EXCLUSIVE TECHNOLOGY SERVICE AGREEMENT BETWEEN XI’AN KINGTONE INFORMATION TECHNOLOGY CO., LTD AND XI’AN SOFTECH CO., LTD December 15, 2009
Exhibit 10.2
BETWEEN
XI’AN KINGTONE INFORMATION TECHNOLOGY
CO.,
LTD
AND
XI’AN
SOFTECH CO., LTD
December 15,
2009
This Exclusive Technology Service
Agreement (the “Agreement”) is entered into as of December
15, 2009 in Xi’an
by:
Party A
Xi’an
Kingtone Information Technology Co., Ltd (hereinafter referred to as “Kingtone Information”) is an
enterprise limited by shares which is incorporated and existing within the
territory of China in accordance with the law of the People’s Republic of China.
The registration number of its legal and valid Business License is
610131100001233 and the legal registered address is the 3/F of District A,
the Industry Office Building, No.181 of Tai Bai Southern Road, Xi’an City,
China.
and
Party
B
Xi’an
Softech Co., Ltd is a wholly-foreign owned enterprise registered in, and the
registration number of its legal and valid Business License is 610100400006807
and its legal address is 3/F of District A, the Industry Office Building, No.181
of Tai Bai Southern Road, Xi’an City, China.
Whereas, Party A and Party B
(collectively the “Parties”) intend to promote
the development of their businesses through mutual cooperation and utilization
of their advantages.
Therefore, the Parties agree
as follows after friendly consultation through the principle of equality and
mutual benefit.
Article
1 Technology
Service
1.1 Party
A hereby agree to engage Party B as the exclusive and sole technology service
provider of Party A, and Party B hereof agree to accept such
engagement.
1.2 Party
A further agrees that, without prior written consent of Party B, during the term
of this Agreement, Party A shall not engage any third party as the technology service provider of Party
A.
1.3 Party
A agrees that Part B has right to provide the same or similar technology
services under this Agreement to any third party and also has right to appoint
other person of parties to provide the technology services to Party A under this
Agreement.
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Article
2 Scope
of Technolgy Service
2.1 During
the term of this Agreement, Party B agrees to provide relevant technology
services to Party A in accordance with the relevant terms and conditions of this
Agreement (The scope of technology service is referred hereto as Exhibit
A).
Article
3 Service
Fee
3.1 Party
B shall provide the statement of account to Party A pursuant to the price
recognized by the Parties and the working amont provided by Party B. Party A
shall pay the relevant service fees pursuant to the date and the amount
indicated in the statement of account provided by Party B. Party A and Party B
may make other arragements on the payment of service fee at any time through the
mutual consent.
3.2 Party
A hereto agrees and warrants that Party A shall pay off all the Service Fees
pursuant to the Clause 3.1 above to Party B firstly, then Party A may pay the
management fees to Party B in accordance with the Entrusted Management
Agreement, by and among Party A, Xx Xxx and other individuals, Xi’an TechTeam
Investment Holding Group Company, Shenzhen Capital Group Co., Ltd, Xi’an Hongtu
Capital Co., Ltd, Shaanxi Yuanxing Science and Technology Co., Ltd, Party B on
December 15, 2009 in Xi’an.
Article
4 Intellectual
Property
4.1 The
Parties hereby understand and agree that the technical datas, software,
discovery, invention, development, commercial secrets, copyrights, documments
and other materials prepared or improved by Party B which are used to provide
the technolgy services under this Agreement shall exclusively belong to Party B,
no matter whether the foregoing materials are protected by copyright or patent
right.
4.2 Provided
that Party A improves the foregoing materials , such development results shall
be soly owned by Party B. Party A hereby tranfer all the rights, ownerships and
interests in connection with such improvement to Party B.
Article
5 Representations
and Warranties
5.1 Party
A hereto hereby make the following representations and warranties to Party B as
of the date of this Agreement that:
(a) Party
A is an enterprise limited by shares which is incorporated and existing within
the territory of China in accordance with the law of the People’s Republic of
China;
(b) Party
A has the right to enter into the Agreement and the ability to perform the same;
and the execution and delivery of this Agreement by Party A have been duly
authorized by all necessary corporate action;
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(c) the
execution and delivery of this Agreement will not violate any provision of the
laws and regulations of PRC or other governmental or regulatory authority or
approval;
(d) the
provisions of this Agreement constitute legal, valid and binding obligations on
Party A upon the execution;
5.2 Party
B hereto hereby make the following representations and warranties to Party A as
of the date of this Agreement that:
(a) Party
B is a wholy foreign-owned enterprise which is incorporated and existing within
the territory of China in accordance with the law of the People’s Republic of
China;
(b) Party
B has the right to enter into the Agreement and the ability to perform the same;
and the execution and delivery of this Agreement by Party B have been duly
authorized by all necessary corporate action;
(c) the
execution and delivery of this Agreement will not violate any provision of the
laws and regulations of PRC or other governmental or regulatory authority or
approval;
(d) the
provisions of this Agreement constitute legal, valid and binding obligations on
Party B upon the execution;
Article
6 Effectiveness
and Termination
This
Agreement shall take effect after it is duly executed by the authorized
representatives of the parties hereto with seals affixed and shall be terminated
when any of the the following happens,
(a) the
winding up of Party A, or
(b) the
date on which Party B completes the acquisition of Party A, or
(c) the
termination date of this Agreement to be otherwise determined by the Parties
hereto.
Article
7 Liability
for Breach of Agreement
During
the term of this Agreement, any violation of any provisions herein by either
party constitutes breach of contract and the breaching party shall
compensate the non-breaching party for the loss incurred as a result of
this breach.
Article
8 Force
Majeure
The
failure of either party to perform all or part of the obligations under the
Agreement due to force majeure shall not be deemed as breach of contract. The
affected party shall present promptly valid evidence of such force majeure,
and the failure of performance shall be settled through
consultations between the parties hereto.
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Article
9 Confidentiality
9.1 The
parties hereto agree to cause its employees or representatives who has access to
and knowledge of the terms and conditions of this Agreement to keep strict
confidentiality and not to disclose any of these terms and conditions to any
third party without the expressive requirements under law or request from
judicial authorities or governmental departments or the consent of the other
party, otherwise such party or personnel shall assume corresponding legal
liabilities.
9.2 The
obligations of confidentiality under Section 1 of this Article shall survive
after the termination of this Agreement.
Article
10 Applicable
Law and Dispute Resolution
10.1 The
execution, validity, interpretation and performance of this Agreement and the
disputes resolution under this Agreement shall be governed by the laws of
PRC.
10.2 The
Parties shall strive to settle any dispute arising from the interpretation or
performance of 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 in accordance with its rules. The
arbitration award shall be final, conclusive and binding upon both
Parties.
Article
11 Non-transferability
Unless
otherwise specified under this Agreement, no party can assign or delegate
any of the rights or obligations under this Agreement to any third party
nor can it provide any guarantee to such third party or carry out other
similar activities without the prior written consent from the other
party.
Article
12 Severability
12.1 Any
provision of this Agreement that is invalid or unenforceable due to the laws and
regulations shall be ineffective without affecting in any way the remaining
provisions hereof.
12.2 In
the event of the foregoing paragraph, the parties hereto shall prepare
supplemental agreement as soon as possible to replace the invalid provision
through friendly consultation.
Article
13 Amendment,
Modification and Supplement
Any
amendment and supplement to this Agreement shall be made by the Parties in
writing. The amendment and supplement duly executed by each Party shall be
deemed an integral part of this Agreement and shall have the same legal effect
as this Agreement.
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Article
14 Miscellaneous
14.1 Any
and all taxes arising from execution and performance of this Agreement and
during the course of providing service shall be borne by the Parties
respectively pursuant to the provisions of laws and regulations.
14.2 Any
amendment entered into by the parties hereto after the effectiveness of this
Agreement shall be an integral part of this Agreement and have the same legal
effect as part of this Agreement. In case of any discrepancy between the
amendment and this Agreement, the amendment shall prevail. In case of several
amendments, the amendment with the latest date shall prevail.
14.3 This
Agreement is executed by Chinese and English in duplicate and both the English
version and Chinese version shall have the same effect. Each of the original
Chinese and English versions of this Agreement shall be executed in two copies.
Each party shall hold one original for each version.
(This
space intentionally left blank)
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IN
WITNESS HEREOF, the Parties hereof have caused this Agreement to be executed by
their duly authorized representatives as of the date first written
above.
Party
A: Xi’an Kingtone Information Technology Co., Ltd
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(Seal)
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Legal
Representative/Authorized Representative
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(Signature):
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/s/ Xx Xxx
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PARTY
B: Xi’an Softech Co., Ltd.
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(Seal)
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Legal
Representative/Authorized Representative
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(Signature):
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/s/ Wang Wan Jiao
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Exhibit
A
Scope
of Service
Party B
shall provide the following services to Party A:
Consultation
of the research and development of information management
technology;
Consultation
of production of software products;
Consultation
of communication technology and computer network engineering;
Other
services required by Party A
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