Attached files
| file | filename |
|---|---|
| 8-K - China Wi-Max Communications, Inc. | v183744_8k.htm |
| EX-99.1 - China Wi-Max Communications, Inc. | v183744_ex99-1.htm |
Dragon Telecom International
Agreement
The
agreement is made on April 27, 2010
Consigner：Dragon Telecom
International Limited, a company organized under the laws of Hong Kong Special
Administrative Region of the People's Republic of China, and with offices at _
Rm 2106, 21/F, Sinao Favour Centre, 1 On Yip Street, Chai Wan, Hong Kong,
Business License No.: 1383846 - Hong Kong (hereinafter referred to as
"CONSIGNER", including its successors);
Agent:
China Wi-Max Communications, Inc. a company organized under the laws of Nevada,
with offices at Suite 335, 1905 Sherman Street, Denver, Colorado 80203
(hereinafter referred to as "AGENT");
Whereas,
the agent is willing to obtain the right of sales agency in the agreement from
the consigner, and the consigner agrees to authorize the agent the right of
sales agency for corresponding agency business in accordance with the
regulations of the agreement.
In view
that the consigner is willing to obtain the sales of agency businesses to
telecom clients from the agent, and the agent has shown to the consigner the
professional technical resources, personnel, serving sites and client resources
required for selling the agency businesses.
The
following agreements are reached:
Article 1
Definition
The terms
in the agreement are defined as follows:
1.1
“Telecom clients” or “clients” refer to end users that are developed by the
agent and use the agency businesses provided by the consigner in accordance with
the terms and conditions of the agreement. Both parties agree that the telecom
clients are regarded as the clients of the consigner and included into the
client management scope of the consigner, and all the telecom client resources
are uniformly managed by the consigner.
1.2
“Agency business” refers to telecom business provided by the consigner, actually
occurring in and out of the China mainland and sold to telecom clients by the
agent in accordance with the agreement. Except with the approval of the
consigner, any changes of the original business (changes of the speed rate,
interface and client node of the original businesses, etc.) and the rent renewal
business after the expiration of the original business for the existing clients
of the consigner do not belong to the agent business in principle. The project
of the agent business is periodically adjusted with the consent of the consigner
or by notifying the agent in advance.
1.3 “One
party” refers to the consigner or the agent, and “both parties” refers to the
consigner and the agent.
1.4
“Network transfer” refers to the agent transferring the telecom clients of the
consigner into a telecom network that doesn’t belong to the consigner without
the consent of the consigner.
Article 2
Authorization of the Right of Agency and Classification of Agency
2.1 The
consigner authorizes the agent the non-exclusive and non-transferable right to
sell the consigner’s services to telecom clients in accordance with the terms
and conditions of the agreement. The agent accepts the above authorization of
the consigner in accordance with the terms and conditions of the
agreement.
2.2 The
agent shall sign agreements with the clients developed by the agent in a uniform
contract or other methods as authorized.
2.3 The
right of agency obtained by the agent includes “agency of
consigner”.
2.3.1
“Agency of consigner”: the agent conducts the promotion and sales in the name of
Dragon Telecom International Limited and the consigner signs the agreements with
clients in a uniform contract and pays the agency fee to the agent.
Article 3
Exclusiveness of the Agreement
Within
the term of the agreement, the agent shall not expand cooperation containing the
agency businesses of the same nature with any third party for the same
territory. For specific conditions, both parties shall negotiate
separately.
Article 4
Obligations of the Agent
4.1 When
applying for the agency business, the agent shall provide the permit of
operating telecom businesses in countries and places of the agent, if required,
the business license and other documents as required by the consigner. The agent
shall notify the consigner timely in case of changes.
4.2 The
agent agrees to actively expand the sales of the agency business as soon as
possible in accordance with the regulations of the agreement; unless with the
written consent of the consigner, the agent shall not conduct other operations
beyond the scope of agency business authorized in the agreement in the name of
“Dragon Telecom International Limited”.
4.3
Before expanding each business, the agent shall notify the consigner of client
names and business content and expand the business with the consent of the
consigner; the agent shall not expand the sales activities of agency businesses
in the existing client groups of the consigner or transfer the clients of the
consigner from one business network to another business network without the
consent of the consigner. For the expansion of the telecom client market, the
agent shall actively communicate with the consigner to avoid work conflicts and
overlaps.
4.4 The
agent shall abide by relevant laws and rules in Hong Kong and mainland of China
and the agency and sales areas, and relevant provisions for administration of
agency businesses of the consigner. Besides, the agent shall accept the business
guidance and management of the consigner.
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4.5 The
agent agrees to seriously abide by the product prices of agency businesses and
provide quality services to users.
4.6 The
agent expands businesses in the mode of “agency of consigner” and shall verify
the information filed by clients and submit the original application information
to the consigner upon signatures or seal of clients. The agent shall grasp the
usage situation of clients at any time, such as the acceleration and
deceleration of lines, machine relocations, changes of account information and
overdue payments, handle corresponding procedures for clients in time and shall
not delay. All the disputes and arrears occurring due to the agents delay shall
be borne by the agent.
4.7 The
agent shall provide business consultations, acceptance, charging, maintenance
and trouble treatment for clients according to the process and standards
provided by the consigner and provide integration, installation, training and
follow-up services of terminal devices and systems for clients as requested.
Charging and settlement process, open process, trouble treatment process,
business inquiry process and OSS settlement process for clients shall be
negotiated by both parties separately and relevant attachments shall be formed
as the complementary parts of the agreement.
4.8 The
agent agrees to strive to sell the agency business and periodically report in
written reports the information related to the market, pricing, availability,
service quality and the general sales situation of agency businesses to the
consigner.
4.9 The
agent agrees to assign the personnel with high commercial and technical quality
to engage in the sales of agency businesses.
4.10 The
agent agrees to implement the agreement seriously and is responsible for
business and client disputes due to its own actions and bears all the
responsibility. The agent agrees to compensate the consigner and ensure that the
consigner is free from damages, claims or losses caused by disputes due to the
agent.
4.11 The
agent shall ensure the consigner as to the quality of clients it develops. In
case the clients it develops owe the payment, the agent is liable to dunning for
payment. The agent can not withdraw the agency fee for any overdue payment until
the clients pay all overdue amounts.
4.12 The
clients developed by the agent shall sign contracts with the consigner for at
least one year. In case the users terminate the contracts in advance, the
consigner will not pay the agent the agency fee for the corresponding period of
lost business. In case the consigner has paid the agency fee for this lost
business to the agent, the agent shall return the agency fee for the lost
business to the consigner.
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4.13 All
the clients developed in any way by the agent belong to the consigner. However,
the agent is responsible for any commitment made to the clients without the
consent of the consigner.
4.14 The
agent shall protect the enterprise and brand images of the consigner. The
business name, service mode, quality and time limit requirements as well as
other standards used in business activities of the agent shall be in accordance
with relevant standards which are used by the consigner when signing the
agreement and may be amended at any time later. The agent shall not utilize any
trade mark and brand image of the consigner to conduct other activities beyond
the scope agreed in the agreement.
Article 5
Obligations of the Consigner
5.1 The
consigner is responsible for provision of agency businesses, business
acceptance, organization and dispatch, circuit opening, acceptance of trouble
declaration of clients, payment settlement and other matters involved in the
agreement.
5.2 The
consigner is responsible for verification of the application forms of clients
accepted by the agent. For the application forms that fail to comply with the
requirements, the consigner instructs the agent to amend them and return the
amended application forms within three work days after the receipt.
5.3 The
consigner is responsible for establishment of the management and implementation
criteria and operation processes related with the agency businesses, and
organization of the implementation.
5.4 The
consigner is responsible for supervision, examination and assessment of the
quality of services provided by the agent and involved in the
agreement.
5.5 The
consigner is responsible for consultations, training and guidance of agency
business involved in the agreement.
5.6 Under
the payment term that the clients make the payment directly to the consigner,
the consigner is responsible for letting the agent know the payment condition of
the clients at any time in a proper way, so as to press for the payment on
time.
5.7 The
consigner is responsible for paying the business agency fee to the agent in
accordance with the regulations of the agreement and the
attachment.
5.8 The
consigner agrees to provide certain support and assistance to the agent,
including free provision of marketing information in proper quantity
acknowledged by the consigner to the agent.
5.9 The
consigner agrees to provide commercial and technical training to the
agent.
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5.10 The
consigner agrees to provide products and prices with market competitiveness to
the agent.
Article 6
Agency Business Products, Agency Fee, Marketing Areas and Annual Sales
Budget
6.1
Agency business products and agency and marketing areas of the agent: in
accordance with the “Attachment I” of the agreement.
6.2 The
agency fee and the settlement proportion of agency fee: negotiated by both
parties separately, and relevant attachments shall be formed as the
complementary files of the agreement.
6.3 The
agent strives to finish the task goal of annual sales budget of the consigner.
The specific annual sales budget index is negotiated by both parties
separately.
Article 7
Collection of Fees and Mode of Settlement
7.1 The
procedures of collection of fees and settlement of agency fees for the clients
developed by the agent are negotiated by both parties separately, and relevant
attachments shall be formed as the complementary files of the
agreement.
Article 8
Intellectual Property Rights
8.1 The
agent shall not use any trade mark and enterprise image of the consigner in
principle. Under special circumstances, such as printing business materials or
business introductions for promotion activities to meet the requirements of
business development, the agent can use the trade mark and enterprise image of
the consigner. However, the written consent and confirmation of the consigner
shall be obtained in advance and the current efficient usage rules and guidance
of the consigner shall be seriously abided by.
8.2 Any
content in this agreement shall be deemed to authorize any right, qualification
and benefit related with the trade mark and enterprise brand image to the agent.
Except as regulated by the agreement, the agent shall not use any similar trade
mark or mix the trade mark, nor use the enterprise brand image mentioned above.
The agent shall avoid using or registering any similar or confusing trade mark
or enterprise brand image.
8.3 The
agent shall not publish, encourage or approve any advertisement, action, adopted
method or consequences produced that may damage the consigner of the good names,
trade marks and reputation of products of the consigner.
8.4 In
case of the receipt of the written notification of the consigner, or the
termination or expiration of the agreement, all the rights of using the logo and
enterprise brand image of the agent according to Article 8.1 of the agreement
are terminated on the date of expiration or termination. The agent shall
immediately stop the usage of the logo and enterprise brand image.
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Article 9
Responsibilities of breach of contract
9.1 It
will be deemed as breach of the contract when any party doesn’t perform the its
responsibilities under the agreement. The party that violates the contract shall
bear the losses caused to the other party for breach of the
contract.
9.2 The
agent shall not conduct other operational activities of non-agency or
non-authorized businesses by utilizing the trade mark and symbol of the
consigner. Otherwise, the consigner reserves the right to terminate the agency
agreement and the corresponding responsibilities are borne by the agent in
accordance with the regulations of the agency agreement.
9.3
Should the agent disclose the business secrets of the consigner without the
written approval of the consigner within the term of the agency agreement, the
consigner shall have the right to terminate the agency agreement; in case the
disclosure is serious or serious consequences are caused, the agent shall bear
the legal responsibilities and costs incurred thereby.
9.4 Any
party that causes economic or reputation losses to the other party by violating
the articles of the agreement shall bear the compensation
responsibility.
9.5 The
consigner shall have the right to cancel the agency fee of the agent in case the
agent violates the regulations of Article 4.5 unless the violation occuured with
the prior written consent of the consigner.
9.6 If
any of the articles in the agreement are contradictory, one party shall not bear
the responsibilities for benefit or profit losses, unrealized anticipated
conservation, business reputation losses, data missing and other losses due to
the actions in the agreement.
9.7 The
consigner is not responsible for the additional warranties or the warranties
different from regulations of the standard warranty articles for the products of
the consigner provided to the telecom clients by the agent. The agent is
responsible for all the responsibilities and obligations for consequences,
infringement or charges occurred due to any additional or different warranties
offered by the agent.
Article
10 Inspection Facilities and Records
The agent
grants the consigner or the independent auditors assigned by the consigner the
right to inspect the facilities and records related with the activities for the
agreement within the work hours of the agent. The records include the original
contract, invoice, payment voucher, transfer voucher and others related items
related to the agreement. To conduct the above inspection, the agent agrees to
provide the consigner the personnel, records and facilities in accordance with
the reasonable requirements of the consigner.
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Article
11 Changes and Dissolution of the Agreement
11.1 The
agent shall not transfer the agency right of the consigner without the written
consent of the consigner.
11.2
Should the agent wished to terminate the agency agreement in early, the agent
shall apply to the consigner at least three months in advance. All the agency
matters shall be seriously performed in accordance with the agency agreement
before the agency agreement is terminated with the formal consent of the
consigner.
11.3 In
case of the adjustment of telecom business expenses related with the agreement,
the relevant contents of the agreement shall be adjusted without the written
consent of both parties.
11.4 The
agent shall not transfer all or partial rights and obligations in the agreement
without the agreement of both parties. In case of recombination, consolidation
or name changes of the agent, another agreement shall be signed between both
parties after the agent notifies the consigner and obtains the consent of the
consigner.
11.5
Should the agent act as follows, the consigner shall have the right to notify
the agent to terminate the agreement at any time, which doesn’t affect the right
of the consigner to ask for compensation for any other losses;
11.5.1
Should the agent accept or provide services in accordance with the business
disposal procedures or cause economic or reputation losses to the consigner by
violating the disposal procedures in operation, the consigner shall have the
right to terminate the agency agreement.
11.5.2
The agent conducts activities beyond the scope specified in the agreement by
utilizing the trade mark and enterprise brand image of the
consigner.
11.5.3
The agent violates the confidential obligations.
11.5.4
The agent expands cooperation containing the same substantive contents with the
third party.
11.6 The
agent is responsible for assisting the consigner to complete the transfer and
transition of clients and shall not affect services to clients in case of the
termination or expiration of the agency agreement.
11.7 In
case of the expiration or termination of the agency agreement due to the above
reasons, the agent shall stop the sales and marketing of agency business
products and stop using the confidential information, files, trade mark or
enterprise brand image of the consigner.
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Article
12 Confidentiality
12.1 One
party of the agreement (“Information Discloser”) shall enjoy the legal title of
all kinds of technical and commercial information, specifications, drawing
paper, files and exclusive techniques provided to the other party (“Information
Recipient”) in accordance with the agreement (or with respect to the
agreement).
12.2 In
addition to the actions authorized by the agreement, the information recipient
shall protect the confidential information as business secrets, and shall not
copy or disclose partial or all the confidential information to any third party.
The information recipient may disclose the confidential information provided by
the other party to employees with the acknowledgement necessity only for the
purpose of the agreement, but shall instruct the employees to abide by the
confidentiality and non-disclosure obligations specified in the chapter. The
recipient can copy the confidential information only for the purpose of
performing the obligations in the agreement, and shall return all the
confidential materials to the information discloser and destroy all the copies
upon the termination or dissolution of the agreement. The recipient shall well
maintain the confidential materials and is liable for bearing all the
responsibilities for the theft or careless disclosure of the confidential
materials or other incidents that may impair the confidentiality of the
confidential materials within the term of the recipient. The recipient is
responsible for compensation of the losses caused thereby to the
discloser.
12.3 The
article is not applicable to the restriction of confidential information in the
following situations, when the confidential information:
(1)
enters into the public sector not because of the mistakes of the information
recipient;
(2) is
proved by relevant records of the party that the confidential information is
independently developed by the information recipient;
(3) is
acquired by the information recipient from any other person who doesn’t violate
the confidentiality obligations of the information discloser;
(4) are
required to disclose by the information recipient in accordance with the law,
but the information recipient shall notify the information discloser within a
reasonable time in advance to let the information discloser adopt necessary
protective measures.
12.4 The
confidential period of the agreement is five (5) years from the effective date
of the contract.
Article
13 Force Majeure
13.1 The
force majeure mentioned in the agreement refers to earthquakes, typhoon, water,
fire, wars and other unpredictable objective situations, of which the occurrence
and consequences can’t be prevented or avoided and are invincible.
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13.2 In
case one party of the agreement can’t perform or can’t fully complete the
obligations of the agreement due to the force majeure, the party shall notify
other parties of the agreement within ten calendar days after the occurrence of
the force majeure, and provide the certificate of force majeure issued by
relevant departments to the other parties within ten calendar days after the
occurrence of the force majeure.
13.3 In
case any party can’t perform the agreement due to the force majeure, some or all
the responsibilities of the party can be exempted according to the influences of
the force majeure, unless otherwise specified by the law. The responsibilities
can’t be exempted in case the force majeure occurs after delaying the
performance of the agreement.
13.4 In
case the agreement is terminated for ten calendar days or above due to the
influences of the force majeure, the consigner or the agent shall have the right
to terminate the agreement and notify the other party in written
form.
Article
14 Independence
Any
content of the agreement shall not be deemed or interpreted as the parties
having any relationship of joint venture, partnership and strategic
partnership.
Article
15 Applicable Laws and Settlement of Disputes
15.1 The
agreement is governed by the law of the Hong Kong Special Administrative Region of the
People's Republic of China and interpreted by the law of Hong Kong.
15.2 Any
dispute, controversy or claim due to the contract or in connection with the
contract, termination for breach of the contract or invalidity of the contract
shall be settled through friendly negotiations between both parties. In case the
disputes can not be settled through friendly negotiations, the disputes will be
submitted to the arbitration authority for arbitration.
15.3 The
arbitration shall be conducted in accordance with the efficient arbitration
rules of the United Nations Commission on International Trade Law currently but
can be amended as follows:
15.4 The
institution that appoints the arbitrator is Hong Kong International Arbitration
Center and the appointed place is Hong Kong International Arbitration Center.
Only one arbitrator is responsible for arbitration.
15.5 The
arbitration is managed by Hong Kong International Arbitration Center in
accordance with the efficient arbitration rules of Hong Kong International
Arbitration Center in accordance with the date of the contract, including the
complementary parts of the arbitration rules of the United Nations Commission on
International Trade Law.
15.6 The
language for the arbitration procedures is Chinese.
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15.7 The
arbitration award is the final result which binds on both parties.
15.8 The
arbitration fees are borne by the losing party.
15.9
During the arbitration process, both parties shall continue to perform other
parts unrelated with the arbitration in the contract.
Article
16 Effectiveness of the Agreement and Other Articles
16.1 The
agreement is effective from signatures and official seals of the legal
representatives or the authorized representatives of both parties, with the term
of validity of one year. When the term of validity expires, the consigner will
verify the agency qualification of the agent again. The agreement will continue
to be effective if the verification is passed. Otherwise, the consigner will
require terminating the contract in written notice thirty days in
advance.
16.2 Any
matters uncovered in the agreement shall be solved by both parties in the spirit
of friendliness and cooperation.
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/s/
Steven Sheo
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/s/
Steven Berman
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Steven
Sheo, President
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Steven
Berman, CEO and President
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Dragon
Telecom International Limited
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China
Wi-Max Telecommunications, Inc.
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Attachment
I
I. Agency
Business Products:
1. Global
Network Service
A.
Cross-border Ethernet private line
B. MPLS
VPN business
C.
IPLC
2.
Internet Access
3. Data
Center (IDC) Business
4. IT
Outsourcing Service
5.
Comprehensive Solutions
A.
Network management service
B.
Cross-border video
II. The
Agency and Marketing Areas of the Agent:
1. North
America and China