FIRST AMENDED AND RESTATED EXCLUSIVE MANAGEMENT CONSULTING AND TECHNICAL CONSULTING SERVICE AGREEMENT
FIRST
AMENDED AND RESTATED EXCLUSIVE MANAGEMENT CONSULTING AND
TECHNICAL
CONSULTING SERVICE AGREEMENT
This
First Amended and Restated Exclusive Management Consulting and Technical
Consulting Service Agreement (the “Agreement”)
is
made April 3, 2008 but entered into effective as of November 14, 2007 by and
between the following parties in Beijing, People’s Republic of China (the
“PRC”):
Party
A: Trans
Pacific Shipping Ltd.,
a
wholly
foreign-owned enterprise duly established and valid existing under the laws
of
the PRC. Registered
Address: ▇▇.▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇ Wangjingbeilu, Chaoyang
District, Beijing
Party
B: Sino-Global
Shipping Agency Ltd.,
a
limited liability company duly established and valid existing under the laws
of
the PRC. Registered Address: ▇▇.▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.▇
Wangjingbeilu, Chaoyang District, Beijing
WHEREAS, Party
A
possesses professional knowledge, facilities, resources and skills to provide
professional consulting services to Party B for its business, management, and
operations. Party A intends to provide Party B with management and technology
consulting services relevant to the development and operation of Party B’s
business.
WHEREAS,
Party
B
agrees to accept the management consulting and technical consulting services
provided by Party A in
accordance with this Agreement.
WHEREAS,
Party A
and Party B previously entered into that Exclusive
Management Consulting and Technical Consulting Service Agreement effective
as of
November 14, 2007 and desire to amend and restate such agreement to accurately
reflect the intentions and actions of the parties with respect to the subject
matter thereof.
NOW
THEREFORE, through
mutual negotiations, the Parties hereto agree as follows:
ARTICLE
I
MANAGEMENT
CONSULTING AND TECHNICAL CONSULTING SERVICES
(a) Party
A
shall provide the following exclusive management consulting and technical
consulting services to Party B in accordance with this Agreement:
(i) Analysis
and evaluation of Party B’s current business, operational model and customer
types in an effort to integrate current business management
resource;
(ii) Provision
of advanced management skills to offer a framework for the construction of
a new
management platform;
(iii) Provision
of technology information and materials related to Party B’s business
development and operation. The contents of the technology information and
documents may be enhanced or diminished during the performance of this Agreement
upon mutual agreement to address each Party’s requirements; and
(iv) Training
of technical and managerial personnel for Party B and provision of required
training documents. Party A will send technologists and managerial personnel
to
Party B to provide related technology and training service as
necessary.
(b) Party
A
shall be the exclusive provider of these management and technical consulting
services to Party B. Party B shall not accept management and technology
consulting services from any other party without the prior written consent
of
Party A.
ARTICLE
II
SERVICE
FEES
(a) As
consideration for the services provided by Party A under Article I(a) of this
Agreement, Party B shall pay a service fee to Party A in accordance with Article
II(b) of this Agreement.
(b) During
the term of this Agreement, Party B shall pay Party A a service fee equal to
5%
of Party B’s annual net profit.
(c) Party
B
shall pay in advance such service fees to Party A on a quarterly basis, with
any
over- or underpayment by Party B to be reconciled once the annual net profit
of
Party B is determined at Party B’s fiscal year end. During the term of this
Agreement, Party B shall make advance payments to Party A’s appointed bank
account within 15 working days after the beginning of each new quarter, and
the
parties shall complete any reconciliation payment within 15 days after the
determination described in this Article II(c). Party B shall send Party A a
written report of service fees on a quarterly basis. Party B shall fax or mail
the copies of the remittance.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
(a) Representations
and Warranties of Party A
Party
A hereby represents and warrants as follows:
(i) Party
A
is a company duly registered and valid existing under the laws of the PRC and
is
authorized to enter into this Agreement.
(ii) Party
A
has the power to execute and perform this Agreement and has taken all necessary
action to obtain all consents and approval to execute and perform this
Agreement.
(iii) The
execution and performance of this Agreement by Party A do not and will not
result in any violation of enforceable or effective laws or contractual
limitations.
(iv) Upon
its
execution, this Agreement will constitute the legal, valid and binding
obligation of Party A, enforceable in against it in accordance with its
terms.
(b) Representations
and Warranties of Party B
Party
B hereby represents and warrants as follows:
(i) Party
B
is a company duly registered and valid existing under the laws of the PRC and
is
authorized to enter into this Agreement.
(ii) Party
B
has the power to execute and perform this Agreement and has taken all necessary
action to obtain all consents and approval to execute and perform this
Agreement.
2
(iii) The
execution and performance of this Agreement by Party B do not and will not
result in any violation of enforceable or effective laws or contractual
limitations that impact Party B.
(iv) Upon
its
execution, this Agreement will constitute the legal, valid and binding
obligation of Party B, enforceable in against it in accordance with its terms.
ARTICLE
IV
INTELLECTUAL
PROPERTY
(a) Party
A
shall own of all intellectual property rights related to management experience,
technology information/technology documents and staff training developed during
the performance of this Agreement.
(b) Party
A
shall own all intellectual property rights related to the advanced technology
and new inventive technology developed during the performance of this
Agreement.
ARTICLE
V
CONFIDENTIALITY
(a) If
any
confidential information exists in the documents provided hereunder by either
Party to the other Party, the disclosing party shall ▇▇▇▇ such documents with
the following: “Strictly Confidential. Disclosing, Reproducing or Transferring
this Information to any Third Party Without Permission is
Prohibited.”
(b) Each
Party shall protect and maintain the confidentiality of the other Party’s
confidential information and shall not make use of any confidential information
of the other Party unless otherwise stipulated in this Agreement and for the
purpose of this Agreement.
(c) This
Agreement shall not grant any Party any rights, benefits or qualifications
to
the other Party’s confidential information.
(d) Pursuant
to this Agreement, the term “confidential information” shall mean any technology
information or business operation information which is unknown to the public,
can bring about economic benefits, has practical utility and about which a
Party
has adopted secret-keeping measures.
ARTICLE
VI
INDEMNITIES
Party
B
shall indemnify Party A against any loss, damage, liability or expense suffered
or incurred by Party A as a result of or arising from any litigation, claim
or
compensation request relating to the services provided by Party A to Party
B
pursuant to this Agreement.
ARTICLE
VII
EFFECTIVENESS
AND TERM OF THIS AGREEMENT
(a) This
Agreement shall be executed and come into effect as of the date first set forth
above. This Agreement shall expire on the date that is twenty-five (25) years
following the date hereof unless earlier terminated as set forth in this
Agreement or upon mutual agreement of the Parties hereto.
3
(b) This
Agreement may be extended prior to termination for one or more twenty-five
(25)
year terms upon written notice by Party A, provided such extension is permitted
by law and subject to the approval of the registration administration for the
extension of Party B’s business duration. The parties will cooperate to renew
this Agreement if such renewal is legally permitted at the time.
ARTICLE
VIII
TERMINATION
OF THE AGREEMENT
(a) The
Agreement shall terminate automatically upon the date that is the twenty-fifth
(25th)
anniversary of expiration of this Agreement unless otherwise extended in
accordance with its terms.
(b) During
the term of this Agreement, Party B may not terminate this Agreement except
in
the case of gross negligence, fraud action, or other illegal action or
bankruptcy of Party A. Notwithstanding the above, Party A may terminate this
Agreement upon notice to Party B on a date that is at least thirty (30) days
before such termination.
(c) The
rights and obligations of the both Parties under Article IV and Article V of
this Agreement shall survive after the termination of this Agreement.
ARTICLE
IX
NOTICES
Any
notice to which is given by either Party hereto for the purpose of performing
the rights and obligations hereunder shall be in writing. Where such notice
is
delivered personally, the time of notice is the time when such notice actually
reaches the addressee; where such notice is transmitted by telex or facsimile,
the notice time is the time when such notice is transmitted. If such notice
does
not reach the addressee on business date or reaches the addressee after the
business time, the next business day following such day is the date of notice.
The delivery place is the address first written above of the Parties hereto
or
the address advised in writing from time to time. Written method includes fax
and telefax.
ASSIGNMENT
Party
B
may not assign or transfer any rights or obligations under this Agreement to
any
third party without prior written consent by Party A.
ARTICLE
XI
SEVERABILITY
If
any of
the terms of this Agreement is invalid, illegal or unenforceable due to
incompliance with laws, the validity and enforceability of the other terms
hereof shall nevertheless remain unaffected.
4
ARTICLE
XII
AMENDMENTS
AND SUPPLEMENT
Except
otherwise noted herein, all amendments and supplements to this Agreement shall
be effective only if made in writing and signed by both of the Parties hereto.
The amendment and supplement duly executed by the Parties shall be part of
this
Agreement and shall have the same legal effect as this Agreement.
ARTICLE
XIII
DISPUTE
SETTLEMENT
(a) Friendly
Consultation
The
Parties shall strive to settle any disputes arising from this Agreement or
in
connection with this Agreement through mediation.
(b) Arbitration
In
case
no settlement can be reached through consultation within sixty (60) days upon
the first written requirement of one party, each party can submit such matter
to
China International Economic and Trade Arbitration Committee for arbitration.
The arbitration shall be held in Beijing.
ARTICLE
XIV
GOVERNING
LAW
This
Agreement shall be governed by, construed in all respects and performed in
accordance with the laws of the PRC.
ARTICLE
XV
LANGUAGES
This
Agreement is executed both in Chinese and English. The Chinese version will
prevail in the event of any inconsistency between the English and any Chinese
translations thereof.
[Remainder
of Page Left Intentionally - Signature Page Follows]
5
IN
WITNESS WHEREOF,
the
Parties have executed this Agreement on the date first above
written.
|
|
Party
A: Trans
Pacific Shipping Ltd.
|
|
|
|
|
|
|
(seal)
|
/s/
Cao Lei
|
|
|
|
Legal
Representative
|
|
|
|
|
|
|
|
Party
B: Sino-Global
Shipping Agency Ltd.
|
|
|
|
|
|
|
(seal)
|
/s/
Cao Lei
|
|
|
|
Legal
Representative
|
|
6