THE EXCLUSIVE SERVICE AGREEMENT AMONG HANGZHOU MYL BUSINESS ADMINISTRATION CONSULTING CO., LTD. AND HANGZHOU MYL COMMERCIAL SERVICE CO., LTD. May 1, 2009
Exhibit 10.2
Confidential
AMONG
HANGZHOU
MYL BUSINESS ADMINISTRATION CONSULTING CO., LTD.
AND
HANGZHOU
MYL COMMERCIAL SERVICE CO., LTD.
May 1,
2009
THIS
EXCLUSIVE SERVICE AGREEMENT (this “AGREEMENT”) is entered into on May 1, 2009 in
Hangzhou, the People’s Republic of China (“CHINA” or “PRC”) by and
between:
(1) HANGZHOU MYL BUSINESS
ADMINISTRATION CONSULTING CO., LTD. ( "HANGZHOU MYL CONSULTING"),
a company of limited liabilities incorporated under the laws of China, with its
legal address at Room 604, 260 South Hushu Rd., Gongshu District; Hangzhou,
Zhejiang, PRC, and
(2) Hangzhou
MYL Commercial SERVICE CO., LTD.（“Hangzhou MYL
Commercial”）,
a company of limited liabilities incorporated under the laws of China, with its
legal address at Room 603, 260 South Hushu Rd., Gongshu District; Hangzhou,
Zhejiang, PRC; and
In this
Agreement, Hangzhou MYL Consulting, Hangzhou MYL Commercial and Hangzhou MYL
Commercial Subsidiaries shall hereinafter be referred to as a “PARTY”
individually, and collectively “PARTIES”.)
WHEREAS:
(1) Hangzhou
MYL Consulting is a management and consultation company, which owns a series of
managing and consulting services applicable to business education
sector.
(2) As
a company specialized in business education sector, Hangzhou MYL Commercial owns
business education fronts and has already been granted necessary licenses
therefore.
(3) As
business education entities in China, Hangzhou MYL Commercial Subsidiaries to be
established will own business education fronts, and will be entitled to carrying
on business education business in their respective local places.
(4) In
order to give Hangzhou MYL Consulting the actual control of Hangzhou MYL
Commercial and Hangzhou MYL Commercial Subsidiaries, Hangzhou MYL Commercial and
Hangzhou MYL Commercial Subsidiaries intends to irrevocable entrust to Hangzhou
MYL Consulting the right of management and operation of Hangzhou MYL Commercial
and Hangzhou MYL Commercial Subsidiaries and the responsibilities and
authorities of their shareholders and directors of Hangzhou MYL Commercial and
Hangzhou MYL Commercial Subsidiaries.
(5)
Hangzhou MYL Consulting agrees to accept the entrustment of Hangzhou MYL
Commercial and Hangzhou MYL Commercial Subsidiaries, and to exercise the right
of management and operation of Hangzhou MYL Commercial and Hangzhou MYL
Commercial Subsidiaries and the responsibilities and authorities of their
shareholders and board of directors of Hangzhou MYL Commercial and Hangzhou MYL
Commercial Subsidiaries.
NOW,
THEREFORE, after amicably consultations among them, the Parties hereby agree as
follows:
ARTICLE
1 – DEFINITION
1.1 Unless
otherwise interpreted herein or in the context herein, the following terms in
this Agreement shall have the following meanings:
“SERVICE
FEES” means the provision of management and consultation services charged by
Hangzhou MYL Consulting hereunder.
“TRAINING
ENTITY” means Hangzhou MYL Commercial and/or the Hangzhou MYL Commercial
Subsidiaries.
1.2 References
in this Agreement to any laws and regulations (the “LAWS”) shall include
reference (1) at the same time to the amendments, changes, supplements and
reformulations of such Laws, whether or not the effectiveness of the same is
prior to or after the execution of this Agreement; and (2) at the same time to
other decisions, notices and rules formulated or becoming effective according to
such Laws.
1.3 Unless
otherwise specified in the context herein, any article, sub-article, section or
paragraph mentioned herein shall refer to the corresponding article,
sub-article, section or paragraph hereof.
ARTICLE
2 - LICENSES AND SERVICES BY HANGZHOU MYL CONSULTING
2.1 Hangzhou
MYL Commercial and Hangzhou MYL Commercial Subsidiaries agree to irrevocably
entrust the right of management and operation of Hangzhou MYL Commercial and
Hangzhou MYL Commercial Subsidiaries and the responsibilities and authorities of
their shareholders and board of directors to Hangzhou MYL Consulting in
accordance with the terms and conditions of this Agreement. Hangzhou MYL
Consulting agrees to exercise the aforesaid rights and responsibilities in
accordance with the terms and conditions of this Agreement.
2.2 The
said entrustment is irrevocable and shall not be withdrawn, unless the Agreement
is terminated pursuant to written agreement of both parties.
2.3
The purpose of the entrusted operation is that Hangzhou MYL
Consulting shall be in charge of the normal business operations of Hangzhou MYL
Commercial and Hangzhou MYL Commercial Subsidiaries and perform the
responsibilities and rights of Hangzhou MYL Commercial and Hangzhou MYL
Commercial Subsidiaries’ shareholders and directors. During the term of the
entrusted operation, Hangzhou MYL Consulting, as the entrusted manager, shall
provide full management to Hangzhou MYL Commercial and Hangzhou MYL Commercial
Subsidiaries’ operations.
2.4 The
entrusted operation shall include but not be limited to the
following:
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1)
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Hangzhou
MYL Consulting shall be in charge of, in all aspects, the operation of
Hangzhou MYL Commercial and Hangzhou MYL Commercial Subsidiaries; nominate
and replace the director(s) of Hangzhou MYL Commercial and Hangzhou MYL
Commercial Subsidiaries, and appoint and/or dismiss the management of
Hangzhou MYL Commercial and Hangzhou MYL Commercial Subsidiaries and
decide their compensation.
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2)
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Hangzhou
MYL Consulting shall manage and control all the funds of Hangzhou MYL
Commercial and Hangzhou MYL Commercial Subsidiaries. The accounts of
Hangzhou MYL Commercial and Hangzhou MYL Commercial Subsidiaries shall be
managed solely by Hangzhou MYL Consulting. The seals and signatures for
such account shall be the seals and signatures of the personnel appointed
and confirmed by Hangzhou MYL Consulting. All the cash of Hangzhou MYL
Commercial and Hangzhou MYL Commercial Subsidiaries shall be kept in such
entrusted accounts and shall be handled through such accounts, including
but not limited to receipt of all Hangzhou MYL Commercial and Hangzhou MYL
Commercial Subsidiaries’ business income, working capital, recovered
account receivables, and the payment of all account payable and operation
expenses, salaries and asset
purchases.
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3)
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All
the matters of Hangzhou MYL Commercial and Hangzhou MYL Commercial
Subsidiaries, including but not limited to internal financial management,
routine operation, execution and performance of external contact, tax
declaration and payment, appointment and/or dismissal of staff members,
shall be controlled and managed by Hangzhou MYL Consulting in all
aspects.
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4)
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Hangzhou
MYL Consulting shall enjoy all the other responsibilities and rights
enjoyed by Hangzhou MYL Commercial and Hangzhou MYL Commercial
Subsidiaries’ shareholders in accordance with the applicable law and the
articles of association of Hangzhou MYL Commercial and Hangzhou MYL
Commercial Subsidiaries, including but not limited
to:
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a.
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Deciding
on the business policy and investment plan of Hangzhou MYL Commercial and
Hangzhou MYL Commercial
Subsidiaries;
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b.
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Nominating
the director(s);
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c.
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Discussing
and approving the report of the executive
officers;
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d.
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Discussing
and approving the annual financial budget and final
accounts;
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e.
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Discussing
and approving the profit distribution plan and the loss making-up
plan;
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f.
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Resolving
on the increase or decrease of the registered
capital;
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g.
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Resolving
on the issuance of the debentures;
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h.
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Resolving
on the merger, division, transformation, dissolution and liquidation of
the company;
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i.
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Amending
the articles of association; and
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j.
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Other
responsibilities and rights provided by Hangzhou MYL Commercial and
Hangzhou MYL Commercial Subsidiaries’ articles of
association.
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5)
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Hangzhou
MYL Consulting enjoys all the other responsibilities and rights enjoyed by
Hangzhou MYL Commercial and Hangzhou MYL Commercial Subsidiaries’ board of
directors and executive officers in accordance with the applicable law and
the articles of association of Hangzhou MYL Commercial and Hangzhou MYL
Commercial Subsidiaries, including but not limited
to:
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a.
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Implementing
the resolution of the shareholders;
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b.
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Deciding
on the company’s business plan and investment
scheme;
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c.
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Preparing
the annual financial budget and final
accounts;
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d.
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Formulating
the profit distribution plan and the loss making-up
plan;
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e.
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Formulating
the plans regarding to the increase or decrease of the registered capital
and the issuance of the debentures;
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f.
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Formulating
the plans regarding to the matters including merger, division, change of
corporate form and dissolution of the
company;
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g.
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Deciding
on the establishment of the internal management structure of the
company;
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h.
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Formulating
the fundamental rules and regulations of the
company;
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i.
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Representing
the company to sign relative
documents;
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j.
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Other
responsibilities and rights provided by Hangzhou MYL Commercial and
Hangzhou MYL Commercial Subsidiaries’ articles of
association.
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2.6
All facilities provided by Hangzhou MYL Consulting hereunder shall belong, in
terms of ownership, to Hangzhou MYL Consulting, while Hangzhou MYL Commercial
and Hangzhou MYL Commercial Subsidiaries shall only have the right to use the
same during the valid term of this Agreement.
ARTICLE
3 SERVICE FEES
3.1 The
Service Fees to be charged by Hangzhou MYL Consulting for its provision of
services hereunder shall be as follows:
(1) Service
Fees to be paid by the Training Entities shall equal to 95% of the total income
of the Training Entities which can be waived by Hangzhou MYL Consulting from
time to time in its sole discretion.
(2)
The amount of Service Fees agreed in (1) above shall be shared among the
Training Entities pro rata on a quarterly basis according to their actual
incomes from main business in the current month.
3.2
Upon written agreement between Hangzhou MYL Consulting and the Training
Entities, the fees agreed in Article 3.1 or their calculation percentage may be
adjusted as the case may be, with particulars thereof to be stipulated in
separate supplementary agreements to be entered into between the two Parties as
an appendix hereto.
3.3
The Training Entities shall, in accordance with this Article 3, pay promptly the
amounts due and payable to Hangzhou MYL Consulting to the bank account
designated by Hangzhou MYL Consulting. In case that Hangzhou MYL Consulting is
to change its bank account, Hangzhou MYL Consulting shall send the
seven-working-days written notice to the Training Entities.
ARTICLE
4 – EXCLUSIVITY
4.1 Without
prior written consent by Hangzhou MYL Consulting, none of the Training Entities
may accept any management and consulting services from any other third
parties.
4.2 Hangzhou
MYL Consulting shall no longer provide to any other business education companies
at the local places of the Training Entities such management and consulting
services similar to those hereunder. However, this Article does not restrict
Hangzhou MYL Consulting from providing such similar services to Training
Entities in other cities. Such new Training Entities may, through signing
Acknowledgement Letter in the form of Appendix 1 hereof, become a party of this
Agreement, to enjoy the same rights and to assume the same obligations as other
Training Entities do; provided that such new Training Entities shall perform,
starting from the date of execution of the Acknowledgement Letter, the payment
obligations hereunder of the Exclusive Service Fees. As the rights and
obligations of the Training Entities hereunder are severable and independent
from each other’s, such new Training Entities will not, by their joining in this
Agreement, affect in any way the rights and obligations of the existing Training
Entities. The accession of such new Training Entities shall only subject to the
confirmation by Hangzhou MYL Consulting by signing a relevant agreement. The
Training Entities agree hereby irrevocably and unconditionally to such
accession, and further confirm that such accession will in no event be subject
to the agreement of existing Training Entities.
ARTICLE
5 - INTELLECTUAL PROPERTY
5.1 The
rights of intellectual property concerning the work product created during the
process of services rendered by Hangzhou MYL Consulting hereunder shall belong
to Hangzhou MYL Consulting.
5.2 During
the valid term of this Agreement, if Hangzhou MYL Consulting develops any new
technology that may be used in the daily business education or management of the
Training Entities, or provides the Training Entities with other services not
included herein at their request, the Parties agree to cooperate with each other
firstly in the manner agreed herein or in a manner most similar to what is
agreed herein, with necessary adjustments to the Service Fee percentage under
Article 3 hereof.
ARTICLE
6 – CONFIDENTIALITY
6.1 No
matter whether this Agreement is terminated or not, the Parties shall be obliged
to keep in strict confidence the trade secrets, proprietary information and
customer information in relation to other Parties and any other non-public
information of other Parties which they may become aware of as the result of
their involvement of the negotiation, signing and performance of this Agreement
(collectively, “CONFIDENTIAL INFORMATION”).
Unless
with prior written consent of such other Parties or in case of compulsory
obligation to disclose to any parties other than the Parties hereof as required
by relevant laws, regulations or listing rules, no Party shall disclose the
Confidential Information, wholly or partly, to any parties other than Parties
hereof; unless for the purpose of performance of this Agreement, no Party shall
use the Confidential Information, directly or indirectly, wholly or partly, for
any other purposes, or it shall bear the default liability and indemnify the
losses.
6.2 Upon
termination of this Agreement, the Parties shall, upon demand by the disclosing
Parties, return, destroy or otherwise dispose of all the documents, materials or
software containing the Confidential Information and suspend using such
Confidential Information.
6.3 Notwithstanding
any other provisions hereof, this Article shall survive the suspension or
termination of this Agreement.
ARTICLE
7 - UNDERTAKINGS AND GUARANTEES
Hangzhou
MYL Consulting and Hangzhou MYL Commercial hereby undertake and guarantee for
itself, respectively, that:
7.1 it
is a company of limited liabilities duly registered and legally existing under
the PRC laws with independent legal person status, and with full and independent
status and legal capacity to execute, deliver and perform this Agreement, and
may act independently as a subject of actions;
7.2 its
has full internal power and authority within its company to execute and deliver
this Agreement and all the other documents to be entered into by it in relation
to the transaction referred to herein, and it has the full power and authority
to complete the transaction referred to herein. This Agreement shall
be executed and delivered by it legally and properly, and constitutes the legal
and binding obligations on it and is enforceable on it in accordance with its
terms and conditions;
7.3 it
has all business licenses necessary for its business operations as of the
effective date of this Agreement, has full rights and qualifications to engage
in its currently engaged businesses, may perform its obligations hereunder, and
will maintain, during the valid term of this Agreement, the validity of all its
such business licenses; and
7.4 it
shall inform promptly the other Parties of any litigations it is involved in and
other disadvantageous circumstances that may affect the performance hereof, and
shall endeavor at its best efforts to prevent the deterioration of losses caused
by such litigations or other disadvantageous circumstances.
ARTICLE
8 - TERM
8.1 The
Parties hereby confirm that, once this Agreement is formally executed by the
Parties, this Agreement shall be effective as of May 1, 2009. Unless earlier
terminated by any of the Parties in writing, this Agreement shall be valid for a
term of five (5) years commencing May 1, 2009; provided that it shall be deemed
to be automatically extended for another five (5) years starting from the
expiration date unless Hangzhou MYL Consulting sends a written notice indicating
its objection to extending of this agreement.
Notwithstanding
the provision in the preceding sentence, as the rights and obligations of each
of the Training Entities hereunder are separate and independent from each other,
upon agreement in writing by Hangzhou MYL Consulting, this Agreement may be
terminated only in respect of such relevant Training Entity, in which case such
termination shall not be subject to agreement by other Training
Entities.
8.2 The
Parties hereby confirm that, from 2011 on, the Service Fees shall be negotiated
on January 1 each year, with any adjustment thereto (if any) to be made in
writing as an appendix hereto.
8.3 Upon
termination of this Agreement, each Party shall keep abiding by its obligations
under the Articles 3 and 6 hereof.
ARTICLE
9 – NOTICE
9.1
Any notice, request, demand and other correspondences made as required by or in
accordance with this Agreement shall be made in writing and delivered to the
relevant Party.
9.2
The abovementioned notice or other correspondences shall be deemed to have been
delivered when it is transmitted if transmitted by facsimile or telex; it shall
be deemed to have been delivered when it is delivered if delivered in person; it
shall be deemed to have been delivered five (5) days after posting the same if
posted by mail.
ARTICLE
10 - DEFAULT LIABILITY
10.1
The Parties agree and confirm that, if any Party (the “DEFAULTING PARTY”)
breaches substantially any provision hereof, or fails substantially to perform
any of the obligations hereunder, such breach or failure shall constitute a
default hereunder ( “DEFAULT”), then the non-defaulting Party shall have the
right to require the Defaulting Party to make remedy within a reasonably
specified period. If the Defaulting Party fails to make remedy within such
reasonable period or within ten (10) days after the non-defaulting Party
notifying the Defaulting Party in writing and requiring it to make remedy, then
the non-defaulting Party shall have the right, at its sole discretion, to (1)
terminate this Agreement and require the Defaulting Party to keep it fully
indemnified; or (2) to demand the enforcement of the Defaulting Party’s
obligations hereunder and require the Defaulting Party to keep it fully
indemnified.
10.2
The Parties agree that any of the
following events shall be deemed to have constituted a Default:
( 1）Any of Hangzhou
MYL Commercial, Hangzhou MYL Commercial Subsidiaries or their respective
shareholders breaches any provisions of the SHAREHOLDERS’
VOTING RIGHTS PROXY AGREEMENT entered into by it with HANGZHOU MYL
CONSULTING;
( 2）any of Hangzhou
MYL Commercial, Hangzhou MYL Commercial Subsidiaries or their respective
shareholders breaches any provisions of other Agreements entered into by it with
Hangzhou MYL Consulting on May 1, 2009.
10.3
The Parties agree and confirm that under no circumstances shall Hangzhou MYL
Commercial and Hangzhou MYL Commercial Subsidiaries be able to demand
termination of this Agreement for whatever reason, unless the Laws or this
Agreement provides for otherwise.
10.4
Notwithstanding any other provisions herein, this Article 10 shall survive the
suspension or termination of this Agreement.
ARTICLE
11 - FORCE MAJEURE
In the
event of earthquake, typhoon, flood, fire, war, computer virus, loophole in the
design of tooling software, internet system encountering hacker’s invasion,
change of policies or laws, and other unforeseeable or unpreventable or
unavoidable event of force majeure, which directly prevents a Party from
performing this Agreement or performing the same on the agreed condition, the
Party encountering such a force majeure event shall forthwith issue a notice by
a facsimile and, within thirty (30) days, present the documents proving the
details of such force majeure event and the reasons for which this Agreement is
unable to be performed or is required to be postponed in its performance, and
such proving documents shall be issued by the notaries office of the area where
such force majeure event takes place. The Parties shall consult each other and
decide whether this Agreement shall be waived in part or postponed in its
performance with regard to the extent of impact of such force majeure event on
the performance of this Agreement. No Party shall be liable to compensate for
the economic losses brought to the other Parties by the force majeure
event.
ARTICLE
12 – MISCELLANEOUS
12.1 This
Agreement shall be prepared in Chinese and English in duplicate, with each Party
holding one (1) copy hereof.
12.2 The
formation, validity, execution, amendment, interpretation and termination of
this Agreement shall be governed by the PRC Laws.
12.3 Any
disputes arising hereunder and in connection herewith shall be settled through
consultations among the Parties, and if the Parties cannot reach an agreement
regarding such disputes within thirty (30) days of their occurrence, such
disputes shall be submitted to China International Economic and Trade
Arbitration Commission Shanghai Branch for arbitration in Shanghai in accordance
with the arbitration rules of such Commission, and the arbitration award shall
be final and binding on the Parties involved in such dispute.
12.4 Any
rights, powers and remedies empowered to any Party by any provisions herein
shall not preclude any other rights, powers and remedies enjoyed by such Party
in accordance with laws and other provisions under this Agreement, and the
exercise of its rights, powers and remedies by a Party shall not preclude its
exercise of its other rights, powers and remedies by such Party.
12.5 Any
failure or delay by a Party in exercising any of its rights, powers and remedies
hereunder or in accordance with laws (the “PARTY’S RIGHTS”) shall not lead to a
waiver of such rights, and the waiver of any single or partial exercise of the
Party’s Rights shall not preclude such Party from exercising such rights in any
other way and exercising the remaining part of the Party’s Rights.
12.6 The
titles of the Articles contained herein shall be for reference only, and in no
circumstances shall such titles be used in or affect the interpretation of the
provisions hereof.
12.7 Each
provision contained herein shall be severable and independent from each of other
provisions, and if at any time any one or more articles herein become invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remaining provisions herein shall not be affected as a result
thereof.
12.8 Once
executed, this Agreement shall replace any other legal documents entered into by
the relevant Parties hereof in respect of the same subject matter
hereof.
12.9 Any
amendments or supplements to this Agreement shall be made in writing and shall
take effect only when properly signed by the Parties to this
Agreement.
12.10 No
Party shall assign any of its rights and/or obligations hereunder to any parties
other than the Parties hereof without the prior written consent from the other
Parties.
12.11 This
Agreement shall be binding on the legal successors of the Parties.
12.12 The
rights and obligations of each of the Hangzhou MYL Commercial Subsidiaries
hereunder will be independent and severable from each other, and the performance
by any of the Hangzhou MYL Commercial Subsidiaries of its obligations hereunder
shall not affect the performance by any other of the Hangzhou MYL Commercial
Subsidiaries of their obligations hereunder.
12.13 Each
of the Parties undertakes to declare and pay respectively according to the Laws
any taxes in relation to the transaction hereunder.
[THE
REMAINDER OF THIS PAGE IS LEFT BLANK]
IN
WITNESS HEREOF, the Parties have caused this Exclusive Service Agreement to be
executed in Hangzhou as of the date first above mentioned.
For and
on behalf of
HANGZHOU
MYL BUSINESS ADMINISTRATION CONSULTING CO., LTD
Signed
by: //signed//
Name:
Position:
Hangzhou
MYL Commercial Service Co., Ltd.
Signed
by: //signed//
Name:
Position:
APPENDIX 1 - ACKNOWLEDGEMENT
LETTER
_____________________________,
of the
registered address at _______________________
(the “NEW
PARTY”), hereby agrees to join in as an independent contractor under the
Exclusive Service Agreement by and between Hangzhou MYL Business Administration
Consulting Co., Ltd. and Hangzhou MYL Commercial Service Co., Ltd. on May 1,
2009, as to become one of the companies defined as “Hangzhou MYL Commercial
Subsidiaries” therein, to carry out cooperation with Hangzhou MYL Business
Administration Consulting Co., Ltd. and Hangzhou MYL Commercial Service Co.,
Ltd. under that agreement. By signing this Acknowledgement Letter, the New Party
shall be deemed to have made the same undertakings and guarantees as have been
made by the Hangzhou MYL Commercial and Hangzhou MYL Commercial Subsidiaries
under the Exclusive Service Agreement, and it further agrees to perform the
obligations to be performed by the Hangzhou MYL Commercial Subsidiaries under
the Exclusive Service Agreement, and recognizes the rights and obligations of
all the parties under the Exclusive Service Agreement. As for the New Party, the
cooperation under that agreement shall begin on the date upon which this
Acknowledgement Letter is executed by the New Party and Hangzhou MYL Business
Administration Consulting Co., Ltd..
For and
on behalf of
NEW
PARTY
Signed
by:
Name:
Position:
For and
on behalf of
Hangzhou
MYL Business Administration Consulting Co., Ltd.
Signed
by:
Name:
Position: