DATED: June 23, 2010 (SHANDONG ZHONGWEN INDUSTRIAL GROUP COMPANY LIMITED) and (HONGKONG ZHONGWENBO INTERNATIONAL GROUP COMPANY LIMITED)
Exhibit
10.1
DATED: June
23, 2010
山东中文实业集团有限公司
(SHANDONG
ZHONGWEN INDUSTRIAL GROUP COMPANY LIMITED)
and
香港中文博国际集团有限公司
(HONGKONG
ZHONGWENBO INTERNATIONAL GROUP COMPANY LIMITED)
1
THIS AGREEMENT is made on the
23rd day of June, 2010.
BETWEEN
|
(1)
|
山东中文实业集团有限公司 (SHANDONG ZHONGWEN INDUSTRIAL
GROUP COMPANY LIMITED), a limited liability company established and
existing under the laws of the People’s Republic of China (the “PRC”) and whose address
is at Damu Village, Miaozi Town, Qingzhou City, Shandong Province, PRC
(中華人民共和國山东省青州市庙子镇大牟村);
and
|
|
(2)
|
香港中文博国际集团有限公司(HONGKONG ZHONGWENBO
INTERNATIONAL GROUP COMPANY LIMITED), a company incorporated and
existing under the laws of Hong Kong and whose registered office is at ▇/▇
& ▇/▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.▇▇ ▇▇▇▇▇’▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the
“Agent”).
|
WHEREAS
:
|
(A)
|
The
Principal manufactures and sells the Products (as defined
below).
|
|
(B)
|
The
Agent wishes to be appointed as the Principal’s agent in the Territory for
the sale of the Products (as defined
below).
|
NOW IT IS HEREBY AGREED as
follows :
|
1.
|
INTERPRETATION
|
|
1.1
|
In
this Agreement, unless the context otherwise
requires:
|
|
“Force
Majeure”
|
means
in relation to either party, any circumstances beyond the reasonable
control of that party (including, without limitation, any strike, lock-out
or other form of industrial
action).
|
|
“Intellectual
Property”
|
means
any patent, copyright, registered design, trade ▇▇▇▇ or other industrial
or intellectual property right subsisting in the Territory in respect of
the Product, and applications for any of the
foregoing.
|
|
“Net Sales
Value”
|
means
in relation to any Products, the price actually charged to the customer
therefor (less any value added or other sales tax thereon included in the
price).
|
|
“Products”
|
means
products as are manufactured by or for the Principal and are from time to
time notified in writing by the Principal to the Agent, as more
particularly set out in the List of Products in the Schedule.
|
2
|
“Restricted
Information”
|
means
any information which is disclosed to the Agent by the Principal pursuant
to or in connection with this Agreement (whether orally or in writing, and
whether or not such information is expressly stated to be confidential or
marked as such).
|
|
“Territory”
|
means
any productions other than Brazil and the PRC (excluding the Special
Administration Regions of Hong Kong and Macau and the territory of
Taiwan).
|
|
1.2
|
The
headings of this Agreement are inserted for convenience only and shall be
ignored in construing this Agreement. Unless the context
otherwise requires, references in this Agreement to the singular shall be
deemed to include references to the plural and vice versa; references to
one gender shall include all genders and references to any person shall
include an individual, firm, body corporate or
unincorporate.
|
|
1.3
|
References
to any statute or statutory provision shall include any statute or
statutory provision which amends or replaces or has amended or replaced it
and shall include any subordinate legislation made under the relevant
statute.
|
|
1.4
|
References
in this Agreement to clauses, schedules and exhibit are references to,
clauses of and schedules and exhibit to, this Agreement and references to
sub-clauses and paragraphs are unless otherwise stated, references to
sub-clauses and paragraphs of the clause, sub-clause or, as appropriate,
the schedule in which the reference
appears.
|
|
2.
|
APPOINTMENT OF
AGENT
|
|
2.1
|
The
Principal hereby appoints the Agent as its agent for the sale of the
Products in the Territory, and the Agent hereby agrees to act in that
capacity, subject to the terms and conditions of this
Agreement.
|
|
2.2
|
The
Principal shall not, during the continuance of this Agreement, appoint any
other person, firm or company as the Principal’s agent or distributor for
the sale of the Products in the
Territory.
|
|
2.3
|
The
Agent shall not solicit or accept any orders for the
Products:-
|
|
|
(i)
|
from
any person in the Territory if the Agent knows or has reason to believe
that the Products concerned will be resold outside the Territory;
or
|
|
|
(ii)
|
from
any person outside the
Territory.
|
3
|
2.4
|
Subject
to the prior consent of the Agent either generally or in relation to any
specific transaction, the Agent shall guarantee to the Principal the due
performance by any customer or customers of contracts that they have
entered into with the Principal as a result of the Agent’s activities
under this Agreement. Such guarantee shall be by way of separate agreement
in writing between the Principal and the Agent in a form to be agreed but
which shall in any event provide that the Agent is not to be liable
thereunder in the event of a refusal to perform by the customer or
customers which is caused by any default of the
Principal.
|
|
3.
|
THE AGENT’S
DUTIES
|
|
3.1
|
The
Agent shall, at all times during the continuance of this Agreement
:
|
|
|
(i)
|
act
in the interests of the Principal and not allow its interests to conflict
with the duties that it owes to the Principal;
and
|
|
|
(ii)
|
act
towards the Principal dutifully and in good
faith.
|
|
3.2
|
The
Agent shall use its best endeavours to promote and market the Products to
customers and prospective customers in the Territory and, subject to the
provisions of clause 4.1,
shall be entitled without prior reference to the Principal to enter into
contracts for the sale of the Products in the name and on behalf of the
Principal.
|
|
3.3
|
The
Agent shall conduct the promotion and marketing of the Products in the
Territory with all due care and diligence and shall cultivate and maintain
good relations with customers and potential customers in the Territory in
accordance with sound commercial
principles.
|
|
3.4
|
Subject
as provided in this Agreement and to any directions which the Principal
may from time to time properly give, the Agent shall be entitled to
perform its duties hereunder in such manner as it may think
fit.
|
|
3.5
|
The
Agent shall in all dealings concerning the Products describe itself as
“Sales Agent” for the Principal.
|
|
3.6
|
The
Agent shall be responsible for obtaining all licences, permits and
approvals which are necessary or advisable for the sale of the Products in
the Territory and for the performance of its duties
hereunder.
|
|
3.7
|
The
Agent shall comply with all applicable laws and regulations relating to
the sale of the Products in the Territory (other than those relating to
the nature, method of manufacture, packaging or labeling of the Products)
and shall notify the Principal of any changes in the laws and regulations
in the Territory relating to the nature, method of manufacture, packaging
or labeling of the Products.
|
|
3.8
|
The
Agent shall maintain a list of customers and potential customers for the
Products in the Territory and shall at the request of the Principal supply
it with a copy of that list.
|
|
3.9
|
The
Agent shall from time to time keep the Principal fully informed of the
Agent’s promotional and marketing activities in respect of the
Products.
|
4
|
3.10
|
The
Agent shall keep the Principal informed of conditions in the market for
the Products in the Territory.
|
|
3.11
|
The
Agent shall promptly inform the Principal of
:
|
|
|
(i)
|
any
complaint or after-sales enquiry concerning the Products which is received
by the Agent; and
|
|
|
(ii)
|
any
matters likely to be relevant in relation to the manufacture, sale, use or
development of the Products within or outside the
Territory.
|
|
3.12
|
The
Agent shall not :
|
|
|
(i)
|
pledge
the credit of the Principal in any
way;
|
|
|
(ii)
|
make
any modifications to the Products or their packaging or (without prejudice
to the generality of the foregoing) alter, remove or tamper with the trade
names, trade marks, or other means of identification on the
Products;
|
|
|
(iii)
|
use
any advertising, promotional or selling materials in relation to the
Products except those supplied or approved by the
principal;
|
|
|
(iv)
|
engage
in any conduct which in the opinion of the Principal is prejudicial to the
Principal’s business or the marketing of the Products generally;
or
|
|
|
(v)
|
be
concerned or interested either directly or indirectly in the manufacture,
sale, promotion, marketing or importation into the Territory of any goods
which compete with the Products.
|
|
4.
|
SALES AND STOCKS OF
THE PRODUCTS
|
|
4.1
|
All
sales of the Products by the Agent on behalf of the Principal shall be
made on such terms and conditions as the Principal may from time to time
specify in writing to the Agent, and accordingly
:
|
|
|
(i)
|
the
Agent shall, in the course of dealing with all customers and prospective
customers for the Products in the Territory, bring to their notice such
terms and conditions; and
|
|
|
(ii)
|
the
Agent shall not make or give any promises, warranties, guarantees or
representations concerning the Products other than those contained in
those terms and conditions of sale.
|
|
4.2
|
All
sales of the Products by the Agent on behalf of the Principal shall be at
the price specified in the price lists which shall from time to time be
supplied to the Agent for the purpose by the Principal, subject to such
discounts and other deductions as the Principal may
allow.
|
5
|
4.3
|
Title
to the Products shall at no time pass to the Agent, and the Agent shall
ensure that all Products are separately stored on its premises and marked
as being the property of the
Principal.
|
|
5.
|
INTELLECTUAL
PROPERTY
|
|
5.1
|
The
Agent shall promptly and fully notify the Principal of any actual,
threatened or suspected infringement in the Territory of any Intellectual
Property of the Principal which comes to the Agent’s notice, and of any
claim by any third party so coming to its notice that the importation of
the Products into the Territory, or their sale therein, infringes any
rights of any other person, and the Agent shall at the request and expense
of the Principal do all such things as may be reasonably required to
assist the Principal in taking or resisting any proceedings in relation to
any such infringement or claim.
|
|
5.2
|
Nothing
in this Agreement shall give the Agent any rights in respect of any trade
names or trade marks used by the Principal in relation to the Products or
of the goodwill associated therewith, and the Agent hereby acknowledges
that, except as expressly provided in this Agreement, it shall not acquire
any rights in respect thereof and that all such rights and goodwill are,
and shall remain, vested in the
Principal.
|
|
5.3
|
The
Agent shall not use in the Territory any trade marks or trade names so
resembling the trade marks or trade names of the Principal as to be likely
to cause confusion or deception.
|
|
5.4
|
The
Agent shall, at the expense of the Principal, take all such steps as the
Principal may reasonably require to assist the Principal in maintaining
the validity and enforceability of the Intellectual Property of the
Principal during the continuance of this
Agreement.
|
|
5.5
|
Without
prejudice to the right of the Agent or any third party to challenge the
validity of any Intellectual Property of the Principal, the Agent shall
not do or authorize any third party to do any act which would or might
invalidate or be inconsistent with the Intellectual Property of the
Principal and shall not omit or authorize any third party to omit to do
any act which, by its omission, would have that effect or
character.
|
|
6.
|
RIGHTS AND DUTIES OF
THE PRINCIPAL
|
|
6.1
|
The
Principal shall at all times during the continuance of this Agreement act
towards the Agent dutifully and in good
faith.
|
|
6.2
|
The
Principal shall be entitled from time to time to extend the range of the
Products, or discontinue any of the
same.
|
6
|
6.3
|
The
Principal shall :
|
|
|
(i)
|
supply
to the Agent any information which may come into its possession which may
assist the Agent to effect sales pursuant to this
Agreement;
|
|
|
(ii)
|
honour
any contracts for the sale of the Products entered into by the Agent on
behalf of the Principal pursuant to this
Agreement;
|
|
|
(iii)
|
promptly
and efficiently deal with any after sales enquiry relating to the Products
raised by a customer in the Territory;
and
|
|
|
(iv)
|
comply
with all the applicable laws and regulations relating to the nature,
method of manufacture, packaging and labeling of the
Products.
|
|
6.4
|
Subject
to compliance by the Agent with its obligations under this Agreement, the
Principal shall indemnify the Agent against any liability (including,
without prejudice to the generality of the foregoing, all costs and
expenses which the Agent may reasonably incur in defending any
proceedings) which it may incur by reason only of its being held out as
the Principal’s agent.
|
|
7.
|
FINANCIAL
PROVISIONS
|
In
consideration of the obligations undertaken by the Agent hereunder, the
Principal shall pay the Agent commission equal to 5 per cent of the Net Sales
Value of all Products for which a contract of sale is made by the Agent on
behalf of the Principal pursuant to this Agreement. All sums payable by the
Principal under this Agreement shall be paid in full without set-off or
counterclaim or any restriction or condition and free and clear of any tax or
other deductions or withholdings of any nature.
|
8.
|
CONFIDENTIALITY
|
|
8.1
|
Except
as provided by clauses 8.2 and
8.3, the
Agent shall at all times during the continuance of this Agreement and
after its termination:
|
|
|
(i)
|
use
its best endeavours to keep all Restricted Information confidential and
accordingly not to disclose any Restricted Information to any other
person; and
|
|
|
(ii)
|
not
use any Restricted Information for any purpose other than the performance
of its obligation under this
Agreement.
|
|
8.2
|
Any
Restricted Information may be disclosed by the Agent to
:
|
|
|
(i)
|
any
customers or prospective customers;
|
|
|
(ii)
|
any
governmental or other authority or regulatory body;
or
|
7
|
|
(iii)
|
any
employees of the Agent or of any of the aforementioned
persons,
|
to such
extent only as is necessary for the purposes contemplated by this Agreement,
subject in each case to the Agent using its best endeavours to ensure that the
person in question keeps the same confidential and does not use the same except
for the purposes for which the disclosure is made, or to any person as is
required by law.
|
8.3
|
Any
Restricted Information may be used by the Agent for any purpose, or
disclosed by the Agent to any other person, to the extent only that
:
|
|
|
(i)
|
it
is at the date hereof, or hereafter becomes, public knowledge through no
fault of the Agent (provided that in doing so the Agent shall not disclose
any Restricted Information which is not public knowledge);
or
|
|
|
(ii)
|
if
can be shown by the Agent, to the reasonable satisfaction of the
Principal, to have been known to the Agent prior to its being disclosed by
the Principal to the Agent.
|
|
9.
|
FORCE
MAJEURE
|
|
9.1
|
If
either party is affected by Force Majeure it shall forthwith notify the
other party of the nature and extent
thereof.
|
|
9.2
|
Neither
party shall be deemed to be in breach of this Agreement, or otherwise be
liable to the other, by reason of any delay in performance, or
non-performance, of any of its obligations hereunder to the extent that
such delay or non-performance is due to any Force Majeure of which it has
notified the other party; and the time for performance of that obligation
shall be extended accordingly.
|
|
9.3
|
If
the Force Majeure in question prevails for a continuous period in excess
of six months, the parties shall enter into bona fide discussions with a
view to alleviating its effects, or to agreeing upon such alternative
arrangements as may be fair and
reasonable.
|
|
10.
|
DURATION AND
TERMINATION
|
|
10.1
|
This
agreement shall come into force on the date hereof and, subject as
provided in clauses 10.2
and 10.3,
shall continue in force for a period of 2 years and thereafter unless or
until terminated by either party giving to the other written notice
expiring at or at any time after the end of that
period.
|
|
10.2
|
Either
party shall be entitled forthwith to terminate this Agreement by giving
written notice to the other if that other party commits any repudiatory
breach of any of the provisions of this Agreement and, in the case of a
breach capable of remedy, fails to remedy the same within 30 days after
receipt of a written notice giving full particulars of the breach and
requiring it to be remedied.
|
8
|
10.3
|
Either
party shall be entitled to terminate this Agreement by giving written
notice to the other party if :
|
|
|
(i)
|
the
other party commits a breach of this Agreement (not being a repudiatory
breach of this Agreement) and, if the breach is capable of remedy, fails
to remedy it within 30 days after receipt of a written notice giving full
particulars of the breach and requiring it to be
remedied;
|
|
|
(ii)
|
the
other party makes any voluntary arrangement with its
creditors;
|
|
|
(iii)
|
the
other party goes into liquidation (except for the purposes of amalgamation
or reconstruction and in such manner that the company resulting therefrom
effectively agrees to be bound by or assume the obligations imposed on
that other party under this
Agreement);
|
|
|
(iv)
|
anything
analogous to any of the foregoing under the law of any jurisdiction occurs
in relation to that other party; or
|
|
|
(v)
|
the
other party ceases, or threatens to cease, to carry on
business.
|
|
10.4
|
For
the purposes of clause 10.3, a
breach shall be considered capable of remedy if the party in breach can
comply with the provision in question in all respects other than as to the
time of performance (provided that time of performance is not of the
essence).
|
|
10.5
|
Any
waiver by either party of a breach of any provision of this Agreement
shall not be considered as a waiver of any subsequent breach of the same
or any other provision thereof.
|
|
10.6
|
The
rights to terminate this Agreement given by this clause shall be without
prejudice to any other right or remedy of either party in respect of the
breach concerned (if any) or any other
breach.
|
|
11.
|
CONSEQUENCES OF
TERMINATION
|
|
11.1
|
Upon
the termination of this Agreement for any reason
:
|
|
|
(i)
|
the
Agent shall within 30 days send to the Principal or otherwise dispose of
in accordance with the directions of the Principal all stocks of the
Products (other than any for which it has accepted orders from customers
before the date of termination), samples and any advertising, promotional
or sales material relating to the Products then in the possession of the
Agent;
|
|
|
(ii)
|
the
Agent shall cease to promote, market, advertise or sell the
Products;
|
9
|
|
(iii)
|
the
provisions of clause 7 shall
continue in force in relation to :
|
|
|
(a)
|
all
sales of the Products before the date of termination;
and
|
|
|
(b)
|
all
sales of the Products after the date of termination pursuant to orders
received on or before that date;
|
|
|
(iv)
|
clause
8 shall continue in force in accordance with its terms;
and
|
|
|
(v)
|
subject
as otherwise provided herein and to any rights or obligations which have
accrued prior to termination, neither party shall have any further
obligation to the other under the
Agreement.
|
|
11.2
|
The
costs incurred by the Agent in complying with clause 11.1(i)
shall, where the termination is by the Agent pursuant to clause 10.2, be
for the account of the Principal and, in any other case, be for the
account of the Agent.
|
|
12.
|
MISCELLANEOUS
|
|
12.1
|
Subject
as provided in clause 12.2,
this Agreement is personal to the Principal and the Agent,
which may not without the written consent of the other party, assign,
mortgage, charge (otherwise than by floating charge) or dispose of any of
its rights hereunder, or sub-contract or otherwise delegate any of its
obligations hereunder.
|
|
12.2
|
The
Agent shall not without the prior written consent of the Principal employ
sub-agents, if with such consent it does so, every act or omission of the
sub-agent shall for the purposes of this Agreement be deemed to be the act
or omission of the Agent.
|
|
12.3
|
Nothing
in this Agreement shall create, or be deemed to create, a partnership or
the relationship of employer and employee between the
parties.
|
|
12.4
|
This
Agreement contains the entire agreement between the parties with respect
to the subject matter hereof, supersedes all previous agreements and
understandings between the parties with respect thereto, and may not be
modified except by an instrument in writing signed by the duly authorized
representatives of the parties.
|
|
12.5
|
Each
party acknowledges that, in entering into this Agreement, it does not do
so on the basis of, and does not rely on, any representation, warranty or
other provision except as expressly provided herein, and all conditions,
warranties or other terms implied by statute or common law are hereby
excluded to the fullest extent permitted by
law.
|
|
12.6
|
If
any provision of this Agreement is held by any court or other competent
authority to be void or unenforceable in whole or part, this Agreement
shall continue to be valid as to the other provisions thereof and the
remainder of the affected
provision.
|
10
|
13.
|
NOTICES
|
Any
notice or other communication given or to be given pursuant to this Agreement
shall be in writing sent or delivered to the recipient at the address set out
below or such other address as the addressee may by three (3) business days’
prior written notice specify to the other party:
山东中文实业集团有限公司 (Shandong
Zhongwen Industrial Group Company Limited)
|
Address:
|
中華人民共和國山东省青州市庙子镇大牟村
|
(Damu
Village, Miaozi Town, Qingzhou City, Shandong Province, PRC)
|
Attention:
|
Mr.
Duan Wenbo (段文博)
|
香港中文博国际集团有限公司 (Hongkong
Zhongwenbo International Group Company Limited)
|
Address:
|
▇/▇
& ▇/▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.▇▇ ▇▇▇▇▇’▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇
|
|
Attention:
|
Mr.
Sun Hongyi (▇▇▇)
|
|
14.
|
ARBITRATION
|
Any
dispute, controversy or claim arising out of or relating to this Agreement shall
be settled by arbitration administered by the Hong Kong International
Arbitration Centre in accordance with the UNCITRAL Arbitration Rules as at
present in force and as may be amended by the provisions of this Section. The
arbitration shall be the sole and exclusive forum for resolution of such
dispute, controversy or claim, and the award rendered shall be final and
binding. Judgment on the award rendered may be entered in any court having
jurisdiction thereof.
|
15.
|
GOVERNING
LAW
|
This
Agreement shall be construed and governed in accordance with the laws of the
HKSAR.
11
IN WITNESS WHEREOF this
Agreement has been duly executed by the parties hereto on the date first written
above.
|
SIGNED
by
|
)
|
|
)
|
|
|
for
and on behalf of山东中文实业集团
|
)
|
|
)
|
|
|
)
|
|
|
有限公司 (Shandong
Zhongwen
|
)
|
|
)
|
|
|
Industrial
Group Company Limited)
|
)
|
|
)
|
|
|
in
the presence of: -
|
|
SIGNED
by
|
)
|
|
)
|
|
|
for
and on behalf of香港中文博国际集
|
)
|
|
)
|
|
|
)
|
|
|
团有限公司
(Hongkong Zhongwenbo
|
)
|
|
)
|
|
|
International
Group Company Limited)
|
)
|
|
)
|
|
|
in
the presence of: -
|
12
THE
SCHEDULE
LIST
OF PRODUCTS
|
No.
|
Name of Products
|
||
|
1
|
QTC63C
Tower Crane
|
塔式起重机
|
|
|
2
|
HZS
HLS Series Concrete Mixing Station
|
搅拌站
|
|
|
3
|
HBT
80 Concrete Pump
|
混凝土输送泵
|
* The
product description is attached to the Annex 1.
1
ANNEX
1
PRODUCT
DESCRIPTION
2