Attached files
| file | filename |
|---|---|
| S-1 - REGISTRATION STATEMENT - China Green, Inc. | fs12010_chinagreen.htm |
| EX-1.1 - FORM OF UNDERWRITING AGREEMENT - China Green, Inc. | fs1ex1i_chinagreen.htm |
| EX-3.2 - AMENDED AND RESTATED BY-LAWS - China Green, Inc. | fs1ex3ii_chinagreen.htm |
| EX-23.2 - CONSENT OF PARKER RANDALL (H.K.) - China Green, Inc. | fs1ex23ii_chinagreen.htm |
| EX-10.3 - LEASE AGREEMENT - China Green, Inc. | fs1ex10iii_chinagreen.htm |
Exhibitm
10.2
AGREEMENT
FOR GREENERY CONSULTANCY
THIS
AGREEMENT is made on the 10th day of November 2006.
BETWEEN:
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(1)
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GLORIOUS PIE LIMITED
(the "Company"),
a company incorporated with limited liability in" the British
Virgin Islands having its registered office at Sea Meadow House, Blackbume
Highway, Road Town, Tortola, British Virgin Islands;
and
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(2)
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东莞市城区园林绿化工程公司 (the "Client"), a company incorporated [with limited
liability] under the laws of the PRC (as defined in Clause 1 below) having
its registered office at 东莞市城区莞城体育路浩宇大厦7楼.
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WHEREAS:
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A.
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The
Company specializes in the provision of greenery consultancy services
and trading business, inter alia, provision
or arrangement of personnel
for landscape and ecological improvement
projects.
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B.
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The
Client specializes in landscape engineering and ecological improvement-related
works mainly in Guangdong Province,
PRC.
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C.
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The
Client has entered and/or shall enter into various agreements with various
third party end-users (the "End-users") of a
10-year period from 2006
to 2016 under which it shall carry out a series of landscaping and ecological
improvement-related construction works (the "Work") in Guangdong
Province, PRC (the "Projects" and each of
them the "Project").
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1
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D.
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The
Client agrees to appoint the Company to provide relevant personnel through
the Service Providers (as defined in Clause 1 below) and relevant greenery
consultancy services to assist the Client in staffing the Projects (the
"Services") in
accordance with a specified Term Sheet (as defined in Clause
1
hereunder).
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E.
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The
Company 'agrees to carry out and complete the Services in consideration
of the Client paying to the Representative (as defined in Clause
1 hereunder) appointed by the Company the sums and in the manner
as provided in Clause 5 under this
Agreement.
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F.
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The
Company shall procure the Client and the Service Provider to go into a
separate agreement as a memorandum to this Agreement, which shall set
out the terms between the two parties in accordance with this
Agreement
(the "Separate
Agreement(s)") in respect of the scope of work.
The Separate Agreements are governed by and executed
according to
the laws of the PRC
and would only come into effect when the Company
is declared bankrupt or sued by any party in any
legal proceedings
(a "Triggering Event").
The purpose of signing the Separate
Agreements is to mitigate the risks of having uncompleted Work. The
signing of the Separate Agreements do not preclude the Client from claiming
damages and compensation of loss from the Company while the Company
is not a party of the Separate
Agreements.
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In
consideration of the mutual promises herein contained and the mutual covenants
and agreements set forth herein, the parties hereto agree as
follows;
1.
DEFINITIONS AND INTERPRETATION
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1.1
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For
the purpose of this Agreement the following words and expressions shall
have the respective meaning assigned to
them;
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| "Agreement" | means this Agreement for Greenery Consultancy as originally executed or as it may from time to time be amended or supplemented; |
| "Business Day" | means a day (excluding Saturday, Sunday or any day on which a tropical cyclone warning signal no. 8 or above or a black rainstorm warning signal is hoisted in Hong Kong at any time between 9:00 a.m. and 5:00 p.m.) on which banks are generally open for business in Hong Kong and the PRC; |
| "China" or "PRC" | means the People's Republic of China; |
| "Commencement Date" | means the date of this Agreement; |
| "Consideration" | means the consideration net of any tax or levy for the provision of the Services to be specified in the Term sheet for each Project and which is to be paid in RMB or any other currency acceptable by the party being paid; |
| "Hong Kong" | means the Hong Kong Special Administrative Region of PRC; |
| "Party" | means the Company or the Client; |
| "Parties" | means the Company and the Client; |
| "Representative" | means the individual appointed by the Company to receive payment on its behalf; |
| "RMB" | means Renminbi, the lawful currency of PRC; |
| "Service Fees" | means the amounts described as set out in the Term Sheet; |
| "Service Provider(s)" | means architects, landscape designers, engineers, construction workers and other workers who are required to carry out landscape and ecological improvement work under the Client's project; |
| "Term" | means the effective term of this Agreement as defined in Clause 3 of this Agreement. |
| "Term Sheet" | means the term sheet to be supplied by the Client to the Company specifying the Consideration, completion arrangements, list of tasks and types and number of personnel required for each Project, in the form set out in Schedule I of this Agreement. |
2
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1.2
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In
this Agreement:
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(a)
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All
references to clauses, sub-clauses and Schedules are to clauses,
sub-clauses and Schedules of this
Agreement.
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(b)
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Words
importing the singular number only shall include the plural number and
vice versa; words importing the masculine gender only shall include the
feminine gender; and words importing persons shall include corporations,
firms, partnerships, bodies corporate, corporations, associations, joint
ventures, organisations and trusts (in each case whether or not
incorporated and whether or not having a separate legal
personality)
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(c)
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The
clause headings in this Agreement are inserted for ease of reference only
and shall not affect the construction or interpretation of this
Agreement.
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(d)
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References
to this Agreement or any other document include references to this
Agreement, its recitals and the Schedules or such other document as
varied, supplemented and/or replaced in accordance with this Agreement
from time to time.
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(e)
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References
to any party shall, where relevant, be deemed to be references to or to
include, as appropriate, their respective lawful successors, permitted
assigns or transferees.
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(f)
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References
to "writing" include telex, e-mail and facsimile transmission legibly
received except in relation to any certificate, report, notice or other
document which is expressly required by this Agreement to be signed, and
"written" has a corresponding
meaning.
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(g)
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In
the case of conflict or ambiguity between any provision contained in the
body of this Agreement and any provision contained in any Schedule, the
provision in the body of this Agreement shall take
precedence.
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3
2.
APPOINTMENT
The
Client hereby appoints the Company, and the Company hereby agrees, to carry out
and complete the Services upon the terms and conditions of this
Agreement.
3.
TERM
This
Agreement shall commence on the Commencement Date and shall continue for a
period of ten (10) years or otherwise its termination pursuant to Clause
9.
4.
SCOPE OF WORK AND
RESPONSIBILITIES OF THE PARTIES
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4.1
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The
Company shall, in carrying out the Services as generally categorised and
set out in its Statement of Work pursuant to Schedule II, exercise due
care and skill and act in a professional manner and shall use its best
endeavours to procure that all its employees and agents do
likewise.
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4.2
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The
Company shall provide greenery consultancy services, and/or arrange for/
procure a Service Provider who shall provide, personnel which are suitably
skilled and appropriately experienced and qualified to perform the tasks
required in each of the Projects, as specified by the Client in the Term
Sheet, in a competent and workmanlike manner in accordance with applicable
industry standards.
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4.3
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At
the time of engagement of the Service Provider, the Company shall pay for
the Service Provider on its own account (the "Company's Services") whereas
the Client's payment of consideration to the Company would be separated
from and independent of any legal obligation between the Company and the
Service Provider in accordance with Clause 5 and the relevant Term Sheets
unless the Separate Agreement comes into effect due to happening of a
Triggering Event.
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4.4
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The
Company shall use its reasonable endeavours to comply, or to procure the
Service Provider to comply, with the task requirements as specified by the
Client in the relevant Term Sheet.
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4.5
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The
Service Provider shall provide consultancy services in other
manpower-related matters with respect to each of the Projects from time to
time and whenever necessary throughout the duration of the Client's
Projects.
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4.6
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The
Client shall provide a list of job responsibilities of the Company, of
which shall be then provided to the Service Provider by the Company,
specified in the Term Sheet,
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4.7
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The
Client shall enter into the Separate Agreement with the Service Provider
in the terms which are to be agreed by the Client and the Service Provider
under the facilitation of the Company The Separate Agreements should only
be treated as memoranda to this Agreement and should not take any effect
until a Triggering Event has occurred. In case of the occurrence of a
Triggering Event, the performance of Work by the Company would cease
immediately and only at this point of time the Separate Agreements should
come into force.
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4.8
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The
Client shall make the necessary payments to the Company promptly in
accordance with Clause 5 and the payment date as stipulated in the Term
Sheet.
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4
5.
CONSIDERATION & PAYMENT
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5.1
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In
consideration of the Company's Services, the Client shall pay to the
Company the Consideration to be stipulated in the Termsheet and
allreasonable out of pocket expenses (if any) in accordance with the
commercial terms and payment terms as detailed in the Separate
Agreement.
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5.2
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The
Company shall send its staff to check for the quality of completion of the
Project(s) together with :he Client. The Client shall pay for
the Company's Services within 90 days upon the
completion of the Project(s) to the satisfaction of the
Client.
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5.3
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The
Company shall be entitled to the receivables from the Client for the
percentage of Work completed. The date of payment of such Work is stated
in the Temnsheets and unless the Company is not satisfied with the quality
of Work completed and/or the Client has not fulfilled the terms and
conditions specified under the
Termsheets.
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6.
STATUS OF THE
COMPANY
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6.1
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In
carrying out the Services, the Company shall, at its own costs and
expenses, conform with all relevant laws and regulations applicable to
it.
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6.2
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The
Company is appointed by the Client hereunder only for the purposes and to
the extent stated in this
Agreement.
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7.
WARRANTIES & LIABILITIES
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7.1
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Subject
to the limitations in Clause 8, each party (called the Indemnifying Party in
this Clause) shall indemnify and keep indemnified the other party (called
the Indemnified Party in this Clause) against any and all losses, costs,
expenses, claims, demands, proceedings, damages and other liabilities
incurred or suffered by the Indemnified Party as a result of any breach of
warranty given in this Agreement by the Indemnifying
Party.
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7.2
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The
Company represents, warrants and undertakes to the Client that: (a) it
will undertake the Services with reasonable skill and
care;
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(b)
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it
will engage competent and well-qualified staff in sufficient number for
provision of the Services; and
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(c)
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the
Services will be provided in a timely and professional manner and in
accordance with the Client's manpower requirements and project schedule
and will conform to the standards generally observed in the industry for
similar services;
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5
8.
LIMITATION OF LIABILITIES
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8.1
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Neither
party excludes or limits its liability to the other party in respect
of:
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(a)
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death
or personal injury or otherwise to the extent prohibited by applicable
law;
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(b)
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any
fraud or for any sort of liability that, by law, cannot be limited or
excluded; or
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(c)
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any
loss or damage caused by a deliberate breach of this
Agreement.
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8.2
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Subject
to Clause 8.1 above, in no event will either party's total liability based
on contract or tort or negligence or statutory liability arising out of or
in connection with this Agreement exceed 100% of the total Service Fees
payable to the Company by the Client for the Services provided under the
terms of this Agreement.
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8.3
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It
is hereby expressly agreed that in no event shall any party be liable to
the other party for consequential, collateral, special, incidental or
indirect damages (such as, without limitation, loss of revenue, loss of
profits, loss of business, loss of goodwill) or any punitive or exemplary
damages of any kind whatsoever, even if advised of the possibilities of
such damages in advance.
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9.
TERMINATION
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9.1
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Either
party (the "Non-Defaulting Party")
may terminate this Agreement forthwith by giving written notice to
the other party (the "Defaulting Party") if
the Defaulting Party:-
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(a)
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defaults
in the performance of any of its obligations under this Agreement and such
default (being capable of remedy) is not remedied within fifteen (15) days
after the Non-Defaulting Party has given written notice requiring the
Defaulting Party to remedy the
same;
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(b)
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defaults
in the performance of any of its obligations under this Agreement which by
its nature cannot be remedied;
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(c)
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engages
directly or indirectly in any attempt to defraud the Non-Defaulting
Party;
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(d)
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is
unable to pay all or any of its debts as they become due or if becomes
insolvent or makes any assignment for the benefit of its
creditors;
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(e)
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is
liquidated or dissolved or any proceedings are commenced by, for or
against it under any bankruptcy, insolvency laws or law providing for the
appointment of a receiver or trustee in bankruptcy;
or
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(f)
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in
the case of the Service Provider, acts dishonestly or persistently
neglects its duties hereunder or refuses to comply with any reasonable
instructions or directions given by the Client in relation to the carrying
out of the Services. Neither termination nor expiration of this Agreement
shall release either party from any obligation to pay any monies due to
the other party or operate to discharge any liability incurred by either
party prior to such termination or
expiration.
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9.2
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Each
party shall give the other notice in writing of any change in its name or
address.
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6
10.
ASSIGNABILITY
Neither
party may assign any of its rights or benefits, or transfer or purport to
transfer any of its duties or obligations, under this Agreement to any third
party without the prior written consent of the other party. Any such attempted
assignment or transfer shall be null and void.
11.
WAIVER
No single
or partial exercise of, or failure or omission to exercise or delay in
exercising any right, power, claim or remedy vested in any party under or
pursuant to this agreement or otheavise shall affect, prejudice or constitute a
waiver by such party of such or any other right, power, claim or
remedy.
12. ENTIRE AGREEMENT
This Agreement sets forth the
entire agreement and understanding between the Parties in relation to the
transactions contemplated by this Agreement, and supersedes and cancels in all respects all previous
letters of intent, correspondence, understandings, agreements and undertakings
(if any) between the parties with respect to the subject matter of this
Agreement, whether such be written or oral.
13. AMENDMENT
No
variation of this Agreement shall be effective unless it is in writing and signed by or
on behalf of each of the parties to this Agreement.
14. SEVERABILITY
If at any
time one or more of the provisions of this Agreement is or becomes invalid,
illegal, unenforceable or incapable of performance in any respect, the validity,
legality, enforceability or performance of the remaining provisions of this
Agreement shall not thereby in any way be affected or impaired.
15. COUNTERPARTS
This
Agreement may be executed in any number of counterparts and by either Party on
separate counterparts, each of which when so executed and delivered shall be an
original, but all the counterparts together shall constitute one and the same
instrument.
16. TIME
Time
shall be of the essence of this Agreement, both as regards the dates and periods
specifically mentioned in this Agreement and as to any date and period which may
by written agreement between or on behalf of the Parties be substituted for
them.
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17 COSTS
AND EXPENSES
Each
party shall bear all its own legal and professional fees, costs and expenses of
and incidental to the negotiation, preparation, execution and completion of this
Agreement.
18 NOTICES
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18.1
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All
notices, requests, demands and other communications required to be given
or made under this Agreement shall be in writing and delivered or sent to
the other party by hand or by registered mail (air-mail, if outside the
sender's country or territory) or by facsimile or email confirmed in
writing by registered mail dispatched within twenty-four (24) hours of the
facsimile or email dispatch in question, and shall be addressed to the
appropriate party at the address set out in this Agreement or to such
other address as such party hereto may from time to time designate to the
others of them in writing.
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18.2
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Any
notice, request, demand or other communication given or made to the
relevant party shall be deemed to have been received in the case of
communications in writing and delivered by hand on the date of delivery
against written receipt, in the case of written communications sent by
registered mail on the date which is two (2) business days in the case of
local mail or five (5) business days in the case of overseas mail after
the mailing thereof, and in the case of a facsimile or e-mail one (1) day
after the date of dispatch thereof.
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19 GOVERNING
LAW AND JURISDICTION
This
Agreement shall be governed by, and construed in all respects in accordance
with, the laws of Hong Kong and the parties hereby submit to the non-exclusive
jurisdiction of the courts of Hong Kong.
8