English Translation of an Agreement written in Chinese Agreement for Co- operation in Business
English
Translation of an Agreement written in Chinese
Agreement
for Co-operation in Business
Made
between
Shanghai
Quo Advertising Company Limited (hereinafter
called “Party A”)
Wuhan
Weiao Advertising Company
Limited (hereinafter called “Party
B”)
In
accordance with the (Code of Law of the People’s Republic of China Governing
Contracts) the (Code of Law of the People’s Republic of China Governing
Advertising Activities), and all other relevant laws and regulations and
based
on the principles of equity voluntarity and conciliation Party A and Party
B
have reached consensus and agreement with each other on their co-operation
for
the business operations and application of an outdoor visual advertisement
LED
Panel to be installed at Wuhan Gongyi Tower (“Building”) situated in Wuhan
Zhongshan Road. The parties have made the following agreement so that
they may abide by it :-
Section
1 Representations and Covenants made respectively by the
Parties
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1.
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Representations
and Covenants made by Party A :-
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(1)
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Party
A is a corporate body incorporated in accordance with the law and
is
subsisting effectively;
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(2)
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Party
A has all the relevant rights and capacity to enter into and perform
this
Agreement and shall retain such right and capacity throughout the
subsistence of this Agreement;
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(3)
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The
signing and performance of this Agreement by Party A shall not constitute
any contravention of any law, regulation, governmental policy or
any other
agreement or promise which such party is under an obligation to
perform;
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(4)
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The
representative of Party A who signs this Agreement on its behalf
has
been
duly authorized to do so by Party A in accordance with its internal
regulations.
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1
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2.
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Representations
and Covenants made by Party B :-
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(1)
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Party
B is a corporate body incorporated in accordance with the law and
is
subsisting effectively;
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(2)
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Party
B has all the relevant rights and capacity to enter into and perform
this
Agreement and shall retain such right and capacity throughout the
subsistence of this Agreement;
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(3)
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The
signing and performance of this Agreement by Party B shall not constitute
any contravention of any law, regulation, governmental policy or
any other
agreement or promise which such party is under an obligation to
perform;
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(4)
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Party
B owns the exclusive right for the operation of business regarding
the
outdoor visual advertisement LED panel to be provided and installed
according to this Agreement and is entitled to the relevant approval
papers for the same ( refer to Appendix 1
hereto).
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(5)
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The
representative of Party B who signs this Agreement on its behalf
has been
duly authorized to do so by Party B in accordance with its internal
regulations.
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3.
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Any
misrepresentation or inaccuracy in respect of the above representations
and covenants shall be regarded as a fundamental breach of contract
on the
part of the defaulting party.
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Section
2 The Rights and Obligations of Party A
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1.
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Party
A shall in accordance with the applications submitted by Party B
to the
relevant authorities set up and install at an outdoor location along
Wuhan
Zhongshan Road (cross street Minsheng Road) a visual advertisement
LED
panel of 200 square meters in dimension, the substantive measurements
of
the dimension of the LED panel shall be confirmed in writing upon
an
inspection to be held on site and the substantive location for the
situation of the LED panel will be in accordance with Appendix 2
hereto.
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2.
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Party
A shall bear the cost and expenses in relation to the setting up,
above
ground installation,
consolidation and tuning of the advertisement LED panel and also
the cost
and expenses in relation to the co-ordination and management of
advertising material, publication of such material and the electricity
charges for the operation of the advertisement LED panel. Party B
is under
an obligation to provide the requisite conditions for the relevant
work of
Party A (except for the consolidation work) and to provide all reasonable
assistance in the co-ordination of the
work.
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2
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3.
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Party
A shall provide details of the external appearance and dimensions
of the
Panel and the specifications for the construction of the foundation
of the
Panel (with information regarding wiring and electricity connection)
to
enable Party B to submit the relevant information for the approval
of the
relevant authority, the substantive specifications are included hereunder
in Appendix 3 hereto.
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4.
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Party
A shall have the ownership of the property of the LED advertisement
Panel
to be set up using the investment of Party A hereunder. Party A shall
also
have the right to use the location of this LED Panel for the placing
of
advertisement for a period of Five Years counting from the 60th
day after
the signing of the contract. If Party A has been able to complete
its work
within the period of 60 days then the computing of the relevant period
shall start instead from the date on which both parties have signed
a
written certificate to confirm the inspection and acceptance of the
Panel
in good order.(see Appendix 4 hereto). If the relevant work has been
delayed due to conditions pertaining to the site of construction
(such as
the consolidation work required) or if the progress of work is affected
by
a delay on the part of Party B in the provision of the requisite
approval
papers for the relevant work then the computing of the relevant period
shall start instead from the date on which both parties have signed
a
written certificate to confirm the inspection and acceptance of the
Panel
in good order.
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5.
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Party
A shall commence work on the foundation (including wiring and electrical
connection) for the outdoor LED Panel and the setting up of the LED
advertisement Panel once Party B has completed the process of obtaining
the relevant approval for the commencement of work. Party B agrees
to
allow Party A the work period of 60 days to complete the work (counting
from the date of signing of the contract). If the relevant work has
exceeded 60 days due to conditions pertaining to the site of construction
or due to the causes attributable to Party B then the computing of
the
relevant work period shall start instead from the date on which both
parties have signed a written certificate to confirm the inspection
and
acceptance of the Panel in good
order.
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6.
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Party
A shall not publish or dissipate any material through the media of
the
visual advertisement LED Panel mentioned above in this contract which
is
expressly prohibited
by the laws or regulations of the People’s Republic of China and shall
bear full responsibility for all legal liability arising from such
publication.or
dissipation.
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3
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7.
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Party
A shall bear all the debts and obligations owing to and towards its
advertising customers which arise from its relevant business hereunder
which is owned and operated solely by Party A
itself.
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8.
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Party
A shall bear responsibility for liability in relation to the safety
of the
advertising media and installation hereunder. Party A shall bear
the
losses and damages caused by such media or installation to the person
or
property of other parties or in relation to the cleaning of the LED
Panel
or similar courses of event. The liability for personal injury claims
or
claims for proprietary losses or damage arising in relation to the
installation, consolidation and maintenance work hereunder, or in
the
courses of the publication, dissipation or monitoring of the
advertisements shall be borne by the party who is responsible for
the
relevant work. Third parties may only claim against the party responsible
hereunder for compensation.
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9.
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In
the event of both parties hereto terminating their co-operation during
the
subsistence of this Agreement or in the event of Party A declining
to
renew its contract after the expiration of the term of contract hereunder
Party A shall dismantle and remove the outdoor visual advertisement
LED
Panel within 20 days and clean up the site or otherwise sell the
Panel to
Party B at a discount. Party B is entitled to reclaim and take back
the
advertisement site on the expiration of such
period.
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Section
3 Rights and Obligations of Party B
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1.
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Party
B shall be responsible for co-ordinating with relevant authorities
and
making applications to obtain and obtaining all the relevant approvals
from relevant government departments and authorities concerning the
project in this Agreement. If Party B should fail to obtain all
such approvals from the Municipal Management Bureau in respect of
the site
location of the visual advertisement LED Panel mentioned above (as
confirmed in writing by Party A) by 10th
October,
2007 Party A shall be entitled to unilaterally terminate this
Agreement. If the parties hereto shall nevertheless through
negotiation agree in writing to extend the time for obtaining such
approval then Party B must continue with its effort to obtain all
such
approval within the extended period of time under such new
agreement.
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2.
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Party
B shall ensure that all the examination and scrutinizing procedures
of the
Municipal Management Bureau and other relevant authorities will be
completed before 31st
August,
2007so as to ensure that Party A will be able to commence working
on the building of foundation for the LED Panel mentioned above as
confirmed by Party A in writing and with electricity supply connected
to
the location.
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4
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3.
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Party
B’s obtaining of all requisite approvals from the relevant authorities
for
the works in the project hereunder shall be completed no later than
31st
August, 2007.
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4.
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Party
B shall be responsible to meet all needs for co-ordination and
communication with the owner and/or management office of the building
at
which the project hereunder is located and ensure that Party A shall
be
entitled to have independent, exclusive and complete utilization
of the
LED Panel. Party B shall bear all the fees to be charged for the
use of
such location.
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5.
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Party
B shall be responsible to co-ordinate the work of Party A for the
daily
maintenance and repair of the system in the project
hereunder.
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6.
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Party
B shall not engage in advertising business within the same district
at
which the visual LED Panel under this contract is located. Party
B shall
bear all economic losses and legal consequences arising from any
advertising business or violation of rights in the course of publication
or dissipation of advertisements occasioned by Party B in its own
initiative.
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7.
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Party
B shall give a lawful receipt to Party A upon its receiving the payment
of
any sum payable by Party A to Party
B.
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8.
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Party
A shall provide to Party B at least 5 working days prior to the intended
date of publication a full set of documents in respect of the
advertisements as proposed by its customer to enable Party B to make
the
relevant application to the relevant department of the government
for the
requisite approval. Party B shall return to Party A the copy of the
approval papers issued by the relevant government department with
the seal
of Party B thereon within 3 working days upon the issue of such approval
to provide the legal basis for Party A to proceed with the publication
of
the relevant advertisement. Party B shall also consent to Party A
sending
persons to make inquiries at the relevant department of the government
to
verify the issuance of the approval papers. If the contents of the
intended advertisement fail to get the relevant approval Party A
shall
co-ordinate its effort with Party B to make a fresh application or
cancel
the advertisement altogether. Any
issue arising in respect of the fees payable for such application
shall be
resolved through negotiation between the parties
hereto.
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*
* *
TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL
TREATMENT REQUESTED
EXHIBIT
10.1
5
Section
4. Duration of Contract
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1.
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Duration
of Contract : This contract shall remain effective for a period of
sixty
calendar months commencing from the date of issue of the Certificate
of
Inspection and Acceptance in Good Order after the signing of this
contract.
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2.
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The
two parties hereto may, within 60 days before the expiration of the
term
of this contract, by a written confirmation of their supplemental
agreement extend the term of this contract for a further period of
60
calendar months. The other terms and conditions of such supplemental
agreement shall be adopted from and be in accordance with those contained
in this contract.
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Section
5
Party
A
shall be entitled to obtain the right to operate and publish advertisements
through the media of the outdoor visual advertisement LED Panel by payment
of a
fee which is specified below :-
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1.
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The
period for the operation of the business in respect of the outdoor
visual
advertisement LED Panel shall be : a period of Five Calendar Years
commencing from the date of signing of this contract or the date
of
issuance of the Certificate of Inspection and Acceptance in Good
Order, as
appropriate. Party B should propose in writing the terms for the
renewal
of the contract at least 12 calendar months prior to the expiration
of the
term of this contract so that this contract may be renewed after
negotiation between the parties. Other terms being equal, Party A
shall be
preferred to other parties in a competition for the right to renew
this
contract.
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2.
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Party
A shall pay a fee of RMB * * * per year, being a total of RMB * *
* for
the full term of five years in order to obtain the advertising right
to
publish advertisements through the LED Panel mentioned
above.
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*
* *
TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL
TREATMENT REQUESTED
EXHIBIT
10.1
6
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3.
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Manner
of Payment :-
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(1)
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Party
A shall pay to Party B a * * *% deposit of the aggregate fee for
the whole
term of five years within 10 working days after Party B’s obtaining of all
the requisite approval papers for the commencement of work, namely,
being
the sum of RMB * * *.
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(2)
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Party
A shall pay to Party B a sum equivalent to * * * % of the aggregate
fee
for the whole term of five years within 60 days after the signing
of this
contract (or in the event of Party A being able to complete the
installation of the visual advertisement LED Panel mentioned above
and the
LED Panel having been accepted by Party B after inspection then computing
of the 60 days period shall commence from the conclusion of such
activities), namely, being the sum of RMB * *
*.
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(3)
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Party
A shall pay to Party B a sum equivalent to * * * % of the aggregate
fee
for the whole term of five years within the 10 last working days
right
before the expiration of the first two years of the term of contract,
namely, the sum of RMB * * *.
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(4)
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Party
A shall pay to Party B a sum equivalent to * * * % of the aggregate
fee
for the whole term of five years within the 10 last working days
right
before the expiration of the first three years of the term of contract,
namely, the sum of RMB * * *.
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(5)
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Party
A shall pay to Party B a sum equivalent to * * *% of the aggregate
fee for
the whole term of five years within the 10 last working days right
before
the expiration of the first three years of the term of contract,
namely,
the sum of RMB * * *.
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4.
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If
both parties to this Agreement agree to terminate their co-operation
hereunder during the term of performance of this Agreement then the
parties hereto shall finalise and conclude their account with regard
to
the duration for which the right to operate advertisement business
hereunder has actually been enjoyed by Party A, Party B shall accordingly
refund to Party A any unused portion of fee for publication of
advertisements (if any) already paid by Party
A.
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Section
6
Party
A
is responsible for the setting up, installation and tuning of the visual
advertisement LED Panel.
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Section
7
In
so far
as it is acting strictly in accordance with relevant laws and regulations Party
A shall be entitled to carry on its advertising business regarding the visual
advertisement LED Panels free from interference by Party B and shall be entitled
to assign or transfer the right to business operations and applications in
respect of the LED Panels under this Agreement to any third party and to retain
the revenue thereby obtained for its own benefit.
Section
8
In
order
to guarantee the lawful rights of Party A during the subsistence of this
contract, the parties hereto have agreed to the special provisions hereunder
:-
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1.
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Party
B shall give advance notice to Party A of the impending occurrence
of the
following incidents : changes in the identity of its substantial
shareholder (being a shareholder in itself or as a group holding
more than
30% of the shares of Party B); impending bankruptcy, winding
up, receivership or cessation of business of Party B; impending
deregistration, cancellation or revocation of the Party B’s permit
certificate or relevant government approval papers or permits or
licenses;
other incidents which shall affect the Party A’s rights and interest under
this Agreement.
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2.
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In
the event of any impending occurrence of the above mentioned incidents
to
Party B Party A shall be entitled to demand Party B to take necessary
measures to safeguard the rights of Party A under this contract,
including
but not limited to the requirement for Party B’s shareholders to provide
written undertakings to allow Party A to buy the shares of Party
B on
terms equally favourable as if offered to themselves; to require
Party B
to apply for, obtain or maintain relevant licenses, approval papers
and
permits or to require for undertakings from third parties to confirm
that
they will respect and have regard to this contract and the right
of Party
A under this contract.
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3.
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Party
B shall not engage in any business activity concerning the same type
of
advertisement business hereunder or any other business of a nature
similar
to the advertisement business
hereunder.
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Section
9
Except
in
the situations specified below each party to this Agreement shall keep
confidential the contents of this Agreement and any information owned
exclusively by the other party and obtained from the other party in the course
of negotiation for this Agreement and shall not disclose the same to any third
party without the consent of the other party :-
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1.
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Disclosure
pursuant to an effective requirement in writing made under any law
or
regulation or made by the government, courts of law or court of
arbitration.
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2.
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Such
confidential information being disclosed not by reason of the default
of
the party in question and becoming the exclusive information of a
third
party.
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3.
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Where
such disclosure is appropriate and necessary in pursuit of a legal
remedy
for the protection of the lawful rights and interest of the party
in
question under this Agreement.
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4.
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Where
such disclosure is appropriate and necessary for the performance
of this
Agreement, for instances, disclosures made in relation to the filing
of
applications for approvals of relevant governmental authorities,
disclosures to interested parties such as the consultants and shareholders
of the parties to this Agreement (provided that in such event each
party
to this Agreement should require such interested parties such as
its
consultants and shareholders to take up and assume an obligation
of
confidentiality equivalent to that pertaining
hereunder).
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Section
10
During
the subsistence of this Agreement the act or omission of any party to this
Agreement in contravention of its obligations hereunder shall be regarded as
an
act in breach of this Agreement and such party shall compensate
the other party which has abided by the terms of this Agreement for
the losses and damages thereby occasioned.
Section
11
In
the
course of implementation of this Agreement if Party A should fail to pay Party
B
the relevant fee payable to Party B hereunder Party B shall have the right
to
suspend or terminate the operational right of Party A to publicize its
advertisements to the extent where the advertising fee of such suspended
advertising is equivalent in amount to the payment that is
owing. Provided that this section shall not apply to the situation
where the delay in Party A’s payment has resulted from a breach of this contract
on the part of Party B.
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Section
12
On
the
occurrences of any one of the following events, Party A shall be entitled to
defer its payment of any payment payable and which has not been paid already
hereunder and shall have the right to require Party B to bear the liability
to
compensate for the resulting losses and to pay full compensation to Party A
for
all its economic losses thereby occasioned :-
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1.
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If
Party B fails to complete the procedures for its submission of
applications for approval of the relevant authorities within the
prescribed period.
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2.
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If
Party B sell or transfer its right to operate the outdoor visual
advertisement LED Panel to a third party thereby preventing Party
A’s
normal operation of its business in relation to such outdoor visual
advertisement LED Panel.
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3.
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If
Party B fails to complete the examination and scrutinizing procedures
of
the Municipal Management Bureau and of other relevant authorities
before
31st
August, 2007 and therefore fails to ensure that Party A will be able
to
commence working on the building of the foundation for the LED Panel
as
confirmed in writing and with electricity supply connected to such
location, thereby causing delay in the project
hereunder.
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4.
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If
Party B terminates this contract without the consent of Party A and
without justification before the expiration of its
term.
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5.
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If
Party B fails to resolve in a timely fashion any obstacle which prevents
Party A to have independent, exclusive and complete utilization of
the LED
Panel (including but not limited to matter such as the provision
of
electricity supply, the carrying out of installation work, maintenance
of
the Panel etc.).In such event Party B shall compensate Party A for
any
economic loss thereby occasioned.
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6.
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If
Party B has acted in violation of this Agreement. In such event Party
A
shall be entitled to terminate this contract unilaterally and to
dismantle
and remove the LED Panel which shall belong to Party
A.
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Section
13 Force Majeure
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1.
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Whenever
an earthquake, typhoon, flooding, accidental fire, arson, act of
war or
any other unanticipated event the happening and consequence of which
is
unpreventable, insurmountable and unavoidable causes a direct impact
on
the
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performance
of this Agreement or rendering both parties to this Agreement unable
to
perform its obligation under this Agreement, any party hereto which
encounters such difficulty of force majeure (“Force Majeure”) shall be
exonerated from the performance of its relevant obligation(s) under
this
Agreement. Nevertheless, the party encountering Force Majeure
must give written notice of the Force Majeure to the other party
forthwith
and shall within 15 days after the onset of the Force Majeure provide
a
detailed account of the situation of the Force Majeure and state
the
reason for the non-performance or deferral in performance of its
obligations under this Agreement whether as a whole or partially
and
substantiate its case with effective documentary proof. Having
regard to the extent to which the performance of this Agreement is
affected by Force Majeure the parties shall enter into negotiation
to
determine and decide whether this Agreement should be annulled or
whether
the performance of some of the obligations hereunder be relieved
or that
the time for the performance of this Agreement should be
extended. If Force Majeure occurs during such time when one of
the parties hereto is already failing to perform any of its obligations
hereunder in time then such party shall not be exonerated from the
performance of such obligation.
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2.
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Any
party hereto affected by Force Majeure shall take all reasonable
steps and
appropriate procedures to mitigate and alleviate the effect of Force
Majeure on to performance of this Agreement. Any party hereto
which fails to take appropriate procedure and thereby causes an
aggravation of the extent of damages shall not be entitled to claim
any
exoneration of liability or compensation in respect of the additional
damages thereby caused.
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3.
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If
the advertisement (panel) under this Agreement has to be removed
or
demolished due to causes such as the change in the requirement of
national
laws or regional regulations or the needs for city planning or urban
renewal such event shall be regarded as Force Majeure and this contract
shall according come to an end upon the occurrence of such
event.
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Section
14
If
the
further performance of this Agreement is rendered impossible by reason of any
change in the governmental policy of the Municipal Government of Wuhan City
during the subsistence of this Agreement then neither party hereto may claim
against the other party for violation of contract. The parties hereto
shall negotiable with each other in such event to decide whether or not to
terminate this Agreement and to work out a solution for the resolution of the
situation.
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Section
15
All
matters that have not been adequately provided for under the terms of this
Agreement may be resolved by friendly negotiation between the parties hereto
and
upon the parties reaching consensus on such matter, may be put into a legal
document as a supplement to these presents. Supplementary agreement
like that shall have effect equal to that of this Agreement.
Section
16
The
following appendices are inseparable parts of this Agreement and shall have
effect under the law as if they are contents of this Agreement :-
| Appendix 1: | Relevant Governmental Approval Papers. |
| Appendix 2: | Map of Locations of one visual advertisement LED Panel. |
| Appendix 3: | Design Drawings of visual advertisement LED Panel. |
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Appendix
4:
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Certificate
of Inspection and Acceptance in Good
Order.
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Appendix
5:
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Design
drawings and requite requirements for the construction of
foundations.
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Section
17
This
Agreement shall become legally binding immediately from the moment when both
Party A and Party B have signed the same and put their respective company seals
on the same.
Section
18
The
parties hereto shall try to resolve their differences in the course of
implementation of this Agreement through negotiation and if they should fail
to
resolve their differences in that manner either party shall be entitled to
commence legal proceedings under the jurisdiction of the People’s Court where
the performance of this contract is supposed to take place.
Section
19
This
Agreement is signed in four identical counterparts, each of Party A and Party
B
shall retain two of the counterparts.
12
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Party
A :- Shanghai Quo Advertising
Company
Limited
(Seal
of Corporation)
Statutory
Representative of Party A :
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Party B
:- Wuhan Weiao Advertising Company Limited
(Seal
of Corporation)
Statutory
Representative of Party B :
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|
Date:
16th
August, 2007
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Date:
8th
August, 2007
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TW/06044/10.Translation
13
