Exhibit 10.2
TECHNICAL SERVICES
AGREEMENT
This Technical Services
Agreement (the “ Agreement ”) is entered into on
this 1 st day of August, 2009 by and among Shanghai
EZTripMart Travel Agency Co., Ltd., a limited liability company
incorporated in the People’s Republic of China (“
China ” or “ PRC ”) with its
registered office at 13/F, 200 Taicang Road, Shanghai, China
(“ SHEZT ”); and Shanghai Junli Air Service Co.,
Ltd., a limited liability company incorporated in China with its
registered office at Suite 503, 394-8 Yan’an Road West,
Shanghai, China (“ Junli ”). (Each of SHEZT and
Junli is herein referred to as a “ Party ” and
collective as the “ Parties ”).
WHEREAS:
1.
SHEZT engages, among
other things, in the business of travel products and services as
set forth in more detail in its business license, including the
operation of the information technology systems for providing
travel products and services, and holds a travel agency license and
a Value-Added Telecommunication Services License.
2.
Junli engages, among
other things, in the business of international and domestic airline
ticket sales and domestic cargo agency as set forth in more detail
in its business license (the “ Business ”), and
holds tier-one and tier-two air transport sales agency licenses
issued by China Air Transport Association.
3.
Junli wishes to engage
SHEZT exclusively to provide, and SHEZT wishes to be so engaged by
Junli to provide, certain technical and other related services with
respect to the information technology aspects of the Business,
including the operation of the relevant website, in accordance with
this Agreement.
NOW THEREFORE, in
consideration of the covenants and agreements contained herein, the
Parties hereby agree as follows:
1.
CERTAIN
DEFINITIONS
In this
Agreement:
“
Affiliate ” means, with respect to any Person, any
other Person that directly or indirectly owns a Controlling
interest in, or exercises Control over, such Person, or in or over
which such Person directly or indirectly owns a Controlling
interest or exercises Control, or that is otherwise directly or
indirectly under common ownership or Control with such
Person.
“ Agreement
” has the meaning given to such term in the
preamble.
“ Business
” has the meaning given to such term in Recital 2.
“ Business
Day ” means any day when commercial banks are generally
open for business in Shanghai, China.
“ CIETAC
” has the meaning given to such term in Section
10(b).
“ Confidential
Information ” has the meaning given to such term in
Section 9(b).
“ Control
” means having the power to direct or appoint the management
of a company and “Controlled” or
“Controlling” shall have correlative
meanings.
“ Dispute
” has the meaning given to such term in Section
10.
“ Dispute
Notice ” has the meaning given to such term in Section
10(a).
“ Force
Majeure ” means any event that is beyond the
Party’s reasonable control and cannot be prevented with
reasonable care, including but not limited to acts of governments,
acts of nature, fire, explosion, typhoon, flood, earthquake,
lightning, war, epidemic, strikes or riot. However, any shortage of
credit, capital or finance shall not be regarded as an event of
Force Majeure.
“ Group
” has the meaning given to such term in Section
9(b).
“ Governmental
Authority ” means any domestic or foreign court or other
governmental or regulatory authority, agency or other body with
jurisdiction over any of the assets or properties of any of the
Parties.
“ Intellectual
Property ” has the meaning given to such term in Section
9(a).
“ Junli
” has the meaning given to such term in the
preamble.
“ Monthly
Date ” shall mean the last Business Day of each calendar
month, the first of which shall be the first such day following the
date of this Agreement; provided that if any such day is not
a Business Day, then such Monthly Date shall be the next succeeding
Business Day.
“ Party
” or “ Parties ” has the meaning given to
such term in the preamble.
“ Person
” means an individual, corporation, joint venture,
partnership, enterprise, trust, unincorporated association, limited
liability company, government or any department or agency thereof,
or any other entity.
“ PRC
” or “ China ” has the meaning given to
such term in the preamble.
“ PRC GAAP
” means the PRC Enterprise Accounting Systems
.
“
Representative ” has the meaning given to such term in
Section 9(b).
“ RMB
” means Renminbi, the lawful currency of China.
“ Services
” has the meaning given to such term in Section
2(a).
“ Services
Fee ” has the meaning given to such term in Section
3(a).
“ SHEZT
” has the meaning given to such term in the
preamble.
“ US
” means the United States of America.
“ Website
” means the dedicated website(s) now or in the future
operated for the Business of Junli, including without limitation,
www.junli.net .
2.
SERVICES
(a)
Exclusive Services
Provider .
During the term of this Agreement, Junli hereby appoints
SHEZT, and SHEZT hereby accepts Junli’s appointment, as the
exclusive provider (except as to any Affiliate of SHEZT) of certain
technical and other services required by Junli in the conduct of
its Business through the Website, which services are more fully
described in Section 2(b) below and include, among others, services
relating to the maintenance and operation of the Website (the
“ Services ”), pursuant and subject to the terms
and conditions of this Agreement. During the term hereof, Junli
shall not seek or accept identical or similar services from other
providers (except any Affiliate of SHEZT) without the prior written
approval from SHEZT. For the avoidance of doubt, however, during
the term hereof, SHEZT shall have the right to provide identical or
similar services to third parties, and Junli may seek or accept
identical or similar services from any Affiliate of
SHEZT.
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(b)
Scope of
Services .
To the extent
permitted by the applicable PRC laws and regulations, the Services
provided under this Agreement shall include, without
limitation:
(i)
Technical services in
respect of information technology aspects of the Business,
including, without limitation, advice and assistance relating to
the information systems for the operation of the
Website;
(ii)
Provision of content for
the Website;
(iii)
Planning, implementation
and testing of online operations;
(iv)
Training of management,
staff, technical and administrative personnel Junli in respect of
the Website;
(v)
Assistance in the
collection and analysis of technical and business information about
the Business and the operation of the Website with a view to
improving the user friendliness and functionality of the Wesbite
and the quality of Services provided hereunder; and
(vi)
Such other advice and
assistance as may be agreed upon by the Parties.
(c)
Internet
Orders .
SHEZT will promptly direct and relay to Junli for processing
any and all air-ticeting orders received from and generated by the
Website on a real-time basis. All such internet orders and revenue
generated therefrom shall be the property of Junli.
(d)
Advances
. From time to
time and at the request of Junli, SHEZT may in its sole discretion,
in such a manner as permitted by applicable laws and regulations
advance to Junli amounts for the purpose of providing working
capital to Junli, funding for Junli’s acquisition of
operating assets, or for any other purposes as may be acceptable to
SHEZT.
3.
FEES
(a)
Fees
. In consideration
of the Services provided by SHEZT hereunder, Junli shall pay to
SHEZT during the term of this Agreement (i) a fee (the “
Services Fee ”) payable in RMB each calendar month,
calculated based on the ticketing volume of such month as stated in
the monthly financial statement provided under Section 5 below at
such per ticket (both domestic and international) rate(s) as the
Parties shall from time to time agree, within 10 Business Days
after receipt by SHEZT of the financial statements referenced
above, and (ii) such other fees as SHEZT and Junli shall from time
to time agree on an ad hoc basis. The Parties agree to
periodically review the rate(s) of the Services Fee with a view to
adjust the Services Fee based on the historic, present and
prospective ticketing volume as appropriate.
(b)
Payment
. Any payment
required to be made under this Section 3 shall be paid in RMB by
wire transfer to the account as may be timely specified in writing
from time to time by SHEZT. SHEZT shall timely provide Junli with
proper tax invoice for the payment hereunder.
(c)
No Set-off and
Deduction .
Notwithstanding anything to the contrary herein, Junli shall
not set off any amount it may claim is owed to it by SHEZT against
any Services Fee payable by Junli to SHEZT unless Junli first
obtains SHEZT’s written consent. All payments to be made by
Junli hereunder shall be made free and clear of and without
deduction for or on account of any tax, unless Junli is required by
applicable PRC law to deduct or withhold applicable tax from such
payments, in which case, Junli shall promptly provide SHEZT with
official receipt of payment of such tax.
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(d)
Late
Payment .
Should Junli fail to pay to SHEZT all or any part of the
Services Fee due in RMB under this Section 3 within the time limits
stipulated herein, Junli shall pay to SHEZT interest in RMB in
arrears on the amount overdue based on the 3-month RMB lending rate
as of the relevant due date announced by the People’s Bank of
China.
(e)
Audit and
Inspections .
Junli will permit SHEZT or its Representatives (including
independent public accountants), at SHEZT’s own expense, to
conduct periodic (but no more than monthly) audits of relevant
books and records of Junli for the purpose of verifying the
Services Fees payable to SHEZT under this Section 3. If such audit
reveals a discrepancy, Junli shall pay to SHEZT any additional
amount of Services Fees or SHEZT shall refund any excess amount of
Services Fees paid, in each case as promptly as
practicable.
4.
REPRESENTATIONS AND
WARRANTIES; MUTUAL COVENANTS
(a)
Representations and
Warranties of the Parties . Each Party hereby
represents, warrants and undertakes to the other Party
that:
(i)
It is a limited
liability company duly organized and validly existing under PRC
laws and is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business currently
conducted or proposed to be conducted by it or its ownership of
property makes such qualification necessary.
(ii)
It has all requisite
corporate and other power and authority to execute, deliver, and
perform all of its obligations under, this Agreement and to
consummate the transactions contemplated by this
Agreement.
(iii)
It has all licenses,
certificates, permits, authorizations, concessions, approvals,
franchises and other rights from, and has made all declarations and
filings with, all applicable Governmental Authorities necessary to
engage in the business conducted by it.
(iv)
This Agreement has been
duly and validly authorized, executed and delivered by it and
constitutes its valid and binding obligations enforceable against
it in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors’ rights and by general
equity principles (regardless of whether considered in a proceeding
in equity or at law), including (1) the possible unavailability of
specific performance, injunctive relief or any other equitable
remedy; and (2) concepts of materiality, reasonableness, good
faith and fair dealing.
(b)
Certain Mutual
Covenants .
The Parties covenant and agree with each other as
follows:
(i)
To observe all relevant
legal restrictions, including the preservation of the
confidentiality of non-public information pursuant to Section 9
hereof.
(ii)
To execute such
documents and other papers and perform such further acts as may be
reasonably required to carry out
