Exclusive Business Cooperation and Consulting Service Agreement
Exclusive
Business Cooperation and Consulting Service Agreement
This
Exclusive Business Cooperation and Consulting Service Agreement (“this
agreement”) is signed by the two parties below on December 27,
2007.
Party
A:
Century City Infrastructure Facility Co., Ltd.
Registered
address: Room 1199, Silicon Valley Mansion, No.1198 Silicon Valley Street,
Changchun Hi-tech Development Zone
Party
B:
Shanghai New Century City Infrastructure Construction Co., Ltd.
Registered
address: Room 2023 Building 7, No.515 Kesheng Road, Nanxiang Town, Jiading
District, Shanghai
Whereas:
| 1. |
Party
A is a foreign-owned company limited established in People’s Republic of
China (hereinafter referred to as “China”) with relevant business
resource, expert resource and rich consulting service
experience.
|
| 2. |
Party
B is an effectively existing company limited established according
to
Chinese law. Party A shall agree to launch relevant business cooperation
with Party B and provide technical consulting service to Party B, Party
B
shall agree to make business cooperation with Party A and accept the
technical consulting service provided by Party A according to the
conditions regulated by this agreement.
|
The
two
parties come to the following agreement through consensus in the
negotiation
1 Business
cooperation, technical consulting service
| 1.1 |
During
the period of this agreement, as the technical consulting and service
supplier of Party B, Party A shall agree to provide relevant technical
consulting service to Party B and launch the following business
cooperation according to the condition of this agreement. The range
of the
cooperation and consulting service includes but no limited
to:
|
| 1.1.1 |
To
provide early consultation for Party B to participate in the invested
project, including economic planning, policy consultation or special
subject consultation;
|
| 1.1.2 |
To
participate in the planning and scheme design of the project, and assist
Party B to finally obtain the project;
|
| 1.1.3 |
To
assist Party B to choose the service institutions of investigation,
design, planning, construction and supervision etc.
|
| 1.2 |
Party
B shall agree to accept the technical consulting and service provided
by
Party A. Party B shall further agree no to accept the consulting service
on the above mentioned business provided by any third party or establish
the cooperative relationship on the above mentioned business with any
third party during the period of this agreement except for the written
approval of Party A in advance.
|
| 1.3 |
As
to any right, ownership, interest and intellectual property right
(including by not limited to the right of authorship, the right of
patent,
technical secret, business secret and others) produced by implementing
this agreement, no matter it’s developed by Party A or Party B based on
the intellectual property right of Party A, Party A shall enjoy the
exclusive interest.
|
2 Payment
of consulting service fees (hereinafter referred to as “consulting service
fees”)
The two
parties shall agree to pay the consulting service fees under this agreement
according to 90% of the actual amount of the contract signed by Party
B.
Besides
the above mentioned consulting service fees, Party B shall agree to reimburse
all expenses of Party B relating to the implementation of this agreement,
including by not limited to the travel fees, expert fees, printing fees and
postage etc.
Besides
the above mentioned consulting service fees, Party B shall agree to return
the
expenses relating to the implementation of this agreement paid to Party B or
the
expenses paid for providing the service including the tax, tariff etc., however
except for the income tax.
Party B
shall submit the consulting service fees report (“service fees report”) under
this agreement to Party A within three working days after each settlement period
(each quarter), and remit the above mentioned consulting service fees in the
form of RMB into the bank account appointed by Party A in the mode of bank
transfer within two working days after submitting the service fees report.
If
Party B fails to pay the consulting service fees and other payable fees
according to the agreement on schedule, Party B shall pay a penalty to Party
A
according to 12% annual interest rate (compound interest) as of the delaying
day.
Party B
shall reserve the individual account on the consulting service under this
agreement. Party A shall have right to assign its employees or employ Chinese
or
international accountant to examine and audit the account book relating to
Party
B and the consulting service in any settlement period at any time. Party B
shall
provide any and all necessary document, account book, record, data and
information that the employees of Party A or the accountant of Party A consider,
as well as all conveniences and support. The audit report submitted by the
employees of Party A shall be the final and conclusive, except for the demur
proposed by Party B within seven days after receiving the report. Any audit
report submitted by the accountant shall be final and conclusive. Party A shall
have right to give the payment notice to Party B at any moment after the audit
report is given according to the consulting service fees confirmed by the audit
report. Party B shall pay according to item 2.4 within seven days after
receiving the payment notice.
Any fees
that Party B pays to Party A under this agreement shall have been deducted
the
taxation, bank procedure fees or any other fees and expenses.
3 Statement
and guarantee
3.1 Party
A states and
guarantees that:
3.1.1 Party
A signs and
implements this agreement within the company right and operation range, and
has
taken necessary company action and proper authorization and obtained the
approval and agreement of the third party and authorized governmental
department, which doesn’t break the law with binding force or influential and
the contract limit.
3.1.2 Once
being signed, this
agreement will compose the legal, effective and compulsory obligation within
binding force to Party A according to the item of this agreement.
3.2 Party
B states and
guarantees that:
3.2.1 Party
B is an effectively
existing company limited established according to Chinese law, and has right
to
sign this agreement.
3.2.2 Party
B signs and
implements this agreement within the company right and the operation range,
and
has taken necessary company action and proper authorization, which doesn’t break
the law with binding force or influential and the contract limit.
3.2.3 Once
being signed, this
agreement will compose the legal, effective and compulsory obligation within
binding force to Party B according to the item of this agreement.
4 Confidential
term
4.1 Party
B shall agree to
make effort to take various rational confidential measures on the secrete data
and information (hereinafter referred to as “confidential information”) known or
contacted due to accepting the exclusive technical consulting and service of
Party A; except for the written approval of Party A in advance, Party B shall
not disclose, give or transfer the confidential information to any third party,
once this agreement is terminated, Party B shall return any document, data
or
software with the confidential information to Party A according to the
requirement of Party A, or destroy, and totally delete any confidential
information in any relevant memory device, and shall not continue to use or
allow any third party to use the confidential information through any mode.
4.2 The
two parties shall
agree that this item shall continue to be effective no matter if this agreement
is modified, cancelled or terminated.
5 Compensation
5.1 Party
B shall compensate
any loss, damage, obligation and fees of Party A caused by any litigation,
compensation claim or other appeal against Party A that is produced or caused
by
the content of the consultation and service required by Party B, and exempt
Party A from suffering loss.
6 Inception
and period of validity
6.1 This
agreement shall be
signed on the date indicated at the beginning of the text and come into effect
as of this signing day, except for the termination of the item in this agreement
or the relevant agreement signed by the two parties in advance, the period
of
validity of this agreement shall be ten years.
6.2 This
agreement can be
prolonged before the period of validity of this agreement is expired upon the
written confirmation of Party A, the prolonged period shall be confirmed through
the consensus in the negotiation, and sign a written confirmation.
7 Termination
7.1 Except
for renewal
according to relevant items of this agreement, this agreement shall be
terminated on the expiration day.
7.2 Within
the period of
validity of this agreement, except for the approval of Party A, Party B shall
not terminate this agreement in advance. Through there is above stipulation,
Party A shall have right to send a written notice to Party B at any moment
to
terminate this agreement.
7.3 After
this agreement is
terminated, the rights and obligations of the two parties under item four and
item five shall continue to be effective.
8 Settlement
of dispute
8.1 Any
dispute arising from
performance of this contract, both parties shall negotiate with each other
friendly. If the settlement fails to be solved within 30 days after one party
sends the written notice on negotiation to the other party, any party can submit
the dispute to China International Economic and Trade Arbitration Commission,
and this Commission will arbitrate according to the current effective
arbitration rule. The arbitration location: Beijing, and the arbitration
language is Chinese. The arbitration shall be final award with binding force
to
each party.
9 Force
majeure
9.1 The
force majeure refers
to any affair that exceeds the rationally controllable range of one party and
still inevitable under the rational attention of the influential party,
including but not limited to, the governmental behavior, natural force, fire,
explosion, storm, flood, earthquake, tide, lightning or war. However, the
insufficiency of credit, capital or financing shall not be regarded as the
affair that exceeds the rational control of one party, the party that is
affected by the force majeure and seeks for the liability exemption under this
agreement shall notify the liability exemption to the other party as soon as
possible and inform the other party of the steps of completing the liability
under this agreement.
9.2 When
the implementation
of this agreement is delayed or baffled by the above mentioned force majeure,
the party that is affected by the force majeure needn’t to bear any liability
under this agreement within the delayed or baffled range, the party that is
affected by the force majeure shall take proper measures to reduce or eliminate
the influence of the force majeure, and make effort to recover the
implementation of obligation delayed or baffled by the force majeure, once
the
force majeure is eliminated, each party shall agree to make greatest effort
to
recover the implementation under this agreement.
10 Notice
10.1 The
notice sent by each
party of this agreement for implementing the right, obligation under this
agreement shall be in written form. For the special personnel delivery, subject
to the actual arrival, for the telegraph, fax delivery, subject to the time
of
delivery. If the arrival day is not the business day or the arrival is after
the
business time, the next continuous business day after this day will be the
arrival day. The destination refers to the addresses of the two parties on
the
first page of this agreement or other appointed addressed in the written notice
afterwards. The written form includes fax and telegraph.
11 Agreement
transfer
11.1 Without
the written
approval of Party A in advance, Party B shall not transfer the right and
obligation under this agreement to any third party.
12 Dividability
of the agreement
12.1 If
this agreement has any
item that is invalid, illegal or inexecutable due to inconsistency with relevant
law, this item will be invalid, illegal or inexecutable only within the
governing range of relevant law. The validity, legality or the executability
of
other items of this agreement shall not be affected or damaged on any
aspect.
13 Modification,
supplementation of the agreement
13.1 The
two parties shall
modify and supplement this agreement in the mode of written agreement, the
modified agreement and the supplementary agreement with the proper signature
of
the two parties shall be the component of this agreement with equal legal effect
of this agreement.
14 Law
and
language
14.1 This
agreement shall be
governed by Chinese law and make explanation according to Chinese
law.
14.2 This
agreement shall be
written in Chinese and English, if the Chinese text conflicts with the English
text, subject to Chinese.
The
two
parties have make the authorized representatives sign this agreement on the
date
mentioned at the beginning of the text.
Party
A:
Century City Infrastructure Facility Co., Ltd.
Legal
representative: Yu
Mao
(signed)
Party
B:
Shanghai New Century City Infrastructure Construction Co., Ltd.
Legal
representative: Yu
Mao
(signed)
