Exclusive Services Agreement
Exhibit
10.17
Exclusive Services Agreement
between
Kunming Taishi Information Cartoon Co.,
Ltd.
and
Kunming Kaishi Advertising Co.,
Ltd.
May 2008
Table
of
Contents
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Chapters
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Pages
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1.
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Definitions
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2
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2.
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Engagement
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3
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3.
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Obligations
of Party A
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3
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4.
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Obligations
of Party B
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4
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5.
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Consideration
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4
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6.
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Exclusivity
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4
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7.
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Representations
and Warranties
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5
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8.
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Breach
and Indemnifications
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6
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9.
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Term
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6
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10.
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Consequences
of Termination
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6
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11.
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Confidentiality
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7
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12.
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Dispute
Resolution
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7
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13.
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Miscellaneous
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8
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Appendix
Appendix 1 Services to be provided by Party
A
Appendix 2 Services Fee
This Exclusive Services Agreement (Agreement) is entered into in Kunming, Yunnan Province, the People's Republic of China (PRC) on this [Ÿ] day of [Ÿ]2008
by and
between
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(1)
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Kunming Taishi
Information Cartoon Co., Ltd., a equity joint venture company duly established and
existing under
PRC Law with its registered address at [Ÿ] (Party
A);
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and
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(2)
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Kunming Kaishi
Advertising Co., Ltd. ,an advertising company duly
established and existing under PRC Law with its registered address at [Ÿ] (Party
B).
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(Individually a "Party" and collectively the “Parties”)
BACKGROUND
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A.
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Party A owns resources to provide
the Services (defined
below) and owns the
exclusive
advertisement operation right (Advertisement
Operation
Right) of Comprehensive Channel, Life
Channel, Entertainment Channel, Economics Channel, Film and TV Series
Channel, and News Channel (collectively, Channel).
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B.
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Party B’s business involves the production and
distribution of advertisements, with the following business scope: [Ÿ]
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C.
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Party B seeks to engage Party A,
and Party A seeks to
accept the engagement of Party B as an independent contractor providing
comprehensive advertisement technical support and information consulting
services.
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D.
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Party A seeks to cooperate with Party B
with respect
to the Advertisement
Operation Right. Party B shall provide exclusive
services of advertisement production
and sales to Party
A.
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NOW
THEREFORE, the Parties
agree as follows:
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1.
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DEFINITIONS
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1.1
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Unless expressly provided
otherwise, the following terms used in this Agreement shall have the
following
meanings:
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Force
Majeure
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any earthquake, storm, fire,
flood, war, changes to the relevant state and administrative
laws or regulations and policies, or any other significant event of natural
or human-caused disaster arising after the signing hereof which is
unforeseen, unavoidable and not possible to overcome, and is
beyond the control of any Party, and prevents the total or partial
performance of this Agreement by any
Party;
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Services
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shall mean the services related to
the technical
support for the advertisement production and the
advertisement consulting provided by Party A to Party B as
set forth in Appendix I.
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2.
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ENGAGEMENT
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2.1
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Party B hereby engages Party A to
be its sole and exclusive provider of Services. Party A accepts such
engagement and agrees
to provide the Services according to the terms and conditions set forth
herein.
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2.2
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Party A hereby engages Party B to
be its sole and
exclusive advertising
agent and grants
Party B agent rights (Advertisement
Agent Right)
for all advertisements under the Advertisement Operation
Right. Party B accepts such engagement
and agrees to provide the services according to the terms and conditions
set forth herein.
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3.
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OBLIGATIONS OF PARTY A
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Party A shall be required
throughout the term of this Agreement to perform the following
obligations:
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3.1
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act in good faith towards Party B
and use its best efforts to fulfill any and all duties and obligations
arising under this
Agreement;
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3.2
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act in the long-term, best
interests of Party B;
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3.3
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attempt to minimize the costs for providing the
Services in accordance with the provisions of this Agreement;
and
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3.4
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ensure that it continuously and exclusively holds the Advertisement
Operation Right during the term of the
Agreement.
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4.
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OBLIGATIONS OF PARTY B
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4.1
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Party B shall be required throughout the
term of this Agreement to provide Party A with such assistance as may be
requested by Party A in order to provide the Services in an efficient and
effective manner in accordance with the provisions of this
Agreement.
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4.2
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Party B shall use its best efforts to perform the Advertisement
Agent Right. Party B shall seek to provide advertisements for the Channel and enter into the
advertisement production and distribution contracts with
clients.
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5.
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CONSIDERATION
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5.1
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In consideration of the
Services provided by
Party A to Party B,
Party B shall pay to Party A a services fee as set forth in
Appendix 2 (Services
Fee) plus applicable
taxes on the costs incurred by Party A in the previous calendar year for
rendering such Services (Annual
Fee).
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5.2
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The Services Fee and Annual Fee
shall be paid by Party B to Party A as
follows:
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5.2.1
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Party A shall invoice Party B on a
monthly basis, i.e. on or before the 20th day of each month Party B shall then pay the
Services Fee for that month within [15] days after of receipt of the
invoice;
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5.2.2
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Party A shall on the
20th day of the first month of each
calendar year invoice Party B for the Annual Fee of the preceding calendar
year, Party B shall then pay the Annual Fee within 15 days after
receipt of the
invoice; and
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5.2.3
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all payments to be made by Party B
to Party A under this Agreement shall be made in RMB and by telegraphic
transfer to a bank account designated by Party A or in such other manner
as directed by Party A from time to
time.
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6.
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EXCLUSIVITY
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6.1
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Exclusivity of the
Service
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6.1.1
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Party B appoints Party A as its
exclusive provider of the Services. During the term of this Agreement,
Party B shall not engage any third party to provide any services similar
to the Services arising from this Agreement without the prior written consent
of Party A.
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6.1.2
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Party A’s acceptance of the appointment to
provide the Services shall be non-exclusive and shall not restrict Party A
from acting for any other third party with respect to similar or different
services.
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6.1.3
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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,
trademarks, patents,
know-how and otherwise, whether developed by Party A or developed by Party
B based on Party A’s intellectual
property.
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6.2
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Exclusivity of the Advertisement
Agent Right
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In the term of this Agreement,
Party A shall exclusively grant the Advertisement Agent Right to Party
B, and shall not grant the
Advertisement Agent Right to any third party without the prior written
consent of Party B.
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7.
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REPRESENTATIONS AND
WARRANTIES
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7.1
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Party A hereby represents and
warrants as follows:
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7.1.1
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Party A is a Sino-foreign equity joint venture duly registered and
validly existing under the PRC Law;
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7.1.2
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Party A has full right, power,
authority and capacity and all consents and approvals of any other third
party and the relevant governmental authorities that are necessary to execute,
deliver and perform this Agreement, which shall not violate or infringe
any enforceable and effective laws or
contracts;
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7.1.3
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The Agreement shall constitute a
legal, valid and binding agreement of Party A and is enforceable
against it in
accordance with the terms upon its
execution.
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7.2
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Party B hereby represents and
warrants as follows:
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7.2.1
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Party B is a company duly
registered and validly existing under the PRC Law and is licensed to engage in the
business described on its business license, as set forth
in Item B in the Background Section
above.
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7.2.2
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Party B has full right, power,
authority and capacity and all consents and approvals of any other third
party and the relevant governmental authorities, that are necessary
to execute, deliver
and perform this Agreement, which shall not violate or infringe any
enforceable and effective laws or
contracts;
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7.2.3
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The Agreement shall constitute a
legal, valid and binding agreement of Party B and is enforceable against
it in accordance with
the terms upon its
execution.
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8.
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BREACH AND
INDEMNIFICATIONS
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8.1
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If either Party (Breaching
Party) violates any
provision of this Agreement, fails to perform its obligations hereunder,
or performs its obligations contrary to the provisions hereunder, which results in a
material economic loss for the other party (Non-Breaching
Party), it shall be
deemed to have committed a breach of this Agreement (Breach). In such case, the
Non-Breaching Party shall be entitled to issue a written notice to
the Breaching Party
requiring rectification of the Breach within 10 days after
receipt.
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8.2
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The Breaching Party shall be
liable to indemnify the Non-Breaching party for any and all losses
sustained as a result of the Breach. The damages payable by the
Breaching Party to
the Non-Breaching shall be equal to the losses incurred by the
Non-Breaching Party as a result of the
Breach.
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9.
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TERM
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This term of this Agreement shall
be effective as of
the signature date, unless terminated as
follows:
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9.1
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by Party A serving a 30 days prior written
notice; or
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9.2
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in the event of Breach, by the
Non-Breaching Party, if the Breaching Party has not made rectification 30
days after receipt of the notice from the Non-Breaching
Party.
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10.
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CONSEQUENCES OF
TERMINATION
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10.1
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In the event that this Agreement is
terminated, Party B agrees that it shall remain liable to Party A for any
payment owing and outstanding, including the expenses and indemnities
under this Agreement prior to the date of such
termination.
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10.2
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The termination of this Agreement, for any
reason whatsoever, shall not affect the respective rights, obligations and
liabilities of each of the Parties accrued prior to such
termination.
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11.
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CONFIDENTIALITY
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Each Party shall maintain as
strictly confidential the provisions and existence of this
Agreement and any information relating to the business of the other Party
to which it might have access including, but not limited to, databases,
financial and business plans, and any other information deemed to be
confidential by the other Party, unless the
said confidential information has already entered the public domain or was
disclosed by the other Party pursuant to a court order or the applicable
laws of the relevant
jurisdiction.
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12.
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FORCE
MAJEURE
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12.1
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Occurrence and Consequences of an Event of
Force Majeure.
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12.1.1
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A Party that cannot perform its
obligations under this Contract ("Hindered Party") in full or in part as a
direct result of an Event of Force Majeure, shall not be deemed to be in
breach of this Contract if all of the following
conditions are met:
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12.1.1.1
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the Event of Force Majeure was the
direct cause of the stoppage, impediment or delay encountered by the
Hindered Party in performing its obligations under this
Contract;
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12.1.1.2
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the Hindered Party used its best efforts to perform
its obligations under this Contract and to reduce the losses to the other
Party or to the Company arising from the Event of Force Majeure;
and
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12.1.1.3
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at the time of the occurrence of
the Event of Force Majeure, the Hindered Party informed the other
Party and the Company, providing written information on such event within
ten Business Days of its occurrence, including a statement of the reasons
for the delay in implementing or partially implementing this
Contract.
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12.1.2
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If an Event of Force Majeure shall
occur, the Parties shall discuss and decide whether this Contract should
be amended in light of the impact of the event upon the implementation
hereof, and whether the Hindered Party should be partially or fully freed
from its obligations
hereunder.
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13.
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DISPUTE
RESOLUTION
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13.1
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Governing
Law. This Agreement shall be governed
by PRC Law. Where PRC Law is silent on a particular matter relating
to this Agreement, reference shall be made to
international commercial practice.
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13.2
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Dispute
Resolution.
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13.2.1
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If any dispute arises in
connection with this Agreement, the Parties shall attempt in the first
instance to resolve such dispute through friendly consultation or
mediation.
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13.2.2
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If the dispute cannot be resolved
in the above manner
within thirty (30) days after the commencement of consultations, either
Party may submit the dispute to arbitration as
follows:
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13.2.2.1
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all disputes arising out of or in
connection with this Agreement shall be submitted to China
International
Economic and Trade Arbitration Commission which shall be conducted by
three (3) arbitrators in Beijing in accordance with the
Commission’s arbitration rules;
and
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13.2.2.2
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the arbitration shall be conducted
in the Chinese language, with the arbitral award being final and binding
upon the Parties. The cost of arbitration shall be allocated as
determined by the
arbitrators.
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13.2.3
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when any dispute is submitted to
arbitration the Parties shall continue to perform this
Agreement.
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14.
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MISCELLANEOUS
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14.1
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Party B hereby agrees that Party A
has the right
to, at its sole
discretion, determine the performance of any and all of its obligations in
the manner as it deems fit, provided that it does not violate the
applicable laws and regulations of the PRC nor the provisions of this
Agreement.
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14.2
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Party A shall, for the purposes of
this Agreement and applicable laws, constitute an independent contractor
supplying services to Party B pursuant to the terms and conditions of this
Agreement.
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14.3
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Party B shall not assign any of its rights
or obligations under this
Agreement.
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14.4
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The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity and
enforceability of any other provision of this Agreement, provided that the
material interests of
the Parties are not
affected.
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14.5
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This Agreement and the Schedules
hereto constitute the entire agreement between the Parties with respect to
the subject matter hereof, and shall supersede any prior expression of
intent or understanding relating hereto and may only
be modified or amended by a written instrument signed by the authorized
representatives of the
Parties.
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14.6
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This Agreement has been prepared
in Chinese in 2 sets of originals. Each Party shall hold 1 set of
original.
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14.7
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The failure of any Party to
enforce or require performance of any of the provisions of this Agreement,
or to exercise any rights provided herein, shall in no way be construed as
a waiver of such provision, right, or thereafter affect such Party's right
to enforce any provision of this
Agreement.
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14.8
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All notices or other
communications sent by either Party shall be written in English or
Chinese, and delivered in person (including by courier), by mail, or fax,
to the other Party at the following addresses. The date at which the
communication shall be deemed to be duly given or made shall be confirmed
as follows: (a) for notices delivered in person, the day when the notice
is received; (b) for notices delivered by mail, 10 days after the delivery
date for air certified mail with postage
prepaid (as shown on stamp) or 4 days after the delivery date for an
internationally certified delivery institution; and (c) for notices by
fax, the receipt date shown on the delivery confirmation paper of the
relevant document.
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Party A : Kunming Taishi Information Cartoon Co., Ltd.
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Attention:
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[Ÿ]
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Telephone
Number:
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[Ÿ]
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Email:
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[Ÿ]
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Fax:
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[Ÿ]
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Address:
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[Ÿ]
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Party B : Kunming Kaishi Advertising Co., Ltd.
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Attention:
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[Ÿ]
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Telephone
Number:
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[Ÿ]
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Email:
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[Ÿ]
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Fax:
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[Ÿ]
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Address:
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[Ÿ]
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[The space below has been intentionally
left blank.]
IN WITNESS
WHEREOF, the Parties have
caused this Agreement to be executed by their duly authorized representatives on
the date first written above.
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For and on Behalf
of
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Party
A: Kunming Taishi Information Cartoon
Co., Ltd.
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Company
seal
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By:
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____________________________
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Name:
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[Ÿ]
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Title:
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[Ÿ]
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Date:
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For and on Behalf
of
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Party B: Kunming Kaishi Advertising
Co.,
Ltd.
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Company
Seal
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By:
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________________________________
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Name:
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[Ÿ]
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Title:
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[Ÿ]
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Date:
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Exclusive
Services Agreement
- 11
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Appendix
1
Services to be provided by Party A
Exclusive
Services Agreement
- 12
-
Appendix
2
Services Fee
Exclusive
Services Agreement
- 13
-
