EXCLUSIVE TECHNICAL,
OPERATIONAL,
BUSINESS CONSULTING AND
SERVICES AGREEMENT
This Exclusive Technical, Operational, Business
Consulting and Services Agreement (the "
Agreement ") is entered into as of July 3,
2008 by and among the following parties:
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Legend Media
(Beijing) Information and Technology Co., Ltd. (乐君
(北京)
信息技术有榰公司),
a company incorporated in the People's Republic of China ("
PRC ") with the registered office at Room
573, Building 3, No.3 Xijing Road, Badachu High-tech Zone,
Shijingshan District, Beijing (“ Party
A ”);
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Beijing Maihesi
Advertising International Co., Ltd.
(北京慚犕思国榻广告有榰公司)
, a company incorporated in the PRC with the registered office at
Room 401, Beijing Lanxi Hotel, No.1 South of Yuhui South Road,
North Fourth Ringô Chaoyang District, Beijing
(北京市朝槍区北四环罎慧南爑
1
号北京兰溪宾智401室)
(“ Party B ”); and
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Ju Baochun
(巨宝春), a PRC citizen;
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Xue Wei
(穥伟), a PRC citizen (collectively “
Party C ”).
Party A, Party B and Party C shall be
collectively referred to as the “
Parties ” and each as a “
Party ”.
WHEREAS
, Party A, a wholly foreign-owned
enterprise registered under the PRC laws, itself and through its
associated companies, own various human resource with extensive
experience and technologies in marketing, customer support,
technical, operational, business consulting and
services.
WHEREAS
, Party B, a domestic company
registered under the PRC laws, is engaging in advertising
services.
WHEREAS
, Ju Baochun and Xue Wei hold 90%
and 10% equity interest in Party B, respectively.
WHEREAS
, Party B and Party C intend to
retain Party A as the exclusive service provider to provide the
above-mentioned services in connection with the advertising
business and Party A agree to provide such services pursuant to the
terms and conditions herein.
NOW
THEREFORE , the
Parties have reached the following agreements based on the
principle of equal and mutual benefit:
1.1 During the term of this Agreement and on the
terms and conditions contained in this Agreement, Party A, as Party
B’s exclusive service provider, agrees to render technical,
operational, business consulting and services to Party B as fully
described in Appendix I (the “
Services ”).
1.2 Party B and Party C hereby accept Party A as
its exclusive service provider for the Services. For the avoidance
of any doubt, Party B agrees and Party C agree to cause Party B to,
during the term of this Agreement and without the prior written
consent from Party A, refrain from:
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engaging in any
business other than its current business conducted as of the date
hereof;
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engaging the
services of, or otherwise utilizing, any third party to provide
such marketing, customer support, technical, operational, business
consulting and services for the above-mentioned
business.
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1.3 Each Party shall be the owner of all rights to
any and all intellectual property rights arising from the
performance of this Agreement, including, without limitation, any
copyright, patent, know-how and otherwise, irrespective of whether
developed by Party A or Party B.
2.
PAYMENT FOR THE
SERVICES
2.1 Party B and Party C
acknowledge the full support of Party A by providing in advance all
of the Services and the risks associated therein, and agree to pay
Party A the Basic Service Fee (as fully described in Appendix
II) .
2.2 To provide proper incentive to Party A in
connection with the Services provided by Party A, Party B and Party
C agree to pay Party A the Bonus Service Fee (as fully described in
Appendix II ), as applicable.
2.3 Party A may from time to time and in response
to market changes, in its sole discretion, determine that the
mechanism of calculating the Service Fee (as fully described in
Appendix II) becomes unpractical or unreasonable and demand
adjustment to be made to the calculation mechanism, Party B shall
discuss with Party A in good faith within seven (7) business days
upon receipt of such written request for an adjustment to modify
the existing calculation mechanism.
3.
REPRESENTATIONS AND
WARRANTIES
3.1 Party A hereby represents and warrants as
follows:
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Party A is a
company duly registered and validly existing under the PRC
laws;
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Party A has
full right, power, authority and capacity and all consents and
approvals of any other third party or government authorization
necessary to execute and perform this Agreement. The execution and
performance of this Agreement is not in violation of any applicable
laws or in breach of any contract to which Party A is a
party;
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This Agreement
constitutes a legal, valid and binding agreement of Party A,
enforceable against Party A in accordance with the terms and
conditions of this Agreement upon its execution.
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3.2 Party B and Party C hereby jointly and
severally, represent and warrant as follows:
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Party B is a
company duly registered and validly existing under the PRC laws and
has obtained all necessary approvals to engage in the businesses as
specified in Party B’s business license;
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The registered
capital of Party B has been fully paid and the equity interests are
owned by Party C free and clear of all liens and are not subject to
or issued in violation of any purchase option, call option, right
of first refusal, preemptive right, subscription right or any
similar right under any PRC laws, the charter documents or any
contract to which Party B or Party C is a party or otherwise
bound;
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Each of Party B
and Party C has full right, power, authority, capacity and all
consents as well as approvals of any other third party or
government authorization necessary to execute and perform this
Agreement. The execution and performance of this Agreement is not
in violation of any applicable laws or in breach of any contract to
which any member of Party B or Party C is a party;
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This Agreement
constitutes a legal, valid and binding agreement of each of Party B
and Party C, enforceable against each of Party B and Party C in
accordance with the terms and conditions of this Agreement upon its
execution.
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4.1 Each of Party B and Party C agrees to use best
efforts to protect and maintain the confidentiality of Party A's
confidential data and information acknowledged or received by
either Party B or Party C during the process of provision of the
Services by Party A (collectively the " Confidential
Information "). Each of Party B and Party C may 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, each of Party B and Party C shall, at
Party A's option and request, return all and any documents,
information or software containing any of such Confidential
Information to Party A, or destroy or delete all of such
Confidential Information from any memory devices and cease to use
them.
4.2 Article 4.1 shall survive after any amendment,
termination or expiration of this Agreement.
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Party A agrees
that during the term of this Agreement and on the terms and
conditions under this Agreement, it shall provide the Services in
due course.
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Party A agrees
to bear all the cost associated with the provision of the
Services.
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Party A shall
maintain sufficient experienced personnel to adequately meet the
reasonable request of Party B on the Services from time to
time.
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Party B shall
continue to engage in advertising services pursuant to the terms
and conditions of this Agreement, with the aim of developing and
expanding the business;
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Party B agrees
to make all payments to Party A in due course pursuant to the terms
and conditions of this Agreement;
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Party B shall
cause its representative to take appropriate, reasonable, and
cautious manner in using and operating any system and equipment
relating to the Services under this Agreement;
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Party B shall
grant Party A or any person authorized by Party A, access to visit
and inspect, during normal business hours, any of
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