EXHIBIT 10.8
TECHNICAL AND CONSULTING SERVICE AGREEMENT
by and between
BEIJING XXXX XXXXX SI JIN ADVERTISING COMPANY LIMITED
and
XXXX XXXXX WU YOU NETWORK INFORMATION TECHNOLOGY (BEIJING)
COMPANY LIMITED
MAY 3, 2004
ARTICLE 1 COOPERATION..................................................................... 3
ARTICLE 2 TECHNICAL AND CONSULTING SERVICES OF PARTY B.................................... 4
ARTICLE 3 SERVICE FEES.................................................................... 4
ARTICLE 4 COPYRIGHT OWNERSHIP............................................................. 4
ARTICLE 5 TERM AND TERMINATION............................................................ 5
ARTICLE 6 LIABILITY FOR BREACH OF CONTRACT................................................ 5
ARTICLE 7 WAIVER.......................................................................... 5
ARTICLE 8 NOTICE.......................................................................... 6
ARTICLE 9 GOVERNING LAW AND DISPUTES RESOLUTION........................................... 7
ARTICLE 10 MISCELLANEOUS................................................................... 7
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TECHNICAL AND CONSULTING SERVICE AGREEMENT
This Technical and Consulting Service Agreement ("AGREEMENT") is made and
entered into on May 3, 2004 by and between the following parties:
BEIJING XXXX XXXXX SI JIN ADVERTISING COMPANY LIMITED, a limited liability
company duly organized and validly existing under the laws of the People's
Republic of China, with its registered address at the premises of the Government
of Yujiawu Hui Xxxxxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx ("PARTY
A").
XXXX XXXXX WU YOU NETWORK INFORMATION TECHNOLOGY (BEIJING) COMPANY LIMITED, a
wholly foreign owned enterprise duly organized and validly existing under the
laws of the People's Republic of China, with its registered address at Xxxx X,
00/X, Xxxxx Merchant Tower, 000 Xxxx Xxx Xxxx, Xxxx Xxxx Xxxxxxxx, Xxxxxxx,
Xxxxx ("PARTY B").
(hereinafter referred to as a "PARTY" individually, and the "PARTIES"
collectively)
WHEREAS:
1. Party A is a company specializing in the advertising business, which has
extended experience and strength in the areas of design, production, and
publishing of advertisements, and acting as agent for domestic and foreign
companies in advertising;
2. Party B is a company specializing in the technical services, which has
technical expertise and experiences in the design and development of
software, and also has extended experience and personnel with respect to
information technology;
3. Party A and Party B intend to explore the respective advantages of both
Parties to fully utilize platform media, and hereby agree to cooperate
with each other to develop advertising services and the relevant technical
services.
NOW THEREFORE, Party A and Party B hereby agree to enter into this Agreement
under the following terms and conditions and to perform this Agreement according
to such terms and conditions:
ARTICLE 1 COOPERATION
1.1 Whereas Party B has technical expertise and experiences in the software
and information technology, Party A hereby agrees to engage Party B and
Party B agrees to be engaged by Party A as the exclusive technology
provider for Party A.
1.2 Party A agrees that, during the term of this Agreement, Party A shall not
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engage any third party as Party A's technology provider without the
consent of Party B, excluding Party B's affiliates.
1.3 Party A agrees that Party B shall have the right to provide other
advertising companies the same or similar technical services under this
Agreement and it shall also have the right to delegate other company or
individual to perform Party B's obligations to provide technical services
under this Agreement.
ARTICLE 2 TECHNICAL AND CONSULTING SERVICES OF PARTY B
2.1 Party B shall be responsible for providing Party A with the entire or
partial design scheme of the advertisement project, software design and
production in connection with graphics and web page, and other relevant
technical services (including installation and testing of the software),
and technical consulting services, and for updating periodically the
foresaid design and production.
2.2 Upon the request of Party A, Party B shall be responsible to develop,
design and produce the design software and technology for Party A required
in the advertising business, and Party B shall license Party A the right
to use such software and technology.
2.3 Party B shall provide appropriate training and technical support and
assistance to the staff of Party A, including but not limited to providing
the appropriate training to Party A and its staff (including trainings
related to, among other things, customer services and technology).
2.4 Other technical and consulting services necessary for Party A's
businesses.
ARTICLE 3 SERVICE FEES
Party B shall issue the xxxx to Party A based on the workload for the technical
services to Party A in accordance with the price agreed by both Parties. Party A
shall pay relevant service fees to Party B in accordance with the date and
amounts as set out on the xxxx. Party A and Party B may otherwise make other
arrangement for the payment of service fees based on the actual circumstances.
ARTICLE 4 COPYRIGHT OWNERSHIP
The ownership of the intellectual property rights of Party A and Party B from or
in connection with the cooperation shall be determined as follows: Party B owns
the
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copyright for the software and other relevant software designed by Party B, and
the intellectual property rights of and any other rights derived from the
results of development and research through the research and development under
this Agreement and other agreements entered into by both Parties shall be owned
by Party B, including without limitation the right to apply for patent,
copyright for the software, technical documents and technical information as the
carrier or other intellectual property rights, and the right to license the
foresaid intellectual property rights to other parties or to transfer the
foresaid intellectual property rights.
ARTICLE 5 TERM AND TERMINATION
5.1 This Agreement shall become effective from the date of execution hereof by
the respective authorized representatives of Parties with the company
seals of the Parties affixed hereto, and shall remain effective for ten
(10) years.
5.2 During the term of this Agreement, in the event of a breach of this
Agreement by Party A, Party B may send a written notice of such breach to
Party A. Notwithstanding any contrary provision of applicable laws, this
Agreement may be, and may only be, terminated by Party B by written notice
if Party A fails to cure such breach within fourteen (14) days of its
receipt of Party B's notice of such breach.
5.3 This Agreement may be extended to any term agreed by the Parties in
writing.
ARTICLE 6 LIABILITY FOR BREACH OF CONTRACT
6.1 In the event of default by any Party hereto on its obligations provided in
this Agreement, the defaulting party shall, upon the receipt of a written
notice from the non-defaulting party requesting the correction,
immediately refrain from such default, and shall compensate the
non-defaulting Party for all losses and damages thus caused to the
non-defaulting party within fourteen (14) days of the notice.
6.2 In the event that the Parties hereto are both at fault, then they shall
bear the respective liabilities for the breach in accordance with the
actual faults committed by parties.
ARTICLE 7 WAIVER
7.1 Except for the obligation of compensation provided herein, no Party shall
be
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liable for any contingent, consequential, special or punitive damages or
other damages of the other Party arising from or in connection with this
Agreement, whether or not alleged to be the result of contracts or
infringement (including negligence or strict liability), or other
circumstances, and whether or not the other Party has been informed of the
possibilities of such damages to such other Party.
7.2 The rights and obligations under this Agreement shall apply to the
respective successors, permitted assigns, executor, and manager of both
Parties to the extent possible. Any Party may transfer the services which
it shall provide under this Agreement to any of its affiliates or
successors, regardless whether such succession is obtained from merger,
acquisition, asset purchase or otherwise.
7.3 The invalidity, nullity and unenforceability of any provision hereof shall
not affect or prejudice the validity, effectiveness and enforceability of
other provisions hereof. However, the Parties hereto shall cease the
performance of such invalid, null and unenforceable provision and shall
amend such provision only to the extent that it will be valid, effective
and enforceable with respect to such specific facts and situations in a
manner that most closely reflect the original intentions of such
provision.
7.4 Any allowance, grace period and deferred exercise of the rights entitled
under this Agreement granted by one Party in connection with the other
Party's default or delay shall not be deemed as a waiver by such Party of
its rights and shall not prejudice, affect or restrict any of the rights
which such Party shall be entitled to under this Agreement and relevant
PRC laws and regulations.
ARTICLE 8 NOTICE
Any notice hereunder shall be delivered by personal delivery or via facsimile or
by registered airmail to the following addresses and numbers or to any other
addresses and numbers which have been notified in writing by one Party to the
other Party. Notices sent by registered airmail shall be deemed to be
effectively served on the fifth day after the date of dispatch. Notices
delivered by hand or sent via facsimile shall be deemed to be effectively served
on the next day after the delivery or transmission. If transmitted via
facsimile, the original copy of the notices shall be sent by registered airmail
or by personal delivery to the other Party immediately after the transmission.
PARTY A: Beijing Xxxx Xxxxx Si Jin Advertising Company Limited
Address: Premises of the Government of Yujiawu Hui Nationality Township,
Tongzhou District, Beijing
Attention: Xx. XXXX Xxx
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PARTY B: Xxxx Xxxxx Wu You Network Information Technology (Beijing)
Company Limited
Address: Xxxx X, 00/X, Xxxxx Merchant Tower, 118 Xxxx Xxx Road, Xxxx Xxxx
District, Beijing
Attention: Mr. XXXX Xxx
ARTICLE 9 DISPUTES RESOLUTION AND GOVERNING LAW
9.1 The execution, effectiveness, performance and interpretation of this
Agreement shall be governed by the laws of the People's Republic of China.
9.2 Any disputes arising from or in connection with the execution,
performance, interpretation and dispute settlement of this Agreement shall
be settled by both Parties through friendly consultations. If Parties fail
to settle the disputes through friendly consultations, either Party may
submit the dispute to China International Economy and Trade Arbitration
Commission (hereinafter referred to as "CIETAC") for arbitration in
Beijing in accordance with the then applicable arbitration rules of
CIETAC.
9.3 During the arbitration, the Parties shall continue to perform their
obligations under this Agreement not subject to the arbitration.
9.4 The arbitral award shall be final and binding upon the Parties
ARTICLE 10 MISCELLANEOUS
10.1 This Agreement may not be revised , modified, supplemented or dissolved
unless by written agreements between the Parties signed by the authorized
representatives.
10.2 Appendixes attached to this Agreement shall be an integral part of this
Agreement. The Parties may, from time to time, revised, add to and adjust
the Appendixes hereto during the term of this Agreement.
10.3 This Agreement is written in Chinese in two counterparts, with each Party
holding one counterpart.
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(No Body Text on this Page)
PARTY A: BEIJING XXXX XXXXX SI JIN ADVERTISING COMPANY LIMITED
SIGNED BY: ___________________
AUTHORIZED REPRESENTATIVE:
TITLE:
PARTY B: XXXX XXXXX WU YOU NETWORK INFORMATION TECHNOLOGY (BEIJING)
COMPANY LIMITED
SIGNED BY: ___________________
AUTHORIZED REPRESENTATIVE:
TITLE:
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AMENDMENT TO TECHNICAL AND CONSULTING SERVICE AGREEMENT
Beijing Xxxx Xxxxx Si Jin Advertising Company Limited ("Party A") and Xxxx Xxxxx
Wu You Network Information Technology (Beijing) Company Limited ("Party B") made
and entered into the Technical and Consulting Service Agreement ("Technical
Service Agreement") on May 3, 2004. Party A and Party B hereto agree to enter
this agreement as an amendment to the Technical Service Agreement ("Amendment
Agreement") as of July 2, 2004, as follows:
1. Article 3.1 of the Technical Service Agreement provided that "Party B shall
issue the xxxx to Party A based on workload for the technical services to
Party A in accordance with the price agreed by both Parties. Party A shall
pay relevant service fees to Party B in accordance with the date and
amounts as set out on the xxxx. Party A and Party B may otherwise make
other arrangement for the payment of service fees based on the actual
circumstances."
The Parties hereby agree that the above provision should be amended as:
"Party B shall issue the xxxx to Party A based on workload for the
technical services to Party A in accordance with the price agreed by both
Parties. Party A shall pay relevant service fees to Party B in accordance
with the date and amounts as set out on the xxxx."
2. Other provisions under the Technical Service Agreement shall remain
effective.
3. This Amendment Agreement is a part of the Technical Service Agreement and
shall have the same legal effect.
4. This Amendment Agreement becomes effective upon the day of execution by the
respective authorized representative of Party A and Party B.
Party A: Beijing Xxxx Xxxxx Si Jin Advertising Company Limited
By: _____________________
Name:
Title:
Party B: Xxxx Xxxxx Wu You Network Information Technology (Beijing) Company
Limited.
By: _____________________
Name:
Title:
