Exhibit 10.1
EXCUSIVE BUSINESS COOPERATION AGREEMENT
The Agreement is signed on November 28, 2009 at Beijing, the capital of the
People's Republic of China (hereinafter referred to as "China") between parties
hereafter.
Party A: Xiangtan Nicestar Business Administration Co., Ltd.
Address: Huayuan Village, Shaoshan Town, Shaoshan City
Party B: Hunan Oya Education Technology Co., Ltd
Address: No. 119, Block 1, Middle Furong Rd., Kaifu District, Changsha City
(Room 1708, Changtai Building)
Party A and Party B hereafter shall be respectively defined as "one party",
while collectively defined as "both Parties"
WHEREAS:
1. Party A is a wholly foreign-owned enterprise registered in China, who
possesses necessary resources for vocational education business.
2. Party B is a domestic-funded limited liability company, mainly engaged in
vocational education business (hereinafter referred to as "main business");
3. Party A agrees to provided Party B exclusive techniques, business supports
and consulting services through its techniques, personnel and information
advantages during the Agreement, while Party B agrees to accept the
consultation and various services provided by Party A or the appointed
parties thereof according to the Agreement.
Both parties hereby agree as follows upon negotiation:
1. SERVICE PROVISION
1.1 Subject to the clause and conditions of the Agreement, Party B hereby
appoints Party A to be its exclusive service provider to offer
comprehensive technical supports, business supports and related
consulting services during the Agreement, including all necessary
services decided by Party A from time to time within Party A's main
business scope.
1.2 Party B shall accept Party A's consultations and services and further
agrees that Party B shall neither directly or indirectly obtain any
consultation or service same with or similar to the Agreement from any
third party during the Agreement without Party A's prior written
approval, nor establish any partnership with any third party with
respect to any matter under the Agreement. By mutual consent, Party A
can designate other parties (the designated party can come to an
agreement with Party B as for some articles described in Clause 13 of
the Agreement) to provide services and /or supports appointed in the
Agreement.
1.3 Service delivery methods
1.3.1 Party A agrees that, as appropriate, Party B can further sign
technical service agreement and consulting agreement with
Party A or any other parties appointed by Party A during the
validity of the Agreement to stipulate the specific content,
terms, personnel and charges of the technical and consulting
services.
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1.3.2 For preferably fulfilling the Agreement, both parties agree
that, as appropriate, Party B shall sign equipment and asset
lease agreements with Party A or any other parties appointed
by Party A during the validity of the Agreement according to
business progress requirement, relevant equipments and assets
shall be provided to Party B by Party A or the appointed
parties.
2. PRICE AND TERMS OF PAYMENT OF THE SERVICES
By mutual consent, Party B shall pay a sum of money equal to 100% of its net
income to Party A as service charge ("service charge") under the Agreement,
however, the service charge can be adjusted according to Party A's service
content of the month and Party B's business needs upon both parties' negotiation
and Party A's prior written approval. The service charge can be paid monthly;
within 30 days of the month, Party B shall, (a) provide Party A with its
managerial report and operating data of the month, including its net revenue of
the month ("monthly net income"); (b) pay Party A with its 100% monthly net
income or any other amount agreed by Party A. Within 90 days of the financial
year, Party B shall, (a) provide Party A with its audited financial statement of
the financial year, the financial statement shall be audited and certified by
independent certificated public accountant approved by Party A; (b) if there is
any insufficient amount of the monthly payment of the financial year Party B
paid to Party A according to the audited financial statement, Party B shall pay
Party A with the balance.
3. INTELLECTUAL PROPERTY AND CONFIDENTIAL PROVISIONS
3.1 Party A shall, within the Chinese law, have the exclusive rights and
interests to all rights, ownerships, equities and all intellectual
properties generated or created for fulfilling the Agreement,
including but not limited to copyright, patent right, right for patent
application, software, technical know-how, trade secret and others.
Party B shall sign all appropriate documents, adopt all appropriate
actions, submit all documents and /or applications, provide all
appropriate assistance, and conduct all behaviors Party A considered
to be necessary upon its sole discretion, to entitle all ownerships,
rights and benefits of such intellectual property to Party A, and /or
perfect the protection of such intellectual property of Party A.
3.2 Both parties acknowledge and confirm that the Agreement and the
content thereof, as well as any exchanged oral or written documents
for preparing or fulfilling the Agreement are confidential information
which may not be disclosed to any other parties without the prior
written authorization of the other Party except the followings: (a)
any information known or to be known by publics (only those
information not disclosed to publics by the party accepting the
confidential information without permission); (b) any information
needed by any party with respect to the Agreement to be disclosed at
the request of applicable laws, stock exchange regulations or orders
from government or court; or (c) any information needed to be
disclosed to the stockholders, investors, or law or financial
consultant who have to observe the confidential obligations similar to
the Agreement as well . Any such disclosure from personnel or employed
institutes of one party shall be considered as the disclosure of that
party and shall be liable for breach of contract. This clause shall be
valid no matter the Agreement is terminated for any reason.
3.3 Both parties agree that this clause shall be valid no matter the
Agreement is modified, cancelled or terminated.
4. REPRESENTATIONS AND WARRANTIES
4.1 Party A's representations and warranties are as follows:
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4.1.1 Party A is a wholly foreign-owned enterprise legally
registered and validly existing under the laws of China.
4.1.2 Party A has adopted necessary corporation actions, obtained
essential authorizations and got the permissions and approvals
(if necessary) from the third party and government department
to sign and fulfill the Agreement; Party A's signing and
fulfillment of the Agreement shall not breach the rules of the
laws and regulations.
4.1.3 This agreement constitutes the legal, valid and binding
obligations which can be executed forcibly according to terms
of this Agreement.
4.2 Party B's representations and warranties are as follows:
4.2.1 Party B is a company legally registered and validly existing
under the laws of China, who has obtained government approvals
and licenses necessary for main business.
4.2.2 Party B has adopted necessary corporation actions, obtained
essential authorizations and got the permissions and approvals
(if necessary) from the third party and government department
to sign and fulfill the Agreement; Party B's signing and
fulfillment of the Agreement shall not break the rules of the
laws and regulations
4.2.3 This agreement constitutes the legal, valid and binding
obligations which can be executed forcibly according to terms
of this Agreement.
5. EFFECTIVENESS AND TERM OF VALIDITY
5.1 The Agreement shall be signed and take effect as of day showed at the
beginning of the Agreement. The term of validity of the Agreement
shall be 10 years unless being prematurely terminated according to the
Agreement or any other agreements of the parties, meanwhile, both
parties shall make a review about the Agreement every 3 months since
signed to decide whether correspondingly modify or supplement the
Agreement subject to circumstances at the time.
5.2 The Agreement can be extended upon Party A's written confirmation
before expiration. The extension shall be decided by Party A and Party
B shall unconditionally agree such extension.
6. TERMINATION
6.1 The Agreement shall be terminated upon the expiration, unless being
extended subject to the Agreement.
6.2 Party B shall not prematurely terminate the Agreement during the term
of validity unless Party A has any gross negligence or fraudulent
conduct. Nevertheless, Party A can terminate the Agreement through
written notice 30 days in advance at any time.
6.3 Both parties' rights and obligations under Clauses 3, 7 and 8 shall
remain valid after termination of the Agreement.
7. APPLICABLE LAW AND DISPUTE RESOLUTIONS
7.1 The Agreement shall be made, validated, interpreted, performed,
revised and terminated and the disputes shall be resolved in
conformance with related Chinese laws.
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7.2 Both parties shall resolve any dispute arising from interpreting and
fulfilling the Agreement based on friendly negotiations at first
within 30 days upon sending a written notice by one Party to the
other, which, if a failure, shall be hereafter presented by any of
both parties to China International Economic and Trade Arbitration
Commission for arbitral settlement in accordance with currently valid
arbitration rules in Beijing. The arbitration shall be in Chinese and
the arbitration award shall be final and binding on both parties.
7.3 In case of any dispute arising from interpreting and fulfilling the
agreement or during the arbitration on any dispute, both parties shall
still exercise other rights and fulfill other respective obligations
under the Agreement except for those items in dispute.
8. COMPENSATION
Party B shall compensate Party A for any loss, damage, responsibility or charge
generated or caused by consultation and services provided by Party A to Party B
subject to the Agreement or incurred for Party A's lawsuit, request or other
requirement, unless the loss, damage, responsibility or charge are generated due
to Party A's gross negligence or scienter.
9. NOTICE
9.1 All notices or other correspondences requested or sent upon the
Agreement shall be sent to the following address of the Party through
personal delivery, registered post, postage prepaid, business express
service or fax and all notices shall be sent through email once more.
The service date of such notices shall be confirmed as per the
following methods:
9.1.1 If the notice is sent through personal delivery, express
service, registered post or postage prepaid, the service date
shall be the day when the notice is sent or rejected upon the
notice address.
9.1.2 If the notice is sent through fax, the service date shall be
the day when the notice is successfully sent out (subject to
the auto-generated sending acknowledgement).
9.2 For the purpose of notice, both Parties' addresses are as following:
Party A: Xiangtan Nicestar Business Administration Co., Ltd.
Address: Huayuan Village, Shaoshan Town, Shaoshan, Hunan
Addressee: Guangwen He
Tel: 0731-55687248
Fax: 0731-55687248
Party B: Hunan Oya Education Technology Co., Ltd
Address: Room 1708, Changtai Building) 119 Block 1, Middle Furong
Road, Kaifu District, Changsha, Hunan
Attention: Guangwen He
Tel: 0731-88873289
Fax: 0731-88873727
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9.3 Either Party can notice the other Party the change of the notice
address at any time upon this clause.
10. TRANSFER OF THE AGREEMENT
10.1 Party B should not transfer the rights and obligations under the
Agreement to the third Party without Party A's prior written
permission.
10.2 Party B hereby agrees that Party A can transfer its rights and
obligations under the Agreement to the third Party when necessary, and
Party A only needs to send written notice to Party B when such
transfer occurs without waiting Party B's approval.
11. SEVERABILITY OF THE AGREEMENT
If one or more clauses of the Agreement are adjudged to be invalid, illegal or
unenforceable in any aspect subject to any law or regulation, the validity,
legality or enforceability of the other part of the Agreement shall not be
impacted or damaged for such reason. Both parties shall, through sincere
negotiations, replace the invalid, illegal or unenforceable regulations with
effective regulations within the law and to the maximum both parties expected,
economic effects of such effective regulations shall be as similar as possible
with those of the invalid, illegal or unenforceable regulations.
12. MODIFICATION AND SUPPLEMENTATION OF THE AGREEMENT
Both parties can modify or supplement the Agreement through written agreement.
Any modification or supplementation signed by both parties shall be the
component of the Agreement and have equal legal effect with the Agreement.
13. LANGUAGE AND DUPLICATION
The Agreement shall be in duplicate. Each party shall take one copy with each
equally valid.
IN WITNESS WHEREOF the representatives authorized by both parties have signed
this Excusive Business Cooperation Agreement and validated it as of day showed
at the beginning of the Agreement.
Party A: Xiangtan Nicestar Business Administration Co., Ltd
Signature: /S/ Guangwen He
Name: Guangwen He
Post: Legal representative
Party B: Hunan Oya Education Technology Co., Ltd
Signature: /S/ Guangwen He
Name: Guangwen He
Post: Legal representative
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