Exhibit 2.3.2
TECHNOLOGY AGREEMENT
This Technology Agreement ("Agreement") is made and entered into as of
this 18th day of January 2006, in Beijing, People's Republic of China by and
between Candidsoft Beijing Technology Ltd., a Beijing State registered company
with Its principal office located at ▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ She, Hai ▇▇▇▇ District, Beijing, People's Republic of China ("CB"), and VoIUM
Technologies Ltd., a Cayman Islands company whose principal commercial office is
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Partner").
WHEREAS, CB operates in the People's Republic of China ("PRO") in the
specialized fields of Telecommunication, Office Automation, Groupware and
Internet Technology that includes voice over internet protocol services,
collectively referred to herein as the "Services"; and
WHEREAS, Partner is a supplier of specialized Internet Telephony
telecommunications technology, referred to herein as the "Technology"; and
WHEREAS, Partner has agreed to be appointed as CB's principal supplier
of Technology to support IP telecommunications services for CB Chinese
Government Contracts and other business of CR,
NOW, THEREFORE, in consideration of the representations, warranties and
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Incorporation of Recitals. The foregoing recitals are hereby
incorporated into this Agreement and made a part hereof.
2. Appointment.
(a) CB hereby appoints Partner as an exclusive partner of CB
to supply Technology.
(b) Partner hereby acknowledges and agrees that its
appointment hereunder is exclusive under the conditions hereinafter set
forth.
3. Term of Appointment. The term of Partner's appointment under this
Agreement shall commence as of the date hereof and shall continue until
terminated in accordance with Section 8 below (the `Term").
4. Obligations of Partner. Partner shall have the following obligations
under this Agreement:
(a) Partner shall perform all of its activities under this
Agreement in a competent, timely and professional manner, Partner shall
comply with all industry standards, laws, statutes, tariffs,
ordinances, regulations, rules and other legal requirements applicable
to the Technology supplied and supported by Partner.
(b) Partner shall hold and treat as confidential all
information known or acquired by Partner with respect to CB's
arrangements with third parties, contracts, and technology except where
otherwise permitted by CB or required for the Partner to fulfill its
obligations under this Agreement.
(c) Partner shall refrain from engaging in any unethical,
deceptive, misleading or inappropriate conduct in promoting, marketing,
offering, and soliciting orders for the Technology.
(d) Partner shall not use the name, trademarks, trade names,
service marks, goodwill and other proprietary rights of CB without the
prior written consent of an authorized officer of CB.
(e) Partner shall deliver Technology in a timely manner in
accordance with mutually acceptable delivery schedules and CB
Government Contract requirements to CB designated locations.
5. Eligibility for Payment.
(a) During the Term, Partner shall be eligible for an agreed
upon percentage of CB profits to be applied towards the payment of all
of its legitimate and appropriate invoices for its Technology provided,
installed and made active by CB in accordance with the prevailing terms
and conditions that have been mutually agreed and are in place at the
material time. CB will serve as a Guarantor for the prompt and full
payment at all times and under all normal commercial circumstances.
(b) Upon the termination of the Term for any reason other than
Partner's breach of this Agreement, Partner shall continue to be
eligible to receive payment for Technology during the term of CB's
Government Contracts and other contracts in the revenue sharing
percentages outlined in Exhibit "A".
(c) Revenue sharing percentages as agreed is attached herein as Exhibit
"A".
6. Independent Contractor Status.
(a) For all purposes relating to this Agreement, Partner shall
be deemed an independent contractor of CB, not a joint venturer,
employee or agent of CB, Partner shall have no authority to make any
statement, representation, warranty or agreement on behalf of CS
without the prior written consent of an authorized officer of CB, and
Partner shall refrain, and cause Partner's employees, representatives
and agents to refrain, from purporting to have such authority.
(b) Partner shall determine the means and methods by which
Partner conducts its business, subject only to the express terms of
this Agreement. Partner shall be responsible for any employees,
representatives or agents whom it elects to hire or otherwise retain,
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and neither Partner nor any of its employees, representatives or agents
shall be entitled to participate in or receive any rights or benefits
under CB's employee benefit programs.
7. Indemnification. To the full extent permitted by law, Partner shall
defend, indemnify and hold harmless CB, Its affiliated companies, and each of
their respective shareholders, directors, officers, employees, representatives
and agents from any and all claims, demands, causes of action, liabilities,
judgments, damages, losses, fines, penalties, expenses and costs (including
reasonable attorneys' fees and court costs) arising from or relating to any
breach of this Agreement by, or any other act or omission of, Partner, its
shareholders, employees, representatives and agents.
8. Termination.
(a) This Agreement is intended to last for the duration of the
length of time contracts using Technology are issued by CB. This
complete time frame is referred to herein as the "Term".
(b) CB shall have the right to terminate the Term upon written
notice to Partner by the Board of Directors of CB upon any material
breach by Partner of any of its obligations under this Agreement.
(c) The termination of the Term shall not relieve either party
of any liabilities previously accrued hereunder or any covenant,
obligation or liability which is to survive or be performed after such
termination.
9. Non-Competition and Non-Solicitation. During the Term and for a
period of twelve (12) months thereafter, neither party shell, without the prior
written consent of an authorized officer of the other party, solicit, induce,
offer to employ, or hire or otherwise retain any employee of the other.
10. Disclaimer of Warranties: Limitation on Liability.
(a) Partner hereby acknowledges and agrees that, except as
expressly set forth herein, CB has not made and makes no
representations or warranties of any kind or nature concerning the
services, and specifically disclaims any and all representations and
warranties concerning the services, both express and implied,
including, without limitation, all warranties of merchantability and
fitness for a particular purpose or use.
(b) CB shall not, under any circumstance, be liable for
consequential, incidental, indirect or special damages, including,
without limitation, loss of anticipated revenues or profits or damages
resulting from claims brought by customers or other third parties
against partner.
11. Miscellaneous Provisions.
(a) CB shall not be deemed in breach of this Agreement or
liable for any failure or delay in its performance under this Agreement
if such failure or delay is due in whole or part to act of God, war,
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riot, act of terrorism, government action, fire, explosion, accident,
flood, storm, mechanical breakdown, failure of power, civil
disturbance, labor trouble, acts or omissions of Carriers, other
contractors, vendors or suppliers of CB, Partner, its employees,
representatives or agents, or any other circumstance beyond the
reasonable control of CB.
(b) All notices required or permitted by this Agreement shall
be made in writing and delivered personally, by overnight carrier, or
by certified mail, return receipt requested, to the recipient at its
principal office address which is set forth in the first paragraph of
this Agreement, or to such other address provided to the party
providing notice in the some manner as set forth in this paragraph for
notice. A notice delivered personally or by overnight carrier shall be
deemed delivered when received or the next business day, whichever is
earlier. A notice sent by certified mall, return receipt requested
shall be deemed delivered when deposited in the depository of the
National Postal Service.
(c) The section headings contained herein are for the
convenience of the parties only, and shall not be considered in
interpreting this Agreement. The provisions of this Agreement are
intended to be interpreted and enforced in a manner which renders them
valid and enforceable. If any provision of this Agreement is found
invalid or unenforceable, such provision shall be deemed excised from
this Agreement without affecting the validity or enforceability of the
balance of this Agreement.
(d) All of the rights and remedies stated in this Agreement
are in addition to, and not in substitution of, all other rights and
remedies available at law or in equity. The parties agree that
violation of this Agreement will cause irreparable and substantial
damage for which no adequate remedy may be available at law. In
addition to any other right or remedy available, each party shall have
the right to an injunction enjoining any violation of this Agreement,
or threat thereof, without need of a bond or a showing of actual
damages.
(e) No waiver of any breach of this Agreement shall be
considered valid unless in writing and signed by the party against
which such waiver is being asserted, and no such waiver shall be deemed
a waiver of any subsequent breach of the same or any other provision of
this Agreement.
(f) This Agreement may be executed in any number of
counterparts, all of which when taken together shall constitute one and
the same original. This Agreement may be executed via facsimile, and a
facsimile signature shall be deemed an original signature for all
purposes relating to this Agreement.
(g) Each party represents that it is fully authorized and
empowered to enter into and perform this Agreement, and that this
Agreement constitutes a valid and binding obligation of such party
fully enforceable in accordance with its terms.
(h) This Agreement shall inure to the benefit of and be
binding upon CB and its successors and assigns. The rights and benefits
of Partner under this Agreement are personal to Partner and may not be
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assigned or transferred to any other person or entity without the prior
written consent of CS and such consent will not reasonably be withheld.
Any attempted assignment or transfer without such consent shall be null
and void, except that Partner may assign this Agreement to affiliated
companies without approval. No shares of CB shelf be transferred
without written consent of Partner, and such consent shall not be
unreasonably withheld.
(i) This Agreement contains the entire agreement of the
parties and supersedes all prior representations, negotiations,
commitments and agreements between the parties with respect to the
subject matter hereof. Subject to the foregoing provisions of this
Agreement, no modification or rescission of this Agreement shelf be
deemed valid unless in writing and signed by Partner and an authorized
officer of CB.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date appearing above.
Candidsoft Beijing Technology; Ltd VoIUM Technologies Ltd,
By: /s/ ▇▇▇▇ ▇▇▇ By: /s/ Hin Hiong Khoo
---------------------- ------------------------
Title: President Title: Chairman
Xing ▇▇▇▇ ▇▇▇ Hin Hiong Khoo
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Exhibit "A"
Partner Revenue Sharing Percentages
Partner shall receive 65% of all net profits from all business lines received by
CB. For purposes of this Agreement, net profits shall be determined under
generally accepted accounting principals of the United States, and shall be
calculated after giving effect to all expenses, costs, and other revenue sharing
arrangements of CB.