Website Development and Use Agreement - Beijing Decision Education Co. Ltd.
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
Website Development and Use Agreement
Party A: Beijing Decision Education Co., Ltd. (Management-WOFE)
Party B: [the name of New Oriental Schools]
| (1) | WHEREAS, Party A, a wholly owned foreign enterprise duly organized and existing under PRC laws, with considerable technology ability and business experience in software development, website establishment and hardware service technology; and |
| (2) | WHEREAS, Party B, an independent private school in China, providing language training and relevant courses to the public, needs Party A to provide it with the website development and daily system maintenance services. |
NOW, THEREFORE, through friendly negotiation and on the principle of equality and mutual benefit, in relation to the website development and daily system maintenance services provided by Party A to Party B and the payments by Party B for using new registration system under this Agreement, Parties hereby agree as follows.
| 1. | General Rules |
| 1.1 | Definition of “Website Platform”: Website Platform means, after the acceptance of Party B’s commission and according to its requirements, the Website Platform designed and developed by professional staff organized by Party A in the term provided by this Agreement, and exclusively used, proceeded and deposited by Party B(“Website Platform” hereinafter). |
| 1.2 | Responsibility of website development: under the premise of profound acquaintance to the business procedure of Party B, Party A shall organize professional staff to develop the Website Platform in accordance with the business and function requirements of Party B. Without written consent by Party B, Party A shall not assign the Website Platform development responsibility to any third party, in whole or in part. |
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
| 1.3 | Website Platform development cycle: upon the effectiveness of this Agreement, Party A shall fully complete the design and compiling of the website platform and, obtain Party B’s confirmation, and execute the confirmation letter no later than May 31, 2005; Party A shall fully finish the installation and adjustment, accept the checking and acceptance of Party B or the institution appointed by Party B no later than June 15, 2005, and transfer all the documents relevant to the Website Platform development, usage, compiling, maintenance and upgrade, and the complete system source code to Party B no later than June 30, 2005; Party A shall assume unconditionally amendment, upgrading or versioning obligations for Website Platform system function defects, security defects and interface defects, if such defects still exist after the checking and acceptance. |
| 1.4 | Maintenance and training of Website Platform system: Party A provides maintenance services for the system malfunctions in the using process by Party B; Party A assumes the training of the Party B stuff of system’s using, daily maintenance and malfunction checking. |
| 1.5 | Ownership of Website Platform: system is accomplished by Party A under the commission of Party B, thus Party B has the rights of use and disposal. |
| 1.6 | Website Platform System expenses: Party B shall pay Party A fees for Website Platform system development and follow-on technical services and upgrading according to this Agreement. |
| 2. | Website Platform System Functions: |
| 2.1 | Under the promise of profound understanding between Parties, Party B is responsible for specifying requirements, and Party A is responsible for realizing system functions. |
| 2.2 | Final confirmation of Website Platform system functions shall be determined by the requirement research report, Website Platform system design report (design plan), etc. acknowledged by Party B in writing. The research and requirement collection conducted by Party A upon Party B and the documents produced therewith constitute the annex of this Agreement, having legal effect together with this Agreement. |
| 2.3 | Basic functional requirements of Website Platform system include, but are not limited to the following: |
| 2.3.1 | Functional requirements of the website front-end system include, but are not limited to the following: |
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
| 2.3.1.1 | Customized style: including the tone (whole page’s reference color); frame, resolution ratio as 1024*768 and overall arrangement (including the location of guidance link, searching method, flash, floating painters, administrators’ entrance). |
| 2.3.1.2 | Data structure: distinctively drawing out the first, the second and the third level of data structure. The first level is sorted according to Group’s businesses and school’s businesses, and the second and the third level is subdivided according the business categories. |
| 2.3.1.3 | Third layers of pages: including the page’s design, layout, contents (including pictures, music files, video, flash, typeface and typesetting, etc.). |
| 2.3.2 | Functions of the website back-end system include, but are not limited to the following: administrators’ log-in entrance; user management: addition, deletion, amendment of user information; authorization: assignment of different authorities to different users; maintenance of Website Platform; data statistics: including the general clicking rate and period clicking rate, flux and IP address statistics. |
| 2.3.3 | Hardware platform and software environment: hardware platform shall install firewall; combination of Telecom and Netcom; speed shall be 1000M for the flow out, at least 600M. Requirements of software environment: development language shall be JAVA, or .NET or other languages; data base shall use ACCESS, or SQSERVER, or MYSQL; operating system shall use WINDOWS or UNIX. |
| 2.4 | After checked, accepted and used normally by Party B, Party A can upgrade or expand the system under Party B’s commission due to the expansion or alteration of the system functional requirements as a result of the business expansion and change of Party B. |
| 3. | Website Platform System Defect |
| 3.1 | In the event that the functions specified in Article 2 herein fail to be fully realized, Party B can refuse to accept the system, and Party A shall compensate for the loss and assume the responsibility resulted from such failure. Party A shall compensate for all the direct losses of Party B, if any, caused by the failure mentioned above; if it results in the fact that the performance of this Agreement is not necessary or impossible, Party B can terminate this Agreement and reserve the right to require Party A to compensate for all the losses. |
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
| 3.2 | In the event that there are functional defects or operation interface defects in part after the checking and acceptance process, Party B shall inform Party A in writing. Party A shall respond within 24 hours after receiving the notice, and remove the impediments unconditionally through methods of amending program, upgrading or versioning in the time period confirmed by both Parties. The expenses thus arising out of shall be assumed by Party A, and Party A will be responsible for the loss of Party B. |
| 3.3 | In the event that the data security defects still exist after the checking and acceptance process, responsibility shall be assumed according to Article 7 of this Agreement “Responsibility on Data Security.” |
| 4. | Website Platform System Maintenance and Staff Training |
| 4.1 | In the course of normal use of the system by Party B, Party A shall resolve the system malfunctions other than the ones provided for in Article 3 of this Agreement within 12 hours after receiving the notice. |
| 4.2 | Within 7 days after passing the checking and acceptance, Party B shall begin the training of at least one of the Party B employees on system’s installation, usage, daily maintenance and malfunction examination. Party B shall provide at least one employee to attend the training in the relevant period. |
| 4.3 | After the Website Platform system’s amendment, upgrading and versioning, Parties must conduct training as provided for in Article 4.2. |
| 5. | Intellectual Property and Source Code |
| 5.1 | Party A possesses all the intellectual property of Website Platform system and the right of authorship in the system. |
| 5.2 | Party B does not possess the intellectual property of Website Platform system, but has the usage right. |
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
| 6. | Website’s Checking and Acceptance |
| 6.1 | Website shall be delivered to Party B from Party A for checking and acceptance no later than June 15, 2005. In the event that Party A delays in deliverance, it shall pay 1% of the total amount of the subject matter of this Agreement to Party B for each day overdue. In the event that the number of days overdue exceeds 30 days, Party B has right to refuse to check and accept. |
| 6.2 | Website’s checking and acceptance can be conducted by either Party B or institutions appointed by Party B. |
| 6.3 | Party B shall dispatch personnel to do checking and acceptance within 7 days after deliverance by Party A. The system will be deemed to have been checked and accepted by Party B if Party B does not perform checking and acceptance after 7 days. |
| 6.4 | Party B will issue a checking and acceptance report to Party A after the system passes the checking. Such report is the annex of this Agreement, and has legal effect with this Agreement. |
| 6.5 | In the process of checking and acceptance, Party B can refuse to issue the checking and acceptance report if it or the institution appointed by it finds system defects that affect functions and normal usage. In this case Party B can specify certain reasonable term for Party A to amend the Website Platform system and remove impediments. |
| 6.6 | If the checking and acceptance is delayed or fails to pass due to the reasons provided for in Article 6.1 or 6.5 of this Agreement, Party B can terminate this Agreement. Party A shall refund prepaid payments, if any, to Party B, and compensate Party B for its losses. |
| 7. | Responsibility on Data Security |
| 7.1 | Party A shall maintain warranty with the system data security of Party B in the course of the designing and development of Website Platform system. Responsibility for Website Platform system data security includes, but is not limited to, preventing illegal entry, preventing destruction of system caused by computer virus, data recovery and back-up, etc. |
| 7.2 | The damages caused as a result of using third party software or hardware by Party A in the design plan of data security of Website Platform system shall not constitute exculpatory reasons for Party A. |
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
| 7.3 | In the event that data security defects are found after the checking and acceptance process and such defects result in loss of Party B, Party A shall remove the impediments unconditionally within 24 hours after receiving the notice, recover the data and amend, upgrade or version the data security system. Party B reserves the right to require Party A to compensate for all the losses. |
| 8. | Payment |
| 8.1 | Parties agree that Party B shall pay fees for using the Website Platform system to Party A in accordance with the revenues and profits generated by such system. |
| 8.2 | Parties agree that the fee of using the Website Platform under this Agreement will be [*]% of Party B’s annual revenue. |
| 8.3 | Unless otherwise agreed by both Parties, the fees of using the Website Platform under this Agreement should be paid annually, deposited by Party B to the bank account designated by Party A, and Party A should issue legal invoice to Party B. |
| 8.4 | Taxes and expenses arising out of the execution and implementation of this Agreement shall be borne by Parties respectively according to law. |
| 9. | Liability of Breach of Contract |
| 9.1 | In the event that Party B assigns the right of using the registration system under this Agreement to a third party without consent of Party A, Party A has the right to request Party B to stop this infringement and eliminate any impacts. Party B shall compensate Party A in the amount equal to twice of the profit of Party B gained as a result of the infringement and Party A reserves its right to sue Party B. |
| 9.2 | In the event that Party A breaches above provisions and causes losses and damages to Party B’s teaching business, Party A shall compensate Party B in the amount equal to two times the loss sustained by Party B. |
| 9.3 | In the event that Party B fails to pay to Party A the usage fees for the registration system under this Agreement, it shall pay 0.05% of the overdue payment amount to Party A for each day overdue. In the event that the number of days overdue exceeds 30 days, Party A has the right to terminate this Agreement. |
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
| 10. | Term and Termination |
| 10.1 | Term of this Agreement will be two years, commencing from the date of effectiveness of this Agreement. Upon the expiration, this Agreement can be extended as agreed upon by both Parties. |
| 10.2 | Any Party will be deemed to have breached the Agreement if it fails to perform any obligations hereinto; the non-breaching Party is entitled to issue written notice to terminate this Agreement to the breaching Party if the breaching Party has not taken any measures to cure or remedy the breach within 60 business days of the written notice to cure such breaches issued by the non-breaching Party. The non-breaching Party can terminate this Agreement at any time thereafter. If the breach is cured by the breaching Party within 60 business days of the written, this Agreement will continue to be effective. |
| 11. | Dispute Resolution |
| 11.1 | The Parties shall use their best efforts in good faith to amicably settle any disputes or differences arising out of this Agreement. If an attempt to settle has failed, any Party can submit the disputes to Beijing Arbitration Commission for arbitration in Beijing in accordance with its rules of arbitration in effect. The arbitral award shall be final and binding upon both Parties. |
| 11.2 | “Dispute” in this clause means the dispute to the formation, time of formation, explanation of the content, performance, breach responsibility, and amendment, assignment, release and termination of this Agreement. |
| 12. | Miscellaneous |
| 12.1 | This Agreement shall become effective upon the date of execution by both Parties. Parties may negotiate and enter supplementary contracts on matters not agreed upon herein. Supplementary contracts have equal effect as this Agreement. |
| 12.2 | Any provision of this Agreement will be deemed as severable in the jurisdiction where it conflicts with the laws in such jurisdiction. The enforceability and binding effect of such provision should not be affected in other jurisdictions. |
| 12.3 | This Agreement together with the documents referred to herein is the sole contract achieved by Parties for the subject of this Agreement. Except for the ones listed in this Agreement, the Parties will not be bound by other conditions, provisions, warranties or representations. |
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
| 12.4 | Amendments to this Agreement shall be valid only when made in writing and signed by both parties or their legal representatives with seal, and such amendments shall have the same effect as this Agreement. |
| 12.5 | The execution, validity, construction, performance, amendment, termination and dispute resolution of this Agreement will be governed by the laws of PRC. |
| 12.6 | Party B shall not assign this Agreement, in part or in whole, without the prior written approval of Party A. |
| 12.7 | The failure to require performance of any provision fully and timely any provision shall not affect a party’s rights to require performance of such provision or other provisions of this Agreement at any time thereafter. |
| 12.8 | If a Force Majeure Event affects the performance of this Agreement, the Party affected by the Force Majeure Event shall immediately notify the other Party by means of telegraph, fax or other electronic forms, and shall furnish within fifteen (15) days thereafter sufficient evidence in writing of the occurrence of the Force Majeure Event. According to the Force Majeure’s impact on the performance of this Agreement, the Parties determine whether to release this Agreement, exempt the performance responsibility in part, or delay the performance. |
| 12.9 | Unless otherwise provided under this Agreement, “day” means calendar day, “business day” means the normal business day of Chinese commercial banks. |
| 12.10 | The annexes of this Agreement shall be considered as an integral part of this Agreement, and have the same effect. |
| 12.11 | This Agreement is executed in 4 originals and each Party holds two originals. |
Each party has caused this Agreement to be executed by its duly authorized representative on the date of April 25, 2005:
Party A: Beijing Decision Education Co., Ltd. (Management-WOFE)
Authorized representative (signature):
Party B: [describe the name of New Oriental Schools]
Authorized representative (signature):
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
Amendment to the Website Development and Use Agreement
This amendment is executed on January 1, 2006, in Beijing, by the following parties.
Party A: Beijing Decision Education Co., Ltd. (Management-WOFE)
Party B: [the name of New Oriental Schools]
The Parties entered into the Website Development and Use Agreement on . Upon friendly discussions, the Parties hereby modify and amend the original Website Development and Use Agreement as follows:
| 1. | Article 8.2 of the Website Development and Use Agreement provides that: |
“Parties agree that the fee of using the Website Platform of this Agreement will be [*] % of Party B’s annual revenue.”
Article 8.2 is amended as follows:
“Parties agree that the fee of using the Website Platform under this Agreement should be [*] % of Party B’s quarterly revenue. Both Parties may discuss and adjust such payment standard at the end of each quarter according to the actual revenue and profit of Party B. In the event that no adjustment is made, the percentage applied in the nearest quarter shall apply.”
| 2. | Article 8.3 of the Website Development and Use Agreement provides that: |
“Unless otherwise agreed by both Parties, the fees of using the Website Platform under this Agreement should be paid annually, deposited by Party B to the bank account designated by Party A, and Party A should issue legal invoice to Party B.”
Article 8.3 is amended as follows:
“Unless otherwise agreed by both Parties, the fees of using the Website Platform under this Agreement should be paid quarterly, deposited by Party B to the bank account designated by Party A, and Party A should issue legal invoice to Party B.”
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Exhibit 99.3
Related Party Transaction
– Form of Website Development and Use Agreement
English Translation for Reference Purpose Only
| 3. | Article 10.1 of the Website Development and Use Agreement provides the following provision: |
“Term of this Agreement will be two years, commencing from the date of effectiveness of this Agreement. Upon the expiration, this Agreement may be extended as agreed upon by both Parties.”
Article 10.1 is amended as follows:
“Both Parties agree that the term of the Website Development and Use Agreement shall be extended to five years commencing from the date of execution of this Amendment and may be further extended in five-year roll without limitation number of extensions allowed.”
| 4. | This Amendment will become effective on the date of execution by the authorized representatives of each Party. |
| 5. | This Agreement is executed in 4 originals and each Party holds two originals. Each original has the same legal affect. |
Party A: Beijing Decision Education Co., Ltd. (Management-WOFE)
Authorized representative (signature):
Party B: [describe the name of New Oriental Schools]
Authorized representative (signature):
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