Exclusive Technical Consulting and Services Agreement - Hurray! Times Communications (Beijing) Ltd. and Beijing Palmsky Technology Co. Ltd.
EXCLUSIVE TECHNICAL CONSULTING AND SERVICES
AGREEMENT
This Exclusive Technical Consulting and Services Agreement (the
"Agreement") is entered into as of May 5, 2004 between the following two
parties:
Party A: Hurray! Times Communications (Beijing) Ltd.
Legal Address: Room B 07, Tong Heng Plaza, No.4 Huanyuan Road, Haidian
District, Beijing
Party B: Beijing Palmsky Technology Co., Ltd.
Legal Address: Room 915, Haitai Building, No.229 Beisihuan zhonglu, Haidian
District, Beijing
WHEREAS:
(1) Party A, a wholly foreign-owned enterprise registered in People's
Republic of China (the "PRC") under the laws of PRC, owns resources to provide
the technical consulting and services.
(2) Party B, a limited liability company registered in PRC, is licensed by
the competent governmental authorities to carry on the business of the
information services on the value-added communication services;
(3) Party A agrees to provide technical consulting and related services to
Party B, and Party B agrees to accept such technical consulting and services;
NOW THEREFORE, the parties through mutual negotiations 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
exclusive technical consulting and services to Party B (the content is
specified in Appendix 1). Party A further agrees that, during the term
of this Agreement, it shall not provide any technical consulting and
services to any other third party without Party B's prior written
consent, with the exception to the affiliates of Party B.
1.2 Party B hereby agrees to accept such exclusive technical consulting
and services. Party B further agrees that, during the term of this
Agreement, it shall not utilize
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any third party to provide such technical consulting and services for
such above-mentioned business without the prior written consent of
Party A.
1.3 Party A shall be the sole and exclusive owner of all rights, title and
interests to any and all intellectual property rights arising from the
performance of this Agreement, including, but not limited to, any
copyrights, patent, know-how, trade secrets and otherwise, whether
developed by Party A or Party B based on Party A's intellectual
property.
2. Calculation and Payment of the Fee for Technical Consulting and Services
(the "Fee")
The parties agree that the Fee under this Agreement shall be determined
according to the Appendix 2.
3. Representations and Warranties
3.1 Party A hereby represents and warrants as follows:
3.1.1 Party A is a company duly registered and validly existing under
the laws of the PRC;
3.1.2 Party A has full right, power, authority and capacity and all
consents and approvals of any other third party and government
necessary to execute and perform this Agreement, which shall not
be against any enforceable and effective laws or contracts;
3.1.3 the Agreement will constitute a legal, valid and binding
agreement of Party A enforceable against it in accordance with
its terms upon its execution.
3.2 Party B hereby represents and warrants as follows:
3.2.1 Party B is a company duly registered and validly existing under
the laws of the PRC and is licensed to engage in the business of
the information service on the value-added telecommunication
services.
3.2.2 Party B has full right, power, authority and capacity and all
consents and approvals of any other third party and government
necessary to execute and perform this Agreement, which shall not
be against any enforceable and effective laws or contracts.
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3.2.3 Once the Agreement has been duly executed by both parties, it
will constitute a legal, valid and binding agreement of Party B
enforceable against it in accordance with its terms upon its
execution.
4. Confidentiality
4.1 Party B agrees to use all reasonable means to protect and maintain the
confidentiality of Party A's confidential data and information
acknowledged or received by Party B by accepting the exclusive
consulting and services from Party A (collectively the "Confidential
Information"). Party B shall not disclose or transfer any Confidential
Information to any third party without Party A's prior written
consent. Upon termination or expiration of this Agreement, Party B
shall, at Party A's option, return all and any documents, information
or software contained any of such Confidential Information to Party A
or destroy it, delete all of such Confidential Information from any
memory devices, and cease to use them.
4.2 It is agreed that this Section 4 shall survive after any amendment,
expiration or termination of this Agreement.
5. Indemnity
Party B shall indemnify and hold harmless Party A from and against any
loss, damage, obligation and cost arising out of any litigation, claim or
other legal procedure against Party A resulting from the contents of the
technical consulting and services demanded by Party B.
6. Effective Date and Term
6.1 This Agreement shall be executed and come into effect as of the date
first set forth above. The term of this Agreement is ten (10) years,
unless earlier terminated as set forth in this Agreement or in
accordance with the terms set forth in the agreement entered into by
both parties separately. However, both parties shall review this
Agreement every 3 months to determine whether any amendment to the
Agreement is necessary after considering the circumstances.
6.2 This Agreement may be extended only if Party A gives its written
consent of the extension of this Agreement before the expiration of
this Agreement. However, both parties shall, through negotiations,
determine the extension term.
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7. Termination
7.1 Termination on Expiration
This Agreement shall expire on the date due unless this Agreement is
extended as set forth above.
7.2 Early Termination
During the term of this Agreement, Party B can not terminate this Agreement
except in the case of gross negligence, fraud or other illegal acts or
bankruptcy of Party A. Notwithstanding the above-mentioned, Party A may
terminate this Agreement at any time with a written notice to Party B 30
days before such termination.
7.3 Survival.
Sections 4 and 5 shall survive after the termination or expiration of this
Agreement.
8. Settlement of Disputes
The parties shall strive to settle any dispute arising from the interpretation
or performance 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 Commission
(the "CIETAC"). The arbitration shall follow the current rules of CIETAC, and
the arbitration proceedings shall be conducted in Chinese and shall take place
in Beijing. The arbitration award shall be final and binding upon the parties
and shall be enforceable in accordance with its terms.
9. Force Majeure
9.1 Force Majeure, which includes, but not limited to, acts of
governments, acts of nature, fire, explosion, typhoon, flood,
earthquake, tide, lightning, war, means any event that is beyond the
party's reasonable control and cannot be prevented with
reasonable care. However, any shortage of credit, capital or finance
shall not be regarded as an event of Force Majeure. The affected party
who is claiming to be not liable to its failure of fulfilling this
Agreement by Force Majeure shall inform the other party, without
delay, of the approaches of the performance of this Agreement by the
affected party.
9.2 In the event that the affected party is delayed in or prevented from
performing its obligations under this Agreement by Force Majeure, only
within the scope of such delay or prevention, the affected party will
not be responsible for any damage by reason of such a failure or delay
of performance. The affected party shall take appropriate means to
minimize or remove the effects of Force Majeure and attempt to resume
performance of the obligations delayed or prevented by the event of
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Force Majeure. After the event of Force Majeure is removed, both
parties agree to resume performance of this Agreement with their best
efforts.
10. Notices
Notices or other communications required to be given by any party pursuant
to this Agreement shall be written in English and Chinese and shall be deemed to
be duly given when it is delivered personally or sent by registered mail or
postage prepaid mail or by a recognized courier service or by facsimile
transmission to the address of the relevant party or parties set forth below.
Party A: Hurray! Times Communications (Beijing) Ltd.
Room B 07, Tong Heng Plaza, No.4 Huanyuan Road, Haidian District,
Beijing
Party B: Beijing Palmsky Technology Co., Ltd.
Room 915, Haitai Building, No.229 Beisihuan zhonglu, Haidian
District, Beijing
11. No Assignment
Party B may not assign its rights or obligations under this Agreement to
any third party without the prior written consent of Party A.
12. Severability
Any provision of this Agreement that is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability, without affecting in any way the remaining
provisions hereof in such jurisdiction or rendering that any other provision of
this Agreement invalid or unenforceable in any other jurisdiction.
13. Amendment and Supplement
Any amendment and supplement of this Agreement shall come into force only
after a written agreement is signed by both parties. The amendment and
supplement duly executed by both parties shall be part of this Agreement and
shall have the same legal effect as this Agreement.
14. Governing Law
This Agreement shall be governed by and construed in accordance with the
PRC laws.
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15. Miscellaneous
This Agreement is executed in duplicate in Chinese.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be duly
executed on their behalf by a duly authorized representative as of the date
first set forth above.
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EXCLUSIVE TECHNICAL CONSULTING AND SERVICES AGREEMENT
[No text on this page]
By: /s/ Xiang Songzuo
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Party A : Hurray! Times Communications (Beijing) Ltd.
Representative: Xiang Songzuo
By: /s/ Wei Hongbin
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Party B: Beijing Palmsky Technology Co., Ltd.
Representative: Wei Hongbin
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Appendix 1: The list of Technical Consulting and services
Party A shall provide the following technical consulting and services to Party
B:
1. maintenances of the machine room and website;
2. provision and maintenances of the office network;
3. integrated security services for the website;
4. design and implementation of the integrated structure of the network of the
website, including the installation of the server system and 24 hours' daily
maintenances each week
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Appendix 2: Calculation and Payment of the Fee for Consulting and Services
Party B should pay consulting service fee RMB10,000 per year to Party A, but
Party A has the right to adjust the consulting service fee according to the
quantity of the consulting service provided by Party B.
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