Exhibit 10.28
EXCLUSIVE BUSINESS COOPERATION AGREEMENT
This Exclusive Business Cooperation Agreement (this "Agreement") is made
and entered into by and between the following parties on February 3, 2011 in
Beijing, the People's Republic of China ("China" or the "PRC").
Party A: America Arki (Fuxin) Network Management Co., Ltd.
Address: Xx.0, Xxxxxxxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxx District, Fuxin
Party B: America Arki Networkservice Beijing Co., Ltd.
Address: Xx.00X&00, Xxxxx 00, Xx.00, Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Each of Party A and Party B shall be hereinafter referred to as a "Party"
respectively, and as the "Parties" collectively.
WHEREAS:
1. Party A is a wholly foreign owned enterprise established in China, and has
the necessary resources to provide technical and consulting services;
2. Party B is a limited liability company registered in China, whose
registered capital is RMB 1,000,000. As approved by the relevant
governmental authorities, Party B is engaging in the business of internet
information service (collectively, the "Principal Business").
3. Party A is willing to provide Party B with technical support, consulting
services and other commercial services on exclusive basis in relation to
the Principal Business during the term of this Agreement, utilizing its
advantages in technology, human resources, and information, and Party B is
willing to accept such services provided by Party A or Party A's
designee(s), each on the terms set forth herein.
Now, therefore, through mutual discussion, the Parties have reached the
following agreements:
1. SERVICES PROVIDED BY PARTY A
1.1 Party B hereby appoints Party A as Party B's exclusive services provider to
provide Party B with complete technical support, business support and
related consulting services during the term of this Agreement, in
accordance with the terms and conditions of this Agreement, which may
include all necessary services related to the Principal Business of Party B
as may be determined from time to time by Party A according to Party A's
business scope, including but not limited to:
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(1) License of the software necessary to Party B's Principal Business,
which Party A has legal right;
(2) Provision of plan of operation and solution related to information
technology/management necessary to Party B's Principal Business;
(3) Daily operation, maintenance and update of the hardware and database
or software and customer resource;
(4) Development, maintenance and update of the software necessary to Party
B's Principal Business;
(5) Training of relevant person of Party B;
(6) Assistance in collection of technology information or industry
research;
(7) Consultancy services related to marketing and management of assets
(including but not limited to tangible assets and intangible assets
such as trademarks, technology, goodwill and public relation);
(8) Consultancy services related to management of human resource and
internal administration;
(9) Provision of consultancy services and other business and operation
related to consultancy services; and
(10) Other services provided from time to time as required by Party B.
1.2 Party B agrees to accept all the consultations and services provided by
Party A. Party B further agrees that unless with Party A's prior written
consent, during the term of this Agreement, Party B shall not directly or
indirectly accept the same or any similar consultations and/or services
provided by any third party and shall not establish similar corporation
relationship with any third party regarding the matters contemplated by
this Agreement. Party A may appoint other parties, who may enter into
certain agreements described in Section 1.3 with Party B, to provide Party
B with the consultations and/or services under this Agreement.
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1.3 Service Providing Methodology
1.3.1Party A and Party B agree that during the term of this Agreement,
where necessary, Party B may enter into further technical service
agreements or consulting service agreements with Party A or any other
party designated by Party A, which shall provide the specific
contents, manner, personnel, and fees for the specific technical
services and consulting services.
1.3.2To fulfill this Agreement, Party A and Party B agree that Party A can
provide relevant equipments to Party B for Party B's use for the
purpose of providing services to Party B.
2. THE CALCULATION AND PAYMENT OF THE SERVICE FEES
Both Parties agree that, in consideration of the services provided by Party
A, Party B shall pay Party A fees (the "Service Fees") equal to 100% of the
net income of Party B, which equals the balance of the gross income less
the costs of Party B acceptable to the Parties (the "Net Income"). The
Service Fees shall be due and payable on a monthly basis. Within 30 days
after the end of each month, Party B shall (a) deliver to Party A the
management accounts and operating statistics of Party B for such month,
including the Net Income of Party B during such month (the "Monthly Net
Income"), and (b) pay 100% of such Monthly Net Income to Party A (each such
payment, a "Monthly Payment"). Within ninety (90) days after the end of
each fiscal year, Party B shall (a) deliver to Party A audited financial
statements of Party B for such fiscal year, which shall be audited and
certified by an independent certified public accountant approved by Party
A, and (b) pay an amount to Party A equal to the shortfall, if any, of the
aggregate net income of Party B for such fiscal year, as shown in such
audited financial statements, as compared to the aggregate amount of the
Monthly Payments paid by Party B to Party A in such fiscal year. Party A
and Party B further agree that, according to the actual cooperation between
Party A and Party B and the revenue and expenditure situation of Party B,
the Parties can reasonably adjust the calculation ratio of the Service Fees
provided herein, and Party A is entitled to determine, as its sole
discretion, whether to permit Party B to defer the payment of part of
Service Fees under certain particular circumstances.
3. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY CLAUSES
3.1 Party A shall have exclusive and proprietary rights and interests in all
rights, ownership, interests and intellectual properties arising out of or
created during the performance of this Agreement, including but not limited
to copyrights, patents, patent applications, software, technical secrets,
trade secrets and others. Party B shall execute all appropriate documents,
take all appropriate actions, submit all filings and/or applications,
render all appropriate assistance and otherwise conduct whatever is
necessary as deemed by Party A in its sole discretion for the purposes of
vesting any ownership, right or interest of any such intellectual property
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rights in Party A, and/or perfecting the protections for any such
intellectual property rights in Party A.
3.2 The Parties acknowledge that the existence and the terms of this Agreement
and any oral or written information exchanged between the Parties in
connection with the preparation and performance this Agreement are regarded
as confidential information. Each Party shall maintain confidentiality of
all such confidential information, and without obtaining the written
consent of the other Party, it shall not disclose any relevant confidential
information to any third parties, except for the information that: (a) is
in the public domain (other than through the receiving Party's unauthorized
disclosure); (b) is under the obligation to be disclosed pursuant to the
applicable laws or regulations, rules of any stock exchange, or orders of
the court or other government authorities; or (c) is required to be
disclosed by any Party to its shareholders, investors, legal counsels or
financial advisors regarding the transaction contemplated hereunder,
provided that such shareholders, investors, legal counsels or financial
advisors shall be bound by the confidentiality obligations similar to those
set forth in this Section. Disclosure of any confidential information by
the staff members or agencies hired by any Party shall be deemed disclosure
of such confidential information by such Party, which Party shall be held
liable for breach of this Agreement. This Section shall survive the
termination of this Agreement for any reason.
3.3 The Parties agree that this Section shall survive changes to, and
rescission or termination of, this Agreement.
4. REPRESENTATIONS AND WARRANTIES
4.1 Party A hereby represents and warrants as follows:
4.1.1Party A is a wholly owned foreign enterprise legally registered and
validly existing in accordance with the laws of China.
4.1.2Party A has taken all necessary corporate actions, obtained all
necessary authorization and the consent and approval from third
parties and government agencies (if any) for the execution, delivery
and performance of this Agreement. Party A's execution, delivery and
performance of this Agreement do not violate any explicit requirements
under any law or regulation binding on Party A.
4.1.3This Agreement constitutes Party A's legal, valid and binding
obligations, enforceable in accordance with its terms.
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4.2 Party B hereby represents and warrants as follows:
4.2.1Party B is a company legally registered and validly existing in
accordance with the laws of China and has obtained the relevant permit
and license for engaging in the Principal Business in a timely manner;
4.2.2Party B has taken all necessary corporate actions, obtained all
necessary authorization and the consent and approval from third
parties and government agencies (if any) for the execution, delivery
and performance of this Agreement. Party B's execution, delivery and
performance of this Agreement do not violate any explicit requirements
under any law or regulation binding on Party A.
4.2.3This Agreement constitutes Party B's legal, valid and binding
obligations, and shall be enforceable against it.
5. EFFECTIVENESS AND TERM
5.1 Once execution, this Agreement shall be deemed to become effective upon
November 26, 2010. Unless earlier terminated in accordance with the
provisions of this Agreement or relevant agreements separately executed
between the Parties, the term of this Agreement shall be 10 years. After
the execution of this Agreement, both Parties shall review this Agreement
every 3 months to determine whether to amend or supplement the provisions
in this Agreement based on the actual circumstances at that time.
5.2 The term of this Agreement may be extended if confirmed in writing by Party
A prior to the expiration thereof. The extended term shall be determined by
Party A, and Party B shall accept such extended term unconditionally.
6. TERMINATION
6.1 Unless renewed in accordance with the relevant terms of this Agreement,
this Agreement shall be terminated upon the date of expiration hereof.
6.2 During the term of this Agreement, unless Party A commits gross negligence,
or a fraudulent act, against Party B, Party B shall not terminate this
Agreement prior to its expiration date. Nevertheless, Party A shall have
the right to terminate this Agreement upon giving 30 days' prior written
notice to Party B at any time.
6.3 The rights and obligations of the Parties under Articles 3, 7 and 8 shall
survive the termination of this Agreement.
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7. GOVERNING LAW AND RESOLUTION OF DISPUTES
7.1 The execution, effectiveness, construction, performance, amendment and
termination of this Agreement and the resolution of disputes hereunder
shall be governed by the laws of China.
7.2 In the event of any dispute with respect to the construction and
performance of this Agreement, the Parties shall first resolve the dispute
through friendly negotiations. In the event the Parties fail to reach an
agreement on the dispute within 30 days after either Party's request to the
other Parties for resolution of the dispute through negotiations, either
Party may submit the relevant dispute to the China International Economic
and Trade Arbitration Commission for arbitration, in accordance with its
Arbitration Rules. The arbitration shall be conducted in Beijing, and the
language used in arbitration shall be Chinese. The arbitration award shall
be final and binding on all Parties.
7.3 Upon the occurrence of any disputes arising from the construction and
performance of this Agreement or during the pending arbitration of any
dispute, except for the matters under dispute, the Parties to this
Agreement shall continue to exercise their respective rights under this
Agreement and perform their respective obligations under this Agreement.
8. INDEMNIFICATION
Party B shall indemnify and hold harmless Party A from any losses,
injuries, obligations or expenses caused by any lawsuit, claims or other
demands against Party A arising from or caused by the consultations and
services provided by Party A to Party B pursuant this Agreement, except
where such losses, injuries, obligations or expenses arise from the gross
negligence or willful misconduct of Party A.
9. NOTICES
9.1 All notices and other communications required or permitted to be given
pursuant to this Agreement shall be delivered personally or sent by
registered mail, postage prepaid, by a commercial courier service or by
facsimile transmission to the address of such Party set forth below. A
confirmation copy of each notice shall also be sent by email. The dates on
which notices shall be deemed to have been effectively given shall be
determined as follows:
9.1.1Notices given by personal delivery, by courier service or by
registered mail, postage prepaid, shall be deemed effectively given on
the date of receipt or refusal at the address specified for receiving
notices in this Article 9.
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9.1.2Notices given by facsimile transmission shall be deemed effectively
given on the date of successful transmission (as evidenced by an
automatically generated confirmation of transmission).
9.2 For the purpose of notices, the addresses of the Parties are as follows:
Party A: America Arki (Fuxin) Network Management Co., Ltd.
Address: Xx.0, Xxxxxxxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxx District, Fuxin
Facsimile: 010-65305285
Party B: America Arki Networkservice Beijing Co., Ltd.
Address: 03B&05B, Floor 25, Xx.00, Xxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx
Facsimile: 010-65305285
9.3 Any Party may at any time change its address for notices by a notice
delivered to the other Party in accordance with the terms hereof.
10. ASSIGNMENT
10.1 Without Party A's prior written consent, Party B shall not assign its
rights and obligations under this Agreement to any third party.
10.2 Party B agrees that Party A may assign its obligations and rights under
this Agreement to any third party upon a prior written notice to Party B
but without the consent of Party B.
11. SEVERABILITY
In the event that one or several of the provisions of this Agreement are
found to be invalid, illegal or unenforceable in any aspect in accordance
with any laws or regulations, the validity, legality or enforceability of
the remaining provisions of this Agreement shall not be affected or
compromised in any aspect. The Parties shall strive in good faith to
replace such invalid, illegal or unenforceable provisions with effective
provisions that accomplish to the greatest extent permitted by law and the
intentions of the Parties, and the economic effect of such effective
provisions shall be as close as possible to the economic effect of those
invalid, illegal or unenforceable provisions.
12. AMENDMENTS AND SUPPLEMENTS
Any amendments and supplements to this Agreement shall be in writing. The
amendment agreements and supplementary agreements that have been signed by
the Parties and that relate to this Agreement shall be an integral part of
this Agreement and shall have the same legal validity as this Agreement.
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13. LANGUAGE AND COUNTERPARTS
This Agreement is written in both Chinese and English language in two
copies, each Party having one copy with equal legal validity; in case there
is any conflict between the Chinese version and the English version, the
Chinese version shall prevail.
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IN WITNESS WHEREOF, the Parties have caused their authorized representatives to
execute this Exclusive Business Cooperation Agreement as of the date first above
written.
Party A: America Arki (Fuxin) Network Management Co., Ltd.
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Legal Representative
Party B: America Arki Networkservice Beijing Co., Ltd.
By: /s/ Gao Fei
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Name: Gao Fei
Title: Legal Representative
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