Unicom Huasheng Telecommunication Technology Co., Ltd. And Dalian Daxian Distribution Company Beijing Xelent Tech & Trading Co., Ltd. X180 Mobile Terminal Purchase Contract Contract No.: CUHS—ZBCG07 047 Place of Execution: Beijing, China Date of...
EXHIBIT
10.01
Unicom
Huasheng Telecommunication Technology Co., Ltd.
And
Dalian
Daxian Distribution Company
&
Beijing
Xelent Tech & Trading Co., Ltd.
Contract
No.: CUHS—ZBCG07 047
Place
of
Execution: Beijing, China
Date
of
Execution: May 31st, 2007
CONTENTS
Article
1
General
Principles
Article
2
Contents
and Requirements of the Objects Hereof
Article
3
Samples
and Seal-up
Article
4
Price
and Quantity
Article
5
Price
Protection
Articles
6
Terms of
Payment
Article
7
Supply
Plan and Its Adjustment
Article
8
Packing
and Transport
Article
9
Delivery
and Checking before Acceptance
Article
10
Quality
Assurance and After-sale Service
Article
11
Compensation for Breach of Contract
Article
12
Force
Majeure
Article
13
Arbitration
Article
14
Intellectual Property Rights, Confidentiality and Trademark
Article
15
Alterations of This Contract
Article
16
Miscellaneous
Article
17
Effectiveness and Texts of This Contract
1
Annex
1
Product Technical Requirements (including relevant technical standard
qualification certificates issued by Ministry of Information Industry and
China
Unicom and test reports, etc.)
Annex
2
Product Configuration Requirements (including configuration colors, appearance,
sales package, etc.)
Annex
3
Market Coordination Measures
Annex
4
Supply Plan
Annex
5
Procedures of Transport and Distribution
Annex
6
Samples for Cargo Receipt
Annex
7
After-sale Service Measures and Network Status
Annex
8
Factory Inspections and Factory Test Plan
Annex
9
Q&A of Business Provisions
Annex
10
Strategy Cooperation Agreement between Party B and Party C
Annex
11
Memorandums of Uncovered Matters
2
Party
A: Unicom Huasheng Telecommunication Technology Co., Ltd.
Registered
Office: Xxxxxxxxx Center, 00 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx,
Xxxxxxx
Postal
Code: 100005
Business
License No.: 1100001860009
Legal
Representative: Xxxx Xxxxxxx
|
Title:
Board Chairman
|
Telephone:
|
Tax:
|
Party
B: Dalian Daxian Distribution Company
Registered
Office: 0 Xxxxxxxxxx Xxxx, Double D Port, High-Tech Industrial Zone
Postal
Code: 116620
Business
License No. Da Xxx Xxxx Shang Qi Fa Zi 2102311101261
Legal
Representative: Zhao Xueguang
|
Title:
General Manager
|
Telephone:
0000-00000000
|
Tax:
0000-00000000
|
Party
C: Beijing Xelent Tech & Trading Co., Ltd.
Registered
Office: 20G, Building A, Chengming Building, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx
Postal
Code: 100035
Business
License No. Qi Du Xxxx Xxxx Fu Zi No. 022241
Legal
Representative: Xxxx Xxx
|
Title:
General Manager
|
Telephone:
000-00000000
|
Fax:
000-00000000
|
3
Article
1 General Principles
1.
|
Unicom
Huasheng Telecommunication Technology Co., Ltd. (hereinafter
referred to
as “Party A”) is a limited liability company established in Beijing under
the laws of the People’s Republic of China with continuous and legal existence.
|
2.
|
Dalian
Daxian Distribution Company (hereinafter referred to as “Party B”) is a
limited liability company established in Dalian under the laws
of the
People’s Republic of China with continuous and legal
existence.
|
3.
|
Beijing
Xelent Tech & Trading Co., Ltd.(hereinafter referred to as “Party C”)
is a limited liability company established in Beijing under the
laws of
the People’s Republic of China with continuous and legal
existence.
|
4.
|
Party
B and Party C agree to carry out their productions in accordance
with
Product Technical Requirements (see Annex 1) and Product Configuration
Requirements (see Annex 2) supplied by Party A and to sell the
object
hereof to Party A; Party A agrees to purchase the object hereof
from Party
B and Party C.
|
5.
|
Party
A, Party B and Party C agree in unanimity to execute this Contract
in
accordance with Chinese laws.
|
Article
2 Contents and Requirements of the Objects Hereof
1.
|
The
objects hereof means Daxian X180 Mobile Terminal manufactured
by Party C
and supplied by Party B which contains all configurations stipulated
in
Annex 2 (hereinafter referred to as the Contract
Product).
|
2.
|
The
Contract Product manufactured by Party C and supplied by Party
B hereunder
shall comply with the stipulations of Annex 1 “Product Technical
Requirements” and Annex 2 “Product Configuration Requirements”. Annex 1
and Annex 2 may be altered prior to the delivery of the Contract
Product
after consultations between Party A, Party B and Party
C.
|
3.
|
The
Contract Product manufactured by Party C and supplied by Party
B hereunder
shall comply with relevant standards of Ministry of Information
Industry
and China Unicom. Before the Contract Product is delivered,
this type of
mobile terminal shall acquire corresponding qualification certificates
issued by Ministry of Information
Industry.
|
4.
|
Before
the Contract Product is delivered, this type of mobile terminal
shall pass
the network test organized by China Unicom. In case any serious
defect or
blemish found in this type of mobile terminal may influence
normal use by
final users, Party A shall have the right to promptly suspend
this
Contract, or consult with executive provisions hereof over
again, or
terminate this Contract.
|
4
5.
|
Before
Party B and Party C make any alteration of the design of the
Contract
Product other than that stipulated by this Contract and its
Annex, Party
A’s written consent shall be
acquired.
|
6.
|
Party
B and Party C shall ensure that the update and upgrade of the
software
herein have legal and valid authorizations, and shall ensure
Party A to
keep possessing a legal and valid license after the update
and upgrade of
the software.
|
7.
|
Party
B and Party C have no any objection against Party A’s reselling of the
Contract Product, and Party A agrees to limit the sales market
scope
concerning the Contract Product within the People’s Republic of China (not
including Hong Kong, Macao and
Taiwan).
|
8.
|
The
purchase manner hereof is buy-out, thus Party B hereby promises
as
follows:.
|
.1.
|
From
the date of execution hereof to the date when Party B ceases
to supply,
Party B will not sell the Contract Product or any product with
similar
appearance to the Contract Product at any price to any third
party
(including Party A’s subsidiaries and
affiliates);
|
.2.
|
Within
three months after the date when Party B ceases to supply Party
A, without
Party A’s written consent, Party B will not sell the Contract Product
to
any third party at any price less than or equal to the unit
price of the
Contract Product set forth herein, except that Party B sells
at any price
more than the unit price of the Contract Product set forth
herein and
obtains Party A’s written consent;
|
.3.
|
Within
three months from the date after three months of the date when
Party B
ceases to supply Party A, in case Party B will sell the Contract
Product
to any third party at any price less than or equal to the unit
price of
the Contract Product set forth herein, Party B shall obtain
Party A’s
prior written consent, and give price protection to all Party
A’s
inventory.
|
.4.
|
From
the date of execution hereof to the date six months after the
date when
Party B ceases to supply, Party B will not grant any form of
allowance,
support, disguised allowance, etc., otherwise Party A shall
have the right
to unilaterally cancel the Contract and return all of the inventory
to
Party B at the unit price of the Contract Product set forth
herein.
|
.5.
|
In
case Party B breaches the provisions of this Article, Party
B shall
undertake the liability for breach of the Contract to Party
A; Party A
shall have the right to impose a corresponding penalty in accordance
with
Party A’s loss incurred by Party B’s breach pursuant to the penalty
manners referred to in Section 1 of Article 11
hereof.
|
Article
3 Samples and Seal-up
1.
|
Party
B shall in advance provide Party A with the sample of the Contract
Product
and the sample of the packing box thereof. Party A and Party B
shall, in
accordance with such provisions as stipulated in Annex 2, carry
out an
appearance seal-up examination and verification to the sample of
the
Contract Product and the sample of the packing box thereof confirmed
by
Party A. Party B shall undertake the liability for breach of the
Contract
caused by delay in supplying the samples or supply of non-conforming
samples.
|
5
2.
|
Party
B shall deliver the Contract Product identical to the sealed samples.
In
case the Contract Product delivered by Party B is inconsistent
with the
sealed samples, Party A shall have the right to terminate the Contract
and
return the goods, in the meantime prosecute Party B for corresponding
liabilities for breach of the Contract, and Party B shall undertake
Party
A’s loss arising out thereof.
|
3.
|
After
the seal-up of the samples, on the premise of obtaining Party A’s written
permit, Party B may alter or upgrade the software of the Contract
Product
but shall not act against the requirements of Annex 1 and Annex
2.
|
Article
4 Price and Quantity
1.
|
The
total price hereof is RMB 55,200,000 (in words: FIFTY-FIVE MILLION
TWO
HUNDRED THOUSAND CHINESE YUAN).
|
2.
|
The
purchase quantity hereof is 15,000 units, and the unit price of the
Contract Product (consistent with such parameters and configurations
as
specified in Annex 2, and including double batteries and double chargers
from the original factory) is
RMB3,680.
|
3.
|
The
total price and the unit price hereof are the price including tax
in
Chinese Yuan.
|
4.
|
As
to the Contract Product hereunder, on the premise that Party B observes
the supply plan specified in Article 7, the validity term hereof
will
terminate as of Sep. 30th, 2007. In case the supply fails to be carried
out pursuant to the plan for any reason attributable to Party B,
in
principle the validity term hereof will be extended for three months
and
both parties shall act pursuant to the provisions stipulated in Section
4
of Article 11 hereof.
|
5.
|
The
total price and the unit price hereof include the transport charges
and
the premiums relating to the transport of the Contract Product to
the
place designated by Party A in accordance with Annex 5 “Procedures of
Transport and Distribution”.
|
6.
|
In
case in the course of the performance hereof, the plan concerning
the
Contract Product cannot be carried out as expected due to certain
reasons
such as a change in market situation, both parties may separately
consult
about the matters such as the supply price, the quantity and the
supply
plan, etc.
|
7.
|
Party
A, Party B and Party C agree to sign a framework purchase agreement
with a
total purchase quantity of 50,000 units, and the validity term thereof
is
from the effective date hereof to Dec 31st, 2007. In case such purchase
quantity is successfully achieved within the validity term of the
framework agreement, Party A shall have the right to place a supplemental
order to Party B with a purchase quantity up to that of the framework
agreement, and the quantity and price of such supplemental order
shall be
separately consulted by both Parties, but the purchase price shall
not be
more than the unit price hereof. The above-mentioned purchase quantity
of
the framework agreement concerning the Contract Product does not
constitute a substantial promise make by Party A to Party B, and
is not
legally binding Party A at all events. Party A will only settle the
payment in accordance with the actual purchase quantity accumulated
in the
course of the Contract.
|
6
Article
5 Price Protection
1.
|
In
case the market situation changes, both Parties shall through
consultations make Party B lower the supply price referring to
the
products of the same kind in the market, thus all the Contract
Products in
stock on the date of lowering the price held by all of Party
A’s
affiliates and its own channels, and all the Contract Products
supplied to
other channels by Party B and its affiliates within 28 days before
the
date of lowering the price with the quantity confirmed by both
Parties (in
accordance with the quantity of arrival) shall be granted a price
protection at the new price after the price adjustment, and the
manner of
the price protection is to deduct the difference from part of
subsequent
payments.
|
2.
|
Party
B shall have the right to check all of the Contract Products
held by Party
A’s each affiliate and its own channels which enjoy a price protection,
and shall have the right to examine and verify the quantity of
arrival of
the supply within the specified time limit by Party A’s each affiliate to
other channels, Party A and its affiliates are obligated to assist
Party B
in doing so and make convenient provision for that. Should any
false
inventory is discovered, relevant treatments shall be consulted
about by
both Parties.
|
Articles
6 Terms of Payment
1.
|
After
Party C delivers the goods at the request of Party A’s notice, the
receiver designated by Party A’s each affiliate or his entrusted
representative shall sort and count the goods after their arrival,
therefore sign the original copy of the “Cargo Receipt” (see its sample in
Annex 6) of that lot of goods issued by Party C or its designated
carrier
and affix the common seal of the company on the date of confirming
the
arrival of that lot of goods. Party C will collect the Cargo
Receipts and
submit them to Party A as a reference for Party A to make a payment
to
Party C.
|
2.
|
After
the designated receiver or his entrusted receiver signs the “Cargo
Receipt”, Party A’s each affiliate shall submit a confirmation sheet of
valid arrival on the 20th date of each month. In accordance with
collected
confirmed quantity of arrival, Party A will provide Party C with
the
quantity of arrived goods and corresponding amount of payment
each month,
and Party C shall issue an added-value tax invoice within three
days after
obtaining the invoice data. Party A will pay this lot of goods
(in cash or
bank acceptance) within two months after the 15th date of the
next month
on the premise that this Contract is executed in writing and
becomes
effective.
|
7
3.
|
All
of the bank charges and other charges expended for the performance
of this
Contract shall be borne separately by Party A, Party B and Party
C.
|
|
Bank
designated by Party C: Dengshikou Branch, Huaxia
Bank
|
|
Account
Name: Beijing Xelent Tech & Trading Co.,
Ltd.
|
|
Account
Number: 00000000
|
4.
|
In
case Party C’s account bank and/or account number changes, Party C shall
notify Party A in writing within ten working days before relevant
time
limit of Party A’s payment stipulated herein. In case Party C fails to
notify in time or notify by mistake so as to have an adverse effect
on
Party A’s payment, Party A shall not undertake any liability concerning
its overdue payment.
|
5.
|
Party
C promises to abandon the right of transferring accounts receivable
from
Party A to any other party.
|
Article
7 Supply Plan and Its Adjustment
1.
|
Party
C shall manufacture the Contract Product in accordance with Annex
5
“Production and Delivery Plan”. This plan is made based on Party A’s
prediction of the market demand. Party B and Party C are encouraged
to
manufacture and deliver the Contract Product ahead of
schedule.
|
2.
|
Party
A may, in accordance with the market situation, require the order
be
altered within the entire scope hereof. In case any alteration
required
will cause the time or the cost in performance hereof be prolonged
(shortened) or increased (decreased), Party B, Party C and Party
A shall
agree to adjust the contract price or the time schedule. Any alteration
to
the order shall not become effective until Party B, Party C and
Party A
agree in writing and sign the
order.
|
3.
|
Party
A shall have the right to place a supplemental order concerning
the
Contract Product to Party B and Party C in accordance with the
provisions
hereof, but Party A shall in advance consult with Party B and Party
C
about such matter. Permitted increased quantity will rest with
the
obtaining of the materials and the arrangements of the production
period.
Party B and Party C will exert their business power to the best
of their
abilities to satisfy Party A’s requirement of increasing
orders.
|
8
Article
8 Packing and Transport
1.
|
The
transport packing of the Contract Product delivered by Party C
shall be
suitable for long-distance transport, and be free from moisture,
damp,
erosion and shake. Party C shall undertake the liability arising
out of
the loss of the Contract Product delivered due to Party C’s improper
packing.
|
2.
|
All
Parties concurrently agrees to let the logistics company recommended
by
Party A to provide the product logistics service hereunder to distribute
uniformly to the place designated by Party
A.
|
3.
|
Each
lot of the Contract Product delivered by Party C shall be attached
by
relevant documents such as the packing list, the quality assurance
certificate, etc.
|
4.
|
The
sales packing of each unit of mobile terminal shall comply with
the
requirements specified in Annex 2
hereof.
|
Article
9 Delivery and Checking before Acceptance
1.
|
The
Contract Product shall not enter the market until it passes the
test by
the Ministry of Information Industry and the network test carried
out by
China Unicom. Party A will reject such products as fails to pass
any of
those tests. Any rejection incurred by not passing any of those
tests
shall be deemed to Party B’s delay in delivering (see Section 4, Article
11).
|
2.
|
Party
A shall have the right to dispatch its technical personnel to the
factory
of Party B or Party C (or the OEM factory) to carry out the factory
inspection and partake in the factory test of the Contract Product
before
the Contract Product leaves such factory. Party A’s dispatching of its
technical personnel to carry out the above-mentioned factory inspection
or
partake in the factory test will not release Party B and Party
C from any
liability which ought to be borne in accordance with this
Contract.
|
3.
|
Party
C shall complete the delivery of the Contract Product in accordance
with
the requirements specified in the “Delivery Notice” submitted by Party A
and the stipulations in Annex 5 “Procedures of Transport and Distribution”
hereof.
|
4.
|
Party
C shall by fax provide Party A with detailed information including
the
contact information of the transport company, the total price and
the
total quantity, the gross weight and the gross volume of this lot
of
goods, name of the packing materials,
etc.
|
5.
|
In
the meantime of delivery, Party C or the carrier entrusted by Party
C
shall submit three copies of the Cargo Receipt (see its sample
in Annex
6), and Party A or the receiver designated by Party A will check
the
arrived quantity in accordance with the Cargo Receipt and carry
out an
appearance examination and acceptance as well as an open inspection
of 5%
of the sales packing in the presence of Party C or the carrier
entrusted
by Party C. (In case the appearance of the outer packing exists
any defect
or blemish, Party A or the receiver designated by Party A may reject
to
accept the goods, and only on the premise that there is not any
problem on
the outer packing may Party A or the receiver designated by Party
A open
the outer packing to carry out the open inspection of the sales
packing.)
If the goods is not found missing or in shortage, and the appearance
doesn’t have any defect or blot, and no problem is found after opening
the
sales packing, Party A or the receiver designated by Party A shall
sign
the Cargo Receipts for confirmation, and return two copies of them
to
Party C or the carrier entrusted by Party C. The signature on the
Cargo
Receipt made by Party A or its designated receiver will not release
Party
B and Party C from undertaking the quality assurance liability
for the
Contract Product.
|
9
6.
|
In
the course of inspecting the goods, in case the goods are found
missing or
damaged, or other circumstance not complying with the provisions
hereof is
found, all Parties partaking in the inspection shall make detailed
records
and sign thereon, and Party C shall replace or supplement the goods
within
five working days. All the transport charges, risks and inspection
fees
incurred by the replacement or supplement of the goods shall be
borne by
Party C.
|
7.
|
The
ownership and risks of the Contract Product will, in accordance
with the
delivery lots, be transferred from Party C to Party A from the
time when
the goods are transported to the place designated by Party A and
Party A
or the receiver designated by Party A sign the Cargo
Receipt.
|
8.
|
After
the delivery of each lot, Party C shall, in accordance with the
document
formats supplied by Party A, provide Party A and its affiliates
with data
information of this lot of the Contract Product such as the delivery
quantity, digital serial codes and destination, etc. In addition,
Party C
shall every day provide the statistics charts confirming the delivery
situation pursuant to Party A’s requirements. Party C shall in the
meantime provide Party B with relevant delivery
information.
|
Article
10 Quality Assurance and After-sale Service
1.
|
In
accordance with the “Stipulations on the liabilities concerning repairing,
replacement and returning of the mobile phones” (“Three Guarantees
Stipulations”) issued and implemented on Nov. 15th ,2001 by General
Administration of Quality Supervision, Inspection and Quarantine,
Party B
promises to provide a quality assurance and service of guarantee
and
repairing on the Contract Product, and grant two years of guarantee
period
to the Contract Product. In case any consumer requires to return
any
machine in accordance with the Three Guarantees Stipulations, the
retail
shop shall promptly return the machine which meets relevant conditions
for
returning, and Party B shall provide the service of replacing the
machine.
|
10
2.
|
Party
C shall provide Party A with spare machines equal to 1% of the
purchase
quantity herein to enable Party A to carry out after-sale service.
The
ownership of such spare machines belongs to Party A. Such spare
machines
will be delivered by Party C to the logistics supplier designated
by Party
A pursuant to Party A’s requirements and be uniformly distributed to the
designated place by the logistics supplier. When Party A certifies
that
the quantity of spare machines for this Contract held by Party
A is less
than 1% as above-mentioned, Party C shall replace the machines
for Party A
within three days upon receipt of Party A’s replacement demand complying
with the provisions of Annex 7. In case the conditions for replacement
are
met, Party A shall promptly return such mobile terminals as exist
quality
problems to Party C for replacement in accordance with Party C’s relevant
procedures (see Annex 7).
|
3.
|
Party
B promises to provide free face-lifting service for 2% of the purchase
amount herein, while the extra service is with
charge.
|
4.
|
In
case the Contract Product is being stored in the warehouse of Party
A or
its designated receiver within two years after the date when Party
A or
its designated receiver sign on the Acceptance List, Party B shall
provide
corresponding after-sale service for such quality problems as take
place
in the course of storage. Within the guarantee period, where the
Contract
Product and its fittings (including software) have any quality
problem
other than man-made damage, Party B shall repair or replace them
for free.
If the product cannot be normally used after repairing twice, Party
B
shall replace the product for free. The provisions of this Article
will
not release Party B from undertaking the obligation of provide
after-sale
service pursuant to "Three Guarantees"
requirements.
|
5.
|
Party
A, Party B and Party C unanimously agree to carry out relevant
concrete
operations in accordance with Annex 7 “After-sale Service Measures and
Network Status” hereof.
|
6.
|
Within
the guarantee period, where the repair time exceeds thirty days,
Party A
shall have the right to replace a new machine for its user, and
Party B
shall unconditionally recognize such replacement, take back the
bad
machine and provide Party A with the product of the same
type.
|
7.
|
As
to the authorization of the repair points established solely by
Party A or
jointly, Party B shall unconditionally grant the authorization
to such
points as satisfy or meet the establishment standards and conditions.
Upon
receipt of authentication information by any repair point, Party
B shall
complete such application within thirty days and make the authentication
fee and service deposit for free, while the deposit for repair
fittings
shall be charged pursuant to Party B’s stipulations. As to those repair
points not complying with the conditions, Party B shall render
instructions and assistances in respect of rectifying and improving
the
points as well as training the personnel of the
points.
|
11
Article
11 Compensation for Breach of Contract
1.
|
From
the date of execution hereof to the date when Party B ceases to
supply,
Party B and Party C shall not sell the Contract Product or any
product
with similar appearance to the Contract Product at any price to
any third
party (including Party A’s subsidiaries and affiliates), otherwise Party A
shall have the right to: (1) require Party B to pay 5% of the total
price
hereof as a penalty for breach of this Contract; (2) If the actual
price
given to any third party is lower than the price given to Party
A, Party A
shall have the right to require all of the Contract Products to
be
supplied at the price given to such third party and deduct the
difference
from the payment; (3) Party A shall have the right to suspend in
performing this Contract and deprive Party B of the qualification
of
partaking in Party A’s collective purchasing of the mobile
terminals.
|
2.
|
Party
B shall deliver the Contract Product identical to the sealed sample.
In
case the Contract Product delivered by Party B is inconsistent
with the
sealed sample, Party A shall have the right to cancel this Contract
and
prosecute Party B for corresponding liabilities for breach of the
Contract
and direct losses suffered by Party A arising out thereof. Canceling
this
Contract will not release Party B from undertaking the liability
of paying
the penalty, in the meantime Party B shall bear the losses suffered
by
Party A arising out of canceling this
Contract.
|
3.
|
In
case Party A fails to make the payment at the specified time herein
for
any reason attributable to Party A, Party A shall pay 1% of the
overdue
payment for every week of delay (one week is counted as seven days)
as
liquidated damages, the total amount of which shall not exceed
5% of the
total price herein. If the period of delaying in payment is less
than a
week, it shall be counted as a week. The compensation for overdue
payment
shall not release the duties of all Parties hereto to continue
to perform
this Contract.
|
4.
|
In
case Party C fails to deliver the Contract Product at the specified
time
herein for any reason attributable to Party B or Party C (If the
Contract
Product delivered is inconsistent with the provisions hereof or
the
sample, Party A shall have the right to reject the goods, and Party
C
shall be deemed to fail to deliver at the specified time herein),
Party B
will compensate Party A for the losses in the following manner:
Party A
shall pay 1% of the total price of this lot of delayed goods for
every
week of overdue delivery (one week is counted as seven days) as
liquidated
damages, the total amount of which shall not exceed 5% of the total
price
herein. If the period of delaying in delivery is less than a week,
it
shall be counted as a week. The compensation for overdue delivery
shall
not release the duties of all Parties hereto to continue to perform
this
Contract. In case the delayed arrival is later than two weeks after
the
specified date herein, Party A shall have the right to reject this
part of
goods and subsequent goods which have not been delivered, and to
adjust
Party B's delivery quantity hereunder; In case the delayed arrival
is
later than four weeks after the specified date herein, Party A
shall have
the right to reject the goods and cancel this Contract, and canceling
the
Contract will not release Party B from undertaking the liability
of paying
the liquidated manages, in the meantime Party B shall bear the
direct
losses suffered by Party A arising out of canceling this Contract.
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5.
|
Within
the validity term hereof, in case some delivery of the mobile terminals
have significant quality problems or more than 10% of the mobile
terminals
have a quality problem of the same failure, Party B shall be responsible
for recalling this lot of goods and compensating the losses suffered
by
Party A arising out thereof. Party A shall have right to institute
an
action claiming damages against Party B in accordance with the
Law of
Product Quality Liability and other Chinese
laws.
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12
Article
12 Force Majeure
1.
|
In
this Contract, Force Majeure means objective circumstances such
as
earthquake, typhoon, flood, fire, warfare and other matters which
are
unforeseeable by each Party hereto, and the occurrence and consequence
thereof are unpreventable or unavoidable and
unconquerable.
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2.
|
In
case any Party hereto cannot perform or cannot perform in full
the
obligations hereunder for the reason of Force Majeure, it shall
notify
other Parties hereto within fourteen days after the occurrence
date of
Force Majeure, and produce the certificate of Force Majeure notarized
by
local notary authority to other Parties within thirty days after
the
occurrence date of Force Majeure.
|
3.
|
In
case any Party cannot perform this Contract due to Force Majeure,
unless
otherwise stipulated by the Laws, it may be released from undertaking
the
liability in part or in full. In case the performance of this Contract
is
delayed and Force Majeure takes place in the course of delayed
period,
such defaulting party shall not be released from undertaking the
liability.
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4.
|
In
case the performance hereof has been suspended for sixty days or
more than
sixty days due to the influence of Force Majeure, all Parties hereto
shall
have the right to terminate this Contract and notify in writing
to the
other Parties. Party A shall not thus reject to pay the amount
due not
influenced by Force Majeure, and Party B and Party C shall not
thus refuse
to perform legal obligations which ought to be
fulfilled.
|
Article
13 Arbitration
1.
|
Any
dispute arising from or in connection with this Contract shall
be settled
through friendly negotiation by all Parties hereto. In case no
settlement
can be reached, the dispute shall be submitted to China International
Economic and Trade Arbitration Commission for arbitration. The
place of
arbitration is Beijing. The arbitral award is final and binding
upon all
parties hereto.
|
Article
14 Intellectual Property Rights, Confidentiality and
Trademark
1.
|
Party
B and Party C guarantee that the Contract Product supplied does
not
infringe upon any intellectual property right of any third party
such as
patents, copyright, trademark right, etc. In case the product supplied
by
Party B and Party C infringes upon the above-mentioned rights of
any third
party so as to cause Party A to be claimed or prosecuted by relevant
obliges, Party B and Party C shall undertake corresponding liabilities
and
consequences. On the premise of notifying Party B and Party C in
writing,
Party A will press for payment of all losses suffered by Party
A arising
out thereof against Party B, and directly deduct it from corresponding
amount of Party A’s payment to Party
B.
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13
2.
|
The
contents hereof shall be dealt with as confidentiality. Without
obtaining
consent from any other Parties hereto, any Party shall not disclose
any
content hereof to any outside party except that it needs to be
reported to
governmental institutions, or to be put into records pursuant to
the laws
and relevant provisions, or it shall be submitted in accordance
with
requirements from judicial
authorities.
|
3.
|
Without
obtaining written consent from the other Parties hereto, all parties
shall
not use or imitate the business name, trademark, patterns, service
symbols, signs, codes, types or abbreviations of the other parties
in any
advertisement or in public, and any Party shall not assert to have
ownership of the business name, trademark, patterns, service symbols,
signs, codes, types or abbreviations of the other
parties.
|
Article
15 Alterations of this Contract
1.
|
Any
modification, supplement and alteration hereto shall be made in
writing
after consultation by all Parties hereto, therefore be signed by
authorized representatives of all Parties hereto and be affixed
with the
public seal of the unit or the contract seal. The provisions modified,
supplemented and altered are integral parts hereof and have equal
legal
effect with this Contract.
|
2.
|
In
the course of performance hereof, any problem such as the cost
incurred by
the modification, supplement and alteration hereto shall be settled
and
adjusted through consultation by all Parties
hereto.
|
Article
16 Miscellaneous
1.
|
Party
B and Party C promises to provide 4,000 machine models, 4,000 X
shelves,
4,000 posters and 80,000 pieces of flysheets concerning the Contract
Product (hereinafter referred to as the “Publicity Materials”). Party C
shall deliver the Publicity Materials with an amount of not less
than 50%
of the above-mentioned total within a week before the Contract
Product
enter into the market, and shall complete the delivery of all of
the
Publicity Materials within a month after the Contract Product enter
into
the market. Party B and Party C agrees to provide the above-mentioned
Publicity Materials to such logistics suppliers as designated by
Party A
to be uniformly distributed to the places designated by Party
A.
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2.
|
Party
B and Party C promise to set down a detailed market promotion scheme
concerning the Contract Product and coordinate with China Unicom’s
affiliates to carry out favorable business sales promotion activities
by
stages. Party B and Party C will also make media publicity schemes,
product publicity advertising films, plane advertisements and website
advertisements, and coordinate the promotion plan of China Unicom’s
affiliates in launching them into media institutions such as national
TV
stations, newspapers and periodicals and portal websites. Party
A shall
have the right to supervise and adjust in the course of such promotions
and implementation of publicity
plans.
|
14
3.
|
Party
B and Party C shall convene market-entering press conferences relating
to
new mobile phones, and carry out the training of introduction of
functions
of mobile phones, explanation of usage, etc. as well as provide
training
materials such as textbooks and
CDs.
|
4.
|
As
to all of the rights and obligations hereunder, Party B and Party
C will
undertake joint liability to Party
B.
|
5.
|
The
annex hereof is an integral part of this Contract, in case any
annex
hereof is inconsistent with the text hereof, the text hereof shall
prevail.
|
6.
|
This
Contract shall be governed by the laws of the People’s Republic of
China.
|
Article
17 Effectiveness and Texts of This Contract
1.
|
This
Contract will become effective from the date when the authorized
representatives of all Parties hereto sign this Contract and affix
the
public seal of each unit thereon.
|
2.
|
Except
for such documents as affixed on by all Parties for confirmation,
any
instrument with any outside party executed or issued in the name
of any
individual relating to the execution, effectiveness, implementation
of
this Contract, examination, acceptance or delivery of the goods
or
payment, and the alteration, rescinding or termination of this
Contract
shall be invalid.
|
3.
|
The
texts of this Contract (including the signature page) are 16 pages.
This
Contract shall be in six copies. Party A, Party B and Party C shall
respectively keep two copies.
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15
Signature
Page: X180 Mobile Terminal Purchase Contract between Unicom Huasheng
Telecommunication Technology Co., Ltd. and Dalian Daxian Distribution Company
& Beijing Xelent Tech & Trading Co., Ltd.
(No.:
CUHS-ABCG07047)
Unicom
Huasheng Telecommunication Technology Co., Ltd.
Signature:
Title:
Date:
May 31st,
2007
|
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Dalian
Daxian Distribution Company
Signature:
Title:
Date:
May 30th,
2007
|
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Beijing
Xelent Tech & Trading Co., Ltd.
Signature:
Title:
Date:
May 31st,
2007
|
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16