EXCLUSIVE TECHNICAL DEVELOPMENT AND CONSULTING AGREEMENT by and among Oriental Intra-Asia Entertainment (China) Limited, China TransInfo Technology Group Co., Ltd., Beijing PKU Chinafront High Technology Co., Ltd., Beijing Tian Hao Ding Xin Science...
Exhibit
10.7
by
and among
Oriental
Intra-Asia Entertainment (China) Limited,
China
TransInfo Technology Group Co., Ltd.,
Beijing
PKU Chinafront High Technology Co., Ltd.,
Beijing
Tian Xxx Xxxx Xin Science and Technology Co., Ltd.,
Beijing
Zhangcheng Culture and Media Co., Ltd.
Bejing
Zhangcheng Science and Technology Co., Ltd.,
China
TranWiseway Information Technology Co., Ltd.,
Shanghai
Yootu Information Technology Co., Ltd.,
Xinjiang
Zhangcheng Science and Technology Co., Ltd.,
and
Dalian Dajian Zhitong Information
Service Co., Ltd.
EXCLUSIVE
TECHNICAL DEVELOPMENT AND CONSULTING
AGREEMENT
This
Exclusive Technical Development and Consulting Agreement (the “Agreement”) is
made and entered into on February
3, 2009, by and among Oriental Intra-Asia Entertainment (China) Limited
(“Oriental”), China TransInfo Technology Group Co., Ltd. (“Group Company”),
Beijing PKU Chinafront High Technology Co., Ltd. (“PKU”), Beijing Tian Xxx Xxxx
Xin Science and Technology Co., Ltd. (“Bejing Tian Hao”), Beijing Zhangcheng
Culture and Media Co., Ltd. (“Zhangcheng Culture”), Bejing Zhangcheng Science
and Technology Co., Ltd. (“Zhangcheng Science”), China TranWiseway Information
Technology Co., Ltd. (“Chian TranWiseway”) Xinjiang Zhangcheng Science and
Technology Co., Ltd. (“Xinjiang Zhangcheng”), Dalian Dajian Zhitong Information
Service Co., Ltd. (“Dalian Dajian”) and Shanghai Yootu Information Technology
Co., Ltd. (“Shanghai Yootu” and together with Group Company, PKU, Beijing Tian
Hao, Zhangcheng Culture, Zhangcheng Science, China TranWiseway, Xinjiang
Zhangcheng and Dalian Dajian, the “VIE Entities”). Each of the
parties to this Agreement is individually referred to herein as a “Party” and
collectively, as the “Parties.”
WHEREAS:
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1.
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Oriental,
a wholly foreign-owned enterprise duly organized in People’s Republic of
China (the “PRC”) under the laws of the PRC, owns resources to provide the
technical development and consulting
services.
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2.
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Each
of the VIE Entities is a limited liability companies and duly organized
and validly existing under the laws of PRC and is approved by the
competent governmental authorities to carry on the business of traffic
information services;
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3.
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Oriental
agrees to provide each of the VIE Entities with technical development and
consulting services, and the VIE Entities agree to accept such technical
development and consulting services provided by
Oriental;
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NOW THEREFORE, the Parties
through mutual negotiations agree as follows:
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1.
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Technical
Development and Consulting Services; Mutual
Exclusivity
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1.1
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During
the term of this Agreement, Oriental agrees to, as the exclusive technical
development and consulting services provider of the VIE Entities, provide
the exclusive technical development and consulting services to the VIE
Entities set forth on Appendix 1.
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1.2
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Each
of the VIE Entities hereby agrees to accept such exclusive technical
development and consulting services provided by Oriental. Each
of the VIE Entities further agrees that, during the term of this
Agreement, it shall not accept any third parties to provide such technical
development and consulting services for such above-mentioned business
without the prior written consent of
Oriental.
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1.3
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Oriental
shall be the sole and exclusive owner of all right, title and interests to
any and all intellectual property rights arising from the performance of
this Agreement, including but not limited to, copyrights, patent,
know-how, trade secrets and others no matter whether it is developed by
Oriental or by any of the VIE Entities based on Oriental’s intellectual
property right.
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1
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2.
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Calculation
and Payment of the Fee for Technical Development and Consulting Services
(the “Fee”)
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The
Parties agree that the Fee under this Agreement shall be determined according to
the terms set forth in Appendix 2. During the term of this Agreement,
the Parties will periodically review the contents of Appendix 1 and Appendix 2
and make any necessary adjustment if necessary.
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3.
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Representations
and Warranties
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3.1
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Oriental
hereby represents and warrants as
follows:
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3.1.1
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Oriental
is a company duly registered and validly existing under the laws of the
PRC;
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3.1.2
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Oriental
has the company power, has been duly authorized by all necessary action,
and has obtained all third party and governmental consents and approvals
to execute and perform this Agreement. The execution, delivery
and performance of this Agreement and does not and will not result in any
violation of enforceable or effective laws or contractual
limitations;
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3.1.3
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the
Agreement constitutes a legal, valid and binding obligation of Oriental,
enforceable against it in accordance with its terms upon its
execution.
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3.2
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The
VIE Entities hereby represents and warrants as
follows:
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3.2.1
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Each
of the VIE Entities is a company duly registered and validly existing
under the laws of the PRC.
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3.2.2
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Each
of the VIE Entities has the company power, within the business scope, has
been dully authorized by all necessary action, has been obtained all
consents and approvals from any third parties and governments to execute
and perform this Agreement, and do not and will not result in any
violation of enforceable or effective laws or contractual
limitations.
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3.2.3
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the
Agreement constitutes its legal, valid and binding obligation of each of
the VIE Entities, enforceable against it in accordance with its terms upon
its execution.
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4.
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Confidentiality
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4.1
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Each
of the VIE Entities agrees to use all reasonable means to protect and
maintain the confidentiality of Oriental’s confidential data and
information acknowledged or received by the VIE Entities by accepting the
exclusive consulting and services from Oriental (collectively the
“Confidential Information”). Each of the VIE Entities shall not
disclose or transfer any Confidential Information to any third party
without Oriental’s prior written consent. Upon termination of
this Agreement, each of the VIE Entities shall, at Oriental’s request,
return all and any documents, information or software contained any of
such Confidential Information to Oriental or destroy it and delete all
such Confidential Information from any memory
devices.
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2
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4.2
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The
Parties agree that this Article 4 shall survive no matter whether this
Agreement is amended, cancelled or
terminated.
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5.
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Indemnity
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The VIE
Entities shall indemnify and hold harmless Oriental from and against any loss,
damage, obligation and expenses arising out of any litigation, claim or other
legal procedure against Oriental arising out of the performance of this
Agreement.
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6.
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Effectiveness
and Term
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6.1
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This
Agreement shall be executed and come into effect as of the date first set
forth above. The term of this Agreement is ten (10) years,
unless earlier terminated by Oriental as set forth below (the
“Term”). The Term shall automatically renew for successive one
year periods.
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7.
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Termination
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During
the Term, the VIE Entities may not terminate this Agreement except in the case
of gross negligence, fraud or other illegal acts or bankruptcy of
Oriental. Notwithstanding the foregoing, Oriental may terminate this
Agreement at any time by giving a written notice to the VIE Entities thirty (30)
days before such termination.
All
rights and obligations under Article 4 and Article 5 shall survive after the
termination of this Agreement.
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8.
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Dispute
Resolution
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The
Parties shall strive to settle any dispute arising from the interpretation or
performance in connection with this Agreement through friendly
consultation. In case no settlement can be reached through
consultation, each Party can submit such matter to China International Economic
and Trade Arbitration Commission (the “CIETAC”) for arbitration in Beijing under
the current effective rules of CIETAC. 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.
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Force
Majeure
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9.1
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Force
Majeure, which includes, but not limited to, acts of governments, acts of
nature, fire, explosion, typhoon, flood, earthquake, tide, lightning or
war, means any event that is beyond the Parties’ reasonable control and
cannot be prevented with reasonable care. However, any shortage
of credit, capital or finance shall not be regarded as an event of Force
Majeure. The affected Party who is claiming to be not liable to
its failure of fulfilling this Agreement by Force Majeure shall inform the
other Party, without delay, of the approaches of the performance of this
Agreement by the affected Party.
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9.2
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In
the event that the affected Party is delayed in or prevented from
performing its obligations under this Agreement by Force Majeure, only
within the scope of such delay or prevention, 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 Force Majeure and attempt to resume
performance of the obligations delayed or prevented by the event of Force
Majeure. After the event of Force Majeure is removed, the parties agree to
resume performance of this Agreement with their best
efforts.
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3
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10.
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Notices
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All
notices or other communications provided for hereunder shall be written in
English and Chinese and shall be personal delivery or by registered or postage
prepaid mail, recognized courier service or facsimile transmission to the
address of the relevant party or parties set forth below.
If to
Oriental:
Oriental
Intra-Asia Entertainment (China) Limited
Room
1009, Tower C2, Oriental Plaza, Xx. 0 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxx
If to the
VIE Entities:
China
TransInfo Technology Group Co., Ltd.
Room 1601
E-wing Center, Xx. 000 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx,
Xxxxx.
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11.
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Assigns
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Any of
the VIE Entities may not assign its rights and obligations under this Agreement
to any third parties without the prior written consent of Oriental.
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12.
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Severability
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If any
provision contained in this Agreement is held invalid or unenforceable under
applicable laws, such provision shall be invalid or unenforceable as to such
jurisdiction and the remaining provisions hereof shall not be in any way
impaired.
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13.
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Amendment
and Supplement
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Any
amendment and supplement of this Agreement shall be effective only if it is made
in writing and signed by the parties hereto. The amendment and
supplement duly executed by the Parties shall be part of this Agreement and
shall have the same legal effect as this Agreement.
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14.
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Governing
Law
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This
Agreement shall be governed by and construed in accordance with the laws of the
PRC.
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15.
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Miscellaneous
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This
Agreement is executed in both English and Chinese and each version has equal
legal force.
[Signature Page
Follows]
4
IN WITNESS
WHEREOF, the parties
hereto have caused this Agreement to be duly executed by their representatives
hereunto duly authorized as of the date first set forth above
written.
Oriental
Intra-Asia Entertainment (China) Limited
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
China
TransInfo Technology Group Co., Ltd.
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
Beijing
PKU Chinafront High Technology Co., Ltd.,
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
Beijing
Tian Xxx Xxxx Xin Science and Technology Co., Ltd.,
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
Beijing
Zhangcheng Culture and Media Co., Ltd.
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
Bejing
Zhangcheng Science and Technology Co., Ltd.,
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
Xinjiang
Zhangcheng Science and Technology Co., Ltd.,
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
Dalian
Dajian Zhitong Information Service Co., Ltd.
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
China
TranWiseway Information Technology Co., Ltd.,
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
Shanghai
Yootu Information Technology Co., Ltd.
By: /s/ Xxxxxxx Xxx
Representative:
Xxxxxxx Xxx
Appendix
1: The list of Technical Development and
Consulting services
Oriental
shall provide to the VIE Entities with the following technical development and
consulting services:
Appendix
2: Calculation and Payment of the Fee for Development and Consulting
Services
Each of
the VIE Entities shall pay an annual development and consulting service fee
based on the actual services provided by Oriental in each calendar
year. Such fee shall be determined solely by
Oriental.
