During the course of dispute resolution, the parties shall continue their
performance under the terms not in dispute, unless otherwise ordered by the
court .
XII MODIFICATION, CANCELLATION, TERMINATION
12.1 This agreement can be modified in writing singed by both parties.
12.2 This agreement may be terminated by the parties' mutual consent in writing.
12.3 this Agreement shall be terminated, if any of the following event occurs:
12.3.1 Both parties terminate this Agreement with mutual consent in
writing, before the expiration of the agreement term;
12.3.2 Either party indicates in writing that it does not desire to renew
the agreement, at expiration of the agreement term;
12.3.3 The non-breaching party may terminate the agreement in the event of
breach.
XIII MISCELLANEOUS
13.1 Any representation, warranty and undertaking made by one party to the
other, which are the foundation and predetermine condition of this
agreement, shall be complete and genuine. After the effective date, if
either party discovers the representation is not in compliance with facts,
the party shall disclose immediately the facts to the other party. All the
losses, costs, expenses, or obligations shall be compensated if it is
resulted by either party's default of his statement and stipulation.
13.2 Any statement, stipulation and promise shall be separate and independent
under this Agreement, which shall not be limited by any provisions, except
provided otherwise.
13.3 If any provisions of this Agreement be construed as illegal, invalid, or
unenforceable according the laws of China, they shall not affect the
legality, validity and enforcement of other provisions of this Agreement.
If any provision is deemed to be illegal, invalid, or unenforceable, both
parties shall modify this agreement through negotiation, and shall apply
both parties' original intention.
13.4 This agreement constitutes the entire agreement between the parties
relating to this agreement, which together with the appendix, represents
both parties' genuine consent. This agreement supersedes all prior or
contemporaneous discussions, representations and proposals, written or
oral, with respect to subject matters discussed herein.
13.5 Except as otherwise provided by the laws, either party's failure or delay
of exercise of any right under this Agreement does not constitute a waiver
of any right. Exercising any right solely or partly shall not encumber the
exercise of any other right, or privilege.
13.6 All headers used in this Agreement are intended for convenience of
reference only, shall not be used for the construction or interpretation
of the agreement.
13.7 Except otherwise provided under this Agreement, the mentioned article,
clause and appendix refer to the article, clause and appendix of this
Agreement.
13.8 Any notice required to be given or delivered to either party under the
terms of this Agreement shall be in writing and addressed to such parties
at the address indicated on the first page of this Agreement or such other
address as such party may designate, in writing, from time to time. All
notices shall be deemed to have been given or delivered upon by personal
delivery, fax and registered mail. It shall be deemed to be delivered (1),
if by registered mail, on the 5th business day after its deposit in the
mail; (2) if by personal delivery, the day of livery; (2) if by fax, the
next business day after transmission.
13.9 Both parties may sign additional agreement on matters related to this
agreement. Such supplemental agreement and this Agreement have the same
effect.
13.10 All appendix of this Agreement is an indispensable part of this agreement.
13.11 This agreement is written in both English and Chinese. If the two versions
conflict in any way, the Chinese version shall prevail. The agreement is
prepared in two duplicates, each held by one party. Both parties shall
sign the duplicates and this agreement.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Agreement. For and on behalf of:
HENAN ORIGIN COTTON TECHNOLOGY DEVELOPMENT LIMITED
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Legal Representative |_| or his authorized representative |_|:
BEIJING ORIGIN STATE HARVEST BIOTECHNOLOGY LIMITED
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Legal Representative |_| or his authorized representative |_|:
