Exclusive Business Cooperation Agreement
独家业务合作协议
This
Exclusive Business Cooperation Agreement (“this Agreement”) is made and
entered into by and between the following Parties on July 12, 2010 in the
People’s Republic of China (“China” or “PRC”):
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Party
A:
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Henan
Sky Fortune Ecological Technology Co.,
Ltd.
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Address:
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Xxxxx
0, Xxxxxxxx 00, Xx. 0 Xxxxxx Xxxxxx, Xxxx and New Technology Industrial
Development Zone, Zhengzhou, Henan Province,
China
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Party
B:
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Jiaozuo Yida
Vegetable Oil Co., Ltd.
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Address:
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West
Fengshou Road, Jiaozuo
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Each of
Party A and Party B shall be hereinafter referred to as a “Party” respectively,
and as the “Parties” collectively.
Whereas,
1. Party
A is a wholly-foreign-owned enterprise established in China, and has the
necessary resources to provide technical and consulting services set forth
hereunder;
2. Party
B is a domestic limited liability company established in China, and is entitled
to engage in the production, storage of edible oil, sale of feedstuff, and
commodity import and export business according to PRC laws (“Principal
Business”);
3. Party
A is willing to provide Party B with exclusive technical, consulting and other
services in relation to the Principal Business during the term of this Agreement
utilizing its own advantages in human resources, technology and information, and
Party B is willing to accept such services provided by Party A or Party A's
designee(s), each on the terms set forth herein.
Now,
therefore, through mutual discussion, the Parties have reached the following
agreements:
1.
Services Provided by Party A
1.1 Party
B hereby appoints Party A as Party B’s exclusive services provider to provide
Party B with complete business support and technical and consulting services
during the term of this Agreement, in accordance with the terms and conditions
of this Agreement and to the extent permitted by the currently effective laws of
China, which may include all services within the business scope of Party B as
may be determined from time to time by Party A, such as but not limited to
technical services, business consultations, equipment or property leasing and
marketing consultancy.
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1.2 Party
B agrees to accept all the consultations and services provided by Party
A. Party B further agrees that unless with Party A's prior written
consent, during the term of this Agreement, Party B shall not accept any similar
consultations and/or services provided by any third party and shall not
establish similar corporation relationship with any third party regarding the
matters contemplated by this Agreement. Party A may appoint other parties, who
may enter into certain agreements described in Section 1.3 with Party B, to
provide Party B with the consultations and/or services under this
Agreement.
1.3 Service
Providing Methodology
1.3.1 Party
A and Party B agree that during the term of this Agreement, Party B may enter
into further technical service agreements or consulting service agreements with
Party A or any other party designated by Party A, which shall provide the
specific contents, manner, personnel, and fees for the specific technical
services and consulting services.
1.3.2 To
fulfill this Agreement, Party A and Party B agree that during the term of this
Agreement, Party B may enter into equipment or property leases with Party A or
any other party designated by Party A which shall permit Party B to use Party
A's relevant equipment or property based on the needs of the business of Party
B.
2. The
Calculation and Payment of the Service Fees
Both
Parties agree that, with respect to the services provided by Party A to Party B
under this Agreement, Party B shall pay an annual service fee to Party A in the
equivalent amount of certain percentage (the “Rate of Service”) of Party B’s
audited total amount of operational income of such year. Both Parties
will confirm in writing the specific Rate of Service based on further
consultations following the execution of this Agreement. Upon the
prior written consent by Party A, the Rate of Service may be adjusted pursuant
to the operational needs of Party B and such adjustment shall be confirmed in
writing by both Parties.
3. Intellectual
Property Rights and Confidentiality Clauses
3.1 Party
A shall have exclusive and proprietary rights and interests in all rights,
ownership, interests and intellectual properties arising out of or created
during the performance of this Agreement, including but not limited to
copyrights, patents, patent applications, software, technical secrets, trade
secrets and others.
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3.2 The
Parties acknowledge that the existence and the terms of this Agreement and any
oral or written information exchanged between the Parties in connection with the
preparation and performance this Agreement are regarded as confidential
information. Each Party shall maintain confidentiality of all such confidential
information, and without obtaining the written consent of the other Party, it
shall not disclose any relevant confidential information to any third parties,
except for the information that: (a) is or will be in the public domain (other
than through the receiving Party’s unauthorized disclosure); (b) is under the
obligation to be disclosed pursuant to the applicable laws or regulations, rules
of any stock exchange, or orders of the court or other government authorities;
or (c) is required to be disclosed by any Party to its shareholders, investors,
legal counsels or financial advisors regarding the transaction contemplated
hereunder, provided that such shareholders, investors, legal counsels or
financial advisors shall be bound by the confidentiality obligations
similar to those set forth in this Section. Disclosure of any confidential
information by the staff members or agencies hired by any Party shall be deemed
disclosure of such confidential information by such Party, which Party shall be
held liable for breach of this Agreement. This Section shall survive the
termination of this Agreement for any reason.
3.3 The
Parties agree that this Section shall survive changes to, and rescission or
termination of, this Agreement.
4. Representations
and Warranties
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1.1
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甲方陈述和保证如下：
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Party A
hereby represents and warrants as follows:
4.1.1 Party
A is a wholly-foreign-owned enterprise legally registered and validly existing
in accordance with the laws of China.
4.1.2 Party
A’s execution and performance of this Agreement is within its corporate capacity
and the scope of its business operations; Party A has taken necessary corporate
actions and given appropriate authorization and has obtained the consent and
approval from third parties and government agencies, and will not violate any
restrictions in law or otherwise binding or having an impact on Party
A.
4.1.3 This
Agreement constitutes Party A's legal, valid and binding obligations,
enforceable in accordance with its terms.
4.2 Party
B hereby represents and warrants as follows:
4.2.1 Party
B is a domestic limited liability company legally registered and validly
existing in accordance with the laws of China.
4.2.2 Party
B's execution and performance of this Agreement is within its corporate capacity
and the scope of its business operations; Party B has taken necessary corporate
actions and given appropriate authorization and has obtained the consent and
approval from third parties and government agencies, and will not violate any
restrictions in law or otherwise binding or having an impact on Party
B.
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4.2.3 This
Agreement constitutes Party B’s legal, valid and binding obligations, and shall
be enforceable against it.
5. Effectiveness
and Term
5.1 This
Agreement is executed on the date first above written and shall take effect as
of such date. Unless earlier terminated in accordance with the provisions of
this Agreement or relevant agreements separately executed between the Parties,
the term of this Agreement shall be 10 years. After the execution of this
Agreement, both Parties are entitled to review this Agreement every 3 months to
determine whether to amend or supplement the provisions in this Agreement based
on the actual circumstances at that time.
5.2 The
term of this Agreement may be extended if confirmed in writing by Party A prior
to the expiration thereof. The extended term shall be determined by Party A, and
Party B shall accept such extended term unconditionally.
6. Termination
6.1 Unless
renewed in accordance with the relevant terms of this Agreement, this Agreement
shall be terminated upon the date of expiration hereof.
6.2
During the term of this Agreement, unless Party A commits gross negligence, or a
fraudulent act, against Party B, Party B shall not terminate this Agreement
prior to its expiration date. Nevertheless, Party A shall have the right to
terminate this Agreement upon giving 30 days' prior written notice to Party B at
any time.
6.3 The
rights and obligations of the Parties under Articles 3, 7 and 8 shall survive
the termination of this Agreement.
7. Governing
Law and Resolution of Disputes
7.1 The
execution, effectiveness, construction, performance, amendment and termination
of this Agreement and the resolution of disputes hereunder shall be governed by
the laws of China.
7.2 In
the event of any dispute with respect to the construction and performance of the
provisions of this Agreement, the Parties shall negotiate in good faith to
resolve the dispute. In the event the Parties fail to reach an agreement on the
resolution of such a dispute within 30 days after any Party's request for
resolution of the dispute through negotiations, any Party may submit the
relevant dispute to the Zhengzhou Arbitration Commission for arbitration, in
accordance with its then-effective arbitration rules. The arbitration shall be
conducted in Zhengzhou, and the language used during arbitration shall be
Chinese. The arbitration ruling shall be final and binding on both
Parties.
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7.3 Upon
the occurrence of any disputes arising from the construction and performance of
this Agreement or during the pending arbitration of any dispute, except for the
matters under dispute, the Parties to this Agreement shall continue to exercise
their respective rights under this Agreement and perform their respective
obligations under this Agreement.
8. Indemnification
Party B
shall indemnify and hold harmless Party A from any losses, injuries, obligations
or expenses caused by any lawsuit, claims or other demands against Party A
arising from or caused by the consultations and services provided by Party A to
Party B pursuant this Agreement, except where such losses, injuries, obligations
or expenses arise from the gross negligence or willful misconduct of Party
A.
9. Notices
9.1 All
notices and other communications required or permitted to be given pursuant to
this Agreement shall be delivered personally or sent by registered mail, postage
prepaid, by a commercial courier service or by facsimile transmission to the
address of such Party set forth below. A confirmation copy of each
notice shall also be sent by email. The dates on which notices shall
be deemed to have been effectively given shall be determined as
follows:
9.1.1
Notices given by personal delivery, by courier service or by registered mail,
postage prepaid, shall be deemed effectively given on the date of delivery or
refusal at the address specified for notices.
9.1.2 Notices
given by facsimile transmission shall be deemed effectively given on the date of
successful transmission (as evidenced by an automatically generated confirmation
of transmission).
9.2 For
the purpose of notices, the addresses of the Parties are as
follows:
Party
A: Henan Sky Fortune Ecological Technology Co.,
Ltd.
Address: Xxxxx
0, Xxxxxxxx 00, Xx. 0 Xxxxxx Xxxxxx, Xxxx and New Technology Industrial
Development Zone, Zhengzhou, Henan Province, P.R.China
Attn:
Phone:
Facsimile:
E-mail:
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Party B: Jiaozuo Yida Vegetable Oil
Co., Ltd.
Address:
West Fengshou Road, Jiaozuo
Attn:
[ ]
Phone: [ ]
Facsimile:
[ ]
E-mail:
[ ]
9.3 Any
Party may at any time change its address for notices by a notice delivered to
the other Party in accordance with the terms hereof.
10.
Assignment
10.1 Without
Party A's prior written consent, Party B shall not assign its rights and
obligations under this Agreement to any third party.
10.2 Party
B agrees that Party A may assign its obligations and rights under this Agreement
to any third party upon a prior written notice to Party B but without the
consent of Party B.
11. Severability
In the
event that one or several of the provisions of this Agreement are found to be
invalid, illegal or unenforceable in any aspect in accordance with any laws or
regulations, the validity, legality or enforceability of the remaining
provisions of this Agreement shall not be affected or compromised in any aspect.
The Parties shall strive in good faith to replace such invalid, illegal or
unenforceable provisions with effective provisions that accomplish to the
greatest extent permitted by law and the intentions of the Parties, and the
economic effect of such effective provisions shall be as close as possible to
the economic effect of those invalid, illegal or unenforceable
provisions.
12.
Amendments and Supplements
Any
amendments and supplements to this Agreement shall be in writing. The amendment
agreements and supplementary agreements that have been signed by the Parties and
that relate to this Agreement shall be an integral part of this Agreement and
shall have the same legal validity as this Agreement.
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12. Language
and Counterparts
This
Agreement is written in both Chinese and English language in two copies, each
Party having one copy with equal legal validity; in case there is any conflict
between the Chinese version and the English version, the Chinese version shall
prevail.
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IN
WITNESS WHEREOF, the Parties have caused their authorized representatives to
execute this Exclusive Business Cooperation Agreement as of the date first above
written.
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Party
A: Henan Sky Fortune Ecological Technology Co., Ltd.
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/s/ Feng Hexi
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By:
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Name:
Feng Hexi
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Title：Legal
Representative
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Party B: Jiaozuo Yida
Vegetable Oil Co., Ltd.
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By:
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/s/ Feng Hexi
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Name:
Feng Hexi
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Title：Legal
Representative
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