Exhibit 4.80
EXCLUSIVE TECHNICAL CONSULTING AND SERVICES AGREEMENT
This Exclusive Technical Consulting and Services Agreement (the "Agreement") is
entered into as of June 1, 2005 between the following two parties [_____].
PARTY A: SHANGHAI HUITONG INFORMATION CO., LTD.
LEGAL ADDRESS: Xx.00, Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
PARTY B: HAINAN XXXXX XXXX COMPUTER CO., LTD.
LEGAL ADDRESS: 00X Xxxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Haikou
WHEREAS
(1) Party A, a wholly foreign-owned enterprise registered in People's Republic
of China (the "PRC") under the laws of PRC, which owns resources to provide the
technical consulting and services.
(2) Party B is a wholly domestic invested company registered in PRC.
(3) Party A shall be the provider of technical consulting and related services
to Party B, and Party B hereby agrees to accept such technical consulting and
services.
NOW THEREFORE, the parties to this Agreement hereby agree as follows:
1. TECHNOLOGY CONSULTING AND SERVICES: SOLE AND EXCLUSIVE RIGHTS AND INTERESTS
1.1 During the term of this agreement, Party A agrees to, as the exclusive
technical consulting and services provider of Party B, provide the
exclusive technical consulting and services to Party B (the content is
specified in Appendix 1). Party A further agrees that, during the term
of this Agreement, it shall not provide any technical consulting and
services to any other third party without Party B's prior written
consent.
1.2 Party B hereby agrees to accept such exclusive technical consulting
and services. Party B further agrees that, during the term of this
Agreement, it shall not utilize any third party to provide such
technical consulting and services for such above-mentioned business
without the prior consent of Party A.
1.3 Party A shall be the sole and exclusive owner of all rights, title and
interests to any and all intellectual property rights arising from the
performance of this Agreement, including, but not limited to, any
copyrights, patent, know-how and otherwise, whether developed by Party
A or Party B based on Party A's intellectual property.
1
2. CALCULATION AND PAYMENT OF THE FEE FOR TECHNICAL CONSULTING AND SERVICES
(THE "FEE")
The parties agree that the Fee under this Agreement shall be determined
according to the Appendix 2.
3. REPRESENTATIONS AND WARRANTIES
3.1 Party A hereby represents and warrants as follows:
3.1.1 Party A is a company duly registered and validly existing under
the laws of the PRC.
3.1.2 Party A has full rights, power, 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
be against any enforceable and effective laws or contracts;
3.1.3 the 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 as follows:
3.2.1 Party B is a company duly registered and validly existing under
the laws of the PRC.
3.2.2 Party B has full rights, power 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
be against any enforceable and effective laws or contracts;
3.2.3 Once the Agreement has been duly executed by both parties, it
will constitute a legal, valid and binding agreement 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
acknowledged or received by Party B by accepting the exclusive
consulting services from Party A (collectively the "Confidential
Information"). Party B shall not disclose or transfer any Confidential
Information to any third party without Party A's prior written
consent. Upon termination or expiration of this Agreement, Party B
2
shall, at Party A's option, return all and any documents, information
or software contained any of such Confidential Information from any
memory devices, and cease to use them.
4.2 Section 4.1 shall survive after any amendment, expiration or
termination of this Agreement.
5. INDEMNITY
Party B shall indemnity 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 resulting from the contents of the
technical consulting and services demanded by Party B.
6. EFFECTIVE DATE AND TERM
6.1 This Agreement shall be executed and come into effect as of the date
set forth above. The term of this Agreement is ten (10) years, unless
earlier terminated as set forth in this Agreement or in accordance
with the terms set forth in the agreement entered into by both parties
separately.
6.2 This Agreement may be extended only if Party A gives its written
consent of the extension of this Agreement before the expiration of
this Agreement. However, both parties shall, through negotiations,
determine the extension term.
7. TERMINATION
7.1 Termination on Expiration
This Agreement shall expire on the date due unless this Agreement is
extended as set forth above.
7.2 Early Termination
During the term of this Agreement, Party B can not terminate this
Agreement except in the case of gross negligence, fraud or other illegal
acts or bankruptcy of Party A. Notwithstanding the above-mentioned, Party A
may terminate this Agreement at any time with a written notice to Party B
30 days before such termination.
7.3 Survival
Article 4 and 5 shall survive after the termination or expiration of
this Agreement.
8. SETTLEMENT OF DISPUTES
3
The parties shall strive to settle 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"). The arbitration shall follow the
current rules of CIETAC, and the arbitration proceedings shall be conducted
in Chinese and shall take place in Shanghai. The arbitration award shall be
final and binding upon the parties and shall be enforceable in accordance
with its terms.
9. FORCE MAJEURE
9.1 Force Majeure, which includes acts of governments, acts of nature,
fire, explosion, typhoon, flood, earthquake, tide, lightning, war,
means any event that is beyond the party's 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.
9.2 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, both
parties agree to resume performance of this Agreement with their best
efforts.
10. NOTICES
Notices or other communications required to be given by any party pursuant
to this Agreement shall be written in English and Chinese and shall be
deemed to be only given when it is delivered personally or sent by
registered mail or postage prepaid mail or by a recognized courier service
or by facsimile transmission to the address of the relevant party or
parties set forth below.
Party A: SHANGHAI HUITONG INFORMATION CO., LTD.
LEGAL ADDRESS: Xx.00, Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
Facsimile No.: 00000000
Tel: 00000000
To: Xxxxxxxxx Xxxxx
4
Party B: Hainan Xxxxx Xxxx Computer Co., Ltd.
LEGAL ADDRESS: 00X Xxxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Haikou
Facsimile No.: _______________________
Tel: _________________________________
To: __________________________________
11. ASSIGNMENT
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 way the
remaining provisions hereof in such jurisdiction or rendering that any
other provision of this Agreement invalid or unenforceable in any other
jurisdiction.
13. AMENDMENT AND SUPPLEMENT
Any amendment and supplement of this agreement shall come into force only
after a written agreement is signed by both parties. The agreement and
supplement duly executed by both parties shall be part of this Agreement
and shall have the same legal effect as this Agreement.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
PRC laws
15. MISCELLANEOUS
This Agreement is the amendment to the Former Agreement. This Agreement
shall replace the Former Agreement upon its coming into effect, and the
former agreement shall be automatically invalidated at the same time.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first set
forth above.
5
[No text on this page]
PARTY A: SHANGHAI HUITONG INFORMATION CO., LTD.
Authorized representative: Sealed
PARTY B: HAINAN XXXXX XXXX COMPUTER CO., LTD.
Authorized representative: Sealed
6
APPENDIX 1: THE LIST OF THE CONTENT OF TECHNICAL CONSULTING AND SERVICES
Party A shall provide Party B with Technical Consulting and Services as
follows:
7
APPENDIX 2: CALCULATION AND PAYMENT OF THE FEE FOR TECHNICAL CONSULTING AND
SERVICES
Party B should pay service fee RMB10,000,000 per year, but Party A has the
right to adjust the service fee according to the quantity of the service.
8
