Consulting and Services Agreement -- Ctrip Computer Technology (Shanghai) Co. Ltd.
TRANSLATION
Consulting and Services Agreement
This Consulting and Services Agreement (hereinafter referred to as the
"Agreement") has been executed by and between the following parties on September
10, 2003 in Shanghai.
Party A: Ctrip Computer Technology (Shanghai) Co., Ltd.
Party B: An affiliated Chinese entity of Party A
Address: Room ___, ___ Building, _______ Street, Beijing
Whereas:
(1) Party A is a wholly foreign owned enterprise established in the
People's Republic of China (hereinafter referred to as "China"), and
has the resources to provide technical and consulting services;
(2) Party B is a company with exclusively domestic capital registered in
China and may engage in air-ticketing business as approved by China
Aviation Northern China Management Bureau;
(3) Party A agrees to provide Party B with exclusive technical consulting
and related services in air-ticketing business during the term of this
Agreement utilizing its own advantages in human capital and
information, and Party B agrees to accept the technical consultations
and services provided by Party A.
(4) Party A and Party B previously executed a Consulting Services Contract
on July 15, 2002, and the parties now desire to make amendments to the
conditions of said contract, and to execute this Agreement to replace
said Consulting Services Contract.
Wherefore, through mutual discussion, the parties have reached the following
agreements:
1. Exclusive Consultations and Services: Exclusive Interest
1.1 During the term of this Agreement, Party A agrees to provide Party B
with relevant technical consultations and services as Party B's
exclusive provider of technical and consultation services, in
accordance with the conditions of this Agreement (for specific
contents, see Attachment 1).
1.2 Party B agrees to accept the technical consultations and services
provided by Party A. Party B further agrees that unless Party A
consents in writing in advance, during the term of this Agreement,
Party B shall not accept technical consultations and services provided
by any third party regarding the aforementioned business.
1.3 Party A shall have exclusive interests in all rights, ownership,
interests and intellectual properties arising from the performance of
this Agreement, including but not limited to copyrights, patents,
technical secrets, trade secrets and others, regardless of whether they
have been developed by Party A or by Party B based on Party A's
intellectual properties.
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EXHIBIT 10.7
TRANSLATION
2. The Calculation and Payment of the Technical Consulting and Service Fee
(hereinafter referred to as "Consulting Service Fee")
The parties agree that the Consulting Service Fee under this Agreement shall be
determined and paid based on the methods set forth in Attachment 2.
3. Representations and Warranties
3.1 Party A hereby represents and warrants as follows:
3.2.1 Party A is a wholly foreign owned enterprise legally registered and
validly existing in accordance with Chinese laws.
3.2.2 Party A's execution and performance of this Agreement is within the
scope of its business operations; Party A has taken necessary corporate
actions and given appropriate authorization and has obtained the
consent and approval from third parties and government agencies, and
will not violate the restrictions of laws binding or having an impact
thereon.
3.2.3 This Agreement shall constitute Party A's legitimate and valid
obligations as soon as it is executed, and shall be enforceable against
it.
3.2 Party B hereby represents and warrants as follows:
3.2.1 Party B is a company legally registered and validly existing in
accordance with Chinese laws and may engage in air-ticketing business
as approved by China Aviation Northern China Management Bureau;
3.2.2 Party B's execution and performance of this Agreement is within the
scope of its business operations; Party B has taken necessary corporate
actions and given appropriate authorization and has obtained the
consent and approval from third parties and government agencies, and
will not violate the restrictions of laws binding or having an impact
thereon.
3.2.3 This Agreement shall constitute Party B's legitimate and valid
obligations as soon as it is executed, and shall be enforceable against
it.
4. Confidentiality Clauses
4.1 Party B agrees to maintain the confidentiality of confidential
materials and information (hereinafter referred to as "Confidential
Information") of Party A that Party B learns or has access to due to
its acceptance of Party A's exclusive consultations and services, and
shall take various security measures designed to maintain such
confidentiality; without the prior written consent of Party A, Party B
shall not disclose, give or transfer such Confidential Information to
any third party. Upon the termination of this Agreement, Party B shall
return any document, material or software that contains such
Confidential Information to Party A at Party A's request, or shall
destroy same on his own and shall delete any Confidential Information
from the relevant memory devices and shall not continue to use such
Confidential Information.
4.2 The parties agree that this section shall survive changes to,
rescission or termination of this Agreement.
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EXHIBIT 10.7
TRANSLATION
5. Indemnification
Party B shall indemnify Party A for and hold Party A harmless from any loss,
injury, obligation or expenses caused by any lawsuit, claims or other demands
against Party A arising from or caused by contents of consultations and services
requested by Party B.
6. Effectiveness and Term
6.1 This Agreement shall be executed on the date first above written and
shall take effect as of the even date therewith. Unless terminated
early in accordance with the provisions of this Agreement or relevant
agreements separately executed between the parties, the term of this
Agreement shall be ten years.
6.2 The term of this Agreement shall not be extended unless confirmed in
writing by Party A prior to the expiration thereof. The extended term
shall be determined by the parties to this Agreement through consensus.
7. Termination
7.1 Termination upon date of expiration. Unless renewed in accordance with
the relevant terms of this Agreement, this Agreement shall be
terminated upon the date of expiration thereof.
7.2 Early termination. During the term of this Agreement, unless Party A
commits a gross fault, fraudulent act, other illegal acts or becomes
bankrupt, Party B shall not terminate this Agreement early.
Notwithstanding the aforementioned covenant, Party A shall have the
right to terminate this Agreement upon 30 days of written notice to
Party B at any time.
7.3 Terms that survive termination. The rights and obligations of the
parties under Article 4 and Article 5 shall survive the termination of
this Agreement.
8. Resolution of Disputes
In the event of any dispute with respect to the construction and performance of
the provisions of this Agreement, the parties shall hold consultations in good
faith to resolve same. Upon failure of such consultations, either party may
submit the relevant dispute to the China International Economics and Foreign
Trade Arbitration Commission Shanghai Chapter for resolution by arbitration, in
accordance with its current arbitration rules. The arbitration shall be
performed in Shanghai, and the language used during arbitration shall be
Chinese. The arbitration ruling shall be final and binding on both parties.
9. Force Majeure
9.1 "Force majeure" shall refer to any event beyond the reasonable control
of either party and that still cannot be avoided even if the party
affected has exercised reasonable care, including but not limited
government actions, acts of God, fire, explosions, storms, flood,
earthquakes, tides, lightning or war. But a lack of credit, funds or
financing shall not be deemed a circumstances beyond the reasonable
control of either party. The party affected by a "force majeure event"
shall notify the other party of such relief from liability as soon as
possible.
9.2 In the event that the performance of this Agreement is delayed or
impeded by the aforementioned "force majeure," the party affected by
such force majeure shall not be liable in any way under this Agreement
to the extent of such delay or impedance. The
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EXHIBIT 10.7
TRANSLATION
party affected shall take appropriate measures to mitigate or eliminate
the impact of such "force majeure" and shall attempt to resume the
performance of obligations delayed or impeded by such "force majeure."
As soon as the force majeure event is eliminated, the parties agree to
use their best efforts to resume the performance of this Agreement.
10. Notices
Notices or other communications sent by either party as required by this
Agreement shall be written in Chinese, and a notice shall be deemed served when
it is delivered to the address of either party or the addresses of both parties
below by personal delivery, registered mail, mail with prepaid postage or
recognized express mail or facsimile.
To Licensor: Ctrip Computer Technology (Shanghai) Co., Ltd.
Address: 3rd fl., Building 63, Hong Cao Road, Shanghai
Facsimile: (021) 542651600
Phone: (021) 34064880
Party B: Address: Room ___, ___ Building, _______ Street, Beijing
Facsimile:
Phone:
11. Assignment
Unless Party A's prior written consent is obtained, Party B shall not assign the
rights enjoyed to thereby and obligations undertaken thereby under this
Agreement to any third party.
12. Severability
In the event that any provisions of this Agreement are invalid or unenforceable
due to inconsistency with law, then such provisions shall only be invalid or
unenforceable to the extent of the jurisdiction of such law, and shall not
affect the legal validity of the remaining provisions of this Agreement.
13. Amendments and Supplements
Any amendments and supplements to this Agreement shall be in writing. The
amendment agreements and supplementary agreements that have been signed by the
parties and that relate to this Agreement shall be an integral part of this
Agreement and shall have the same legal validity as this Agreement.
14. Governing Laws
This Agreement shall be governed by laws of China and shall be construed in
accordance therewith.
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EXHIBIT 10.7
TRANSLATION
IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first above written.
Party A: Ctrip Computer Technology (Shanghai) Co., Ltd.
Authorized representative:
Party B: An affiliated Chinese entity of Party A
Authorized representative:
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EXHIBIT 10.7
TRANSLATION
Attachment 1: Table of Contents of Technical Consultations and Services
Including furnishing of training of personnel, network platforms appurtenant to
management and information services required for Party B's business, making
recommendations to Party B regarding the air ticketing business, and other forms
of services accepted by the parties.
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EXHIBIT 10.7
TRANSLATION
Attachment 2: The Calculation and Payment of the Technical Consulting and
Service Fee
For each air ticket sold by Party B, Party B shall pay Party A RMB18.00 in
technical consulting and service fee. Party B shall settle and pay the
aforementioned technical consulting and service fee by the 15th of each month.
The aforementioned method of calculation may be adjusted quarterly by Party A
and Party B depending on the current actual circumstances.