Exhibit 10.2
EXCLUSIVE TECHNICAL CONSULTING AND SERVICES AGREEMENT
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This Exclusive Technical Consulting and Services Agreement (the "Agreement") is
entered into as of 2 January, 2006 between the following two parties:
PARTY A: Jinfuyi Technology (Beijing) Co., Ltd.
LEGAL ADDRESS:
PARTY B: Beijing Chinawind Communication Information Technology Co., Ltd.
LEGAL ADDRESS:
WHEREAS, Party A, a wholly foreign-owned enterprise registered in People's
Republic of China (the "PRC") under the laws of PRC, which owns resources to
provide the technical consulting and services.
WHEREAS, Party A shall be the provider of technical consulting and related
services to Party B, and Party B hereby agrees to accept such technical
consulting and services;
WHEREAS, Party B, a wholly domestic invested company registered in PRC, is
licensed by Ministry of Information Industry to carry on the business of the
information provision service;
NOW THEREFORE, the parties 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.
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 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 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")
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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 provision service.
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.
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 all of such confidential Information from any memory devices, and
cease to use them.
4.2 Section 4.1 shall survive after any amendment, expiration or
termination of this Agreement.
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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
of signing this Agreement. 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.
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.
Article 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 Southern China. The arbitration award shall be final and binding upon the
parties and shall be enforceable in accordance with its terms.
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9. FORCE MAJEURE
9.1 Force Majeure, which includes 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 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: Jinfuyi Technology (Beijing) Co., Ltd.
Address:
Fax Number:
Party B: Beijing Chinawind Communication Information Technology Co., Ltd.
Address:
Fax Number:
11. NO ASSIGNMENT OR SUBLICENSE BY THE LICENSEE
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
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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.
15. APPENDICES
This Agreement is the amendment to the Former Agreement and this Agreement
shall replace the Former Agreement upon its coming into effect. This Agreement
is executed by Chinese and English in duplicate, and in case of confliction, the
Chinese version is prevail.
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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.
Jinfuyi Technology (Beijing) Co., Ltd. Beijing Chinawind Communication
Information Technology Co., Ltd.
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CEO CEO
Date: Date:
APPENDIX 1: THE LIST OF TECHNICAL CONSULTING AND SERVICES
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
APPENDIX 2: CALCULATION AND PAYMENT OF THE FEE FOR TECHNICAL CONSULTING
AND SERVICES
Party B should pay service fee not less than RMB40,000,000 per year, but Party A
has the right to adjust the service fee according to the quantity of the
service.
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