Consigned Management Agreement by and between Daqing Sunway Technology Company Limited and Sunway World Through Technology (Daqing) Co., Ltd. March 30, 2007
by
and between
Daqing
Sunway Technology Company Limited
and
Sunway
World Through Technology (Daqing) Co., Ltd.
March
30, 2007
1
This
Agreement is entered into on March 30, 2007 in Daqing between the following
Parties:
|
(1)
|
Daqing
Sunway Technology Company Limited (hereafter called “Party A”) is a
limited liability company duly registered in Daqing, China, whose
legal
address is: Jianshe Road, North Software Park, High and Advanced
Technology Industry Development Zone, Daqing City,
and
|
|
(2)
|
Sunway
World Through Technology (Daqing) Co., Ltd. (hereafter “Party B”), a
wholly
foreign owned enterprise (“WFOE”) duly registered in Daqing,
China, whose legal address is:
Jianshe Road, North Software Park, High and Advanced Technology Industry
Development Zone, Daqing City.
|
(Party
A
and Party B are referred to collectively in this agreement as “Parties” or “both
Parties”, and individually as “a Party”)
WHEREAS:
|
(1)
|
Party
A’s major business are as follows:
the computer software development, data processing, data base service,
computer equipment maintenance; the production and sale of computer
and
its outer equipment, apparatus, meters, the electronic products,
and
communicational equipment (not including the transmission equipment);
household appliance; Petroleum chemical technical service, computer
and
the related products, computer software, computer outer equipment,
apparatus, electronic equipment export and import business, manufacture
of
the medical appliance;
|
| (2) | Party B’s major business is: the development of computer software, the development and manufacture of medical appliance and medical supplemental equipment. |
|
(3)
|
Party
B has advanced skills and abilities of business management, human
resources and financial management. Party A shall consign Party B
to
manage all its business, including without limitation, production,
sale,
marketing, financial, administrative and human resources.
|
2
THEREFORE,
the
Parties hereby agree as follows:
I
CONTENTS
OF BUSINESS MANAGEMENT SERVICE
A
Contents
1
The
object of the technique service
(1)
Through the business operation and production technique to ensure Party A’s
business is safe, stable and economic. The productive management level will
continuously be improved.
2
The
contents of the technical service:
(1)
Standardize productive operation management system;
(2)
The
management of safe production;
(3)
The
management to save energy and lower the cost;
(4)
The
management of technology supervision;
(5)
Engineering construction management;
(6)
The
construction of information system;
(7)
Environmental protection;
(8)
The
management work of goods transportation;
3
Forms of
technique service: technique consultancy, training, site service.
B
Rights and Obligations of both Parties
(a)
Rights and Obligations of Party A
1
Rights
of Party A
(1)
Party
A
has the right to require Party B to provide technique service for Party B’s
management, supervision, examination and direction etc., upon the safe
production according to the stipulation of the agreement;
3
(2)
Party
A
has the right to require Party B to promptly provide the technical and
environmental protection service hereunder.
2
Obligations of Party A
(1)
Party
A shall pay Party B for the service fee pursuant to the provision of this
agreement;
(2)
Party
A shall promptly and accurately notify Party B on the situation of production
and operation, issues on the safety and technologies, and the substantial
accident.
(3)
Party
A shall execute the proposed requirements and measures by Party B for its safe
production, science and technologies, and environmental protection in according
to the contents of this agreement, and facilitate the work of Party
B;
(4)
Party
A shall provide the data and materials related to the productive accidents,
to
Party A on its requirements;
(5)
Party
A shall provide various conveniences to Party B for its access to the working
site.
(b)
Rights and Obligations of Party B
1
Rights
of Party B
(1)
Party
B has the right to require Party A to facilitate to accomplish any tasks under
this agreement;
(2)
Party
B has the right to make proposals on the existed issues during the process
of
implementations this agreement by Party A.
2
Obligations of Party B
(1)
Technical supervision management work;
4
(i)
Assist the state and corresponding governmental department to direct the
technical supervision work; employ the senior experts to evaluate the technical
supervision work, and to propose the renovation opinions, list the renovation
measures, and continuously improve the technical supervision management
level.
(ii)
Facilitate to organization of conducting the professional trainings on the
employees at regular internals and by installments;
(iii)
Conduct the centralized management on the technical supervision according to
the
state and industrial standards; organize the experts to examine, evaluate,
submit the examination report, propose the reform suggestion and facilitate
the
implementation.
(iv)
Participate to analyze professional substantial issues; facilitate to propose
the anti-accident measures; facilitate to make the fixed-term technical
supervision evaluation report with the related experts; instruct to set up
the
standard laboratory, produce the standards, conduct the technical consultancy
and analysis on the unusual problems of the equipment and the systems, and
give
the disposal opinions.
(v)
Facilitate to organize the annual meeting of the technical supervision,
summarize the technical supervision work, and submit working tasks and
directions on the technical supervision.
(2)
Standardize the production, operation, and management system
(3)
Manage the spreading work of the management evaluation;
(4)
Environmental protection work;
(5)
Logistics work.
II
HUMAN
RESOURCES MANAGEMENT SERVICE
A
Contents
1
Cooperate with the government agency of State Ministry of Labor and Social
Security, Administration of Finance to adjust the growth mechanism of the
aggregate sum of the salaries, implement the salary growth mechanism, direct
to
perfect the salary system of the employees;
5
2
Facilitate to perfect the organizational structure to improve the effects of
the
management;
3
Provide
the training service to the senior management persons;
4
Make
the proposal on the examination and allocation of payment to the senior
management persons;
5
Coordinate the matters on the graduates reception plan with the governmental
agency, the appraisal of the professional techniques occupational status, the
political appraisal of the persons who will go abroad on the represent of the
Party A;
6
Facilitate to build the working effectiveness system of the employees and
perfect the salary incentive system, provide the consultancy service on the
management of the employee working effectiveness and the salary incentive
system.
7
Provide
the legal information on the labor and human resources, policy consultancy,
labor disputes, and legal support consultancy service.
8
Facilitate to construct the “Four Group of Talents” work;
9
Facilitate to appraise the expert qualification of Professional Technique
Leader, etc.;
10
Instruct to perfect, maintain and manage the 【 】
system;
Provide the insurance to improve the enterprise effectiveness through the modern
means to stipulate the basic management work of human resources and the
construction of system;
11
Direct
the employees training service on the production techniques and operation
management technique;
12
Facilitate to plan the career management of the employee occupation, build
the
occupation development path.
6
B
Rights and Obligations of the Parties on Human
Resources
1
Rights
and Duties of Party A
(1)
In
charge of the routine work of labor and human resources, facilitate Party B
to
work;
(2)
Provide
the application materials for the qualification of the occupation status and
the
expert qualification as the professional technique candidates, etc. , arrange
the Party B to conduct the enterprise and employees work effectiveness appraisal
consultancy, and other related work;
(3)
Stipulate the labor contract management work;
(4)
Dispatch
personnel to participate the corresponding meetings, trainings, technique
exchange activities which are organized by Party B;
(5)
In
pursuant to the opinion of Party B, set up the annual objects and break-downs,
make the standards for the achievements appraisal;
2
Rights
and Obligations of Party B
Provide
the consultancy service of the adjustment, restructure of the organization;
supervise, appraise the effects of the operation;
(1) Provide
the consultant to the optimization and integration of the organization, and
supervise and evaluate the operation results.
(2) Provide
the performance management, facilitate the Party A to implement the performance
examination management system, and build the employee performance examination
system, facilitate to implement the office performance classification salary
system; provide consultancy service;
(3) Provide
training service, organize the senior management persons to participate the
training of operation management; organize the technical experts and the
technical leader to participate technique development training, organize the
newly accepted graduates to be trained collectively, supervise and instruct
technical master to participate technique training, such like office technique
and moot operation, etc.
7
(4) Facilitate
to stipulate the labor contract management for Party A, reinforce the employment
management, provide the related labor and human resources legal information,
policy consultancy, labor disputes and legal support consultancy
service;
(5) Provide
professional technique leader, develop technique experts, appraise the
occupational status, and recommend management, etc. consultancy
service;
(6) Facilitate
to build the development access for the employees, promote the career
development of employees, and build the development plan for the employees.
III
FIANANCE
MANAGEMENT SERVICE
|
A.
|
Contents
|
1
Financial Management
(1)
Conduct the business instruction to the implementation of the deep development
of the budget management; realize the “Budget enters the working group”
plan;
(2)
Facilitate the money operation, adjust the structure of the credit loan,
accelerate the turn over of the money, and effectively control the finance
risks;
(3)
Provide the financial consultancy service;
(4)
Arrange the internal and outside audit service;
(5)
Pursuant to the requirement of the class-evaluation system, provide the optional
management plan and consultancy service on the financial
management;
(6)
Provide the working cost management consultancy service.
B
Rights
and Obligations of Both Parties
1
Rights
and Obligations of Party A
8
(1)
In
charge of the daily operation management work, arrange Party A to provide
operation management direct/consultancy work;
(2)
Strictly implement the internal control system, execute the budget management
system and control procedure, enjoy the basic data of the budget
production;
(3)
Facilitate Party B to conduct every audit and examination work;
(4)
Dispatch personnel to participate the corresponding meetings, trainings,
technique exchange activities which are organized by Party B;
(5)
Facilitate to conduct the class evaluation work;
2
Rights
and Obligations of Party B
(1)
Provide marketing service, facilitate to make the annual marketing target and
implement the plan;
(2)
Provide market research, product price settling;
(3)
Provide performance appraisal service; in pursuant to the international
enterprise performance appraisal standard; facilitate Party A to Promote the
performance diagnose appraisal system work; operate the operation cost appraisal
system; and instruct the economic analysis and performance appraisal
work;
(4)
Provide information construction and consultancy service, facilitate to build
and provide systematical statistics information data base; facilitate to
implement equipment management system and the second development; facilitate
to
implement enterprise resources update plan;
(5)
Organize and facilitate Party A to participate the meeting of
trade;
(6)
Provide the asset insurance service, including facilitate Party A to harmonize
the relationship with the insurance company after the accident occurs, provide
the site service in according to the site situation, conduct the risks
investigation, the compensate issues after the accident, periodically provide
the professional knowledge training for the employees of the insurer, facilitate
to buy the insurance;
9
(7)
Provide the related finance and the guarantee management issues;
(8)
Provide the special audit service;
(9)
Perfect the finance appraisal service, facilitate Party A to wholly promote
the
financial management system.
IV
PAYMENT
Party
A
shall pay the consigned management fee, equal to 3%
of its
annual revenue before December 31st
of each
year.
V
COVENANT
The
Parties agree that they shall warrants as follows within the term hereof unless
this Agreement is terminated or canceled in accordance with the provisions
hereunder.
1
Party A
shall not enter into any consigned management agreement with any third party
or
accept management services from any third party without consent of Party
Bå
2
Without
Party B’s prior written consent, Party A shall not supplement or amend its
articles of association or rules of the company in any manner, nor shall it
increase or decrease its registered capital or change its shareholding structure
in any manner;
3
Party A
shall prudently and effectively maintain its business operations according
to
good financial and business standards;
4
Without
Party B’s prior written consent, Party A shall not transfer, mortgage or
otherwise dispose of the lawful rights and interests to and in its assets or
incomes, nor shall it encumber its assets and income in any way that would
affect Party B’s rights and interest hereunder;
5
Party A
shall not incur or succeed to any debts, nor shall it provide guarantee for
or
permit the existence of any debts, except those that are incurred during its
normal business operation or agreed to or confirmed by Party B in
advance;
10
Consigned
Management Agreement
6
Without
Party B’s prior written consent, Party A shall not enter into any material
contract (exceeding RMB5,000,000 in value), unless it is necessary for the
company’s normal business operation;
7
Without
Party B’s prior written consent, Party A shall not provide any loans or
guarantee to any third party;
8
At
Party B’s request, it shall provide Party B with all information regarding Party
B’s business operation and financial condition;
9
Without
Party B’s prior written consent, Party A shall not acquire or consolidate with
any third party, nor shall they invest in any third party;
10
Party
A shall promptly notify Party B of any pending or threatened lawsuit,
arbitration or administrative dispute which involve Party B’s assets, business
or incomes; and
11
Without Party B’s prior written consent, Party A shall not commit any act or
omission that would materially affect Party B’s assets, business or
liabilities;
12
Party
B shall warrant that it has full capacity and resources to provide the services
as stipulated in Clause I hereunder.
VI
OTHER
PROVISIONS
1
All
taxes and costs or expenses incurred in connection with this agreement, shall
be
paid by Party B at its own expenses.
B
Confidentiality
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 otherwise
provided by laws, regulations and other compelled administrative rules, the
confidential information shall not be disclosed to any third party without
obligation of confidentiality, nor
shall
the confidential information be used for purposes other than that of this
Agreement.
11
Consigned
Management Agreement
2
The
obligation of confidentiality shall survive of the termination and expiration
of
this Agreement.
C
Force
Majeure
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
promptly notify the other Party in writing of any delay or failure to perform
due to force majeure. After the force majeure disappears, each Party shall
continue to perform under this Agreement.
D
Liability
of Breach
1
After
this Agreement becomes effective, it shall constitute a breach of this
agreement, if either Party is in non-performance, 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 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
an amount that can be reasonably foreseen by the breaching Party at the
execution of this Agreement.
12
Consigned
Management Agreement
E
Effective
Date
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).
F
Governing
Law and Dispute Resolution
1
The
validity, interpretation, performance and dispute resolution with respect to
this Agreement, shall be governed by laws of the People Republic of
China.
2
Any
dispute arising from this Agreement including without limitation constitution,
binding effects, implementation, interpretation, liabilities for breach,
modification and termination hereof 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 the
dispute to Beijing Arbitration Commission for arbitration under its applicable
rules. The arbitration award should be final and binding upon both parties,
if
the losing party refuses to enforce the arbitration award, the winning party
may
seek enforcement of arbitration award in a PRC court with jurisdiction over
the
dispute; and the winning party shall have the right to ask the losing party
to
pay for all professional service (including but not limited to legal counsel
service, arbitration fees, enforcement fees) costs in the course of arbitration
and other related costs.
3
During
the course of dispute resolution, the Parties shall continue to perform other
terms hereunder .
G
EffectivenessôModification,
Cancellation and Termination
1
The
Parties shall submit application for approval following the execution of this
Agreement, and the date on which the approvals from both Parties are granted
shall be the Effective Date. The Parties shall make the best efforts to obtain
such approvals within 30 days and give notice to each other by telegram, and
then make confirmation through letter. Should the Agreement not become effective
within 6 months as of the date of execution hereof, it shall not bind upon
both
Parties; the term for obtaining the approvals may be extended upon the mutual
consent.
2
The
Agreement shall take effect on the Effective Date and shall terminated upon
(1)
the Parties’ mutual consent in writing; (2) the acquisition of all equity
interest, or all(or substantially all ) assets of Party A by Party B or its
affiliates in accordance with related purchase agreements.
13
Consigned
Management Agreement
3
At any
time 2 months prior to the expiration of this Agreement, each Party may require
the other Party to conduct negotiation to renew this Agreement and to have
a
meeting on the extension of the term hereof. The parties will sign the special
extension clause.
4
The
modification of this Agreement may be conducted through consultation by both
Parties and become effective through the written agreement, otherwise, the
Agreement shall be still in effect if the Parties cannot reach an agreement
on
the modification.
H
Miscellaneous
1
Any
representation, warranty and undertaking made by one Party to the other Party
shall be complete and genuine, the other Party shall rely on such
representation, warranty and undertaking on the execution hereof and treated
them as the condition precedent. After the effective date, if either Party
discovers the representation is not complied with facts, it shall disclose
such
incompliance immediately to the other Party. Each Party warrants to the other
Party that all the losses, costs, expenses, or obligations resulted by its
default of any representation and warranty shall be compensated at its own
expense.
2
Any
statement, warranty and undertaking shall be separate and independent under
this
Agreement, which shall not be limited by any provisions, unless provided
otherwise.
3
If any
provisions of this Agreement is construed as illegal, invalid, or unenforceable
according to the P.R.C laws, they shall not affect the legality, validity and
enforcement of other provisions hereof. If any provision is deemed to be
illegal, invalid, or unenforceable, both Parties shall modify this agreement
through bona fide negotiation, in the acceptable manner and to the finest extent
to realize original intentions of the Parties.
14
4
This
Agreement constitutes the entire document between the Parties relating to this
contents hereunder, which together with the appendix, represents both Parties’
genuine intents. This Agreement supersedes all written or oral intentions,
representations and understandings etc. with respect to subject matters
hereunder before the execution of this Agreement.
5
Unless
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 preclude the exercise of any
other right, power or privilege.
6
All
headings used in this Agreement are for convenience of reference only, shall
not
affect the construction or interpretation hereof.
7
Except
otherwise provided under this Agreement, the mentioned article, clause and
appendix refer to the article, clause and appendix hereunder.
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 Party by personal delivery,
fax, registered air mail at the address indicated on the first page of this
Agreement or such other address provided by the Party in writing. 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 upon: (1) registered
air
mail: 5 business days after deposit in the mail; (2) personal delivery: 2
business days after transmission. If the notice is delivered by fax, it should
be confirmed by original through registered air mail or personal delivery.
9
Both
Parties may sign additional Agreement on matters related to this Agreement.
Such
supplemental Agreement has the same effect as this Agreement.
10
All
appendix of this Agreement shall be an integral part hereof and shall have
the
same effect.
15
Consigned
Management Agreement
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 may sign the duplicates of
this
Agreement.
[Signature
Page Only]
16
Consigned
Management Agreement
IN
WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Agreement.
For
and
on behalf of
Party
A Daqing Sunway Technology Company Limited
Legal
Representative øor
his
authorized representative÷:
Party
B Sunway World Through Technology (Daqing) Co., Ltd.
Legal
Representative øor
his
authorized representative÷:
17
