MOMENTUM INTERNET INC.
and
UNITED XXX XXXX KIE LIMITED
------------------------------
AGREEMENT
------------------------------
Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx Xxxxx
Xxxxxx Xxxx
Xxxx Xxxx
THIS AGREEMENT is made the day of 1999
BETWEEN:
MOMENTUM INTERNET INCORPORATED whose registered office is situated at PO Box 71,
Craigmuir Xxxxxxxx, Road Town, Tortola, British Virgin Islands ("Momentum"); and
UNITED XXX XXXX KIE LIMITED whose registered office is situated at 2102, 00/X,
Xxxx Xxxxx'x Xxxx, Xxxxxxx, Xxxx Xxxx ("UMYK").
WHEREAS:
(A) Momentum, is engaged. in the business of providing websites and technical
support for Internet connectivity.
(B) UMYK is a broker and registered dealer licensed under the Securities
Ordinance Cap. 333 to deal in Securities (as defined in the Securities
Ordinance) and wishes to obtain the benefit of the knowledge, skill and
experience of Momentum in developing Internet trading in Securities on the
terms and conditions hereinafter appearing.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITION
(A) The Service
The provision by Momentum of internet technical support, design and
construction of UMYK's webpages on the Momentum's Swiftrade Website as well
as the hosting of UMYK's web pages on the internet. The provision by
Momentum of an on-line system for stock trading on The Stock Exchange of
Hong Kong Limited by clients of UMYK through the website located at
xxx.xxxxxxxxx.xxx together with all the services available on such website.
The provision of a section within Swiftrade specifically for clients and
potential clients of UMYK. Trades from UMYK's clients will be made
available to UMYK's office Internet trading desk for execution. Momentum's
internet service will include all programming design, construction, hosting
marketing and local technical support.
(B) The Business
The trading of Securities listed on The Stock Exchange of Hong Kong Limited
and in case of Hong Kong Securities having a dual listing, on that other
recognized exchange.
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(C) The Business System
The method of utilizing Momentum's methods, techniques and knowledge in
relation to the provision of the Service in connection with the Business.
(D) The Operation
The operation by UMYK of the Business through the Service using the
Business System.
2. THE GRANT
(A) Momentum hereby grants to UMYK the non-exclusive right to the Service.
(B) UMYK hereby acknowledges that it is shall use the Service through
Momentum. Fro the avoidance of doubt, Momentum hereby acknowledges
that UMYK shall be permitted in its sole discretion to use such other
internet support, design and construction services of other internet
services providers provided that such services do not entail the use
of Momentum's Swiftrade Website.
3. MOMENTUM'S OBLIGATION
Momentum will provide or procure the provision of the Service and all
advice and assistance in relation to the Services to UMYK upon request.
4. UMYK'S OBLIGATIONS
(A) The Operation will be provided by UMYK in its capacity as a registered
dealer of securities in the Hong Kong Special Administrative Region of
the People's Republic of China.
(B) UMYK will arrange for the transmission of detailed account opening
documents to its clients by automated electronic mail or such other
medium as may be decided by UMYK in its sole discretion, the obtaining
completed application forms and receiving of funds in relation
thereto.
5. THE TERM
This agreement shall commence on the date hereof and will continue for a
period of 5 years subject to a review at the end of the third year unless
terminated earlier in accordance with the provisions contained in Clause 11
hereof. Thereafter, the parties may extend this Agreement upon such terms
to be mutually agreed between them.
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6. EXCLUSIVITY
(A) The Services provided to UMYK herein shall extend only to Hong Kong
and UMYK agrees unless with the prior written consent of Momentum that
it will not make use nor will it permit or authorize any use of the
Business System nor will it knowingly offer or provide any information
or assistance to any person, firm, company or undertaking which
intends or may seek to use such information other than to a
wholly-owned subsidiary of the ultimate holding company of UMYK.
7. REMUNERATION
(A) UMYK agrees to pay 40% of the Gross Turnover of the Operation to
Momentum. The parties hereto acknowledge and agree that the amount to
be paid pursuant to this Clause shall be subject to review
semi-annually with any amendments and/or changes to take effect from
such review.
(B) "Gross Turnover" for the purpose of calculation, payments to be made
by UMYK to Momentum are the gross commissions earnt by Operation
arising directly or indirectly from the utilization of the Business
System during each month of the term of this Agreement and for any
period less than a complete calendar month prior to the payment date.
(C) The gross commissions will consist of the payments received by UMYK in
respect of the Operation in each complete calendar month.
(D) The payment date will not be later that three weeks from the end of
each calendar month such payments to be made by cheque/telegraphic
transfer/banker's draft to a specified bank account of Momentum.
(E) UMYK will open a separate bank account for all payments received from
the Operation.
(F) In the event that any sums due to Momentum are not paid by UMYK on the
due date, such sums shall bear interest from day to day at the annual
rate of 12%.
8. ACCOUNTS AND RECORDS
(A) UMYK will maintain or procure the maintaining of an accurate account
and record of the trading Securities carried out each month and
payments received using the Business System and shall send to Momentum
a monthly statement thereof prior to the payment date each month.
(B) Momentum or through its duly appointed agent shall be permitted to
request UMYK to provide separate books and accounts kept by UMYK in
connection with the Operation and, to the extent that the request is
reasonable in the sole opinion of UMYK, be supplied with all relative
information including invoices, contract notes, operating statistics
and other such financial information in such form as Momentum may
reasonably require to be kept properly informed about the Operation.
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9. REPRESENTATIONS AND WARRANTIES AND UNDERTAKINGS
Momentum hereby represents, warrants and undertakes to UMYK that:-
(i) it has the right and authority to use the Swiftrade Website for the
provision of the Services to UMYK and such website will be fit for its
purpose;
(ii) all Services, computer equipment used by or for the benefit of
Momentum in relation to the Services are Year 2000 Compliant;
Year 2000 Compliant means the abliity to provide all the following
functions:
(a) accurate processing of all date information whether before,
during or after 01 January 2000, including, without limitation,
accepting date input, providing accurate date output and
performing accurate calculations involving dates or portions of
dates;
(b) performing all processing accurately, efficiently and without
interruption before, during and after 01 January 2000 without any
change in operations, or in any input or output procedures;
(c) processing date input accurately in a way that does not create
any ambiguity as to century;
(d) storing, retrieving and processing date information accurately in
a manner that does not create any ambiguity as to century; and
(e) presenting all date output information accurately and in a manner
that does not create any ambiguity as to century;
(iii) it will keep UMYK fully indemnified for any damages, losses, costs
and expenses which UMYK may incur as a result of a breach of the
Momentum's internet/computer systems by third parties or otherwise
including, inter alia, computer hacking; and
(iv) all information provided on the UMYK Website shall be kept
confidential by Momentum and Momentum shall ensure that UMYK is
consulted and its consent obtained prior to providing any information,
details etc. of such on the UMYK Website.
10. CONFIDENTIALITY
(A) UMYK hereby acknowledges that the Business System and all other
information and knowledge relating thereto are a strictly confidential
nature and accordingly, UMYK covenants that no other person (save as
expressly provided by this Agreement) shall at any time without the
prior written consent of Momentum whether before or after termination
of this Agreement divulge or use whether directly or indirectly for
its own benefit or that of any other person, company firm or
organization any of such information or knowledge relating to the
Service or the Business System which may be communicated to or
otherwise acquired by UMYK its directors, agents or employees.
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(B) Momentum hereby acknowledges that all information provided by UMYK to
it hereunder including, but not limited to, the accounts and records
referred to in Clause 8 are of a strictly confidential nature and
accordingly, Momentum covenants that it will not at any time divulge
or use any of such information directly or indirectly whether on its
own or with any other person, company, firm or organization.
11. TERMINATION
(A) Momentum may terminate this Agreement immediately forthwith by giving
notice in writing to UMYK in any of the following events:
(i) if UMYK shall at any time fail to pay any amounts due and payable
to Momentum hereunder within ten days of a notice in writing
requesting such payments;
(ii) if UMYK shall fail to submit to Momentum in a timely manner any
of the accounting, financial or record information required to be
so submitted; and
(iii) if UMYK shall fail to commence operations within 90 days from
the signing of this Agreement.
(B) UMYK may terminate this Agreement immediately forthwith by giving
notice in writing to Momentum in any of the following events:
(i) if Momentum shall fail to provide the Service in accordance with
the terms of this Agreement;
(ii) if Momentum is in breach of any of the terms herein contained;
and
(iii) if a petition is presented or a proceeding is commenced or an
order is made on an effective resolution is passed for the
winding-up, insolvency , administration, reorganization,
reconstruction or dissolution of Momentum or for the appointment
of a liquidator, receive, administrator, trustee or similar
officer of Momentum or any of all or any part of its business or
assets; and
(iv) if Momentum ceases or threatens to cease to carry on its business
or any substantial part thereof or changes or threatens to change
the nature or scope of its business.
(C) UMYK may at any time terminate this Agreement by giving not less than
one month's notice in writing to Momentum.
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12. CONSEQUENCES OF TERMINATION
(A) Upon the termination or expiration of this Agreement for any UMYK
shall:
(i) within seven (7) business days pay to Momentum the full amount of
all monies then due;
(ii) immediately cease the Operation and to use the Business System or
authorize any other person so to do and shall not thereafter hold
itself out in any way as the operator of the Business System in
Hong Kong and refrain from any action that would or may indicate
any relationship between it and Momentum; and
(iii) otherwise perform its obligations and observe the covenants set
out in Clauses 9 and 10 thereof.
(B) Upon the termination or expiration of the Agreement, Momentum shall,
within 7 calendar days, return to UMYK all documents, information,
etc. which have been provided by UMYK to Momentum.
(C) For the avoidance of doubt, Momentum agrees and confirms that upon the
termination of this Agreement, no other monies, fees or expenses other
than for Services already rendered, shall be payable by UMYK to
Momentum.
(D) The expiration or termination of this Agreement shall be without
prejudice to the accrued rights of the parties and any provision
hereof which relates to at governs the acts of the parties hereto
subsequent to such expiry or termination hereof shall remain in full
force and effect and shall be enforceable notwithstanding such expiry
or termination.
13. FORCE MAJEURE
Neither of the parties of this Agreement shall be responsible to the other
party for any delay in performance or non-performance therein due to any
causes beyond the reasonable control of the parties hereto, but the
affected party shall promptly upon the occurrence of any such cause so
inform the other party in writing, stating that such cause has delayed or
prevented its performance hereunder and thereafter such party shall take
all action within its power to comply with the terms of this Agreement as
fully and promptly as possible.
14. NOTICES
(A) Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant
party at its address or fax number set out below (or such other
address or fax number as the addressee has by two (2) business days'
prior written notice specified to the other parties):-
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To Momentum:
Address: 12A First Xxxxxxx Xxxx Xxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Fax Number: 0000 0000
Attention: Xxxxxxx X. Xxxxx
To UMYK:
Address: 2102, 00/X.,
Xxxx Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax Number: 0000 0000
Attention: Xx. Xxxxxxx Xxxxx
Any such notice or other document shall be deemed to have been duly
given upon receipt if delivered by hand or if sent by facsimile
transmission upon the receipt of machine printed confirmation and in
the case of a notice sent by post it shall be deemed to have been
given on the second business day after posting if the address is in
Hong Kong and on the fifth business day after posting if the address
is outside Hong Kong. In proving the giving of a notice it shall be
sufficient to prove that the notice was left or the the envelope
containing such notice was properly addressed and posted or that the
applicable means of telecommunication was properly received (as the
case may be).
(B) Such notice shall be sent if by post or by hand to the last known
address of either party or in the case of electronic transmission to
the last known fax number or electronic mail number or either party.
15. GOVERNING LAW
This Agreement and all right and obligations of the parties hereto shall be
governed and construed in accordance with the Laws of Hong Kong and the
parties hereto hereby submit to the jurisdiction of the Hong Kong Courts.
IN WITNESS whereof this Agreement has been executed on the day and year first
above written.
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SIGNED by )
)
for and on behalf of )
MOMENTUM INTERNET ) /s/ Xxxxxxx Xxxxx
INCORPORATED ) ----------------------------
in the presence of: ) Xxxxxxx Xxxxx
SIGNED by )
)
for and on behalf of ) /s/ Xxxxxxx Xxxxx
UNITED XXX XXXX KIE LIMITED ) ----------------------------
in the presence of: ) Xxxxxxx Xxxxx
