FIRST AMENDED AND RESTATED EXCLUSIVE MARKETING AGREEMENT
FIRST
AMENDED AND RESTATED EXCLUSIVE MARKETING AGREEMENT
This
First Amended and Restated Exclusive Marketing Agreement (the “Agreement”)
is
made April 3, 2008 but entered into effective as of November 14, 2007 by and
between the following parties in Beijing, People’s Republic of China (the
“PRC”):
Party
A: Trans
Pacific Shipping Ltd.,
a
wholly
foreign-owned enterprise duly established and valid existing under the laws
of
the PRC.
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Registered
Address:
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Rm.
1208b Tower D Yeqing Building
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Xx.0
Xxxxxxxxxxxxx
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Xxxxxxxx
Xxxxxxxx, Xxxxxxx
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Party
B: Sino-Global
Shipping Agency Ltd.,
a
limited liability company duly established and valid existing under the laws
of
the PRC.
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Registered
Address:
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Rm.
1208 Tower D Yeqing Building
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Xx.0
Xxxxxxxxxxxxx
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Xxxxxxxx
Xxxxxxxx, Xxxxxxx
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WHEREAS, Party
A
owns resources and customer advantages unparalleled in the field of Party B’s
business.
WHEREAS,
Party A
and Party B previously entered into that Exclusive
Marketing Agreement effective as of November 14, 2007 and desire to amend and
restate such agreement to accurately reflect the intentions and actions of
the
parties with respect to the subject matter thereof.
WHEREAS,
both
parties agree to enter this Agreement in
accordance with the terms and conditions described below.
NOW
THEREFORE, through
mutual negotiation, the Parties hereto agree as follows:
ARTICLE
I
CUSTOMER
AND FINANCIAL SUPPORT
(a) Party
A
shall provide customer and financial support to Party B as follows:
(i) Party
A
shall provide Party B with world-wide customer resource services.
(ii) Party
A
shall provide Party B with financial support if Party B meets difficulty in
obtaining funds for operation (relevant terms and conditions will mutually
agreeable to both Parties).
(iii) Party
A
shall offer Party B business opportunities by extending Party B’s business
propaganda and visiting potential and existing customers.
(iv) Party
A
shall offer Party B opportunities to join trade societies and organizations,
including ASBA (Association of Ship Brokers and Agents, (U.S.A.) Inc.) and
MA
(Connecticut Maritime Association), etc.
(b) Party
A
shall be the exclusive provider of marketing services to Party B. Party B shall
not accept all or any of the marketing services provided by Party A from any
other third party without the prior written consent of Party A.
ARTICLE
II
SERVICE
FEES
(a) As
consideration for the services provided by Party A under Article I(a) of this
Agreement, Party B shall pay a service fee to Party A in accordance with Article
II(b) of this Agreement.
(b) During
the term of this Agreement, Party B shall pay Party A a service fee equal to
85%
of Party B’s annual net profit.
(c) Party
B
shall pay in advance such service fees to Party A on a quarterly basis, with
any
over- or underpayment by Party B to be reconciled once the annual net profit
of
Party B is determined at Party B’s fiscal year end. During the term of this
Agreement, Party B shall make advance payments to Party A’s appointed bank
account within 15 working days after the beginning of each new quarter, and
the
parties shall complete any reconciliation payment within 15 days after the
determination described in this Article II(c). Party B shall send Party A a
written report of service fees on a quarterly basis. Party B shall fax or mail
the copies of the remittance.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
(a) Representations
and Warranties of Party A
Party
A hereby represents and warrants as follows:
(i) Party
A
is a company duly registered and validly existing under the laws of the PRC
and
is authorized to enter into this Agreement.
(ii) Party
A
has the power to execute and perform this Agreement in accordance with its
constitutional documents and has taken all necessary action to obtain all
consents and approval to execute and perform this Agreement. The execution
and
performance of this Agreement by Party A do not and will not result in any
violation of enforceable or effective laws or contractual
limitations.
(iii) Upon
the
execution of this Agreement, this Agreement shall constitute a legally binding
document of Party A, enforceable against it in accordance with its terms.
(b) Representations
and Warranties of Party B
Party
B hereby represents and warrants as follows:
(i) Party
B
is a company duly registered and valid existing under the laws of the PRC and
is
authorized to enter into this Agreement.
(ii) Party
B
has the power to execute and perform this Agreement in accordance with its
constitutional documents and has taken all necessary action to obtain all
consents and approval to execute and perform this Agreement. The execution
and
performance of this Agreement by Party B do not and will not result in any
violation of enforceable or effective laws or contractual limitations.
(iii) Upon
the
execution of this Agreement, this Agreement shall constitute a legally binding
obligation of Party B, enforceable against it in accordance with its terms.
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ARTICLE
IV
CONFIDENTIALITY
(a) If
any
confidential information exists in the documents provided hereunder by either
Party to the other Party, the disclosing party shall xxxx such documents with
the following: “Strictly Confidential. Disclosing, Reproducing or Transferring
This Information to any Third Party Without Permission is
Prohibited.”
(b) Each
Party shall protect and maintain the confidentiality of the other Party’s
confidential information and shall not make use of any confidential information
of the other Party unless otherwise stipulated in this Agreement and for the
purpose of this Agreement.
(c) This
Agreement shall not grant any Party any rights, benefits or qualifications
to
the other Party’s confidential information.
(d) Pursuant
to this Agreement, the term “confidential information” shall mean any technology
information or business operation information which is unknown to the public,
can bring about economic benefits, has practical utility and about which a
Party
has adopted secret-keeping measures.
ARTICLE
V
INTELLECTUAL
PROPERTY
Party
A
shall be the sole and exclusive owner of all right, title and interest to any
and all intellectual property rights arising from the performance of this
Agreement (including but not limited to, copyrights, patent, know-how,
commercial secrets and others).
ARTICLE
VI
INDEMNITIES
Party
B
shall indemnify Party A against any loss, damage, liability or expenses suffered
or incurred by Party A as a result of or arising from any litigation, claim
or
compensation request relating to the marketing provided to Party B.
ARTICLE
VII
EFFECTIVENESS
AND TERM OF THIS AGREEMENT
(a) This
Agreement shall be executed and come into effect as of the date first set forth
above. The term of this Agreement shall be twenty-five (25) years from the
date
hereof unless earlier terminated as set forth in this Agreement or upon the
mutual agreement of the Parties.
(b) This
Agreement may be extended prior to termination for one or more twenty-five
(25)
year terms upon written notice by Party A, provided such extension is permitted
by law and subject to the approval of the registration administration for the
extension of Party B’s business duration. The parties will cooperate to renew
this Agreement if such renewal is legally permitted at the time.
ARTICLE
VIII
TERMINATION
OF THE AGREEMENT
(a) The
Agreement shall automatically terminate on the day that is the twenty-fifth
(25th)
anniversary of the date hereof unless otherwise extended in accordance with
this
Agreement.
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(b) During
the term of this Agreement, Party B may not terminate this Agreement except
in
the case of gross negligence, fraud action, or other illegal action or
bankruptcy of Party A. Notwithstanding the above, Party A may terminate this
Agreement upon thirty (30) days’ prior written notice to Party B.
(c) The
rights and obligations of the both Parties under Article IV and Article V of
this Agreement shall survive the termination of this Agreement.
ARTICLE
IX
NOTICES
Any
notice provided by either Party hereto shall be in writing. Where such notice
is
delivered personally, the time of notice shall be the time when such notice
is
received by the addressee. Where such notice is transmitted by telex or
facsimile, the time of notice shall be the time when such notice is transmitted.
If such notice does not reach the addressee on business date or reaches the
addressee after business hours, the date of notice shall be the next business
day. The place of proper delivery shall be the address first written above
for
each of the Parties or such other address as a Party may provide to the other
in
writing. Written delivery shall include fax and telefax.
ARTICLE
X
ASSIGNMENT
Party
B
may not assign or transfer its rights or obligations under this Agreement to
any
third party without prior written consent of Party A.
ARTICLE
XI
SEVERABILITY
If
any of
the terms of this Agreement is deemed to be invalid, illegal or unenforceable,
the validity and enforceability of the other terms hereof shall nevertheless
remain unaffected.
ARTICLE
XII
AMENDMENTS
AND SUPPLEMENTS
Any
amendment or supplement to this Agreement shall be effective only if it is
made
in writing and signed by both of the Parties hereto. Any amendment or supplement
duly executed by the Parties shall be part of this Agreement and shall have
the
same legal effect as this Agreement.
ARTICLE
XIII
DISPUTE
SETTLEMENT
(a) Friendly
Consultation
The
Parties shall strive to settle any disputes or claims arising from this
Agreement or in connection with this Agreement through mediation.
(b) Arbitration
In
the
event no settlement can be reached through consultation within sixty (60) days
of the first written request of one Party for such consultation, either Party
may submit such matter to the China International Economic and Trade Arbitration
Committee for arbitration. The arbitration shall be held in Beijing, PRC.
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ARTICLE
IV
GOVERNING
LAW
This
Agreement shall be governed by, construed in all respects and performed in
accordance with the laws of the PRC.
ARTICLE
XV
LANGUAGES
This
Agreement is executed both in Chinese and English. The Chinese version will
prevail in the event of any inconsistency between the English and any Chinese
translations thereof.
[Remainder
of Page Left Intentionally Blank - Signature Page
Follows]
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IN
WITNESS WHEREOF,
both
Parties executed this Agreement effective as of the date first above
written.
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Party
A: Trans
Pacific
Shipping Ltd.
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(seal)
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/s/
Cao Lei
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Legal
Representative
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Party
B: Sino-Global
Shipping Agency Ltd.
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(seal)
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/s/
Cao Lei
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Legal
Representative
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