EXCLUSIVE TECHNICAL CONSULTING AND SERVICE AGREEMENT
THIS
EXCLUSIVE TECHINCAL CONSULTING AND SERVICE AGREEMENT (the
“Agreement”)
is
made
and entered into by and among the following parties on March 31,
2008.
Party
A: Beijing Huate Xingye Keji Co., Ltd.
Registered
Address:
Room
5107, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
Party
B: Dalian
▇▇▇▇▇▇▇ International Logistics Co., Ltd.
Registered
Address: Summit Building, Shanghai Road, Zhongshan District, Dalian
WHEREAS,
| 1. |
Party
A, a wholly foreign-owned enterprise duly
established and valid existing
under the People’s Republic of China (the “PRC”),
owns resources to provide relevant technical consulting and
services.
|
| 2. |
Party
B is a limited liability company duly established and valid existing
under
the PRC laws. Party A agrees to provide Party B technology consulting
and
related service, and Party B agrees to accept such technical consulting
and services provided by Party A in
accordance with this Agreement.
|
NOW
THEREFORE, through
mutual negotiations, the Parties hereto agree as follows:
|
1.
|
Technical
Consulting and Services; Exclusivity
|
| 1.1 |
During
the term of this Agreement, Party A agrees to, as the exclusive technical
consulting and services provider of Party B, provide the technical
consulting and services to Party B in accordance with this
Agreement:
|
| (i) |
Analysis
and evaluation of Party B’s current business, operational model and
customer types in an effort to integrate current business management
resource;
|
| (ii) |
Provision
of advanced management skills to offer a framework for the construction
of
a new management platform;
|
| (iii) |
Provision
of technology information and materials related to Party B’s business
development and operation. The contents of the technology information
and
documents may be enhanced or diminished during the performance of
this
Agreement upon mutual agreement to address each Party’s requirements;
and
|
1
| (iv) |
Training
of technical and managerial personnel for Party B and provision of
required training documents. Party A will send technologists and
managerial personnel to Party B to provide related technology and
training
service as necessary.
|
| 1.2 |
Party
B hereby agrees to accept such technical consulting and services
provided
by Party A. Party B further agrees that, during the term of this
Agreement, it shall not accept the technical consultation and service
provided by any other third party without the prior written consent
of
Party A.
|
| 1.3 |
Party
A shall be the sole and exclusive owner of all right, title and interests
to any and all interllectual property rights arising from the performance
of this Agreement (including but not limited to, copyrights, patent,
know-how, commercial secrets and others), no matter whether it is
developed by Party A or by Party B based on Party A’s intellectual
property right.
|
|
2.
|
Payment
for the technical consultation and service(“Consulting
Fees”)
|
|
2.1
|
The
both parties agree that the consulting fees shall be paid per year
in
accordance with the consulting and service actually provided by Party
A.
|
|
2.2
|
Except
for the Consulting Fees mentioned above, Party B agrees to reimburse
Party
A for all necessary expenses in relation to performing this Agreement,
including but not limited to, travelling expenses, fees payable to
experts, printing fees and mail cost.
|
|
2.3
|
Except
for the Consulting Fees, Party B agrees to reimburse Party A the
tax,
customs and other expenditures(income tax is not included) in relation
to
Party A’s performance of this Agreement by Party A.
|
|
2.4
|
Party
B shall provide Party A with a report in relation to Consulting Fees
(“Consulting
Fees Report”)
in accordance with this Agreement within three (3) business days
after
each finacial year, and Party B shall remit the amount in RMB to
the bank
account designated by Party A within two(2) working days after delivering
the Consulting Fees Report. In case that Party B fails to pay Consulting
Fees and other necessary expenses in accordance with this Agreement,
Party
B shall pay Party A late fee based on a 12% annual interest (compound
interest) from the date of such
default.
|
2
|
2.5
|
Party
B shall open separate bank account for the Consulting Fees under
this
Agreement. Party A is entitled to appoint its employee or PRC accountant
or international accountant to review or audit the account books
in
relation to the consulting service from time to time. The fees payable
to
the accountant shall be paid by Party A itself. Party B shall provide
any
and all documents, account books, records, materials and information,
and
any convenience and assistance to the person designated by Party
A or
accountant appointed by Party A may deem necessary. The auditing
report
issued by Party A’s employee should be final and conclusive unless Party B
give written objection within seven (7) days after receiving such
report.
The report issued by the accountant shall be final and conclusive.
Party A
is entitled to serve written payment notice to Party B at any time
after
receiving the audit report according to the consulting fee confirmed
by
the audit report. Party B shall pay within seven (7) days after receiving
the notice in accordance with Article
2.4.
|
|
2.6
|
All
payment payable by Party B to Party A shall have subtracted from
tax, bank
handing charge or any other expenses.
|
|
3.
|
Representations
and Warranties
|
| 3.1 |
Representations
and Warranties of Party A
|
Party
A
hereby the represents and warrants as follows:
|
3.2.1
|
It
has the power to enter into and perform this Agreement in accordance
with
its constitutional documents and business scope, and has taken all
necessary action to get authorization, consent and approval from
third
party and/or government authorities, and will not conflict with any
agreement or laws binding on it.
|
|
3.2.2
|
Upon
signing of this Agreement, this Agreement shall constitute a legally
binding document on Party A and may be enforceable in accordance
therewith.
|
| 3.2 |
Representations
and Warranties of Party B
|
Party
B
hereby the represents and warrants as follows:
|
3.2.1
|
Party
B is a company duly registered and valid existing under the laws
of the
PRC, and is authorized to enter into this Agreement.
|
|
3.2.2
|
Party
B has the power to execute and perform this Agreement in accordance
with
its constitutional documents within its business scope, and has taken
all
necessary action to obtain all consents and approval to execute and
perform this Agreement, and do not and will not result in any violation
of
enforceable or effective laws or contractual limitations.
|
|
3.2.3
|
Upon
its execution, this Agreement constitutes its legal, valid and binding
obligation of Party B, enforceable in against it in accordance with
its
terms.
|
3
|
4.
|
Confidentiality
|
|
4.1
|
Party
B agrees to use all reasonable endeavours to protect and maintain
the
confidentiality of Party A’s confidential data and information
acknowledged or received by Party B by accepting the exclusive echnical
consulting and service from Party A (“Confidential
Information”).
Party B shall not disclose, grant or transfer to any third party
of such
Confidential Information. Upon termination of this Agreement, Party
B
shall, upon Party A’s request, return to Party A or destroy of any
documents, material or software contained any of such Confidential
Information, and shall completely delete any of such Confidential
Information from any memory devices, and shall not use or permit
any third
party to use such Confidential Information.
|
|
4.2
|
The
both Parties agree that the provisions of this Article 4 shall survive
notwithstanding the alteration, revocation or termination of this
Agreement.
|
|
5.
|
Indemnities
|
|
5.1
|
Party
B shall indemnify Party A against any loss, damage, liability or
expenses
suffered or incurred by Party A as a result of or arising from any
litigation, claim or compensation request in other methods in relation
to
the consulting and service under this Agreement.
|
|
6.
|
Effectiveness
and Term of this Agreement
|
|
6.1
|
This
Agreement shall be executed and come into effect as of the date first
set
forth above. The term of this Agreement shall be ten (10) years unless
earlier terminated as set forth in this Agreement or the both Parties
reach other written agreements containing articles of terminating
this
Agreement.
|
|
6.2
|
This
Agreement shall be terminated upon written confirmation from both
Parties
before termination. Otherwise this agreement shall be extended
automatically, the exetened term shall be ten (10) years.
|
|
7.
|
Termination
of the Agreement
|
|
7.1
|
The
Agreement shall extended automatically upon the expire date of this
Agreement unless it is terminated in accordance with this
Agreement.
|
|
7.2
|
During
the term of this Agreement, Party B may not terminate this Agreement
except in the case of gross negligence, fraud action, or other illegal
action or bankruptcy of Party A. Notwithstanding the above, Party
A may
terminate this Agreement with a written notice to Party B thirty
(30) days
before suchc termination.
|
|
7.3
|
The
rights and obligations of the both Parties under Article 4 and Article
5
of this Agreement shall survive after the termination of this Agreement.
|
4
|
8.
|
Dispute
Settlement
|
|
8.1
|
The
Parties shall strive to settle any dispute arising from the interpretation
or performance, or in connection with this Agreement through friendly
consultation. In case no settlement can be reached through consultation,
each Party can submit such matter to China International Economic
and
Trade Arbitration Committee for arbitration according to the current
effective arbitration rules of its. The arbitration shall be held
in
Beijing. The arbitration proceedings shall be conducted in Chinese.
The
arbitration award shall be final and binding upon the Parties.
|
|
9.
|
Force
Majeure
|
|
9.1
|
Force
Majeure Event (“Event”)
means any event which is out of control of each party, and which
is
unavoidable or insurmountable even the party affected by such event
has
paid reasonable attention to it. The Event shall include, but not
limited
to, government actions, nature disaster, fire, explosion, typhoons,
floods, earthquakes, tide, lightning or war. However, any lack of
credit,
assets or financing shall not be deemed as Event. The party claiming
the
occurrence of Event shall provide the other party with the steps
of
fulfilling the obligations of this Agreement.
|
|
9.2
|
If
the fulfillment of this Agreement is delayed or blocked due to the
Event
defined in the above, the party affected by such an Event shall free
from
any obligation to the extent of delay or holdback. The party affected
by
such an Event shall make proper measures to reduce or diminish the
effect
from such Event, and shall do its endeavour to recover capacity to
performing the obligations delayed. The both parties agree to try
its best
to recover performance of this Agreement upon elimination of such
Event.
|
|
10.
|
Notices
|
|
10.1
|
Any
notice to which is given by the both Parties hereto for the purpose
of
performing the rights and obligations hereunder shall be in writing.
Where
such notice is delivered personally, the time of notice is the time
when
such notice actually reaches the addressee; where such notice is
transmitted by telex or facsimile, the notice time is the time when
such
notice is transmitted. If such notice does not reach the addressee
on
business date or reaches the addressee after the business time, the
next
business day following such day is the date of notice. The delivery
place
is the address first written above of the Parties hereto or the address
advised in writing including facsimile and telex from time to time.
Written method includes fax and telefax.
|
5
|
11.
|
Assignment
|
11.1 Party
B
may not assign or transfer any rights or obligations under this Agreement to
any
third party without prior written consent by Party A.
|
12.
|
Severability
|
|
12.1
|
If
any of the terms of this Agreement is invalid, illegal or unenforceable
due to incompliance with laws, the validity and enforceability of
the
other terms hereof shall nevertheless remain
unaffected.
|
|
13.
|
Amendments
and Supplement
|
|
13.1
|
Any
amendment and supplement of this Agreement shall be effective only
if it
is made in writing and signed by the parties hereto. The amendment
and
supplement duly executed by the parties shall be part of this Agreement
and shall have the same legal effect as this
Agreement.
|
|
14.
|
Governing
Law and Languages
|
|
14.1
|
This
Agreement shall be governed by and construed in all respects in accordance
with the laws of the PRC.
|
|
14.2
|
This
Agreement is executed both in Chinese and English with two copies
for each
language. The Chinese version will prevail in the event of any
inconsistency between the English and any Chinese translations
thereof.
|
[THIS
SPACE IS INTENTIONALLY LEFT BLANK]
6
IN
WITNESS WHEREOF,
the
both Parties have its authorized representative executed this Agreement on
the
date first above written.
Party
A: /s/ Beijing Huate Xingye Keji Co., Ltd.
Legal
Representative (Signature):
Du
Guangwen
Party
B: /s/ Dalian
▇▇▇▇▇▇▇ International Logistics Co., Ltd.
Legal
Representative (Signature):
Li
Honglin
7