Contract
Exhibit 10.4 - Exclusive Technical and
Consulting Agreement
This
Exclusive Technical and Consulting Services Agreement (the “Agreement”) is
entered into as of this day of 10th of April, 2009
by and between:
Party A:
Sichuan Xinju Mineral Resource Development Co., Ltd.
[11F,
Tianxiang Xxxxxxxx, Xx.00, Xxxxx Xxxx, Xxxxxxx, Xxxxx ]
Registered
code：5100001810329
AND
Party B:
Sichuan Xinlong Telluronium & Technique Co., Ltd.
Xxxxxxxx
Xxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx
Registered
code: 510122000026482
WHEREAS,
Party A is a limited liability company founded and registered in the People’s
Republic of China;
WHEREAS,
Party B is a wholly foreign owned enterprise with limited liability founded and
registered in the People’s Republic of China;
WHEREAS,
Party A possess the exploration rights to that certain land of 6.29 square
kilometers in the Dashuigou area and the mining rights of that certain tellurium
and bismuth mine of 0.0568 square kilometers in Shimian Majiagou (such
exploration rights and mining rights of Party A, collectively the “Mining
Business”);
WHEREAS,
Party A agrees to provide Party B with certain technical and consulting services
in connection with the Mining Business, and Party B agrees to receive the
services rendered from Party A;
NOW
THEREFORE, in consideration of the premises and the mutual covenants,
representations and warranties contained herein, the parties, intending to be
legally bound, hereby agree as follows:
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1. Technical
and Consulting Services; Exclusivity
1.1 During
the term of this Agreement, Party A shall provide those certain technical
consulting and services (the “Services”) as set forth in Appendix I hereto on an
exclusive basis to Party B.
1.2 During
the term of this Agreement Party B shall not engage or utilize the services of
any third party in the provision of such Services, or similar services, without
the prior written consent of Party A.
1.3 Party A
shall be the sole and exclusive owner of all right, title and interest to and in
any and all intellectual property arising from the performance of its Services
under this Agreement, including, but not limited to, any copyrights, patent,
inventions or business know-how, whether developed by Party A or Party B and
whether based on Party A’s existing intellectual property or
otherwise.
1.4 During
the term of this Agreement Party B agrees to afford Party A and its affiliates
with a first priority and right of first offer and first refusal to undertake
further business cooperation with Party B on similar terms to those set forth
herein.
2. Obligations
of Party A and Party B
2.1 Obligation
of Party A
In
accordance with the terms of this Agreement, Party A shall provide to Party B
the Services.
2.2 Obligations
of Party B
2.2.1 In consideration for the provision of
the Services by Party A to Party B, Party B shall pay Party A in accordance with
the fee schedule set forth in Appendix II hereto.
2.2.2 Party B shall utilize the Services
provided by Party A in good faith and for the purposes set forth in this
Agreement.
2.2.3 Party B shall notify Party A of
the occurrence of any event or any matters or issues however arising that are
likely to have an influence on Party B’s daily business operations.
2.2.4 Party B shall permit Party A’s
personnel or its authorized persons onto Party’B offices, premises and other
working facilities.
2.2.5 Party B shall not take any actions
that will harm any technical patent rights or other the intellectual property
rights of Party A.
2.2.6 Party B shall obtain and hold in full
force and effect all governmental permits and approvals (if any) required for
Party A to fulfill its obligations under this Agreement.
2.2.7 Party B shall provide up to $6.0
million in investment funding to Party A in connection with the operations of
the Mining Business on such terms and at such times as Party B shall determine
with Party A from time to time.
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3. Representations
and Warranties
3.1 Party A
hereby represents and warrants to Party B as follows:
3.1.1 Party A
is company duly registered and validly existing under the laws of the People’s
Republic of China.
3.1.2 Party A
has the full right, power and authority and capacity and all consents and
approvals of any other third party and government necessary to execute and
perform this Agreement, which shall not cause a breach of any contract to which
Party A is a or be in breach of any applicable laws.
3.1.3 This
Agreement will constitute a legal, valid and binding agreement of Party A
enforceable against it in accordance with its terms upon its
execution.
3.2 Party B
hereby represents and warrants to Party A as follows:
3.2.1 Party B
is a company duly registered and validly existing under the laws of the People’s
Republic of China.
3.2.2 Party B
has the full right, power and authority and capacity and all consents and
approvals of any other third party and government necessary to execute and
perform this Agreement, which shall not cause a breach of any contract to which
Party B is a party or be in breach of any applicable laws.
3.2.3 This
Agreement will constitute a legal, valid and binding agreement of Party B
enforceable against it in accordance with its terms upon its
execution.
4. Confidentiality
4.1 Party B
agrees to use all reasonable means to protect and maintain the confidentiality
of Party A’s confidential data and information received by Party B in the
provision of the Services by Party A to Party B (collectively “Confidential
Information”). Party B shall not disclose or transfer any Confidential
Information to any third party or use any Confidential Information for any
purpose except in connection with the provision of the Services by Party A as
contemplated by this Agreement without Party A’s prior written consent. Upon
termination or expiration of this Agreement, Party B shall, at Party A’s option,
return any and all documents, information or software that may contain any such
Confidential Information or destroy and delete any Confidential Information from
any memory device, and cease to use it.
4.2 The
following shall not be considered Confidential Information:
4.2.1 Information
that is available in the public domain other than as a result of disclosure by
Party A to Party B.
4.2.2 Information
known to Party B prior to the disclosure of such information by Party A to Party
B in connection with the provision of Services hereunder.
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4.2.3 Information
that Party B is required to disclose by law or order of a Governmental Entity or
court of competent jurisdiction, but only to the extent so required after
reasonable efforts to limit the scope of such disclosure.
4.3 Article 4
shall survive any amendment, expiration or termination of this
Agreement.
5. Indemnity
5.1 Party B
shall indemnify and hold harmless Party A from and against any loss, damage,
obligation and cost arising out of any litigation, claim or other legal
procedure against Party A arising from the provision by Party A to Party B of
the Services hereunder.
5.2 Article 5
shall survive any amendment, expiration or termination of this
Agreement.
6. Effective
Date and Term
6.1 This
Agreement shall be executed and come into effect as of the date first set forth
above. The term of this Agreement shall be for a period of five years (the
“Term”), unless terminated prior to the expiration of the Term in accordance
with the terms set forth in this Agreement.
6.2 This
Agreement may be extended only with the mutual consent of Party A and Party B
before the expiration of the Term. Both parties shall negotiate in good faith to
determine the length of any extension to the Term.
7. Termination
7.1 This
Agreement shall terminate on the expiration of the Term unless it is extended on
the basis set forth above.
7.2 During
the Term, Party B shall not be permitted to terminate this Agreement except in
the case of material gross negligence, fraud or other material illegal acts or
bankruptcy of Party A. Notwithstanding the foregoing, Party A may terminate this
Agreement at any time on 30 days prior written notice.
8. Settlement
of Disputes
The
parties shall strive to settle any dispute arising from the interpretation of
this Agreement and/or the provision of Services under this Agreement through
consultation with each other. In the event that no settlement can be reached by
the parties through such consultation, either party may submit such matter to
the China International Economic and Trade Arbitration Commission (“CIETAC”).
The arbitration shall follow the current rules of CIETAC, and the arbitration
proceedings shall be conducted in Chinese. The arbitration award shall be
final and binding upon the parties and shall be enforceable in accordance
with its terms.
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9. Force
Majeure
9.1 Neither
party hereto shall be liable to the other party for any failure to perform any
obligation under this Agreement where such failure is due to causes beyond the
reasonable control of the first party. Such causes include, but are not
limited to, acts of war or terrorism, government export controls, other
governmental acts, industrial dispute, lock-out, accident, fire, explosion,
transport delays, the failure to cooperate by any other party hereto (including,
without limitation, entities or individuals under its control, or any of their
respective officers, directors, employees, other personnel or agents), acts or
omissions or the failure to cooperate of a third party, or loss or damage to any
equipment. Each party shall use its commercially reasonable efforts to
comply with its respective obligations under this Agreement despite the
intervention or occurrence of any such cause, and to resume compliance with
those obligations as soon as reasonably practicable after any such cause ceases
to affect the performance of its obligations under this Agreement.
Notwithstanding the foregoing, a shortage of credit, capital or finance shall
not be regarded as an event of force xxxxxx.
9.2 In the
event that the affected party is delayed in or prevented from performing its
obligations under this Agreement by an event of force marjure, only within the
scope of such delay or prevention of performance of such obligations, 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 means
to minimize or remove the effects of the occurrence of such
event.
10. Notices
Notices
or other communications required to be given by any party pursuant to this
Agreement shall be written in English and Chinese both and shall be deemed duly
given when delivered personally or received where sent by registered mail or
postage prepaid mail or by a recognized courier service or by fax to the address
of the relevant party or parties set forth below.
Party
A: Sichuan
Xinju Mineral Resource Development Co., Ltd.
Mailing
address: Xx. 000, Xxxx Xxx
Xxxxx Xxxx, Xxxxxxxxx Xxxxxxxxx AirportEconomic Development Zone, Shuangliu,
Chengdu
Fax:
00-00-00000000
Telephone:00-00-00000000
Receiver:Xxxx
Xxxx
Party
B: Sichuan
Xinlong Telluronium & Technique Co., Ltd.
Mailing
address: Xx. 000, Xxxx Xxx
Xxxxx Xxxx, Xxxxxxxxx Xxxxxxxxx AirportEconomic Development Zone, Shuangliu,
Chengdu
Fax:
00-00-00000000
Telephone:
00-00-00000000
Receiver:
Xxxxx Xxx
11. No
Assignment or Sublicense
Party B
may not assign its rights or obligations under this Agreement to any third party
without the prior written consent of Party A.
12. Severability
Any
provision of this Agreement that is invalid or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability, without affecting in any way the remaining provisions
hereof in such jurisdiction or rendering that provision or any other provision
of this Agreement invalid or unenforceable in any other
jurisdiction.
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13. Amendment
and Supplement
Any
amendment and supplement to this Agreement shall come into force only after a
written agreement is signed by both parties hereto. The amendment and supplement
duly executed by both parties hereto shall form part of this Agreement and shall
have the same legal force and effect as this Agreement.
14. Waiver
Unless
especially stated, any of the articles prescribed herein must be fully fulfilled
by the parties hereto.
15. Governing
Laws
This
Agreement shall be construed and enforced in accordance with the laws of the
People’s Republic of China.
16. Counterparts
This Agreement may be executed in any number of counterparts each of which when
executed and delivered shall constitute an original, and all such counterparts,
together or separately, shall be deemed to be one and the same Agreement. This
agreement is made in both English and Chinese. English version shall prevail
where difference arising between English version and Chinese
Version.
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.
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By:
Party A：Sichuan Xinju Mineral Resource Development Co., Ltd.
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/s/Renyi
Hou
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Renyi Hou
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By:
Party B：Sichuan Xinlong Telluronium Industry & Technique Co.,
Ltd.
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/s/Renyi
Hou
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Renyi Hou
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Appendix
1: Technical and Consulting Services
Party A
shall provide technical and consulting services as follows:
1.
Prospecting technologies.
2.
Technologies of beneficiation and metallurgy.
3.
Technical counseling of scientific research projects.
4.
Technical innovation.
5. Other
technical and consulting services required by Party B.
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Appendix
2
Calculation
and Payment of the Fee for Technical and Consulting Services
Party A
shall adjust the standard fees per month for 1K times of Page views in
accordance with the actual operation of Party B and then adjust the fees per
month.
Party B
is obliged, from time to time, to provide Party A with information and data upon
Party A’s request. Party A is entitled to check or review, from time to time,
such information and data.
Party B
shall pay fees for the Services of the prior month to the account designated by
Party A before the 7th day of
the following month.
Fees for
prospecting and technologies of beneficiation and metallurgy should be paid by
Party A to Party B according to the budget of each project after evaluating and
auditing.
Fees for
technical counseling of scientific research projects should be paid by Party A
to Party B according to the charging standard of the Ministry of Science and
Technology of PRC.
Technical
innovation fees should be paid by Party A to Party B according to the budget of
each technical innovation project after evaluating and auditing.
Scientific
research personnel fees like wages, travel fees and Administrative expenses will
be included in the budget of each project.
