Attached files
| file | filename |
|---|---|
| S-1/A - GC China Turbine Corp. | v187602_s1a.htm |
| EX-5.2 - GC China Turbine Corp. | v187602_ex5-2.htm |
| EX-9.4 - GC China Turbine Corp. | v187602_ex9-4.htm |
| EX-23.3 - GC China Turbine Corp. | v187602_ex23-3.htm |
| EX-23.1 - GC China Turbine Corp. | v187602_ex23-1.htm |
| EX-10.21 - GC China Turbine Corp. | v187602_ex10-21.htm |
| EX-10.22 - GC China Turbine Corp. | v187602_ex10-22.htm |
Technical
License Contract
The two
principal Parties of the Contract are:
Party A:
Deltawind AB, (DWAB) (Hereinafter called as Party A)
Nationality:
Swedish
Address:
Deltawind AB, Nytorpsvagen 34, Taby, Sweden
Legal
Representative: Urban Henrik Joelsson
Tel: +46
(0)8 501 61 600
Fax: +46
(0)8 758 83 80
P.C.:
SE-183 53
Party B:
Wuhan Guoce Nordic New Energy Co., Ltd (Hereinafter called as Party
B)
Nationality:
Chinese
Address:
Fortune Industry Park, DongHu New Technology Development Zone, Wuhan,
P.R.C
Legal
Representative: Hou TieXin
Tel:
+86-27-87990785
Fax:
+86-27-87990787
P.C.:
430223
PREFACE
The
Contract is based on the consistent understanding on the under-mentioned
concepts among the Parties:
1. Party
A possesses the design and manufacturing technology and know-how of the
stipulated product covered in this Contract, which has been validated as
being useful;
2. Party
A has the right and is able to permit Party B to use the technology and know-how
of the stipulated product of the Contract (hereinafter refers to “the technology
under the Contract”);
3. The
two parties expect that Party B can successfully use the technology under the
Contract and successfully manufacture and sell the product under the
Contract;
Article
1 Definition
The
under-mentioned terms in the Contract have been defined after
consultation:
1.1 The
product under the Contract refers to: product listed or regulated in the
Appendix I of the Contract;
1.2 The
technology under the Contract refers to: the joint venture independently
manufactures the know-how, expertise, technical skill and technology that can
manufacture the product in conformity to the given specifications of Appendix
I;
1.3 The
technical information under the Contract refers to: all information required for
the implementation and utilization of the technology, which include but not
limited to the product design, construction, development, production,
technology, manufacture, utilization, operation, overhaul, repair, maintenance,
improvement or rebuild. The information includes but not limited to: operation
manual, estimation, specification, manufacturing data, drawings, blue prints,
pictures, prospectus and computer software under the Contract.
1.4 The
technical assistance in the Contract refers to: assistance to guarantee the
product in conformity to the specifications in the technology application and/or
necessary assistance for searching and eliminating the defects;
1.5 The
technician under the Contract refers to: manager, training personnel, employee
or consultant sent by Party A to Party B for the purpose of providing technical
assistance;
1.6 The
approved use area under the Contract refers to: countries and areas that Party B
and its holding enterprises are located;
1.7 Force
Majeure in the Contract refers to: event beyond the control of a Party, as a
result of which the Party is unable to perform its obligations under the
Contract, including: war, disturbance, riot, act of sabotage, strike, closedown,
other chaos or latest laws or act of the government, as well as fire, explosion
or other unavoidable accidents, such as flood, fire,
and earthquake and etc., including epidemic situation proclaimed and
determined or other abnormal natural incidents.
1.8 Day
under the Contract refers to: the Gregorian calendar, the number of day includes
all non-business days and holidays, all days are calculated in accordance with
the Gregorian calendar.
Article
2 Scope
2.1 Party
A agrees to allow Party B to use the technology used by Party A in manufacturing
the listed and stipulated product under the contract to Party B at the effective
date of the Contract as provided herein. The technology shall effectively meet
with the requirements of Chinese market.
Article
3 Territory and Exclusive Right
3.1
Utilization of technology and product manufacture
3.1.1 The
market and manufacturing rights provided by DWAB to GCNORDIC are not exclusive
by automatic. Such is however possible. Within one year after the establishment
of GCNORDIC, when GCNORDIC reaches the sales amount of 50MW and proves its
annual assembling capacity is 300MW, Party A then obtain an exclusivity status.
At the same time, according to the realities of Chinese market, both parties
should discuses the standards of obtaining an exclusivity status, it will decide
whether GCNORDIC will have the exclusive right in China or not in the
future.
3.2 Sales
of the product
3.2.1
Party B has the rights to sell its products within mainland China
3.2.2
Party A reserves the right of allowing Party B to sell its products outside of
China. Upon separate agreement this could be developed into a cooperative
business.
Article
4 Technology Usage
4.1 Party
A agrees to provide all documents, training and technical assistance required
for the manufacture of the product in accordance with designed schedule in the
pre-contract;
4.2
Documents
4.2.1
Range of the documents
Documents
for manufacturing product under the Contract include but not limited
to:
4.2.1.1
Drawings, blue prints and designs used in the manufacture and
assembly
4.2.1.2
List of raw materials
4.2.1.3
List of raw materials includes: Weight, size, texture of material, assembling
technique
and the testing standards for every part
4.2.1.4
General calculation sheet
4.2.1.5
Inspection and test procedures and data and quality management
procedures
4.2.1.6
Manufacture and assembly procedures
4.2.1.7
Operation and maintenance manual
4.2.1.8
Computer software
4.2.1.9
Manufacturing and assembling flow and calculation methods
4.2.2
Document form
Documents
shall be full, accurate and legible. Languages of the documents,
including drawings,
blue prints and design may only be in Chinese and English. Metrology may use the
given metric system.
4. 2.3
Defect of documents
Party
A
promises to amend and perfect any defect in the documents in the
shortest time or eliminate the defect with other proper
methods;
4.2.4
Alteration of documents
The update,
improvement, appendix, revision or other changes of any document provided by
Party A as provided herein within the Contract shall be delivered by Party A
immediately to Party B.
4.2.5 The
list of documents and schedules shall be handed
over by Party A to Party B within five work days after the setup of J/V and
written approval shall be obtained from Party B.
4.3
Training
4.3.1
Scope of training
Party A
agrees to train the employee of Party B
the technology required for manufacturing the product in accordance with the
given specifications in Appendix I.
4.3.2
Training plan
Party A
will provide training plan to Party B for
written approval within five work days from the setup of J/V, this plan includes
but not limited to:
4.3.2.1
Training course and teachers
4.3.2.2
Proper inspection procedures to ensure the success of training plan, including
but not limited in establishing standards of satisfaction result of trainees and
ratio of trainees reaching the standards, thus the training quality can be
ensured;
4.3.2.3
The beginning and ending dates of the training
4.3.2.4
Training place
4.3.2.5
Number of training persons
4.3.2.6
Qualifications of the trainee
4.3.2.7
Replacement procedures of unqualified trainees during the training
4.3.3 Expenses for teachers
4.3.3.1
Return journey expense of the teachers, their life insurance or assets insurance
charges in connection with the training activities, and expenses for training
materials and tools, as well as the abovementioned expenses shall be paid by
Wuhan Guoce S&T Co.,Ltd on behalf of Party B.
4.3.3.2
The trainers’ expenses of accommodations and food shall be paid by Wuhan Guoce
S&T Co.,Ltd on behalf of Party B.
4.3.4
Trainee expenses
Travel
and living expenses and other expenses of trainees shall be born by Party
B
4.3.5
Completion of the training
Upon
the completion of training period, Party A and Party B or their representatives
shall carry out an agreed test, if the agreed scores of the agreed ratio of the
agreed trainees accord with the agreed standards, Party A and Party B shall
together award the Certificate of Completion issued by the two
parties.
4.3.6
Training failure
In
case the trainees in conformity to the agreed standards have not reached the
agreed ratio at the completion of the training, Party B has the right to ask for
extra training within reasonable time till the training reaches the
standards.
4.4
Technical assistance and personnel
4.4.1
Technician support
Party
A agrees to arrange qualified technicians to provide recommendation, guidance,
assistance and support required for the guarantee of manufacturing stipulated
product in consistent with Appendix I at the site of Party B. After the joint
venture is established, Party A agrees to provide emergency technical assistance
at the request of Party B at any time within the validity period of the Contract
by any form, including but not limited to telephone, mail or assigning qualified
technician, or any other appropriate methods.
4.4.2
List of technician
Party A
shall provide to Party B the list of technicians within five work days after the
setup of J/V, and shall send every resume of each technician to Party B. The
list and qualification of the technicians must be recognized by Party B in
writing, and Party B may ask Party A to substitute all the doubtful technicians
and provide the substitutes. These technicians shall arrive the place of Party B
and begin relative work within five work days after they are recognized by Party
B.
4.4.3
Technician management
Technicians
in the People’s Republic of China shall abide by the local laws and regulations
and provisions.
4.4.4
Replacement of technician
Any
technician by virtue of unqualified, lack of skill, unhealthy, imperfect
management or any other substantial reasons shall be recalled and replaced after
Party B submits proper notice to Party A, all expenses arising from the recall
and replacement shall be born by Party A.
4.4.5
Resident permission and expense
4.4.5.1
Party B assists with Party A to provide required visa, necessary working
permission, and resident permission and relative consensus of working documents
of the Contract for every technician. Party A shall bear all expenses in
connection with these visas and documents.
4.4.5.2
Party B shall provide accommodations, special treatment and facilities for
technician, and shall advance the expenses of accommodations and food and
services on behalf of the joint venture.
4.4.6
Failure of technical assistance
Any
expenses, payment or loss of Party B arising from not providing technical
assistance timely and correctly by Party A, Party B has the right of remedy from
Party A.
4. 5
Manufacture of first group of wind turbines
4.5.1
Party A and Party B agree unanimously to
begin the manufacture of first group of two-blade wind turbines at the first
speed.
4.5.2
Obligation of Party A
It shall
appoint persons to help Party B determine suitable wind farm, to settle all the
technical problems during the manufacture of first group of wind turbines, shall
provide list of purchase of accessories, systems and raw materials, so as to
give guidance for direct purchase by Party B, shall be responsible for training
Party B’s working persons.
4.5.3
Obligation of Party B
It
shall pay all the expenses raised in manufacture of above-mentioned wind
turbines, shall be responsible for investigation on China’s market, and shall
seek suitable wind field for manufacture of above-mentioned wind turbines, shall
conclude contract of manufacture of above-mentioned wind turbines with the owner
of wind farm.
4.5.4
Manufacture plan and schedule of first group of wind turbines
Within
ten days after the signing of this contract, Party A shall provide Party B with
the scheme and schedule of manufacture of first group of wind turbines and
acceptance standard, which shall be recognized by Party B, so that Party B
should make exact, timely and effective preparation before the
manufacture
4. 5.5 In
any case, the manufacture of the model machine shall commence by July 15th, 2006
and shall be completed no later than May 1st,
2007.
4.5.6
After the manufacture of above-mentioned wind turbines has been finished, Party
B shall provide Party A with all the technical data and documents related to the
manufacture of the wind turbines.
4. 5.7
Manufacture failure and delay of the first group of wind turbines
In the
event the manufacture of above-mentioned wind turbines cannot be completed on
schedule or cannot reach to acceptance index, the principals of the Contract
shall try their best to eliminate any defect in the application technology
within the shortest time; in case a party improperly delays the trial run in
virtue of some reasons, the other party has the right to ask for delay
compensation, simultaneously the other party who do not cause the delay has the
right to terminate the Contract on its own side.
Article
5 Price
5.1 Best
quotation
5.1.1
Considering the total price under comparison situation, Party A promises to
provide the agreed preferential price not less than that to any third party in
the past and in the future within the validity period of the
Contract.
5.1.2 If
Party A provides more favorable price to the third party out of the Contract, or
has provided more favorable price, Party A agrees to reduce the payment of
support to the Contract without delay, and return any excess part of payment to
Party B.
Article
6 Payment
6.1
Initial technical usage fees
6.1.1
Amount: Five million Swedish Kronas
6.1.2
Payment mode: the initial technical usage fees shall be paid in installments by
the joint venture
6.1.2.1
After this contract and the J/V contract are in effect and within two weeks
after the manufacture plan and schedule of first group of wind turbines are
confirmed, Wuhan Guoce S&T Co.,Ltd shall, on behalf of Party B, advance one
million Swedish Kronas to Party A as Initial technical instruction fees. Such
full advanced instruction fees shall be paid by Party B to Wuhan Guoce S&T
Co.,Ltd within thirty days after the establishment of J/V.
6.1.2.2
Within six months after establishment of the joint venture, the joint venture
shall pay up the residual four million Swedish Kronas of initial technical
instruction fees to Party A.
6.2
Technical usage fee
6.2.1
Criterion of Technical usage fee
Party A
shall authorize GCNORDIC paid usage of technology. For every set of wind turbine
generator produced, GCNORDIC should pay technology usage fee to Party A
according to 3.5% of the Annual turnover of GCNORDIC. When the profit is too low
after paying the stipulated technology fee, Party A shall give some suggestions
on reducing the percentage of the technology usage fee, and these suggestions
shall be submitted to the board of the directors for discussion, and shall be
confirmed after get the all the board members’
approval.
6.2.2 The
technical usage fee report shall be sent to Party A within thirty days from the
date of the completion of annual summary, this report shall involve the net
selling price, total fixed price and quantity of each batch, and the type of
product sold by Party B on the basis of the Contract. The schedule for technical
usage fee is designed according to the sales income of every quarter. In the end
of every year, this technical usage fee report will be examined and
confirmed.
6.2.3
Party A may put forward formal written query on the questions in the report in
written form, as for the report without query ,Party B shall pay the technical
usage fee of the fourth quarter to Party A within the quarter that Party A
receives the report.
6.2.4
Party B shall keep all true and accurate accounts, documents, daybooks and other
related records required for the calculation and auditing to complete the
technical usage fee report.
6.3 Currency
Initial
technical instruction fees shall be paid in Swedish Krona, and payment of
deduction shall be calculated in RMB. For the purpose of remittance by Party A,
if the total amount payable of the payment of deduction shall be converted to
other currency, the official exchange rate of the People’s Republic of China
shall apply.
Article
7 Taxation
7.1 In
the event the government of the People’s Republic of China shall collect custom,
sales tax and income tax or similar taxation from Party B on the establishment
and implementation of the Contract, Party B shall bear these
expenses.
7.2 In
the event the government of the People’s Republic of China shall collect custom,
sales tax and income tax or similar taxation from Party A or persons of Party A
on the establishment and implementation of the Contract, Party A or its
personnel shall bear these expenses.
Article
8 Improvement and Innovation
8.1
Undertaking the obligation of technology improvement and innovation
Improvement
or innovation of any design or manufacture found or obtained by a Party must be
notified to the other Party pursuant to the provisions of joint venture
agreement within the validity period of the Contract, and shall provide
appropriately documents, training and technical assistance required for the
implementation of improvement and innovation to the other Party as
well.
8.2
Expenses for technology improvement and innovation
The technology improvement and innovation fee of Party A shall be included in
the above-mentioned technical usage fee; there should be no additional payment.
However, the actual costs in the documents of preparation, providing training
and technical assistance shall be decided through consultation on whether or how
to compensate on the basis of invoice by the principal parties of the
Contract.
8.3
Letters patent or other protection to the improvement and
innovation
When Party A obtains patent rights or other intellectual rights in virtue of any
improvement and innovation, Party A is committed to award the patent rights or
other intellectual rights and all patent right authorized use rights to Party B,
however, the actual costs in the awarding of these licenses shall be decided
through consultation on whether or how to compensate on the basis of invoice by
the principal parties of the Contract.
Article
9 Warranty
9.1
Technical warranty
For technology usage as a whole, Party A guarantees that the technology to
manufacture the product is applicable, and documents, training and technical
assistance are sufficient.
9.2
Measures in case of technical failure
For the substantial deviation of manufacturing major product arising from the
operation manual for application technology of Party A in the specifications
(including product process efficiency, product output and pollution emission) of
Appendix I, Party A is committed to adopt immediately the following
measures:
9.2.1
Review the reason of deviation;
9.2.2 Put
forward the technical improvement required for the manufacture of the stipulated
product;
9.2.3
Notify the improvement to Party B;
9.2.4
Provide additional documents, training and technical assistance which may be
required to Party B free of charge;
9.3
Expenses of warranty;
Party A shall bear all costs, expenses, loss or damage of Party B arising from
technical defect to Party B.
Article
10 Environment Protection and Harmful Effect
10.1
Party A promises that it has fully and clearly publicized all information of
related known technologies to environment affection to Party B, and in case of
any new information, Party A shall notify Party B at once free of
charge.
10.2
Party A promises that it has fully and clearly notified Party B all information
of prohibition and restriction implemented on the technology or the product in
any country at any time.
Article
11 Infringement of the Industrial Property of the Third Party
11.1
Party A knows nothing about and has no business to believe that partial or the
entire usagered technology used by Party B shall infringe any patent or other
industrial property of the third party according to usual practice. However, in
the event the third party has claimed infringement of partial or the entire
usagered technology used by Party B, and taken proceedings to Party B therewith,
Party B shall notify Party A immediately. Party A shall undertake all
responsibility of defense therewith; Party B shall provide all possible and
necessary support to Party A during the defense except expenses.
11.2 In
the event Party B is judged or decided infringement in fact during the treatment
of aforesaid infringement matters, Party A shall compensate Party B, the
expenses include all related costs resulted therewith of Party B during the
defense or proceedings or arbitration periods in addition to the loss of Party
B, as well as any compensation for damage requested or the corresponding costs
in connection with proceedings and arbitration activities and proceedings or
arbitration results request by the court or arbitration organ for which Party B
shall be born according to the arbitration.
Article
12 Confidential
12.1
Party B promises that it may adopt cautious measures to complete the manufacture
of the product under the Contract and the follow-up research of technology
rationally by itself or authorize others to use all technical information
obtained from Party A within the validity period of the Contract unless
receiving written prohibition from Party A, and Party A shall not refuse to
provide technical information if no justifiable reason. However, the technical
information learnt by Party B at the usage, or technical information publicized
or known to the industry shall be beyond the restriction. Moreover, Party B
shall be permitted to provide technical information required for the
manufacture, use, sales or improvement of the product.
12.2 When
Party A obtains the technical information in connection with the Contract, the
same confidential obligation shall apply to Party A as well.
12.3
Party A shall not reveal confidential information delivered by Party B to Party
A in connection with the Contract to any third party under no
circumstances.
Article
13 Force Majeure
13.1
Should either of the parties to the contract be prevented or delayed from
executing the contract by Force Majeure, which shall not be deemed as breach of
the Contract, and no legal remedy shall be needed for the other Party. However,
in case the prevented or delayed performance of the Contract lasts over thirty
days, the other Party shall have the right to terminate the
Contract.
Article
14 Approval and Effectiveness
14.1 Upon
the signing of the Contract by the concerned Parties and receiving of approval
documents from the administrative organ of Chinese government, the Contract
shall be effective.
14.2 The
principal Party of the Contract has the obligation to notify the other Party as
soon as it receives the government approval documents.
Article
15 Validity Period, Renewal and Termination of the Contract
15.1
Validity period of the Contract
The
validity period of the Contract shall be from the effective date of the Contract
to ten years successively.
15.2
Invalidity and renewal of the Contract
15.2.1
The Contract shall be null and void at the expiration of the Contract. It shall
be extended upon expiration unless notice in writing is given by the principal
Parties of the Contract prior to six months of the expiration, which shall be
approved by qualified administrative organs.
15.2.2
Upon the expiration of the Contract, unless the Contract is canceled in virtue
of breach of Party B on its own side, Party B has the right to use the
technology without paying further expenses.
15.3
Termination resulted in the change of ownership
In the
event of change of Party A or Party B in virtue of merger, purchase take-over or
similar chance occurrence, the other party has the right to terminate the
Contract on its own side and notify the result to the party which has changed.
Both parties should sign a new contract and should get the approval from the
administration agency of government, then both parties could continue their
collaboration.
Article
16 Explanation on Rights and Obligations
16.1 Any
Party of the Contract shall neither usage partial or the entire rights and/or
obligation of the Contract or partial or the entire of the contract without
written consensus of other principal Parties of the Contract.
Article
17 Notifications
17.1
Notifications mailed by one principal Party to the other principal Party of the
Contract shall be effective only for registered and signed mail pursuant to the
Contract.
17.1.1
The aforesaid notifications shall be mailed to the under-mentioned
addresses:
17.1.1.1
Party A:
17.1.1.2
Party B:
Article
18 Partial Null and Void
18.1 If
part of the contract is null and void, it shall not affect the validity of the
other parts. If any terms and conditions of the contract are null and void, the
two parties have the obligation to replace with new effective terms and
conditions, so as to realize the original contents to reach the purpose of the
Contract.
Article
19 All Agreements and Revisions
19.1 All
agreements
The
Contract consists of and composes of the technical acquisitions and usage and
service on all agreements between the principal Parties of the Contract, if the
Parties to this contract have before declaration of will which was different
from this contract, this contract shall apply.
19.2
Revision
This
Contract can be amended, corrected or revised only after consensus of principles
of the Contract.
Article
20 Languages
20.1
Language and original of the Contract
20.1.1
The Contract is written in quintuplicate and one for each, other copies shall be
filed to governmental institutions concerned.
20.1.2
The contract shall be written in two languages which are Chinese and English.
Both language versions have the equal legal effect.
20.1.3
Two sets of contract documents in Chinese and two sets of contract documents in
English shall be signed by both parties. Both parties shall hold each document
of the two languages.
20.2
Notification and other communication languages
The
Parties of the Contract agree that messages and all other communications between
the Parties shall be in Chinese and in English.
Article
21 Applicable Laws
21.1 The
establishment, validity, translation, execution, breach and termination of the
Contract are all under the jurisdiction of the People’s Republic of
China.
21.2 The
principal Parties of the Contract, intending to be bound legally by the laws and
regulations of the People’s Republic of China, have signed the Contract on the
aforesaid date, which shall be legally binding on principal Parties of the
Contract in accordance with Article 14 of the Contract.
Article
22 Settlement of Dispute
22.1
Principle of dispute settlement
Within
the validity duration of the contract, in case of any disputes shall be resolved
on a fair and just ground through friendly consultations.
22.2
Method settlement of dispute
Such
consultations shall begin immediately after one Party has delivered to the other
Party a written request for such consultation. If within thirty (30) days
following the date on which such notice is given, the dispute cannot be settled
through consultations, the dispute shall be submitted to arbitration in Hong
Kong, upon the request of any Party with notice to the other
Party.
22.3
Settlement place of the dispute
The
appointing authority shall be Hong Kong International Arbitration Centre
("HKIAC").
IN
WITNESS WHEREOF, both parties set their hands on the date herein
mentioned
Party A
(Cachet)
:
Legal
representative (signature):
Date of
Signature :
Party B
(Cachet) :
Legal
representative (signature):
Date of
Signature :