Amended and Restated Technical Services Agreement
Exhibit 10.6
Amended and Restated Technical Services Agreement
This Amended and Restated Technical Services Agreement (the “Agreement”) is entered into as of July 20, 2004 in Beijing between the following two parties:
| Party A: |
eLongNet Information Technologies (Beijing) Co., Ltd. | |
| Legal Address: |
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ | |
| Legal Representative |
▇▇▇▇ ▇▇▇ | |
| Party B: |
Beijing eLong Information Technologies Co., Ltd. | |
| Legal Address: |
▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇ Xueyuannan Street Haidian District Beijing | |
| Legal Representative |
▇▇▇▇ ▇▇▇ | |
WHEREAS,
1. Party A is a wholly foreign-owned enterprise registered in People’s Republic of China (hereinafter “PRC”) under the laws of PRC;
2. Party B is a limited company registered in PRC under the laws of PRC. Party B owns the qualification of operating the Internet information service business, and shall operate the website of ▇▇▇.▇▇▇▇▇.▇▇▇ (hereinafter “▇▇▇▇▇.▇▇▇”);
3. Party A and Party B signed a Technical Services Agreement on February 1, 2001, and amended the aforesaid agreement on August 22, 2003. Both parties now decide to conduct further amendment and restatement in accordance with the relevant declaration of the agreement; and
4. Party A agrees to provide the Technical Services for operating ▇▇▇▇▇.▇▇▇ to Party B, Party B agrees to accept the Technical Services provided by Party A in accordance with the articles and terms of the agreement.
NOW THEREFORE, the parties through mutual negotiation agree as follows:
Article One Providing Technical Services
1. Party A agrees to provide Party B with technical services for operating ▇▇▇▇▇.▇▇▇ as the exclusive technical service provider according to this Agreement, including but not limited:
(1) The development, update and upgrade of the application software of serve, and the application of ▇▇▇▇▇.▇▇▇;
(2) The development, update and upgrade of the Internet application software;
(3) Technical services of electronic business;
(4) Technical training; and
(5) Party B’s other demands for technical services
2. Party B agrees that Party A is the exclusive technical service provider of ▇▇▇▇▇.▇▇▇, and Party B promises not to employ any third party to provide the technical services for operating ▇▇▇▇▇.▇▇▇ without the prior written consent of Party A.
3. Party B agrees to provide the exclusive Internet entrust service to Party A.
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Article Two Price of Technical Services and Software Licenses, Way of Payment
1. The fee for technical services and software provided by Party A according to the agreement will be determined in accordance with the particular service items and software provided by Party A upon the market price of the aforesaid services and licenses by both parties through negotiations. The fee for technical services and software licenses should be paid quarterly.
Article Three Intellectual Property
1. Any invention, modification, creation and designation accomplished by Party A during the performance of the obligations under this Agreement, and the copyright, trademark, sign (whether all these mentioned is or can be registered) of the works Party A produces, shall be Party A’s absolute belongings, and Party A owns exclusive and monopoly rights and interests to them.
2. Party A authorizes Party B to non-exclusively make a copy of the application program of ▇▇▇▇▇.▇▇▇’s website or any other website for free, or make a copy of the other application program of the other application programs provided to Party B for Party A’s providing the network entrust services under Article 1 Item 3, the aforesaid right shall not be transferred.
3. Party B agrees to transfer the following property rights created, developed or created for entrust by Party B:
(a) All the intellectual property rights of the application program of ▇▇▇▇▇.▇▇▇’s website or any other any other websites or other application programs provided by Party A.
(b) All the intellectual property rights (including copyright and data base right) related with Party B’s operation, not including any loan or expense of the third party, or liabilities of the third party. Party B shall sign the further documents and adopt the further actions in accordance with the reasonable requirements advanced by Party B from time to time, and guarantee the rights transferred in accordance with Article 1 Item 3 in further.
4. Party A authorizes Party B to use the application program of ▇▇▇▇▇.▇▇▇’ website and the registered application programs or unregistered application programs in possession of Party B. the aforesaid license should be non-exclusive and not be transferred.
Article Four Representations and Warranties
1. Party A represents and warrants to Party B as follows, within any time of the signing day and the period of this Agreement:
(1) Party A is a wholly foreign-owned enterprise duly registered under the laws of the PRC, validly existing and with good operation record. Party A has wholly lawful rights and necessary power and authorization to sign and deliver this Agreement, and to wholly perform the obligations under this Agreement and to accomplish the transaction stipulated in this Agreement.
(2) Party A has finished all necessary company conducts and acquired all proper and valid authorization to sign and perform this Agreement. This Agreement shall constitute Party A’s lawful, valid and binding obligations after the signature, and it can be enforced to Party A according to its clauses.
(3) To sign and deliver this Agreement, to perform the obligations under this Agreement, and to accomplish the transaction stipulated in this Agreement, Party A does not need to apply to any government department or acquire any approval.
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(4) Party A’s signature and delivery of this Agreement, performance of the obligations under this Agreement and accomplishment of the transaction stipulated in this Agreement, will not: (1) cause the violation of Party A’s articles of association or other organization papers; (2) cause the violation of any agreement, contract or charter Party A enters into or is restricted by; (3) cause the violation of any judgment, verdict or order made by court or government Party A is one party or is restricted by; or (4) need any permission of other persons.
(5) As for Party A, there does not exist any agreement, contract or arrangement that will interfere the signature and performance of this Agreement adversely, or any debt or potential debt Party A does not disclose to Party B and that will interfere the signature and performance of this Agreement adversely.
2. Party B represents and warrants to Party A as follows, within any time of the signing day and the period of this Agreement:
(1) Party B is a limited company duly registered under the company laws of the PRC, validly existing and with good operation record. Party B has wholly lawful rights and necessary power and authorization to sign and deliver this Agreement, and to wholly perform the obligations under this Agreement and to accomplish the transaction stipulated in this Agreement.
(2) Party B has finished all necessary company conducts and acquired all proper and valid authorization to sign and perform this Agreement. This Agreement shall constitute Party B’s lawful, valid and binding obligations after the signature, and it can be enforced to Party B according to its clauses.
(3) To sign and deliver this Agreement, to perform the obligations under this Agreement, and to accomplish the transaction stipulated in this Agreement, Party B does not need to apply to any government department or acquire any approval.
(4) Party B’s signature and delivery of this Agreement, performance of the obligations under this Agreement and accomplishment of the transaction stipulated in this Agreement, will not: (1) cause the violation of Party B’s articles of association or other organization papers; (2) cause the violation of any agreement, contract or charter Party B enters into or is restricted by; (3) cause the violation of any judgment, verdict or order made by court or government Party B is one party or is restricted by; or (4) need any permission of other persons.
(5) As for Party B, there does not exist any agreement, contract or arrangement that will interfere the signature and performance of this Agreement adversely, or any debt or potential debt Party B does not disclose to Party A and that will interfere the signature and performance of this Agreement adversely.
Article Five Confidentiality
1. Any party of this Agreement shall protect and maintain the confidentiality of any confidential data and information (“Confidential Information”) acquired from the other party through signing and performing this Agreement. Unless with the written consent of the other party in advance, any party should not disclose any Confidential Information to any third party, unless the disclosure is required by law, or by enforceable orders of court and related government department. In the situation, the party required to disclose the Confidential Information shall notify the other party immediately, and take all possible measures to keep the disclosure in the scope as small as possible, and proclaim the disclosed persons the obligation of confidentiality.
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2. Upon the termination of this Agreement, any party shall, at the other party’s option, return any document, material, database, equipment or software containing the Confidential Information to the other party; if the return becomes impossible for any reason, the party shall destroy all the Confidential Information or delete the Confidential Information from any memory devices. No party can keep using any Confidential Information in any way after the termination of this Agreement.
3. There is no time limit to the Confidentiality stipulated in Article Five, and it will survive after the termination of this Agreement, unless the Confidential Information is open to the public, and the open of the Confidential Information is not due to the breach of contract by any party.
Article Six Effectiveness and Term
1. This Agreement is entered into with the “Transfer Agreement”, and takes effect as of the date of signature.
2. This Agreement shall keep effective during expiration period (and any extended period of validity), except that the agreement is terminated in advance according to Article 6 Item 3.
3. Party A shall terminate this Agreement at any time by delivering written notice to Party A. except the conditions regulated by the applicable law, Party B has no right to terminate this Agreement in any other event.
Article Seven Settlement of Disputes
1 Any dispute, tangle or claim arising from this Agreement or relating to this agreement (including any issue relating to the existence, validity or termination of this Agreement) should be submitted to China International Economic and Trade Arbitration Commission (the “Arbitration Commission”). Arbitration Commission shall conduct arbitration in accordance with the current effective rules of Arbitration application. The arbitration award shall be final and binding upon both parties.
2 Arbitration place shall be in Beijing, PRC.
3 Arbitration language shall be English.
4 The court of arbitration shall compose of three arbitrators. Both parties should respectively appoint a arbitrator, the chairman of the court of arbitration shall be appointed by both parties through consultation. In case both parties do not coincide in opinion of the person selected for the chief arbitrator within twenty days from the date of their respectively appoint a arbitrator, the director of Arbitration Commission shall have right to appoint the chief arbitrator.
5 Both parties agreed that the court of arbitration established according to the regulation shall have right to provide actually performed relief on the proper situation according with China’s Law (including but not being limited to Law of Contract of the People’s Republic of China). For the avoidance of doubt, both parties further that any court having jurisdiction (including PRC Court) shall carry out the arbitral award of actual performance issued by the court of arbitration.
6 Both parties agreed to conduct arbitration in accordance with this regulation, and irrepealably abstain the right to appeal, reexamine or prosecute to national court or other administration of justice in any form, and the precondition shall be that the aforesaid waiver is effective. However the waiver of both parties does not include any post-arbitration injunction, post-arbitration distress warrant or other command issued by any court having jurisdiction (including PRC Court) for terminating the arbitration procedure or carrying out any arbitral award.
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Article Eight Other Clauses
1. All notices and other communications under this Agreement should be made in written form (including fax) and be sent via courier or fax to the following address, or any other address
One party designated to the other party in written form. If the notices and communications mentioned above are sent via courier, they take effect 72 hours after the mail is delivered to the courier Company; if they are sent through fax, they take effect 24 hours after being sent.
| Party A: | eLongNet Information Technologies (Beijing) Co., Ltd | |
| Recipients: | ▇▇▇▇ ▇▇▇ | |
| Address: | ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ | |
| Telephone: | ▇▇▇-▇▇▇▇▇▇▇▇ | |
| Fax: | ▇▇▇-▇▇▇▇▇▇▇▇ | |
| Party B: | Beijing eLong Information Technologies Co., Ltd. | |
| Recipients: | ▇▇▇▇ ▇▇▇ | |
| Address: | Room 109, Jian Tower, ▇▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Telephone: | ▇▇▇-▇▇▇▇▇▇▇▇ | |
| Fax: | ▇▇▇-▇▇▇▇▇▇▇▇ | |
2. This Agreement is binding upon both parties and their successors and approved assignees respectively, and is entered into only for the benefit of the persons mentioned above. Without the prior written consent of the other party, any party should not transfer, pledge or transfer in other ways the rights, benefits or obligations under this Agreement.
3. Without the prior written consent of both parties of the agreement, the agreement shall not be amended or changed; for those not included, both parties shall make a supplement to this Agreement through signing written agreements. Any amendment, modification, supplement and appendix to this Agreement shall be part of this Agreement, and shall have the same legal effect as this Agreement.
4. This Agreement is separable, the invalidity or unenforceability of any clause in this Agreement will not interfere the effect and enforceability of other clauses.
5. All topics in this Agreement are set only for convenience, and they should not be deemed part of this Agreement.
6. This Agreement is executed in duplicate, each party holds one, and each copy has the same legal effect.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be signed by a duly authorized representative as of the date first set forth above.
eLongNet Information Technologies (Beijing) Co., Ltd
Signature of Authorized Representative: /s/
Name: ▇▇▇▇ ▇▇▇
Position: Legal Representative
Beijing eLong Information Technologies Co., Ltd
Signature of Authorized Representative: /s/
Name: ▇▇▇▇ ▇▇▇
Position: Legal Representative
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