AGREEMENT
EXHIBIT 10.2
DATE: - The 14th day of June 2004.
PARTIES: -
A) | Chuangrun Advertising (H.K.) Limited, a corporation
incorporated in Hong Kong with registration no. 732300 and having its
registered office at Room 1117, Xxx Xxx House, Xxx Xxx Estate, Shamshuipo,
Kowloon, Hong Kong (hereinafter referred to as “Chuangrun”)
represented by its legal representative Xx. Xxx Xxx-Xxxxx; and |
B) | Actionview Far East Limited, a corporation incorporated
in Hong Kong with registration no. 883979 and having its registered office
at 12/F, Chuang's City Tower Xx. 00-00 Xxxxxxxx Xxxx Xxxx, Xxxxxxx, Xxxx
Xxxx (hereinafter referred to as 'Actionview') represented by its legal
representative Xx. Xxxxxx Xxxx. |
WHEREAS:
1. | ActionView Advertising Systems, Inc. of Canada has
developed and owns a proprietary backlit-scrolling billboard advertising
system (defined in Clause 1 and hereinafter referred to as the Display
System). |
2. | ActionView Advertising Systems, Inc. is a shareholder
of Actionview and has duly licensed ActionView to market and distribute
the Display System and to grant sub-licences of the Display System and
the Proprietary Rights (as defined hereunder) to third parties in Asia.
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3. | Actionview and Chuangrun have agreed to co-operate
in providing advertising service to customers in Guangzhou, PRC using
the Display System. |
IT IS HEREBY MUTUALLY AGREED as follows:
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1 | DEFINITIONS AND INTERPRETATION | |
1.1 | For the purpose of this Agreement, the following
expressions shall bear the respective meaning set forth below. |
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Business: the business of advertising by
means of the Display System. |
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Display Unit: means a unit of the Display
System deployed in the Business of either 1m. x 1.5 m. or 1.2 m. x 1.8
m. or 1.5m x 4.5m such other dimensions as the parties may agree from
time to time. |
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Display System: means the Actionview backlit
scrolling billboard including the built-in controlling software. |
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Effective Date: as defined in Clause 6. |
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Force Majeure: means, in relation to either
party, any circumstances beyond the reasonable control of that party |
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Manual: the operation manual produced by
Actionview as amended from time to time by Actionview in respect of the
Display System |
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Patents: means all patents now or hereafter
held (including but not limited to patents now in the course of registration)
by ActionView Inc. and/or ActionView relating to the Display System or
any part thereof. |
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Premises: the locations proposed to be used
by Chuangrun for the installation of Display Units |
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PRC: the People's Republic of China |
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Proprietary Rights: means the Patents, Trade
Marks, Trade Names and the package of |
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industrial and intellectual property rights relating
to all trade marks, trade names, logos, insignia, models, designs, copyrights,
know-how, drawings, plans and/or patent in connection with the Display
System and/or the Manual licensed by ActionView Inc. to ActionView. |
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Revenue: means the gross turnover derived
from the Business by Chuangrun whether or not invoiced, less business
tax and supplemental tax payable to the PRC tax authorities. |
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Term: means the term of this agreement as
defined in Clause 6 below. |
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Territory: means Guangzhou City of the PRC.
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Trade Marks: means 'ActionView' or any other
trade xxxx (whether registered or not), which may now or hereafter be
used by ActionView Inc. and/or ActionView in connection with the Display
System Trade Names: means 'ActionView' or any other trade name
(whether registered or not) which may now or hereafter be used by ActionView
Inc. and/or ActionView in connection with the Display System |
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1.2 | The headings in this agreement are for convenience
only and shall not affect its interpretation. |
1.3 | Unless otherwise expressly stated to the contrary
or the context otherwise requires, |
a) | words and expressions in the singular shall include the plural and vice |
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versa; and |
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b) | words and expressions in one gender shall
include all other genders. |
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2 | RESPONSIBILITIES OF THE PARTIES | ||
2.1 | Chuangrun shall |
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2.1.1
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procure Premises within the Guangzhou Metro System,
the Guangzhou Airport at Huadu, and such other locations within the City
of Guangzhou, P.R.C. for installation of Display Units ; |
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2.1.2 |
enter into such lease, licence or other agreement
with such party as may be necessary for the use of Premises; |
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2.1.3 |
install Display units at the premises and maintain
the Display units at all times in good clean operational condition ; |
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2.1.4 |
use its best endeavour to promote the Business ;
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2.1.5 |
enter into binding contracts with advertiser and/or
other users of the Display Units by itself or through its approved agents
; |
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2.1.6 |
perform and observe all the terms and conditions
contained in the aforesaid lease, license or other agreement mentioned
in Clause 2.1.2 and contracts mentioned in 2.1.5 ; |
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2.1.7 |
be responsible for the collection of Revenue from
advertisers and other users of the Display Units |
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2.2 | Actionview shall |
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2.2.1 |
supply Display Units to Chuangrun and deliver the
same to Chuangrun in Guangzhou and provide technical support for installation
; |
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2.2.2 |
supply spare parts for the Display Units |
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2.2.3 |
provide product training and technical support |
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2.2.4 |
be responsible for the costs of transporting Display
Units to Premises within the Territory. |
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3 | RIGHTS GRANTED TO CHUANGRUN
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3.1 |
For the sole purpose of the operation
of the Business from the Premises, Actionview grants Chuangrun for the
Term of the Agreement, the following rights: |
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3.1.1 |
the right and licence to use the Proprietary Rights
and the Display System; |
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3.1.2 |
the right to receive all Actionview's know-how,
training and assistance as indicated below; |
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3.2 |
Chuangrun shall use the rights granted
under Clause 3.1 in accordance with the terms and within the limits stated
herein and shall perform each of its obligations provided for herein.
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3.3 |
Chuangrun shall not use the rights hereby
for any purpose other than the operating of the Business from the Premises
or use them after the termination of this Agreement, howsoever caused.
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3.4 |
The grant of all such rights to Chuangrun
shall be conditional (and continue to be conditional during the Term of
the Agreement) upon Chuangrun observing in full its obligations set forth
in Clauses 3.2 and 3.3 above. |
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4 | LEGAL STATUS OF THE PARTIES
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4.1 |
Chuangrun shall conduct the Business as
an independent business operator in its own name and on its own account.
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4.2 |
Chuangrun shall operate the Business in
compliance with all applicable laws and |
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regulations and shall apply for, obtain
and have renewed all permits, authorizations and licences required for
the operation of the Business at its own expense. |
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4.3 |
Neither party is an employee, agent, sales
representative, nor a partner of the other. Neither party shall hold itself
out as |
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such or as having any power nor authority
to enter into contracts in the name of to other, or to commit the other
in any |
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way to any third parties or to incur any
obligation on behalf of the other. |
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5 | RESTRAINTS ON CHUANGRUN
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5.1 |
During the Term of the Agreement, Chuangrun
shall not: |
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5.1.1
|
Install Display Units at any location other than
the Premises without the prior consent in writing of Actionview which
consent shall not be unreasonably withheld; (provided that if ActionView
is unable to supply the Display Units, Chuangrun is entitled to cooperate
with any third party); |
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5.1.2 |
use the Proprietary Rights otherwise than in relation
of the operation of the Business. |
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5.1.3 |
have the right to grant any further sub-licence
to the Proprietary Rights or part thereof to any third party; |
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5.1.4 |
conduct the Business or any part thereof by or through
any agent without the prior written consent of ActionView, which consent
shall be unreasonably withheld. |
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6 | TERM |
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Subject to the provisions of Clauses 16
and 17 below, the Agreement shall come into force on 2004 (hereinafter
referred to as the Effective Date) and continue in force for a term of
5 (five) years. |
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7 | OBLIGATIONS OF ACTIONVIEW
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7.1 |
After the execution of this Agreement,
Actionview shall deliver the first consignment of Display Units to Chuangrun
in accordance with Schedule 1 to this agreement. During the Term, ActionView
shall negotiate and agree with Chuangrun on the quantity and delivery
schedule of Display Units to be delivered to Chuangrun based on the progress
of production and the requirements of the market. All Display Units shall
remain the property of Actionview during and after the Term. |
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7.2 |
Actionview shall provide Chuangrun from
time to time with: |
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7.2.1
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plans and specifications for the installation of
Display Units at the Premises insofar as not included in the Manual; |
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7.2.2 |
such general supervision of the preparation of the
Premises for installation as Actionview shall consider appropriate; |
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7.3 |
After the execution of this Agreement,
Actionview shall deliver a copy of the Manual to Chuangrun on loan. Actionview
shall be entitled to update the Manual from time to time provided that
Actionview shall forward to Chuangrun on loan full written particulars
of such updates. |
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7.3.1 |
After the execution of this agreement ActionView
shall provide initial training to instruct Chuangrun in the Display System,
as ActionView may consider |
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necessary for running the Business. |
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7.4.1 |
This training shall be attended by personnel from
Chuangrun for a period of 1 day. The date and place of the training shall
be agreed between the parties. |
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7.4.2 |
The costs of such training shall be borne by Actionview,
save the travelling and accommodation expenses of the individuals, which
shall be borne by Chuangrun. |
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7.5 |
Actionview shall deliver to Chuangrun
and keep in Chuangrun's warehouse in Guangzhou sufficient spare parts
for Chuangrun to carry out the maintenance works wi with an average response
time of 4 hours PROVIDED THAT: |
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7.5.1 |
Property in the spare parts shall remain with Actionview
throughout as well as after the Termt. Chuangrun shall store Actionview's
spare parts its warehouse separately from all other goods stored therein
and clearly marked as property of Actionview. |
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7.5.2 |
Chuangrun shall keep complete and accurate records
of the stock and usage of spare parts and shall allow Actionview to inspect
such records from time to time upon reasonable prior request. |
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8 | OBLIGATIONS OF CHUANGRUN
|
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8.1 |
Chuangrun shall use its best endeavours
to promote and expand the Business within the Territory and collaborate
with Actionview and protect its interests with the diligence of a responsible
businessperson. |
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8.2 |
Chuangrun shall conduct the Business in
full compliance with all operational systems, procedures, policies, methods
and requirements prescribed in the Manual as well as in any supplemental
notices, revisions or amendments thereto. |
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8.3 |
Chuangrun acknowledges that the Manual
and all such additional and supplemental materials shall at all times
remain the sole and exclusive property of Actionview and the copyright
therein shall at all times remain and/or vest in Actionview. |
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8.4 |
Chuangrun shall, at its own expense, keep
the Premises clean and in good condition and according to Actionview's
instructions as set forth in the Manual. |
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8.5 |
Chuangrun shall hire a sufficient number
of employees, suitably qualified to operate the Business and to meet all
likely demands of its customers. |
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8.6 |
Chuangrun shall keep true and complete
documentation and accounting records concerning the Business and Revenue
including but not limited to |
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8.6.1
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Contracts with advertisers and third parties for
the use of the Display Units; and |
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8.6.2 |
Invoices issued to such advertisers and third parties
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8.6.3 |
All evidence of receipts of Revenue and payment
of tax. And allow Actionview to inspect and take copy of such documentation
and records upon 48 hours prior notice |
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8.7 |
Chuangrun shall establish a good system
of financial control and take all practicable |
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steps to prevent late payment or default in payment
of Revenue by third parties. When necessary. Chuangrun shall take timely
legal action against defaulters and report to Actionview from time to
time on such action. All costs in relation to such legal action shall
be borne by Chuangrun. If it proves to be unable to recover the money
from the third party in such legal action, Actionview shall bear proportion
of the total costs of the legal action. The proportion that Actionview
shall bear is equal to Actionview's share of Revenue in respect of the
irrecoverable amount. |
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8.8 |
Chuangrun shall pay all taxes payable to PRC tax
authorities in respect of the Business and the Revenue. |
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9 | IMPROVEMENTS MADE BY ACTIONVIEW
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9.1 |
If Actionview makes any improvements to the Display
System, it shall without delay communicate the same to Chuangrun and Chuangrun
shall without delay use such improvements, free of all further royalties,
charges or payment whatsoever, at the time and in the manner specified
by Actionview in writing. |
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10 | IMPROVEMENTS MADE BY CHUANGRUN
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Chuangrun shall notify Actionview any
improvements, which shall be made to the Display System to be useful to
the operation of the Business and shall grant Actionview a permanent,
royalty-free, exclusive and worldwide license with respect to said improvements,
including the right to sub-license. |
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11 | REPRESENTATIONS BY ACTIONVIEW/OBLIGATIONS
OF ACTIONVIEW |
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11.1 | Actionview represents that: |
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11.1.1
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it is duly licensed by ActionView Advertising Systems,
Inc. to use the Proprietary Rights, including the right to grant sub-licences
thereof to Chuangrun in the manner set out in this agreement; |
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11.1.2 |
as far as Actionview is aware, the use by Chuangrun
of the rights granted under Clause 3 of this agreement does not infringe
the rights of any third party within the Territory; |
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11.1.3 |
it is not aware, at the time of the execution of
this Agreement, of any action, claim or proceedings brought or threatened
in respect of any of the Proprietary Rights. |
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12 | REPRESENTATIONS BY CHUANGRUN/OBLIGATIONS | ||
12.1 | Chuangrun acknowledges that Actionview
Advertising Systems, Inc. is the owner and Actionview is the licensee
of the Proprietary Rights, and all proprietary titles, and interest in
the Display System and the goodwill associated therewith and that such
goodwill shall inure to and be at all times vested in ActionView Advertising
Systems, Inc. and Actionview exclusively. |
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12.2 | Chuangrun shall use the Proprietary Rights,
only in the manner required or authorized and permitted by Actionview
and only in connection with the operation of the Business. |
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12.3 | Chuangrun shall not register or attempt
to register any of the Trade Marks, Trade Names and any other Proprietary
Rights (or any other name, xxxx or design used in t the System) in Chuangrun's
name or that of any other person, firm, entity or corporation. |
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12.4 | Chuangrun shall not, without Actionview's prior
written consent, register any company name or trade xxxx or make use of
any business name incorporating any of the Trade Names or Trade Marks
or other Proprietary Rights or other such names or marks or incorporating
any similar-sounding name which is confusingly similar to, or unfairly
competing with, any of the Trade Marks or Trade Names or other such names
or marks. |
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12.5 | If Chuangrun becomes aware of any infringement or
threatened infringement of any of the Trade Marks, Trade Names or Patents
or any other registered Proprietary Rights or any act of unfair competition
or any act likely to impair the goodwill or reputation of/or associated
with any of the Trade Marks or Trade Names, or of any claim asserted by
a third party in respect of the use of any of the aforesaid within the
Territory, Chuangrun shall promptly give Actionview full particulars of
such circumstance. |
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12.6 | Actionview shall have the conduct of all proceedings
relating to the Trade Marks or Trade Names or Patents or any other registered
Proprietary Rights or any other such name, xxxx or patent and Actionview
shall in its sole discretion decide what action (including an action at
law, an arbitral proceeding or an out-of-court settlement) to take, if
any, with respect to any infringement of the aforesaid or any claims asserted
by any third party in relation thereto. |
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12.7 | Chuangrun shall provide Actionview with full assistance
and cooperation in any action, claim or proceedings brought or threatened
in respect of any of the Trade Marks or Trade Names or Patents or any
other registered Proprietary Rights or any other such name, marks or Patents
and at the request of Actionview shall join with Actionview in such action
or proceedings, provided it has a cause of action under the applicable
law - it being |
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understood that all costs incurred in
connection with this assistance/actions will be borne by Actionview. |
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12.8
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During the Term of the Agreement, Chuangrun
must expressly identify itself as a licensee (and not the owner) of the
Trade Marks and Trade Names on all invoices, order forms, receipts, business
stationery, and contracts. |
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12.9
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If so requested by Actionview, Chuangrun
shall arrange for the execution of a formal Trade Xxxx license and the
registration thereof at the Trade Marks Registry or Registries of the
Territory, at its own expense and shall make any other necessary filings
under national law to reflect its status as a licensee. |
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12.10
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Chuangrun must comply with Actionview's
instructions in filing and maintaining any requisite Trade Names and Trade
Marks registrations and must execute any documents Actionview or its counsel
deems necessary to obtain protection for the Trade Marks or the Trade
Names and to maintain their continued validity and enforceability. |
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12.11
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Chuangrun expressly acknowledges and agrees
that: |
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12.11.1 |
any and all goodwill arising from Chuangrun's use of the Proprietary Rights in accordance with the Display System is solely and exclusively for Actionview's benefit, and upon expiration or termination of this Agreement, no monetary amount will be assigned as attributable to any goodwill associated with Chuangrun's use of the Display System or the Proprietary Rights; | ||
12.11.2 |
Actionview reserves the right to add and/or substitute different Proprietary Rights for use in identifying the Display System and the businesses operating under the Display System. |
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13 | REVENUE SHARING |
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13.1 |
Chuangrun shall pay Actionview 30% of
the Revenue. |
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13.2 |
Notwithstanding clause 13.1, Chuangrun
shall pay Actionview the following minimum revenue for each Display Unit
within 6 months from its date of delivery to Chuangrun: |
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13.2.1 |
RMB ¥25,200.00 if it is a 1M x 1.5M Display
Unit; or |
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13.2.2 |
RMB ¥25,200.00 if it is a 1.2M x 1.8 M Display
Unit ; or |
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13.2.3 |
RMB ¥94,500.00 if it is a 1.5M x 4.5M Display
Unit. |
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13.3 |
Conditional upon Actionview having received
the minimum revenue as set out in Clauses 13.2.1 or 13.2.2 or 13.2.3 as
the case may be, and for the 1st to the 6th month counted from the date
of receipt by ActionView of the said minimum revenue, Actionview's share
of Revenue shall be decreased to 25% in respect of that Display
Unit. |
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13.4 |
Conditional upon ActionView having received
the minimum revenue as set out in Clauses 13.2.1 or 13.2.2 or 13.2.3 as
the case may be, and for the 1st to the 6th month counted from the date
of receipt by ActionView of the said minimum revenue onwards, Actionview's
share of Revenue in respect of that Display Unit shall be further
reduced to 20%. |
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13.5 |
For the avoidance of doubt, notwithstanding
Clause 13.3 or 13.4 Actionview's share of Revenue in respect of other
Display Units in respect of which Actionview has not been paid the aforesaid
target revenue for Actionview shall remain at 30% throughout the term
of this agreement. |
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13.6 |
Within 14 days after the end of each month,
Chuangrun shall deliver to Actionview a true and accurate statement of
the month's total Revenue with detailed breakdown by each Display Unit
and customer. |
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13.7 | Chuangrun shall, within 30 days of receipt of Actionview's
invoice on its share of Revenue or the minimum revenue pursuant to Clause
13.2, pay to Actionview in Hong Kong and in Hong Kong dollars (at the
exchange rate between Hong Kong dollars and Renminbi published by the
People's Bank of China on the date of payment) the amount due to Actionview
without any demand. Chuangrun shall not make any deduction or set-off
from the amount payable to Actionview save and except the administrative
fee set out in Clause |
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13.8. | Chuangrun shall cause the payment to be paid to
the following bank account: |
Bank and Branch: | Hong Kong and Shanghai Banking Corporation Limited | ||
Account Name: | Actionview Far East Limited | ||
Account No.: | 000-000000-000 |
Or such other bank account as Actionview may hereafter
inform Chuangrun in writing. |
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13.8 | Chuangrun shall be entitled to deduct from the amount
payable to Actionview an administrative fee equivalent to 2% of such amount.
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13.9 | In any case Chuangrun having received Revenue but
fails to pay Actionview's share of Revenue in full or fails to pay Actionview
the minimum revenue in accordance with Clause 13.2, Chuangrun shall pay
interest on the amount due and unpaid at the rate of 0.3% per day, such
interest shall be payable from the due date for payment until the actual
date of payment whether before or after any judgement is given by any
court having jurisdiction. |
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14 | CONFIDENTIALITY |
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14.1 |
Except as provided by clauses 14.2 and
14.3, each of Chuangrun and Actionview shall at all times during the continuance
of this agreement and after its termination: |
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14.1.1 |
use its best endeavours to keep all Restricted Information
confidential and accordingly not to disclose any Restricted Information
to any other person; and |
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14.1.2 |
not use any Restricted Information for any purpose
other than the performance of the obligations under this agreement. |
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14.2 |
Any Restricted Information may be disclosed
by either party to: |
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14.2.1 |
any customers or prospective customers of the Business
on a need to know basis |
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14.2.2 |
any governmental or other authority or regulatory
body; or |
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14.2.3 |
any employee of that party or of any of the afore
mentioned persons, to such extent only as is necessary for the purposes
contemplated by this agreement, or as is required by law and subject in
each case to the discloser using its best endeavours to ensure that the
person in question keeps the same confidential and does not use the same
except for the purposes for which the disclosure is made. |
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14.3 |
Any Restricted Information may be used
by either party for any purpose, or disclosed by either party to any other
person, to the extent only that: |
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14.3.1 |
it is at the date hereof, or hereafter becomes,
public knowledge through no fault of that party (provided that in doing
so the discloser shall not disclose any Restricted Information which is
not public knowledge); or |
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14.3.2 | it can be shown by the discloser, to the reasonable
satisfaction of the other party, to have been known to it prior to its
being disclosed by the other party to the discloser. |
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15 | FORCE MAJEURE | |
15.1 | If either party is affected by Force Majeure it
shall forthwith notify the other party of the nature and extent thereof.
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15.2 | Neither party shall be deemed to be in breach of
this agreement, or otherwise be liable to the other, by reason of any
delay in performance, or non-performance, of any of its obligations hereunder
to the extent that such delay or non- performance is due to any Force
Majeure of which it has notified the other party; and the time for performance
of that obligation shall be extended accordingly. |
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15.3 | If the Force Majeure in question prevails for a
continuous period in excess of six months, the parties shall enter into
bona fide discussions with a view to alleviating its effects, or to agreeing
upon such alternative arrangements as may be fair and reasonable. |
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16 | TERMINATION | |
16.1 | If either party at any time commit any material
breach of any terms, covenants or representations herein contained and
shall fail to remedy any such breach within 30 days after written notice
given hereof by the other party, this Agreement shall terminate automatically
(i.e. without the need for the non-defaulting party to obtain a Court's
decision in this respect) upon the expiration of the above mentioned period.
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16.2 | Without prejudice to the application of
Clause 16.1, either party (hereafter called the “Innocent Party”)
shall be entitled to terminate this Agreement, with immediate effect (i.e.,
without the need to obtain a Court's decision in this respect) by written
notice to such effect to the other party (hereafter called the “Wrongful
Party”): |
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16.2.1 |
if the wrongful party shall be liquidated,
becomes insolvent or suffers any other insolvency or bankruptcy process
or seeks any protection from its creditors or is unable to pay its debts
as and when they fall due; |
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16.2.2 |
if the wrongful party ceases to do business,
or otherwise forfeits the right to do or transact business in the jurisdiction
where the Premises are located. |
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16.2.3 |
If |
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16.2.3.1 |
all or a substantial part of the capital stock or
other property assets or interests of the Wrongful Party is acquired by
any third party, or |
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16.2.3.2 |
a major change in the allocation of the voting rights
held in respect of the Wrongful party occurs |
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16.2.3.3 |
the Wrongful Party merges with any third party or
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16.2.3.4 |
there shall be a change in the ownership of 50%
or more of the shareholdings in the Wrongful Party from that existing
at the date of this Agreement fails to give any prior written consent
to the Innocent Party |
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the Innocent Party may in its own discretion
terminate this Agreement with immediate effect (without need to obtain
a Court's decision in this respect). |
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17 | EFFECTS/OBLIGATIONS UPON TERMINATION | |||
17.1 | Upon termination or expiration of this
Agreement, all rights granted hereunder to |
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Chuangrun shall
forthwith terminate, and Chuangrun shall observe and perform the following:
17.1.1 Chuangrun shall immediately cease to operate the Business
and shall not thereafter, directly or indirectly, represent to the public
or hold itself out to have any business relation with Actionview. |
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17.1.2 | Chuangrun shall
allow, and procure all relevant third parties to allow, Actionview to
have access to the Premises and remove all Display Units within 30 days.
The costs of removal and transportation of Display Units from Premises
shall be borne by ActionView. |
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17.1.3 | Chuangrun shall
immediately and permanently cease to use, in any manner whatsoever, any
format, confidential methods, programs, procedures and techniques associated
with the Display System, the Trade Names/Trade Marks and any other Proprietary
Rights. In particular, Chuangrun shall cease to use, without limitation,
all advertising materials or promotional displays, uniforms, stationery,
forms and any other articles, which display the Trade Marks/Trade Names. |
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17.1.4 | Chuangrun shall
promptly pay. |
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17.1.4.1 | Actionview's share in all amounts received
from advertisers and other users of Display Units (whether actually received
by Chuangrun in its account or not) up to the date of termination or expiration
of this agreement; and |
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17.1.4.2 | all other sums due and payable to ActionView
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17.1.5
|
Chuangrun shall immediately return Display Units,
which are not, installed at Premises all unused spare parts to. The transportation
costs thereof shall be borne by Actionview. |
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17.1.6 |
Chuangrun shall immediately return to Actionview
all copies of all proprietary materials delivered by Actionview to Chuangrun
under this Agreement, including the Manual, all records, files, instructions,
correspondence, brochures, agreements, disclosure statements and any material
bearing Confidential Information any and all other materials provided
on loan and relating to the operation of the Business in Chuangrun's possession
(in each case in whatsoever media or format the same shall be recorded),
and all copies thereof (all of which are acknowledged to be Actionview's
property), and shall retain no copy or record of any of the foregoing
excepting only Chuangrun's copy of this Agreement, any correspondence
between the parties and any other documents which Chuangrun reasonably
needs for compliance with any provision of law. All costs of delivering
all materials required by this Clause 18 shall be borne by Chuangrun.
In addition to the foregoing, Chuangrun shall immediately turn over to
Actionview any and all signs, software and/or other property under lease
or license from Actionview. |
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17.2 | The termination or expiration of this
agreement shall not prejudice any right or liability accrued to either
party under the terms of this agreement before the termination or expiration.
|
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17.3 | Upon termination or expiration of this
agreement, |
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17.3.1 |
Clauses 1, 7.1 (in relation to Actionview's property
rights in Display Units), 8.3, 12.1, 12.2, 12.3, 12.4, 12.6, 12.11, 13.8
(relating to Chuangrun's responsibilities for tax |
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payable to the PRC tax authorities), 14, 17, 18,
19, 20, 21 and 22 shall survive and continue to be valid and binding on
the parties. |
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17.3.2
|
Clauses 7.5.1 and 7.5.2 shall survive and continues
to be valid and binding on the parties before Chuangrun has fully performed
its obligations under Clause 17.1.5. |
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17.3.3 |
Clauses 8.6, 13.7, 13.8 and 13.9 shall survive and
continues to be valid and binding on the parties before Chuangrun has
fully performed its obligations under Clause 17.1.4. |
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18 | SEVERABILITY | ||
18.1 | Should any clause be considered invalid
or unenforceable by the judgement of a Court of competent jurisdiction
or award of an Arbitral Tribunal, all other provisions shall remain in
full force and effect and shall not be affected therefore for the Term
of the Agreement. |
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18.2 | The parties agree, however, to replace,
when possible, any provision declared invalid by a provision, which shall
reflect their initial intent, as objectively and consistently as possible
and in accordance with the basic relationship existing between the parties.
|
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19 | ENTIRE AGREEMENT | ||
19.1 | This Agreement sets forth the entire agreement
and understanding of the parties hereto relating to the subject matter
contained herein and merges all prior discussions between them and neither
party shall be bound by any previous agreements, negotiations, commitments
and writings other than as expressly stated in this Agreement. |
||
19.2 | This Agreement may not be changed, modified
or supplemented in any manner orally or otherwise except by an instrument
in writing signed by a duly authorized representative of each of the parties
hereto. |
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20 | NO WAIVER |
|
20.1
|
The non-enforcement of any provision contained in
this Agreement shall not be construed by either party as a waiver of the
right to enforce the provision at another time under different circumstances
and/or enforce other provisions of this Agreement. |
|
20.2
|
In particular, the failure of either of the parties
hereto to claim damages or to terminate this Agreement by reason of the
breach of any of the provisions hereof by the other party shall not stop
the party not in default from thereafter claiming damages or terminating
this Agreement by reason of any subsequent breach of any of the provisions
hereof. |
|
21 | APPLICABLE LAW |
|
This Agreement is governed by the law
of Hong Kong and the parties agree to submit to the non-exclusive jurisdiction
of the Hong Kong courts. |
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22 | LANGUAGE AND COUNTERPARTS |
|
This agreement is executed in duplicate
and in the English and Chinese languages. The English version and the
Chinese version shall be equally valid. |
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24 | FURTHER ASSURANCE |
|
Chuangrun and ActionView agrees to negotiate
in good faith and execute such further documents or agreements and do
all such things reasonably necessary to carry out the provisions of this
agreement, including, without limitation, the facilitation of legally
remitting ActionView's share of Revenue from China. |
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SCHEDULE 1 [Delivery Schedule]
Size | Quantity | Delivery Date |
1 m x 1.5 m | 10 sets | On or before 20th June, 2004 |
1.2 m x 1.8 m | 2 sets | Already delivered |
1.5 m x 4.5 m | 1 set | On or before 30th June, 2004 |
For and behalf of | For and behalf of |
CHUANGRUN ADVERTISING (H.K) LIMITED | ACTIONVIEW FAR EAST LIMITED |
“Xxxxxx Xxx” | “Xxxxxx Xxxx” |
(Authorised Signature) | (Authorised Signature) |
Chuangrun Advertising (HK) Limited | Actionview Far East Limited |
By Xxxxxx Xxx | By Xxxxxx Xxxx |
Its director and duly authorised | Its director and duly authorised |
Representative | Representative |
Witness: | Witness: |
“Xxxx Xxx Wing” | “Xxxx Xxx Wing” |
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Xxxx Xxx Wing Solicitor, Hong Kong SAR Fung, Wong, Ng and Xxx Solicitors & Notaries |
Xxxx Xxx Wing Solicitor, Hong Kong SAR Fung, Wong, Ng and Xxx Solicitors & Notaries |
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