INTELLECTUAL PROPERTIES TRANSFER CONTRACT by and between Daqing Sunway Technology Company Limited and Sunway World Through Technology øDaqing÷Co., Ltd. March 30, 2007
INTELLECTUAL
PROPERTIES TRANSFER CONTRACT
by
and between
Daqing
Sunway Technology Company Limited
and
Sunway
World Through Technology øDaqing÷Co.,
Ltd.
March
30, 2007
1
This
Contract is entered into on March 30, 2007 in Daqing between the following
Parties:
|
(1)
|
Daqing
Sunway Technology Company Limited (hereafter called “Party A”) is a
limited liability company duly registered in Daqing, China, whose
legal
address is Jianshe Road, North Software Park, High and Advanced Technology
Industry Development Zone, Daqing City,
and
|
|
(2)
|
Sunway
World through Technology (Daqing) Co., Ltd. (hereafter “Party B”), a
wholly foreign owned enterprise (“WFOE”) duly registered in Daqing, China,
whose legal address is Jianshe Road, North Software Park, High and
Advanced Technology Industry Development Zone, Daqing City.
|
(Party
A
and Party B are referred to collectively in this Contract as “Parties” or “both
Parties”, and individually as “a Party”)
WHEREAS:
1) Party
A’s
major business are as follows: the computer software development, data
processing, data base service, computer equipment maintenance; the production
and sale of computer and its outer equipment, apparatus, meters, the electronic
products, and communicational equipment (not including the transmission
equipment); household appliance; Petroleum chemical technical service, computer
and the related products, computer software, computer outer equipment,
apparatus, electronic equipment export and import business, manufacture of
the
medical appliance;
(2) Party
B’s
major business are; the development of computer software, the development and
manufacture of medical appliance and medical supplemental equipment.
|
(3)
|
Party
A agrees to transfer all its all the patents to Party B and Party
B shall
pay for the consideration to Party A in accordance with the terms
of this
Contract.
|
NOW,
THEREFORE,
the
Parties hereby agree as follows:
I
DEFINITION
1.
Except
as otherwise provided under the terms of this Contract, the following terms
shall have the meanings set forth below:
“This
Contract” shall mean this Contract and its Appendix1;
“Signing
date” shall mean the date of signing this Contract as provided
herein;
“IP”
shall mean all the patents, trademarks, software, copy right and other IP
rights
(as listed in Appendix1) to be transferred to Party B.
“RMB”
shall mean Renminbi, the lawful currency of the PRC;
"Blue
Print" shall mean the general chart, the sample chart for manufacture, materials
regulations, and the bibliography for the parts and components for the purpose
of the manufacture the products hereunder.
"Technical
Materials" shall mean all materials in relation to the IP rights, and other
related charts, technologies, drawings, designs and documents which are
definitely required for Party A to manufacture the products hereunder at present
stage.
"Standard"
shall mean the standard made by Party B for the purpose to produce the l
products in the technical materials provided to it.
“Consignment
Fee” shall mean the costs set out in this Contract for the IP transfer which is
to be paid by Party B;
“Business
day” shall mean a day other than Saturday, Sunday and other days on which
the
commercial banks in the PRC are generally closed for business;
“China”
refers People’s Republic of China, in context of this Contract, excluding
Hong
Kong
Special Administrative Region, Macau Special Administrative Region, and
Taiwan;
“China
law” refers to the effective laws, regulations, policies or other enforceable
legal documentations of People’s Republic of China, and future effecting laws,
regulations, policies or other enforceable legal documents. Moreover, except
as
otherwise provided, laws refer to the amended and updated versions (Excluding
that of Hong
Kong
Special Administrative Region, Macau Special Administrative Region, and
Taiwan).
II
CONTENTS OF CONTRACT
|
2.1
|
Party
A should provide Party B all the patents, trademarks, software, copy
right
for the manufacture, use and sale of medical appliance products.
The name,
standards, function, etc. shall refer to
Appendix1
|
|
2.2
|
Party
A shall arrange the employees of Party B to be trained in the factory,
and
Party A shall take the effective measures to have the employees of
Party B
to master the technologies to manufacture the contractual products.
The
details shall negotiate by the Parties.
|
3
Party
A
will dispatch competent technical employees to the contractual factory of Party
B to conduct the technical service. The detailed requirements shall be
determined by the Parties;
|
2.3
|
Party
A agrees to provide the parts and components of the contractual products
at the most favorable
price. Both Parties will otherwise sign another
Contract.
|
|
2.4
|
Party
A will take the obligation to provide consultancy on the key equipment
of
the project hereunder required by Party
B.
|
|
2.5
|
Party
A shall provide Party B the sample machine, mold parts and spare
parts.
|
III
TRANSFER OF IP AND DELIVERY OF TECHNICAL MATERIALS
3.1
TRANSFER OF IP
3.1.1
Party A shall transfer all rights, titles, related interests thereto of all
patents, trademarks, software (as listed in Apendix1), and, including all
technical instructions, drawings, designs, and other documentations, and Party
B
shall be the new owner of the aforesaid IP rights after such
transfer.
3.1.2
Party A shall make best efforts to handle the formalities (including without
limitation application for registration and filing) in the transfer procedures
as required under the PRC laws and regulations.
3.2
DELEVERY OF TECHNICAL MATERIAL
3.2.1
Party A shall provide Party B the technical materials in line with the
requirements of Appendix 1.
3.2.2
Party A shall transfer the technical materials in 15 days after the execution
date of this Contract.
3.2.3
Party B shall confirm the acceptance within the three business days after
receiving the technical materials.
3.2.4
Technical materials, sample machine, mold parts and spare parts: within the
4
weeks following the Effective Date hereof, Party A shall send a set of blue
print, a set of base map and a set of standard which can be delivered by several
times.
4
3.2.5 Within 24 hours following the dispatch of the technical materials, sample machine, mold parts and spare parts, Party A shall inform Party B about the number and date of the xxxx of lading, the number of the materials, the number of contracts, the number of documents and the weigh. Meanwhile, Party A shall send these documents to Party B by air mail: (a) the formal xxxx copy of lading and its two duplicates;
(b) two
duplicates of the detailed checklist of the dispatched technical materials,
the
sample machines, the mold parts and the spare parts.
3.2.6
If
the technical materials, sample machine, mold parts and spare parts from Party
A
are lost or damaged en route, Party A shall repost the materials to Party B
without any charge within 30 days after Party A receive the written notice
on
the lost and damage of the aforesaid documents.
3.2.7
The
transferred technical materials shall have the rain-proofing and damp-proofing
package which is suitable to be transported, multiple movement. The following
contents shall be marked in English on and in every package box:
|
(a)
|
the
number of contract;
|
|
(b)
|
the
transportation xxxx;
|
|
(c)
|
the
recipient;
|
|
(d)
|
the
destination of the technical
materials;
|
|
(e)
|
weight
(kilograms);
|
|
(f)
|
the
destination of sample machine, mold parts and spare
parts.
|
IV
DEVELOPMENT
AND MODIFICATION OF TECHNICAL MATERIALS
|
4.1
|
.In
order to adapt the design standard, materials, the equipment of the
process, and other production conditions, provided not changing the
basic
design, Party B have the right to revise and change the technical
materials. Party B shall notify these revise and
changes.
|
|
4.2
|
Party
B shall add the xxxx after the Model Number to differ from the revision
affecting the shape, match or function and notify of these modifications
to Party A.
|
V
PRICE
|
5.1
|
Pursuant
to the provisions of Chapter 1, Party B will pay Party A the fees
as
followings:
|
| 5.1.1 |
The
Transfer fee shall be RMB
5,000,000
Yuan, and subject to adjustment based on the minimum appraised value
on IP
rights allowed under PRC laws and regulations for such
transfer.
|
| 5.1.2 |
Within
the effective term of the Contract, each Party shall present all
the
revised, developed technical materials to the other Party without
any
charge within the contractual scope.
|
|
5.1.3
|
The
property right of the revised and changed technologies shall belong
to the
Party who revise and develop the technologies.
|
5
VI
THE PARTIES’ REPRESENTATION,
WARRANTY , UNDERTAKING
|
6.1
|
.Party
A shall guarantee that the provided technical materials are the latest
technical materials which are used by Party A when the contract become
effective and they are identical to the technical materials possessed
by
Party A. During the contractual period, Party A shall promptly send
to
Party B the technical notification of changes of the design of the
contractual products and the technical modification and development
materials.
|
|
6.2
|
Party
A shall guarantee the provided materials are whole, clear, and dependable,
and deliver on time in line with the stipulation of Clause 5. The
related
concepts are as follows:
|
|
6.2.1
|
"Whole"
means all the technical materials as provided hereunder shall be
delivered
by Party B and identical with the materials which are presently used
by
Party B's factory.
|
|
6.2.2
|
"Dependable"
means the contractual products produced by Party B according to the
technical materials shall conform to the contractual products technical
standards provided by Party B in accordance with the
contract.
|
|
6.2.3
|
"Clear"
mean that the sample charts, the curves, and the glossaries, etc
can be
clearly recognized.
|
|
6.3
|
If
the technical materials provided by Party A are not in line with
the
requirements, Party A shall freely post the lost materials, or other
clear
and dependable materials to Party B within 7days after receiving
the
written notification.
|
|
6.4
|
When
Party A can not deliver the technical materials on time according
to
Clause 5, Party A shall pay the liquidated damage to Party B on the
following ratio:
|
If
the
materials are delivered 1 to 4 weeks later, the liquidated damage shall be
paid
per week equal to 1 % of the whole transfer fee.
If
the
materials are delivered 5 to 8 weeks later, the liquidated damage shall be
paid
per week equal to 2 % of the whole transfer fee.
| 6.5 |
The
payment of liquidated damage shall not be treated as discharging
Party A
from performing its obligations under Article
6.4.
|
VII
LICENSE
AND KNOW-HOW TECHNOLOGY
|
7.1
|
Party
A shall be entitled to transfer the technologies to Party B and consign
the patent license and the know-how technologies without any claim
from
the third Party. If any third Party brings an infringement action,
Party A
shall deal with the suits and bear the legal and economic
responsibilities.
|
6
|
7.2
|
The
whole patent checklist related to the Contract shall be written in
Appendix 1. Within one month after the Contract become effective,
Party A
shall provide 2 photocopies of the patent checklist, Party A shall
have no
further rights with respect to the relevant patents, and Party B
shall
have the ownership to the transferred
patents.
|
|
7.3
|
Both
Parties agree to perform this Contract, and not to disclose any technical
materials and business information to any third party in any
form.
|
| 7.4 |
In
cases where the transferring requires the approval of the relevant
authorities, Party A shall make best efforts to facilitate Party
B to
obtain such approval.
|
VIII
TAXATION
AND FEES
|
8.1
|
Each
party shall be responsible for taxes and fees it shall bear in accordance
with the relevant PRC laws and
regulations.
|
IX
CONFIDENTIALITY
|
9.1
|
Any
information, document, data and material (collectively the “confidential
information”) obtained in the negotiation, execution, and performance of
this Contract, shall be kept in strict confidence by both Parties.
Unless
otherwise provided by laws, regulations and other compelled administrative
rules, ,the confidential information shall not be disclosed to any
third
party without obligation of confidentiality, nor
shall the confidential information be used other than that of this
of this
Contract
|
|
9.2
|
The
obligation of confidentiality shall survive of the termination and
expiration of this Contract.
|
X
FORCE
MAJEURE
10.1“Force
Majeure” refers to any event, condition, situation or the combination of events,
conditions and situations, which is outside the direct or indirect reasonable
control of affected Party, and cannot be reasonably anticipated or avoided
by
the affected Party, and which prevents or inevitable postpones either Party’s
performance under this Contract. Neither Party shall be liable to the other
for
any delay or failure to perform its obligation under this Contract, if such
failure or delay is due to Force Majeure. However, the affected Party shall
promptly notify the other Party in writing of any delay or failure to perform
due to Force Majeure. After the Force Majeure disappears, each Party shall
continue to perform under this Contract.
XI
LIABILITY OF BREACH
| 11.1 |
After
this Contract becomes effective, it shall constitute a breach hereof,
if
either Party is in non-performance, or incomplete performance hereunder,
or is otherwise in default of any of the provisions. The non-breaching
Party shall give the breaching Party reasonable time to cure any
default.
If the breaching Party does not cure the default within the reasonable
time, the non-breaching Party shall hold the breaching Party liable
for
all the damages resulting from breaching Party’s default. The breaching
Party is liable for all damages, including economic loss. The breaching
Party shall also be responsible for the other Party’s attorney fees,
litigation and arbitration costs incurred as a result of the default.
However, the damages shall not exceed a amount that can be reasonably
foreseen by the breaching Party at the execution of this Contract.
|
XII
EFFECTIVE
DATE
|
12.1
|
This
Contract is effective on the date of its execution (If it is signed
by an
authorized representative, a power of attorney shall be
provided).
|
XIII
GOVERNING
LAW AND DISPUTE RESOLUTION
|
13.1
|
The
validity, interpretation, performance and dispute resolution with
respect
to this Contract, shall be governed by laws of the People Republic
of
China.
|
|
13.2
|
Any
dispute arising from this Contract shall be resolved by both Parties
through consultation if the Parties can not reach an agreement within
30
days after the dispute arises, either Party may submit the dispute
to
Beijing Arbitration Commission for arbitration under its applicable
rules.
The arbitration award should be final and binding upon both parties,
if
the losing party refuses to enforce the arbitration award, the winning
party may seek enforcement of arbitration award in a PRC court with
jurisdiction over the dispute; and the winning party shall have the
right
to ask the losing party to pay for all professional service (including
but
not limited to legal counsel service, arbitration fees, enforcement
fees)
costs in the course of arbitration and other related
costs.
|
|
13.3
|
During
the course of dispute resolution, the Parties shall continue to perform
other terms hereunder, unless otherwise ordered by the
court.
|
XIV
EFECTIVENESS, MODIFICATION, CANCELLATION, TERMINATION
14.1
The
Parties shall submit application for approval following the execution of this
Contract, and the date on which the approvals from both Parties are granted
shall be the Effective Date. The Parties shall make the best efforts to obtain
such approvals within 30 days and give notice to each other by telegram, and
then make confirmation through letter.
8
14.2 The Contract shall take effect on the Effective Date and shall continue until the Contract is terminated pursuant to Section 14.3 hereof.
14.3
This
Contract shall remain effective until the earliest to occur of (i) the
acquisition of the 100% of the equity interest of Party A by Party B or any
designee of Party B, (ii) the acquisition of all or substantially all assets
of
Party A by Party B or any designees of Party B, (iii) 30 days following the
receipt of Party A from Party B a written notice to terminate this Contract,
or
(iv) the date this Contract ceases to be valid under the PRC law. If it ceases
to be effective because of item (iv) in the foregoing but not (i), (ii) or
(iii), then this Contract is deemed to have automatically renewed.
14.4
The
modification of this Contract may be conducted through consultation by both
Parties and become effective through the written agreement; otherwise, the
Contract shall be still effective if the Parties cannot reach an agreement
on
the modification.
XV
MISCELLANEOUS
|
15.1
|
Any
representation, warranty and undertaking made by one Party to the
other,
shall be complete and genuine, the other Party shall rely on such
representation, warranty and undertaking on the execution hereof
and
treated them as the condition precedent. After the effective date,
if
either Party discovers the representation is not complied with facts,
the
Party shall disclose immediately the facts to the other Party. Each
Party
warrants to the other Party that all the losses, costs, expenses,
or
obligations resulted by its default of any representation and warranty
shall be compensated at its own
expense.
|
|
15.2
|
Any
statement, warranty and undertaking shall be separate and independent
under this Contract, which shall not be limited by any provisions,
except
provided otherwise.
|
|
15.3
|
If
any provisions of this Contract be construed as illegal, invalid,
or
unenforceable according to the P.R.C laws, they shall not affect
the
legality, validity and enforcement of other provisions of this Contract.
If any provision is deemed to be illegal, invalid, or unenforceable,
both
Parties shall modify this Contract through bona fide negotiation
in the
acceptable manner and to the largest extent to realize the original
intents of both Parties.
|
|
15.4
|
This
Contract constitutes the entire document between the Parties relating
to
this the provisions hereunder, which together with the Appendix1,
represents both Parties’ genuine consent. This Contract supersedes all
written or oral intentions, representations and understandings etc.
with
respect to subject matters hereunder before the execution of this
Contract.
|
9
|
15.5
|
Except
as otherwise provided by the laws, either Party’s failure or delay of
exercise of any right under this Contract does not constitute a waiver
of
any right. Exercising any right solely or partly shall not prevent
the
exercise of any other right, or
privilege.
|
|
15.6
|
All
headings in this Contract are for convenience of reference only,
shall not
be affect the construction or interpretation of the
Contract.
|
|
15.7
|
Except
otherwise provided under this Contract, the mentioned article, clause
and
refer to the article, clause and of this
Contract.
|
|
15.8
|
Any
notice required to be given or delivered to either Party under the
terms
of this Contract shall be in writing and addressed to such Party
by
personal delivery, fax, registered air mail at the address indicated
on
the first page of this Contract or such other address provided by
the
Party in writing. All notices shall be deemed to have been given
or
delivered upon by personal delivery, fax and registered mail. It
shall be
deemed to be delivered upon: (1) registered air mail: 5 business
days
after deposit in the mail; (2) personal delivery: 2 business days
after
transmission. If the notice is delivered by fax, it should be confirmed
by
original through registered air mail or personal delivery.
|
|
15.9
|
Both
Parties may sign additional contract on matters related to this Contract.
Such supplemental contract and this Contract have the same
effect.
|
|
15.10
|
Appendix
of this Contract is an integral part of this Contract and shall have
the
same effect.
|
|
15.11
|
This
Contract is written in both English and Chinese. If the two versions
conflict in any way, the Chinese version shall prevail. The Contract
is
prepared in two duplicates, each held by one Party. Both Parties
shall
sign the duplicates and this
Contract.
|
10
IP
Transfer Agreement
[Signature
Page Only]
IN
WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Contract.
For
and
on behalf of:
Party
A Daqing Sunway Technology Company Limited
Legal
Representative øor
his authorized representative÷:
Party
B Sunway World Through Technology (Daqing) Co., Ltd.
Legal
Representative øor
his authorized representative÷:
11
IP
Transfer Agreement
APPENDIX
1
|
1.1
|
Licensed
Patent List
|
|
No.
|
Certificate
Code.
|
Authorized
Institution
|
Name
of Patent
|
Patent
No.
|
Application
Date
|
Valid
term (Year)
|
|
1
|
523933
|
SIPC
|
气动管澭物流传灭眻置
|
ZL
01 2 71975 7
|
20011202
|
10
|
|
2
|
532336
|
SIPC
|
管澭朲向炔换器
|
ZL
02 2 09902 6
|
20020122
|
10
|
|
3
|
534389
|
SIPC
|
一种管澭换向器
|
ZL
02 2 09901 8
|
20020122
|
10
|
|
4
|
556112
|
SIPC
|
气动管澭物流传灭收发站箱
|
ZL
02 2 73509 7
|
20020523
|
10
|
|
5
|
275295
|
SIPC
|
气动管澭物流传灭收发站箱
|
ZL
02 3 52960 1
|
20020523
|
10
|
|
6
|
567890
|
SIPC
|
气动管澭物流传灭气濿子
|
ZL
02 2 73510 0
|
20020523
|
10
|
|
7
|
655292
|
SIPC
|
平移切换式气动管澭物流传灭收发站箱
|
ZL
03 2 60602 8
|
20030924
|
10
|
|
8
|
719650
|
SIPC
|
物流传灭系统縖斏动炘澭炚
|
ZL
2004 2 0070058 5
|
20040728
|
10
|
|
9
|
719482
|
SIPC
|
物流传灭系统炚用炘澭
|
ZL
2004 2 0070057 0
|
20040728
|
10
|
|
10
|
732675
|
SIPC
|
平移切换式气动管澭物流传灭收发站
|
ZL
2004 2 0063538 9
|
20041011
|
10
|
|
11
|
743362
|
SIPC
|
物流管澭爑由眻置
|
ZL
2004 2 0063537 4
|
20041011
|
10
|
|
12
|
738892
|
SIPC
|
一种管澭朲向炔换器
|
ZL
2004 2 0063535 5
|
20041011
|
10
|
|
13
|
739042
|
SIPC
|
一种管澭换向器
|
ZL
2004 2 0063536 X
|
20041011
|
10
|
12
IP
Transfer Agreement
1.2
Licensed Software List
|
No.
|
Certificate
No.
|
Software
Name
|
Authorized
Institution
|
Certificate
Issued Date
|
Valid
Term (Year)
|
|
ï
|
Hei
DGY-2003 0005
|
Sunway
Logistics Controlling SoftwareÊ1.0
|
Heilongjiang
Software Industry Commission
|
20030310
|
5
|
1.3
Licensed Trademark List
|
No.
|
Trademark
No.
|
Authorized
Institution
|
Classification
|
Valid
Term
|
|
1
|
1102674
|
CTMO
|
No.9th
|
From
September 14th,
1997to September 13th,
2007
|
|
2
|
3205734
|
CTMO
|
No.10th
|
From
December 14th,
2003 to December 13th,
2013
|
Note:
“SIPC”
refers to State Intellectual Property Office of the People’s Republic of
China.
“CTMO”
refers to Trademark Office, State Administration of Industry and
Commerce.
13
