CONSULTING SERVICES AGREEMENT
This
Consulting Services Agreement (this “Agreement”) is dated
January 20, 2011, and is entered into in Pinghe County, Fujian Province,
People’s Republic of China (“PRC” or “China”) by and between Zhangzhou Fuhua
Biomass Energy Technology Co., Ltd. (“Party A”), and Fujian
Zhangzhou Xxxx Xxxx Bio-Technology Co., Ltd. (“Party B”). Party A and Party B
are referred to collectively in this Agreement as the “Parties.”
RECITALS
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(1)
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Party
A, a company incorporated in the PRC as a foreign invested enterprise, has
the expertise in the business of
consulting;
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(2)
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Party
B, a company incorporated in China, is engaged in the business of
biodiesel production etc (the “Business”);
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(3)
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The
Parties desire that Party A provide consulting and other relevant services
relating to the Business to Party
B;
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The
Parties are entering into this Agreement to set forth the terms and
conditions under which Party A shall provide consulting and other related
services to Party B.
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NOW THEREFORE, the Parties
agree as follows:
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1.
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DEFINITIONS
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1.1
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In
this Agreement the following terms shall have the following
meanings:
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“Affiliate,” with
respect to any Person, shall mean any other Person that directly or indirectly
controls, or is under common control with, or is controlled by, such
Person. As used in this definition, “control” shall mean possession,
directly or indirectly, of power to direct or cause the direction of management
or policies (whether ownership of securities or partnership or other ownership
interests, by contract or otherwise);
“Consulting Services
Fee” shall be as defined in Clause 3.1;
“Indebtedness” shall
mean, as to any Person, without duplication, (i) all indebtedness (including
principal, interest, fees and charges) of such Person for borrowed money for the
deferred purchase price of property or services, (ii) the face amount of all
letters of credit issued for the amount of such Person and all drafts drawn
thereunder, (iii) all liabilities secured by any Lien on any property owned by
such person, whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under leases under which
such Person is the lessee and (v) all contingent obligations (including, without
limitation, all guarantees to third parties) of such
Person;
“Lien” shall mean any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), preference, priority or other security agreement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing or similar statement or
notice filed under recording or notice statute, and any lease having
substantially the same effect as any of the foregoing);
“Person” shall mean
any individual, corporation, company, voluntary association, partnership, joint
venture, trust, unincorporated organization, entity or other organization or any
government body;
“PRC” means the
People’s Republic of China;
“Services” means the
services to be provided under the Agreement by Party A to Party B, as more
specifically described in Clause 2.
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1.2
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The
headings in this Agreement shall not affect the interpretation of this
Agreement.
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2.
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RETENTION AND SCOPE OF
SERVICES
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2.1 Party
B hereby agrees to retain the services of Party A, and Party A accepts such
appointment, to provide to Party B services in relation to the current and
proposed operations of Party B’s business in the PRC pursuant to the terms and
conditions of this Agreement. The services subject to this Agreement
shall include, without limitation:
(a) General Business
Operation. Provide general advice and assistance relating to
the management and operation of the Business of Party B.
(b) Human
Resources.
(i) Provide
general advice and assistance in relation to the staffing of Party B, including
assistance in the recruitment, employment and secondment of management
personnel, administrative personnel and staff of Party B;
(ii) Provide
training of management, staff and administrative personnel;
(iii) Assist
Party B to establish an efficient payroll management system;
and
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(iv) Provide
assistance in the relocation of Party B’s management and staff.
(c) Business Development.
Provide advice and assistance in business growth and development.
(d)
Other. Such
other advice and assistance as may be agreed upon by the Parties.
2.2 Exclusive Services
Provider. During the term of this Agreement, Party A shall be
the exclusive provider of the Services. Party B shall not seek or
accept similar services from other providers unless the prior written approval
is obtained from Party A.
2.3 Intellectual Property Rights
Related to the Services. Party A shall own all intellectual
property rights developed or discovered through research and development, in the
course of providing Services, or derived from the provision of the
Services. Such intellectual property rights shall include patents,
trademarks, trade names, copyrights, patent application rights, copyright and
trademark application rights, research and technical documents and materials,
and other related intellectual property rights including the right to license or
transfer such intellectual property rights. If Party B requires the
use of Party A’s intellectual property rights, Party A agrees to grant such
intellectual property rights to Party B on terms and conditions to be set forth
in a separate agreement.
2.4 Pledge. Party
B shall permit and cause the owners of Party B to pledge their equity interests
in Party B to Party A for securing the Consulting Services Fee as required
pursuant to this Agreement.
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3.
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PAYMENT
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3.1
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General.
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(a) In
consideration of the Services provided by Party A hereunder, Party B shall pay
to Party A a consulting services fee (the “Consulting Services
Fee”) during the term of this Agreement, payable in RMB each quarter,
equal to all of its net income for such quarter based on the quarterly financial
statements provided under Clause 5.1 below. Such quarterly payment shall be made
within fifteen (15) days after receipt by Party A of the financial statements
referenced above.
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(b) Party
B will permit, from time to time during regular business hours as reasonably
requested by Party A, its agents or representatives (including independent
public accountants, which may be Party B’s independent public accountants), (i)
to conduct periodic audits of the financial books and records of Party B, (ii)
to examine and make copies and abstracts from all books, records and documents
(including, without limitation, computer tapes and disks) in the possession or
under the control of Party B (iii) to visit the offices and properties of Party
B for the purpose of examining such materials described in clause (ii) above,
and (iv) to discuss matters relating to the performance by Party B hereunder
with any of the officers or employees of Party B having knowledge of such
matters. Party A may exercise the audit rights described herein at
any time, provided that Party A provides a ten (10) day written notice to Party
B specifying the scope, purpose and duration of such audit. All such
audits shall be conducted in such a manner as not to interfere with Party B’s
normal operations.
3.2 Party
B shall not be entitled to set off any amount it may claim is owed to it by
Party A against any Consulting Services Fee payable by Party B to Party A unless
Party B first obtains Party A’s prior written consent.
3.3 The
Consulting Services Fee shall be paid in RMB by telegraphic transfer to Party
A’s bank account, or to such other account or accounts as may be specified in
writing from time to time by Party A.
3.4 Should
Party B fail to pay all or any part of the Consulting Services Fee due to Party
A in RMB under this Clause 3 within the time limits stipulated, Party B shall
pay to Party A interest in RMB on the amount overdue based on the three (3)
month lending rate for RMB published by the Bank of China on the relevant due
date.
3.5 All
payments to be made by Party B hereunder shall be made free and clear and
without any consideration of tax deduction, unless Party B is required to make
such payment subject to the deduction or withholding of tax.
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4.
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FURTHER TERMS OF
COOPERATION
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All
business revenue of Party B shall be directed in full by Party B into a bank
account nominated by Party A.
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5.
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UNDERTAKINGS OF PARTY
A
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Party B
hereby agrees that, during the term of the Agreement:
5.1 Information
Covenants. Party B shall provide to Party A:
5.1.1
Preliminary
Monthly Reports. Within five (5) days after the end of each calendar
month the preliminary income statements and balance sheets of Party B made up to
as of the end of such calendar month, in each case prepared in accordance with
the generally accepted accounting principles of the PRC.
5.1.2
Final Monthly
Reports. Within ten (10) days after the end of each calendar month, a
final report from Party B on the financial and business operations of Party B as
of the end of such calendar month, setting forth the comparison of financial and
operation figures for the corresponding period in the preceding financial year,
in each case prepared in accordance with generally accepted accounting
principles of the PRC.
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5.1.3
Quarterly
Reports. As soon as available and in any event within forty-five (45)
days after each Quarterly Period (as defined below), unaudited consolidated and
consolidating statements of income, retained earnings and changes in financial
positions of Party B and its subsidiaries for such Quarterly Period, and for the
period from the beginning of the relevant fiscal year to such Quarterly Date,
and the related consolidated and consolidating balance sheets as of such
Quarterly Period, setting forth in each case the actual versus budgeted
comparisons and a comparison of the corresponding consolidated and consolidating
figures for the corresponding period in the preceding fiscal year, accompanied
by a certificate of Party B’s Chief Financial Officer, and such certificate
shall state that the said financial statements fairly represent the consolidated
and consolidating financial conditions and results of operations, as the case
may be, of Party B and its subsidiaries, in accordance with the general accepted
accounting principles of the PRC for such period (subject to normal year-end
audit adjustments and the preparation of notes for the audited financial
statements). For the purpose of this Agreement, a “Quarterly Period”
shall mean the last day of March, June, September and December of each year, the
first of which shall be the first Quarterly Period following the date of this
Agreement; provided that if any such Quarterly Period is not a business day in
the PRC, then such Quarterly Period shall be the next succeeding business day in
the PRC.
5.1.4
Annual Audited
Accounts. Within three (3) months after the end of the
financial year, Party B’s annual audited accounts (setting forth in each case
the comparison of the corresponding figures for the preceding financial year),
shall be prepared in accordance with the generally accepted accounting
principles of the PRC.
5.1.5 Budgets. At least
ninety (90) days prior to Party B’s fiscal year, Party B shall prepare a budget
in a form satisfactory to Party A (including budgeted statements of income and
sources and uses of cash and balance sheets) for each of the four quarters of
the fiscal year accompanied by the statement of Party B’s Chief Financial
Officer, to the effect that, to the best of his or her knowledge, the budget is
a reasonable estimate for the corresponding period.
5.1.6 Notice of Litigation.
Party B shall notify Party A, within one (1) business day of obtaining the
knowledge thereof, of (i) any litigation or governmental proceeding pending
against Party B which could materially adversely affect the business,
operations, property, assets, condition or prospects of Party B and (ii) any
other event which is likely to materially adversely affect the business,
operations, property, assets, condition or prospects of Party B.
5.1.7
Other
Information. From time to time, such other information or
documents as Party A may reasonably request.
5.2 Books, Records and
Inspections. Party B shall keep accurate books and records of
its business activities and transactions according with PRC’s generally accepted
accounting principles and all other legal requirements. During an
appropriate time and within a reasonable scope requested by Party A, Party B
will permit Party A’s officers and designated representatives to visit the
premises of Party B and to inspect, under the guidance of Party B’s officers,
Party B’s books and records, and to discuss the affairs, finances and accounts
of Party B.
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5.3 Corporate
Franchises. Party B will do or cause to be done, all things
necessary to preserve and keep in full force and effect its existence and
maintain its material rights and licenses.
5.4 Compliance with
Laws. Party B shall abide by all applicable laws, regulations
and orders of all relevant governmental administration, including but not
limited to United States Foreign Corrupt Practices Act, in respect to its
business and the ownership of its property, including, without limitation,
maintenance of valid and proper governmental approvals and licenses necessary to
provide the services, unless such noncompliance could not, in the aggregate,
have a material adverse effect on the business, operations, property, assets,
condition or prospects of Party B.
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6.
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NEGATIVE
COVENANTS
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Party B
covenants and agrees that, during the term of this Agreement, without the prior
written consent of Party A:
6.1
Equity. Party
B will not issue, purchase or redeem any equity or debt, or equity or debt
securities of Party B.
6.2 Liens. Party
B will not create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Party B whether existing or hereafter acquired, provided that the provisions of
this Clause 6.1 shall not prevent the creation, incurrence, assumption or
existence of:
6.2.1
Liens for taxes not yet due, or Liens for taxes being contested in
good faith and by appropriate proceedings for which adequate reserves have been
established; and
6.2.2 Liens
in respect to Party B’s property or assets imposed by law, which were incurred
in the ordinary course of business, and (x) which do not in the aggregate,
materially detract from the value of Party B’s property or assets or materially
impair the use thereof in the operation of Party B’s business or (y) which are
being contested in good faith by appropriate proceedings and proceedings which
have the effect of preventing the forfeiture or sale of the property of assets
subject to any such Lien.
6.3 Consolidation, Merger, Sale
of Assets, etc. Party B will not wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or any part of its property or assets, or
purchase or otherwise acquire (in one or a series of related transactions) any
part of the property or assets (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business) of any
Person, except that (i) Party B may sell inventory in the ordinary course of
business and (ii) Party B may sell equipment which is uneconomic or obsolete, in
the ordinary course of business.
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6.4 Dividends. Party
B will not declare or pay any dividends, or return any capital, to its
shareholders or authorize or make any other distribution, payment or delivery of
property or cash to its shareholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for a consideration, any shares of
any class of its capital stock now or hereafter outstanding (or any options or
warrants issued by Party B with respect to its capital stock), or set aside any
funds for any of the foregoing purposes.
6.5 Leases. Party
B will not permit the aggregate payments (including, without limitation, any
property taxes paid as additional rent or lease payments) by Party B under
agreements to rent or lease any real or personal property to exceed the amount
agreed by Party A in any fiscal year of Party B.
6.6
Indebtedness. Party
B will not contract, create, incur, assume or suffer to exist any indebtedness,
except accrued expenses and current trade accounts payable incurred in the
ordinary course of business, and obligations under trade letters of credit
incurred by Party B in the ordinary course of business, which are to be repaid
in full not more than one (1) year after the date on which such indebtedness is
originally incurred to finance the purchase of goods by Party B.
6.7
Advances, Investment and
Loans. Party B will not lend money or credit or make advances
to any Person, or purchase or acquire any stock, obligations or securities of,
or any other interest in, or make any capital contribution to, any other Person,
except that Party B may acquire and hold receivables owing to it, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms.
6.8 Transactions with Affiliates
or Related Parties. Party B will not enter into any
transaction or series of related transactions, whether or not in the ordinary
course of business, with any Affiliate or Related Parties of Party B, other than
on terms and conditions substantially as favorable to Party B as would be
obtainable by Party B at the time in a comparable arm’s-length transaction with
a Person other than an Affiliate or Related Parties and with the prior written
consent of Party A. The term “Affiliate or Related Parties” shall mean the
Shareholders and (a) each individual who is, or who has at any time been, an
officer, director or executive employee of Party B or any Affiliate; (b)
each member of the family of the Shareholders and each of the
individuals referred to in clause “(a)” above; and (c)
any entity in which any one of the individuals referred to in clauses “(a)” and “(b)” above holds or
held (or in which more than one of such individuals collectively hold or held),
beneficially or otherwise, a controlling interest or a material voting,
proprietary or equity interest.
6.9
Capital
Expenditures. Party B will not make any expenditure for fixed
or capital assets (including, without limitation, expenditures for maintenance
and repairs which are capitalized in accordance with generally accepted
accounting principles in the PRC and capitalized lease obligations) during any
quarterly period which exceeds the aggregate the amount contained in the budget
as set forth in Section 5.1.5.
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6.10 Modifications to Debt
Arrangements, Agreements or Articles of Association. Party B
will not (i) make any voluntary or optional payment or prepayment on or
redemption or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities before due
for the purpose of paying when due) any existing Indebtedness or (ii) amend or
modify, or permit the amendment or modification of, any provision of any
existing Indebtedness or of any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement or security agreement) relating to
any of the foregoing or (iii) amend, modify or change its Articles of
Association or business license, or any agreement entered into by it, with
respect to its capital stock, or enter into any new agreement with respect to
its capital stock.
6.11 Line of
Business. Party B will not engage (directly or indirectly) in
any business other than those types of business prescribed within the business
scope of Party B’s business license except with the prior written consent of
Party A.
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7.
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TERM AND
TERMINATION
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7.1 This
Agreement shall take effect on the date of execution of this Agreement and shall
remain in full force and effect unless terminated pursuant to Clause
7.2.
7.2 This
Agreement may be terminated:
7.2.1
By Party A giving written notice to Party B if Party B has committed a
material breach of this Agreement (including, but not limited to, the failure by
Party B to pay the Consulting Services Fee) and such breach, if capable of
remedy, has not been so remedied within fourteen (14) days, in the case of
breach of a non-financial obligation, following the receipt of such written
notice;
7.2.2 Either
Party giving written notice to the other Party if the other Party becomes
bankrupt or insolvent or is the subject of proceedings or arrangements for
liquidation or dissolution or ceases to carry on business or becomes unable to
pay its debts as they become due;
7.2.3 By
either Party giving written notice to the other Party if, for any reason, the
operations of Party A are terminated;
7.2.4 By
either Party giving written notice to the other Party if circumstances arise
which materially and adversely affect the performance or the objectives of this
Agreement; or
7.2.5 By
election of Party A with or without reason.
7.3 Any
Party electing to terminate this Agreement pursuant to Clause 7.2 shall have no
liability to the other Party for indemnity, compensation or damages arising
solely from the exercise of such termination right. The expiration or
termination of this Agreement shall not affect the continuing liability of Party
B to pay any Consulting Services Fees already accrued or due and payable to
Party A. Upon expiration or termination of this Agreement, all
amounts then due and unpaid to Party A by Party B hereunder, as well as all
other amounts accrued but not yet payable to Party A by Party B, shall hereby
become due and payable by Party B to Party A.
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8.
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PARTY A’S REMEDY UPON
PARTY B’S BREACH
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In
addition to the remedies provided elsewhere under this Agreement, Party A shall
be entitled to remedies permitted under PRC laws, including, without limitation,
compensation for any direct and indirect losses arising from the breach and
legal fees incurred to recover losses from such breach.
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9.
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AGENCY
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The
Parties are independent contractors, and nothing in this Agreement shall be
construed to constitute either Party to be the agent, partner, legal
representative, attorney or employee of the other for any purpose
whatsoever. Neither Party shall have the power or authority to bind
the other except as specifically set out in this Agreement.
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10.
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GOVERNING LAW AND
JURISDICTION
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10.1 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the PRC.
10.2 Arbitration. Any
dispute arising from, out of or in connection with this Agreement shall be
settled through amicable negotiations between the Parties and/or arbitration in
accordance with this Clause 10.2. Such negotiations shall begin
immediately after one Party has delivered to the other Party a written request
for such negotiation. If, within ninety (90) days following the date
of such notice, the dispute cannot be settled through negotiations, the dispute
shall, upon the request of either Party with notice to the other Party, be
submitted to arbitration in China under the auspices of China International
Economic and Trade Arbitration Commission (the “CIETAC”). The Parties
shall jointly appoint a qualified interpreter for the arbitration proceeding and
shall be responsible for sharing in equal portions the expenses incurred by such
appointment. The arbitration proceeding shall take place in Beijing,
China. The outcome of the arbitration shall be final and binding and
enforceable upon the Parties.
10.3 Number and Selection of
Arbitrators. There shall be three (3) arbitrators. Party B
shall select one (1) arbitrator and Party A shall select one (1) arbitrator, and
both arbitrators shall be selected within thirty (30) days after giving or
receiving the demand for arbitration. Such arbitrators shall be
freely selected, and the Parties shall not be limited in their selection to any
prescribed list. The chairman of the CIETAC shall select the third
arbitrator. If a Party does not appoint an arbitrator who consents to
participate within thirty (30) days after giving or receiving the demand for
arbitration, the relevant appointment shall be made by the chairman of the
CIETAC.
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10.4 Arbitration Language and
Rules. Unless otherwise provided by the arbitration rules of
CIETAC, the arbitration proceeding shall be conducted in English. The
arbitration tribunal shall apply the arbitration rules of the
CIETAC. However, if such rules are in conflict with the provisions of
this clause, or with Section 10 of this Agreement, then the terms of Section 10
of this Agreement shall prevail.
10.5 Cooperation;
Disclosure. Each Party shall cooperate with the other Party in making
full disclosure of and providing complete access to all information and
documents requested by the other Party in connection with such proceedings,
subject only to any confidentiality obligations binding on such
Parties.
10.6 Jurisdiction.
Judgment rendered by the arbitration may be entered into by any court having
jurisdiction, or application may be made to such court for a judicial
recognition of the judgment or any order of enforcement thereof.
10.7 Continuing
Obligations. The Parties shall continue their implementation of this
Agreement during the period when the relevant dispute is being
resolved,
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11.
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ASSIGNMENT
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No part
of this Agreement shall be assigned or transferred by either Party without the
prior written consent of the other Party. Any such assignment or
transfer shall be void. Party A, however, may assign its rights and
obligations hereunder to an Affiliate without Party B’s consent.
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12.
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NOTICES
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Notices
or other communications required to be given by any Party pursuant to this
Agreement shall be written in English and Chinese and delivered personally or
sent by registered mail or prepaid mail or by a recognized courier service or by
facsimile transmission to the address of relevant each Party or both Parties set
forth below or other address of the Party or of the other addressees specified
by such Party from time to time. The date when the notice is deemed to be duly
served shall be determined as the follows: (a) a notice delivered personally is
deemed duly served upon the delivery; (b) a notice sent by mail is deemed duly
served the tenth (10th) day
after the date, or the fourth (4th) day
after the delivery date of an internationally recognized courier service; and
(c) a notice sent by facsimile transmission is deemed duly served upon the time
shown on the transmission confirmation of relevant documents.
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Party
A
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Zhangzhou
Fuhua Biomass Energy Technology Co.,
Ltd
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Address:
Pingzhai Village, Shange Town,, Pinghe County, Zhangzhou City, Fujian Province,
China
Attn:
Xxxxx Xxxxx
Fax: 00-
000-0000000
Tel: 00-
000-0000000
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Party
B:
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Fujian
Zhangzhou Xxxx Xxxx Bio-Technology Co.,
Ltd
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Address:
Pingzhai Village, Shange Town,, Pinghe County, Zhangzhou City, Fujian Province,
China
Attn: Nie
Xinfeng
Fax: 00-
000-0000000
Tel: 00-
000-0000000
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13.
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GENERAL
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13.1
The failure or delay in exercising a right or remedy under this Agreement
shall not be constituted as a waiver of the right or remedy, and no single or
partial exercise of any right or remedy under this Agreement shall prevent any
further exercise of the right or remedy.
13.2
Should any clause or any part of any clause contained in this Agreement be
declared invalid or unenforceable for any reason whatsoever, all other clauses
or parts of clauses contained in this Agreement shall remain in full force and
effect.
13.3 This
Agreement constitutes the entire agreement between the Parties relating to the
subject matter of this Agreement and supersedes all previous
agreements.
13.4 No
amendment or variation of this Agreement shall be valid unless it is in writing
and executed by the Parties or their authorized representatives.
13.5 This
Agreement shall be executed in five (5) duplicate originals in English. Each
Party has received one (1) duplicate original, and all originals shall be
equally valid.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF this
Agreement is duly executed by each Party or its legal
representatives.
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PARTY A:
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Zhangzhou
Fuhua Biomass Energy Technology Co.,
Ltd
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Legal/Authorized
Representative: /s/
Xxxxx
Xxxxx
Name: Xxxxx Xxxxx
Title: Executive Director
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PARTY B:
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Fujian
Zhangzhou Xxxx Xxxx Bio-Technology Co.,
Ltd
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Legal/Authorized
Representative: /s/
Xinfeng
Nie
Name: Nie Xinfeng
Title: Chairman of Board of
Directors
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Appendix
1: List of Consulting and Services
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1、
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Assistance
of design, research and development of new products for Party
B;
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2、
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Permission
of use of computer software of Party
A;
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3、
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Permission
of use of know-how technology of Party
A;
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4、
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Daily
management, maintenance and update of database of customers and suppliers
of Party B;
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5、
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Vocational
training for the technicians of Party
B;
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6、
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Assistance
of collection and study of relevant marketing and technical information
for Party B;
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7、
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Assistance
of idea creation regarding marketing promotion for Party
B;
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8、
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Other
relevant consulting and services as required by Party B from time to
time.
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