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EXHIBIT 10.10
Dated January 3, 2001
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SUPPLY CHAIN SERVICES LIMITED
and
GREATMIND TECHNOLOGY LIMITED
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AGREEMENT
RE
SERVICE AGREEMENT
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THIS AGREEMENT is made on , 2001
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BETWEEN:
1. SUPPLY CHAIN SERVICES LIMITED, a company incorporated and registered
in the Hong Kong Special Administrative Region having its registered
office at 8/F Guangdong Textile Centre, 22 Minden Avenue, Tsimshatsui,
Hong Kong (the "Principal") and
2. GREATMIND TECHNOLOGY LIMITED, a company incorporated and registered in
the Hong Kong Special Administrative Region having its registered
office at Xxxx 0000, 00/X Xxxxxxxx Xxxxx, 000 Xxxxxxxxx Xxxx Xxxx,
Xxxx Xxxx (the "Service Provider").
WHEREAS the Principal wishes to appoint the Service Provider to undertake
software development and programming activities related to the Principal's
proprietary supply chain software program (the "Software") as stipulated in
Attachment A and as provided in this Agreement and to provide such Services
incidental and ancillary thereto as may be necessary upon the terms and subject
to the conditions hereinafter appearing.
NOW IT IS AGREED as follows:
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1 INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
"Agreement" means this agreement as the same may from
time to time be amended, modified or varied
in accordance with Clause 10 and includes any
document which amends, waives, is
supplemental to, novates or is entered into,
made or given pursuant to or in accordance
with any of the terms hereof;
"Business Day" means a day (other than a Saturday)on which
banks are open for business in both the Hong
Kong Special Administrative Region;
"Commencement Date" means January 3, 2001;
"Services" means any such services which the Service
Provider will perform on behalf of the
Principal;
"Schedule" means the specified time frame pre-
determined by the Principal in Attachment B;
"Software" means the supply chain software being
developed as specified by the Principal and
in accordance to the modules in Attachment A;
"Term" means the fixed period of one (1) years
beginning on the Commencement Date and
expiring on January 3, 2002 unless earlier
terminated as provided by this Agreement;
"HK$" means the lawful currency for the time being
of Hong Kong Special Administrative Region;
"US$" means the lawful currency for the time being
of the United States of America;
1.2 In this Agreement unless the context otherwise requires:
(a) references to Clause(s) and Schedule(s) are references to
clause(s) of and schedule(s) to this Agreement;
(b) the words "hereto", "hereof" and words of similar import shall be
construed as references to this Agreement as a whole and not to the
particular provision in which the relevant reference appears;
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(c) references to (or to any specific provision of) this Agreement or
any other document shall be construed as references to this Agreement,
that provision or that document as amended, modified or supplemented
from time to time;
(d) words herein importing the singular shall include the plural and
vice versa and words importing any gender shall include all genders
and words importing person shall include any individual, company,
corporation, firm, partnership, joint venture, association or trust
(in each case, whether or not having a separate legal personality).
1.3 References in this Agreement to any ordinance, enactment, rule,
law, directive or regulation include such ordinance, enactment,
rule, law, directive or regulation as modified, consolidated,
extended or re-enacted and include subsidiary legislation made
thereunder.
1.4 In this Agreement clause headings and the index are inserted for
reference only and shall not affect construction or
interpretation of this Agreement.
2 APPOINTMENT
2.1 The Principal wishes to appoint the Service Provider to undertake
software development and programming activities related to the
Principal's proprietary supply chain Software as stipulated in
Attachment A and as provided in this Agreement and to provide such
services incidental and ancillary in accordance with the provisions of
this Agreement.
3 PRINCIPAL'S OBLIGATIONS
3.1 The Principal agrees with the Service Provider during the continuance
in force of this Agreement:
(a) to act in full cooperation with the Service Provider to ensure
that the Service Provider receive accurate input, specifications,
source data, explanations of the process and work flow. Such supply of
input, specifications and source data shall be used by the Service
Provider for the development of each module of the Software in
accordance to Attachment A;
(b) to provide sufficient and proper work place with adequate,
functional and appropriate furnishings, furniture, tools, hardware and
software to the Service Provider where its designated personnel are to
be stationed during the Term and to enable the Service Provider's
designated personnel to properly work on the Principal's Software.
(c) to arrange for the requisition and installation of hardware and
software, including routers, server systems, telephone units,
broadband lines, personal computers, laptops, printers, scanners and
digital cameras, which are required for the development of the
Software.
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(d) to bear all expenses related to the rental of the work place,
costs of furnishings, furniture, hardware and software and other
related tools and materials which might facilitate the Service
Provider's Services.
4 SERVICE PROVIDER'S OBLIGATIONS
4.1 The Service Provider agrees with the Principal throughout the Term:
(a) to be fully responsible to develop the Software in accordance to
the needs as specified by the Principal, and to complete all
development work, including, but not limited, to encoding,
programming, debugging, testings, documentation and any other related
tasks within the predetermined Schedule as set out in Attachment B;
(b) to perform the following Services in order to complete the
Software modules as stipulated in Attachment A and within the Schedule
as stipulated in Attachment B:-
- Systems feasibility study
- System design and production of specifications
- Programming and source code encoding
- Debugging of the software code / programs
- Complete testing of the software
- Write-up of the operating manual
- Write-up of user's manual
- Education and training to the Principal's employees
(c) to provide sufficient I.T. personnel, including systems analyst,
programmers, Lan administrators, to support the entire development of
the Software in accordance to the modules as specified in Attachment
A;
(d) to seek approval of the Principal in order to confirm the
completed status of all the modules of the Software as stipulated in
Attachment A;
(e) to seek the written approval from the Principal to extend and
revise the Schedule for the software development work in the event
that the Service Provider fails to complete the development work of
all modules as specified in Attachment A within the Schedule period;
(f) to prepare and keep proper and accurate records of user's
specifications, systems specifications, source codes and encoding
materials, programming documentation, operations manual, user's manual
and any other related documents to the Software;
(g) to act as consultants and provide advice on the setup of the
Principal's IT environment and on the requisitions of appropriate
hardware, software and any such tools and materials to facilitate the
development and operations of the Software;
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(h) to maintain operations of the Software and conduct enhancements on
the Software after the completion of the Software or after the
Schedule;
(i) to arrange and setup for proper demonstration of the Software to
the Principal and its clients; and
(j) to provide education and training of the Software to the
Principal's employees and its designated clients, if required.
5 SERVICE FEES
5.1 In consideration of the Services undertaken by the Service Provider
hereunder, the Principal shall subject as provided in Clause 5.2 and
5.3 pay to the Service Provider during the continuance in force of
this Agreement:
(a) total development fee of US$550,000 (equivalent to HK$4,262,500)
in equal monthly installments (the "Monthly Installments") as outlined
below:-
MONTH INSTALLMENT
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January 2001 US$35,483
February 2001 US$35,483
March 2001 US$35,483
April 2001 US$35,483
May 2001 US$35,483
June 2001 US$35,483
July 2001 US$35,483
August 2001 US$60,323
September 2001 US$60,323
October 2001 US$60,323
November 2001 US$60,323
December 2001 US$60,323
such fees represent the total and final costs associated with the
development of the Software in accordance to all the modules as
stipulated in Attachment A in this Agreement;
5.2 The Principal shall pay the Monthly Installment to the designated
account of the Service Provider on the first day of each month until
the total development fee of US$550,000 is paid up.
5.3 The Service Provider shall issue an invoice to the Principal for the
monthly installment on the first day of each month for the services to
be rendered.
5.4 In the event that the Service Provider fails to complete the Software
in accordance with the Schedule, the Principal shall not be liable to
pay any additional service fees.
6 OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
6.1 The Service Provider agrees that the Principal shall hold full
ownership of the Software for each module in accordance with
Attachment A and agrees that the Software shall be treated as
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assets of the Principal. Such assets shall include, but not limited
to:
- All systems specifications, including drafts, revisions or final
versions of the specifications
- Programming specifications
- Program source codes
- Documentations and manuals related to the Software (i.e. User's
Guidelines, Operating Manual, Programming Manuals etc.)
- All files, hardcopies and softcopies related to the Software
- All databases developed and compiled during the development of the
Software
The Service Provider shall release the above-mentioned assets to the
Principal from time to time during the course of the development of
the Software and prior to the expiration of the Term or the expiration
or termination of this Agreement.
6.2 All rights of any nature whatsoever, whether legal or beneficial or
moral, including without limitation to any software program, codes,
copyright, business name, patent, trade xxxx, design rights and any
other intellectual property rights in all materials developed,
written, created and/or prepared by the Service Provider in the course
of the development of the Software and during the Term of this
Agreement, shall vest with the Principal.
6.3 The provisions of this Clause 6 shall survive the expiry or
termination of this Agreement.
7 TERMINATION
7.1 Subject to Clause 7.2, this Agreement shall not be terminated during
the Term and shall continue thereafter in full force and effect unless
and until either party shall have given three (3) months written
notice of termination to the other party such notice not to be given
prior to the expiration of the Term.
7.2 This Agreement shall be terminated forthwith without prior notice if:
(a) either party fails duly to perform any of its obligations or to
observe any of the terms and conditions imposed on it by this
Agreement and such failure is not capable of remedy or, if remediable,
has not been remedied within thirty (30) days after notice by the
other party requiring its remedy; or
(b) either party becomes or is declared insolvent or bankrupt, is
unable to pay its debts as they fall due, stops, suspends or threatens
to stop or suspend payment of all or a material part of its debts or
begins negotiations or takes any proceeding or other step with a view
to readjustment, rescheduling or deferral of its indebtedness (or any
part of its indebtedness which it will or might otherwise be unable to
pay when due) or proposes or makes a general assignment or any
arrangement or composition with or for
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the benefit of its creditors or a moratorium is agreed or declared in
respect of or affecting all or any material part of its indebtedness;
or
(c) a distress, attachment, execution or other legal process is
levied, enforced or sued out on or against the assets of either party
and is not discharged within thirty (30) days; or
(d) a petition is presented or a proceeding is commenced, a resolution
is passed, an order is made or any action is taken by any person for
the dissolution, liquidation, winding-up or bankruptcy of either
party, except for the purpose of and followed by a reconstruction,
amalgamation or reorganization on terms previously approved by the
other party or for the appointment of a liquidator, receiver,
administrator, trustee or similar officer of all or a material part of
its business or assets or if any event analogous thereto occurs or if
either party otherwise becomes insolvent, liquidated, wound-up or
bankrupt under applicable law; or
(e) either party ceases to exist or ceases or threatens to cease to
carry on its business or any part thereof; or
(f) it is or will become unlawful for either party to perform or
comply with any one or more of its obligations under this Agreement or
any such obligation is not or ceases to be enforceable.
7.3 The expiration or determination of this Agreement howsoever arising
shall not affect such of the provisions hereof as are expressed to
operate or have effect thereafter and shall be without prejudice to
any right of action already accrued to either party in respect of any
breach of this Agreement by the other party.
8 CONFIDENTIALITY
8.1 The Service Provider agrees and undertakes with the Principal that it
will not at any time hereafter use or divulge or communicate to any
person other than to the employees of the Principal whose province it
is to know the same any confidential information concerning the
business, accounts, finance or contractual arrangements or other
dealings, transactions or affairs of the Principal which may come to
its knowledge and it shall use its best endeavours to prevent the
publication or disclosure of any confidential information concerning
such matters.
8.2 The Service Provider agrees to keep in the strictest confidence all
documents and materials pertaining to any technical data, source
codes, software programs and other related materials.
8.3 The Service Provider agrees to return to the Principal all hardware,
software, tools, documents and other materials related to the Software
upon the expiration of the Term or upon
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completion of the Software or upon termination or expiration of this
Agreement, whichever is the earliest.
9 NO ASSIGNMENT
9.1 Neither of the parties hereto shall assign or otherwise transfer any
of its rights or obligations under this Agreement to any third party
without the prior written consent of the other party hereto.
10 ENTIRE AGREEMENT
10.1 This Agreement represents the entire agreement between the parties
hereto with respect to the subject matter of this Agreement and
supersedes any other commitments agreements promises or understandings
written or verbal that the parties hereto hereinbefore may have had.
11 AMENDMENT
11.1 No provision hereof may be amended, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party
against whom enforcement of the amendment, waiver, discharge or
termination is sought. No breach of or default under any of the
provisions of this Agreement may be waived or discharged except by an
instrument in writing signed by or on behalf of the party against whom
enforcement of such waiver or discharge is sought.
12 COMMUNICATIONS
12.1 Any notice report request demand consent approval and other
communication (collectively the "Communication") required to be given
under this Agreement shall be in English and shall be given by
facsimile or by sending the same through the post via prepaid envelope
(air mail in the case of an overseas address) or by courier addressed
to the party concerned at its address set out on the first page of
this Agreement or at such other address or place as such party may
designate to the other party in writing for the purpose of this clause
and any Communication so given shall be deemed to have been served on
the second day after the day on which it was posted in the case of
inland mail or despatched in the case of local courier, on the day on
which it was despatched in the case of local facsimile, on the next
day after the day on which it was despatched (reckoned at the place of
despatch) in the case of international facsimile, on the seventh (7th)
day after the day on which it was posted in the case of air mail and
on the fourth (4th)day after the day on which it was despatched in the
case of international courier. In proving service by mail it will be
sufficient to prove that the envelope containing the Communication was
duly stamped addressed and posted as aforesaid.
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13 PARTIAL INVALIDITY
13.1 The illegality invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its
legality validity or enforceability under the laws of any other
jurisdiction nor the legality validity or enforceability of any other
provision of this Agreement which are capable of severance and which
shall continue unaffected.
14 NO WAIVER
14.1 Time shall be of the essence of this Agreement but no failure or delay
on the part of either party hereto to require performance by the other
party of any provision of this Agreement will operate as a waiver
thereof. Any waiver by either party of any breach of any provision of
this Agreement shall not be construed as a waiver of any continuing or
succeeding breach of such provision a waiver of the provision itself
or a waiver of any right under this Agreement. Any waiver or consent
shall be effective only in the instance and for the purpose for which
it is given.
15 COSTS
15.1 Save as otherwise provided in this Agreement, all expenses incurred by
or on behalf of the parties hereto, including all fees of agents,
representatives, lawyers and accountants engaged by either of them in
connection with the negotiation, preparation or execution of this
Agreement, shall be born solely by the party who incurred the
liability.
16 GOVERNING LAW AND JURISDICTION
16.1 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong Special Administrative Region. The parties
hereto hereby submit to the non-exclusive jurisdiction of the Hong
Kong Courts.
16.2 The submission of the parties hereto to the jurisdiction of the Hong
Kong courts shall not restrict the fight of the either party to take
proceedings in connection with this Agreement in any other courts
having, claiming or accepting jurisdiction in respect of matters
pertaining to this Agreement, nor shall the taking of proceedings in
any one or more jurisdictions preclude the taking of proceedings in
any other jurisdiction whether concurrently or not.
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IN WITNESS whereof the parties hereto have hereunto set their hands the day
and year first above written.
SIGNED by )
for and on behalf of the Principal )
Supply Chain Services Ltd. )
in the presence of: ) /s/ Xxxxxxx Xxx
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SIGNED by )
for and on behalf of the Service Provider )
Greatmind Technology Limited )
in the presence of: ) /s/ [illegible]
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Witness: /s/ Xxxxx Xxx Ping
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Address:
Occupation:
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ATTACHMENT A
Software Modules
PHASE I
Purchase Order
Sourcing
PHASE II
Production Tracking
Trade Finance / Vendor Compliance
Quality Control
PHASE III
Shipment Status
Shipping Order Booking
Warehouse Systems
Customs Tracking
Payment / Invoicing
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ATTACHMENT B
SCHEDULE
Phase I - by March 2001
Phase II & III - by June 2001
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