Exhibit 10.5
TECHNICAL SUPPORT AGREEMENT
between
ATA ONLINE (BEIJING) EDUCATION TECHNOLOGY LIMITED
and
ATA LEARNING (BEIJING), INC.
BEJING
1
TECHNICAL SUPPORT AGREEMENT
THIS TECHNICAL SUPPORT AGREEMENT ("this Agreement") is entered into on October
27, 2006 by and between ATA Online (Beijing) Education Technology Limited
("Party A"), a company organized and existing under the laws of the People's
Republic of China (the "PRC"), and ATA Learning (Beijing), Inc. ("Party B"), a
wholly foreign-owned enterprise organized and existing under the laws of the
PRC. Each of Party A and Party B shall hereinafter individually be referred to
as a "Party" and collectively as the "Parties".
WHEREAS:
Party A engages in businesses such as the operating of internet testing
preparation in PRC (the "Business") and Party B possesses expertise and
resources on technology involved in the Business. Party A intends to retain
Party B to provide relevant technical support service with respect to the
Business ("Technical Support Service"), and Party B is willing to accept such
retainer pursuant to the terms and conditions of this Agreement.
The Parties hereby agree as follows:
ARTICLE 1 SERVICE AND PAYMENT
1. Party A hereby:
A. appoints Party B, effective as of the date of this Agreement, as the provider
of Technical Support Service relating to the Business as agreed by the Parties
from time to time; and
B. agrees to pay Party B a service fee (the "Service Fee"). The amount of the
Service Fee shall be decided and settled by Party A and Party B in written
according to the Technical Support Service provided by Party B upon request of
Party A, and in accordance with the number of days and personnel involved in the
Technical Support Service on quarterly basis, and be paid within three (3)
months after settlement. In addition to the Service Fee, Party A shall reimburse
Party B for reasonable out of pocket expenses that incurred by Party B in
connection with providing the Technical Support Service under this Agreement,
including but not limited to, business trip costs, accommodation and meal costs,
transportation and telecommunication expenses. If Party A is not satisfied with
the services provided by Party B in the relevant period and requests deduction
of related Service Fee, or the actual fee paid by Party A is higher than the
Service Fee payable under this Agreement, Party A shall, upon mutual
2
agreement between the Parties, have the right to deduct the corresponding amount
from the next payment of Service Fee payable by Party A to Party B.
2. Party B agrees to provide the Technical Support Service listed in Schedule A
hereof and as requested by Party A.
3. Unless otherwise agreed by Party B in writing, Party A shall not retain any
third party to provide the services listed in Schedule A hereof.
ARTICLE 2 TERM, TERMINATION AND SURVIVAL
1. Term. This Agreement shall be effective upon execution hereof by authorized
representatives of the Parties and shall remain effective for a period of ten
(10) years. Party A shall not cancel this Agreement in effective term of this
Agreement. This Agreement will be automatically renewed for another one (1) year
upon expiry of each term unless Party B notifies Party A of its intention not to
renew thirty (30) days before the current term expires. Party A shall not
terminate this Agreement within the term of this Agreement.
2. No Further Obligations. Upon termination of this Agreement, Party B shall
have no further obligation to render any Technical Support Service hereunder to
Party A.
3. Survival. Termination of this Agreement shall not affect any obligation owed
by one Party to the other Party that has accrued prior to such termination.
ARTICLE 3 MISCELLANEOUS
1. Entire Agreement. This Agreement constitutes the entire agreement among the
Parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, understandings or arrangements, oral or written, between the
parties hereto with respect to the subject matter hereof.
2. Amendment. No variation of, or supplement to, this Agreement shall be
effective unless the Parties have agreed in writing and have respectively
obtained the required authorizations and approvals (including an approval that
Party B must obtain from the audit committee or other independent institution,
which has been established under the Xxxxxxxx-Xxxxx Act and the NASDAQ Rules, of
the board of directors of Party B's overseas holding company, ATA, Inc.). The
amendment and supplement duly executed and signed by both Parties shall be part
of this Agreement and shall have the same legal effect as this Agreement.
3
3. Waiver. A waiver on the part of any Party hereto of any rights or interests
of any part under this Agreement shall not constitute the waiver of any other
rights or interests or any subsequent waiver of such rights or interests. The
failure of any Party at any time to require performance by the other Party under
any provision of this Agreement shall not affect the right of such Party to
require full performance from the other Party at any time thereafter.
4. Assignment, Obligations of Transferees. This Agreement shall be binding upon
the Parties hereto and their respective successors and permitted transferees and
assignees and it shall be made for the interests of these parties. Without the
prior written consent of the other Party hereto, neither Party shall assign or
transfer any rights or obligations that it may have under this Agreement.
5. Governing Law. The execution, interpretation, performance and termination of
this Agreement shall be governed by and construed in accordance with the laws of
the People's Republic of China.
6. Severability. The invalidity, illegality or unenforceability of any provision
of this Agreement shall not affect the validity, legality or enforceability of
any other provisions. This Agreement shall continue in full force and effect
except for any such invalid, illegal or unenforceable provision.
7. Headings. The headings throughout this Agreement are for convenience only and
are not intended to limit or be used in the interpretation of the provisions of
this Agreement.
8. Language and Counterparts. This Agreement is executed in Chinese. This
Agreement and any amendment hereto may be executed by the Parties in separate
counterparts, each counterpart shall be the original and all of which together
shall constitute one and the same instrument.
9. This Agreement is executed in two counterparts. Each Party shall hold one
counterpart, and both counterparts shall have the same legal effect.
10. Dispute Resolution. All disputes arising from the execution of, or in
connection with this Agreement shall be settled through amicable negotiations
between the Parties. If no settlement can be reached through amicable
negotiations, the dispute shall be submitted to the China International Economic
and Trade Arbitration Commission (CIETAC) Beijing Commission for arbitration, in
accordance with its then effective arbitration rules. There shall be three
arbitrators. The arbitration shall be held in Beijing and the language of the
arbitration shall be Chinese. The arbitral
4
award shall be final and binding on both Parties. The costs of the arbitration
shall be borne by the losing Party, unless the arbitration award stipulates
otherwise.
[Remainder of page intentionally left blank]
5
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized signatories as of the day and year first
written above.
Party A: ATA Online (Beijing) Education Technology Co., Ltd.
Authorized representative: [COMPANY SEAL]
(signature)
Party B: ATA Learning (Beijing), Inc.
(Seal)
Authorized representative: [COMPANY SEAL]
(signature)
6
SCHEDULE A
TECHNICAL SUPPORT SERVICE TO BE PROVIDED
Technical Support Service to be provided by Party B to Party A shall be as
follows subject to the regulation of applicable laws:
1. Providing technical support and professional training necessary for
carrying out Party A's business.
2. Providing maintenance for computer facilities.
3. Providing website design and design, installation, testing and maintenance
services for Party A's network and computer system.
4. Providing overall safety services for Party A's website.
5. Providing database support and software services.
6. Other services related to Party A's business.
7. Providing personnel support upon the requirement of Party A, including but
not limited to dispatching the related personnel (Party A shall bear all
the labor costs and expenses).
8. Other services agreed by both parties.
7
