Attached files

file filename
8-K - Xtreme Link, Inc.v196079_8k.htm
EX-99.17 - Xtreme Link, Inc.v196079_ex99-17.htm
EX-2.1 - Xtreme Link, Inc.v196079_ex2-1.htm
EX-3.3 - Xtreme Link, Inc.v196079_ex3-3.htm
EX-99.8 - Xtreme Link, Inc.v196079_ex99-8.htm
EX-99.7 - Xtreme Link, Inc.v196079_ex99-7.htm
EX-99.6 - Xtreme Link, Inc.v196079_ex99-6.htm
EX-99.9 - Xtreme Link, Inc.v196079_ex99-9.htm
EX-99.2 - Xtreme Link, Inc.v196079_ex99-2.htm
EX-99.1 - Xtreme Link, Inc.v196079_ex99-1.htm
EX-99.4 - Xtreme Link, Inc.v196079_ex99-4.htm
EX-99.5 - Xtreme Link, Inc.v196079_ex99-5.htm
EX-99.14 - Xtreme Link, Inc.v196079_ex99-14.htm
EX-99.16 - Xtreme Link, Inc.v196079_ex99-16.htm
EX-99.12 - Xtreme Link, Inc.v196079_ex99-12.htm
EX-99.13 - Xtreme Link, Inc.v196079_ex99-13.htm
EX-99.11 - Xtreme Link, Inc.v196079_ex99-11.htm
EX-99.15 - Xtreme Link, Inc.v196079_ex99-15.htm
EX-99.10 - Xtreme Link, Inc.v196079_ex99-10.htm
Exhibit 99.3



This Consulting Services Agreement (this “Agreement”) is dated August 9, 2010, and is entered into in Xi’an City, Shaanxi Province, People’s Republic of China (“PRC” or “China”) by and among Orient New Energy (Xi’an) Co., Ltd. (“Party A”), and Xi’an Orient Petroleum Group Co., Ltd. (“Party B”). Party A and Party B are referred to collectively in this Agreement as the “Parties.”

本咨询服务协议(“本协议”)于201089日在中华人民共和国(“PRC”或“中国”)陕西省西安市,由东方新能源(西安)有限公司(“甲方”)以及西安东方石油集ࢰ 2;有限公司(“乙方”)。甲方和乙方总称为“各方”。



Party A, a company incorporated in the PRC as a foreign investment enterprise, specializes in the research and development of chemicals and consulting service;


Party B is engaged in the wholesale of gas, coal oil, diesel oil; the sale and wholesale of lubricating oil, residual oil, fuel oil, naphtha, paraffin wax, asphaltum and wax-bearing oil; and the sale and wholesale of chemicals (excluding inflammable, explosive, hazardous chemicals) and petroleum special equipment.  (collectively the “Business”).


The Parties desire that Party A provide Party B with consulting and other relevant services in connection with the Business; and



The Parties are entering into this Agreement to set forth the terms and conditions under which Party A shall provide consulting and other related services to Party B.


NOW THEREFORE, the Parties agree as follows:



1.1           In this Agreement the following terms shall have the following meanings:


Affiliate,” with respect to any Person, shall mean any other Person that directly or indirectly controls, or is under common control with, or is controlled by, such Person.  As used in this definition, “control” shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether by ownership of securities or partnership or other ownership interests, or by contract or otherwise);

“关联人”,指的是对于任何人而言,直接或者间接地予以控制的、或者被其控制、或者共同被他人控制的某人。在本定义中。控制指的是直接或者间接拥有,具有能力直接或者间接影响管理的方向和政策(不管是通过股份所有权还是通过 512;伙或者其他所有权权益,这种安排可以通过合同或者其他形式进行。)

Consulting Services Fee” shall be as defined in Clause 3.1;


Indebtedness” shall mean, as to any Person, any one of the following: (i) money borrowed by such Person (including principal, interest, fees and charges) for the deferred purchase price of any property or services, (ii) the face amount of all letters of credit issued to such Person and all drafts drawn thereunder, (iii) all liabilities secured by any Lien on any property owned by such Person, whether or not such liabilities have been assumed by such Person, (iv) the aggregate amount required to be capitalized under any lease for which such Person is the lessee, or (v) all contingent obligations (including, without limitation, all guarantees to third parties) of such Person;
“债务”指的是,对任何人而言,下述情况之一(i)所有因此类人的借款以便还清迟延支付的购买财产价款或者服务费而产生的债务(包括本金,利息,费用和收费),(ii)所有应当由此类人支付的信用证以及由此出 具的票据的票面价值,(iii)任何由设置于此类人拥有的财产之上的留置担保的责任,不管此类人是否承担了这些责任,(iv)此类人作为租赁人应当支付的租约总金额,或(v)所有此类人的或有债务(包括但不限于向所有第三方作出的 担保);
Consulting Services Agreement

Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under recording or notice statute, and any lease having substantially the same effect as any of the foregoing);

“留置”指的是任何抵押、质押、担保、转让、存款安排、权利负担,留置(法定或者其他),优惠,优先权或者任何其他性质种类的担保安排(包括但不限于任何有条件的出售或者其他所有权保留协议,根据法定形式签发的任何融资或者 867;似的申明或者通知,以及任何与前述安排具有实质性相同效果的租约)。

Person” shall mean any individual, corporation, company, voluntary association, partnership, joint venture, trust, unincorporated organization, entity or other organization or any government body;


PRC” means the People’s Republic of China;

“PRC” 指的是中华人民共和国。

Services” means the services to be provided under the Agreement by Party A to Party B, as more specifically described in Clause 2.


1.2           The headings in this Agreement shall not affect the interpretation of this Agreement.


Consulting Services Agreement


2.1           Party B hereby agrees to retain the services of Party A, and Party A accepts such appointment, to provide to Party B services in relation to the current and proposed operations of Party B’s business in the PRC pursuant to the terms and conditions of this Agreement (the “Services”).  The Services shall include, without limitation:

乙方在此同意聘用甲方提供服务,并且甲方依据本协议规定的条款,接受聘用,向乙方在中国正在开展或者即将开展的业务提供相关服务 (“服务”)。服务包括但不限于:

(a)           General Business Operation.  Provide general advice and assistance relating to the management and operation of Party B’s business.


(b)           Human Resources.


(i)           Provide general advice and assistance in relation to the staffing of Party B, including assistance in the recruitment, employment and secondment of management personnel, administrative personnel and staff of Party B;


(ii)           Provide training of management, staff and administrative personnel;


(iii)           Assist Party B to establish an efficient payroll management system; and


(iv)           Provide assistance in the relocation of Party B’s management and staff;


Consulting Services Agreement

(c)           Business Development. Provide advice and assistance in business growth and development of Party B.


(d)           Other.  Such other advice and assistance as may be agreed upon by the Parties.


2.2           Exclusive Services Provider.  During the term of this Agreement, Party A shall be the exclusive provider of the Services.  Party B shall not seek or accept similar services from other providers without the prior written approval of Party A.


2.3           Intellectual Property Rights Related to the Services.  Party A shall own all intellectual property rights developed or discovered through research and development in the course of providing Services, or derived from the provision of the Services.  Such intellectual property rights shall include patents, trademarks, trade names, copyrights, patent application rights, copyright and trademark application rights, research and technical documents and materials, and other related intellectual property rights including the right to license or transfer such intellectual property rights.  If Party B requires the use of Party A’s intellectual property rights, Party A agrees to grant such intellectual property rights to Party B on terms and conditions to be set forth in a separate agreement.

有关服务的知识产权。在提供服务过程中,甲方应当拥有所有由服务产生的通过开发和研究获得的知识产权。此类知识产权应当包括专利、商标、商号、版权、专利申请权、版权或者商标申请权,研究及技术文件资料,以及其他有关的知识&# 20135;权(包括许可、转让此类知识产权的权利)。如果乙方要求使用甲方的知识产权,甲方应当通过和乙方签订独立的协议授予乙方此类权利。

2.4           Pledge.  Party B shall permit and cause the owners of Party B to pledge their equity interests in Party B to Party A for securing the payment of the Consulting Services Fee as required pursuant to this Agreement.


Consulting Services Agreement

3.           PAYMENT (支付)

3.1           General.


(a)           In consideration of the Services to be provided by Party A hereunder, Party B shall pay to Party A a consulting services fee (the “Consulting Services Fee”) during the term of this Agreement, payable in Renminbi (“RMB”) each quarter, equal to all of Party B’s net income for such quarter based on the quarterly financial statements provided under Clause 5.1 below. Such quarterly payment shall be made within fifteen (15) days after receipt by Party A of the financial statements referenced above.

就甲方提供的服务,乙方应当在本协议有效期间向甲方支付咨询服务费(“咨询服务费”)。该费用每季度以人民币支付。依据以下第5.1条规定由乙方提供的季报,该费用应当和乙方该季度净收入相等。该费ī 92;应当在甲方收到以上财务报表15天内支付。

(b)           Party B will permit, from time to time during regular business hours as reasonably requested by Party A, its agents or representatives (including independent public accountants, which may be Party B’s independent public accountants), (i) to conduct periodic audits of the financial books and records of Party B, (ii) to examine and make copies and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in the possession or under the control of Party B, (iii) to visit the offices and properties of Party B for the purpose of examining such materials described in clause (ii) above, and (iv) to discuss matters relating to the performance by Party B hereunder with any of the officers or employees of Party B having knowledge of such matters.  Party A may exercise the audit rights described herein at any time, provided that Party A provides a ten (10) day written notice to Party B specifying the scope, purpose and duration of such audit.  All such audits shall be conducted in such a manner as not to interfere with Party B’s normal operations.

乙方应当允许,在通常的工作时间,根据甲方或者其代理人或者代表的要求(包含独立的注册会计师,其可能是乙方的独立的注册会计师)(i) 对乙方的账簿和财务记录进行审计,(ii) 对乙方持有的或管理的所有的账簿,财务记录和文件进行摘要,检查和备份(包括但不限于电脑磁盘和磁带),(iii) 造访乙方的办公场所和财产以便对上述(ii)中的材料进行审查,(iv)和乙方了解情况的雇员讨论乙方的经营活动。甲方可以在任何时间行使本条规定的审计权,只要提前十天向乙方提供书面的通知确定审计的范围,目的和持续时间即可。所有此类的审计 981;应当影响乙方一般的经营活动。

Consulting Services Agreement

3.2           Party B shall not be entitled to set off any amount it may claim is owed to it by Party A against any Consulting Services Fee payable by Party B to Party A unless Party B first obtains Party A’s prior written consent.


3.3           The Consulting Services Fee shall be paid in RMB by telegraphic transfer to Party A’s bank account No.______________, or to such other account or accounts as may be specified in writing from time to time by Party A.

咨询服务费应当以人民币通过电汇的方式汇至甲方账户: ,或者其他甲方在任何时间通过书面确定的其他账户。

3.4           Should Party B fail to pay all or any part of the Consulting Services Fee due to Party A in RMB under this Clause 3 within the time limits stipulated, Party B shall pay to Party A interest in RMB on the amount overdue based on the three (3) month lending rate for RMB published by the Bank of China on the relevant due date.


3.5           All payments to be made by Party B hereunder shall be made free and clear and without any consideration of tax deduction, unless Party B is required to make such payment subject to the deduction or withholding of tax.


4.           FURTHER TERMS OF COOPERATION (进一步合作条款)

All business revenue of Party B shall be directed in full by Party B into a bank account designated by Party A.


Consulting Services Agreement

5.           UNDERTAKINGS OF PARTY A (甲方保证)

Party B hereby agrees that, during the term of the Agreement:


5.1           Information Covenants.  Party B shall provide to Party A:


5.1.1        Preliminary Monthly Reports. Within five (5) days after the end of each calendar month the preliminary income statements and balance sheets of Party B made up to as of the end of such calendar month, in each case prepared in accordance with the generally accepted accounting principles of the PRC.


5.1.2        Final Monthly Reports. Within ten (10) days after the end of each calendar month, a final report from Party B on the financial and business operations of Party B as of the end of such calendar month, setting forth the comparison of financial and operation figures for the corresponding period in the preceding financial year, in each case prepared in accordance with generally accepted accounting principles of the PRC.


5.1.3        Quarterly Reports. As soon as available and in any event within forty-five (45) days after each Quarterly Period (as defined below), unaudited consolidated and consolidating statements of income, retained earnings and changes in financial positions of Party B and its subsidiaries for such Quarterly Period, and for the period from the beginning of the relevant fiscal year to such Quarterly Date, and the related consolidated and consolidating balance sheets as of such Quarterly Period, setting forth in each case the actual versus budgeted comparisons and a comparison of the corresponding consolidated and consolidating figures for the corresponding period in the preceding fiscal year, accompanied by a certificate of Party B’s Chief Financial Officer, and such certificate shall state that the said financial statements fairly represent the consolidated and consolidating financial conditions and results of operations, as the case may be, of Party B and its subsidiaries, in accordance with the general accepted accounting principles of the PRC for such period (subject to normal year-end audit adjustments and the preparation of notes for the audited financial statements).  For the purpose of this Agreement, a “Quarterly Period” shall mean the last day of March, June, September and December of each year, the first of which shall be the first Quarterly Period following the date of this Agreement; provided that if any such Quarterly Period is not a business day in the PRC, then such Quarterly Period shall be the next succeeding business day in the PRC.

季报。在每季度结束后45天内制作的,乙方及其子公司未审计的合并和未合并收入报表,未分配利润和乙方财务状况的变化的报表;如果可能的话,每季度及从每财务年度的开始到季报制作日,相关合并和未 512;并报表,并且以比照形式和去年同期的相关报表列于一处。相关报表应有乙方首席财务官的证明。该证明应当申明相关财务报表依法提供了乙方及其子公司合并及未合并的财务状况和经营业绩,并且该报表的制作符合中国公认会计原则(相关数据应以年度审计的调整和相关已审计的财务报 4920;为准)。在本协议中,“a Quarterly Period”的含义是:每年三月份,六月份,九月份和十二月份的最后一天,第一次Quarterly Period应当是本协议签订日后的以上月份的最后一天。如果上述日期在中国不是营业日,那么相关日期应推迟到此后的第一个营业日。

Consulting Services Agreement

5.1.4        Annual Audited Accounts.  Within 90 days after the end of the financial year, Party B’s annual audited accounts (setting forth in each case the comparison of the corresponding figures for the preceding financial year), shall be prepared in accordance with the generally accepted accounting principles of the PRC.


5.1.5        Budgets. At least ninety (90) days prior to the beginning of Party B’s fiscal year, Party B shall prepare a budget in a form satisfactory to Party A (including budgeted statements of income and sources and uses of cash and balance sheets) for each of the four quarters of such fiscal year accompanied by the statement of Party B’s Chief Financial Officer, to the effect that, to the best of his or her knowledge, the budget is a reasonable estimate for the corresponding period.

预算。每财务年度开始前90天,甲方能够接受的乙方准备之预算(包括预算收入、资金来源、用途和资产负债表)。该预算应当包括每财务年度季度预算。该预算应由乙方首席财务官申明以确定根据其所知相 851;预算是对相关期间合理的估计。

5.1.6        Notice of Litigation. Party B shall notify Party A, within one (1) business day of obtaining the knowledge thereof, of (i) any litigation or governmental proceeding pending against Party B which could materially adversely affect the business, operations, property, assets, condition or prospects of Party B, and (ii) any other event which is likely to materially adversely affect the business, operations, property, assets, condition or prospects of Party B.

诉讼通知。在任何情况下,在乙方获知(i)任何尚未了结的诉讼或者政府行政程序即将对乙方的业务、经营、财产或者财务状况或者乙方未来的发展产生重大不利影响,并且(ii)任何其他 有可能对乙方上述方面产生重大不利影响的情况后的一天之内,通知甲方。

Consulting Services Agreement


5.1.7        Other Information.  From time to time, such other information or documents as Party A may reasonably request.


5.2           Books, Records and Inspections.  Party B shall keep accurate books and records of its business activities and transactions according with PRC’s generally accepted accounting principles and all other legal requirements.  During an appropriate time and within a reasonable scope requested by Party A, Party B will permit Party A’s officers and designated representatives to visit the premises of Party B and to inspect, under the guidance of Party B’s officers, Party B’s books and records, and to discuss the affairs, finances and accounts of Party B.

账簿、财务记录和审查。乙方应当保留相关账簿和财务记录,该记录应当完整,真实,并且准确地按照中国公认会计原则以及所有法律的要求制作,同时应当包含所有的交易和业务活动。乙方应当允许甲方的高级管理人员和任&# 21629;的代表,在合适的时间和间隔,依据甲方合理要求的范围,在乙方高级管理人员的引导下对乙方财产进行检查,审查乙方的账簿和财务记录,并且和乙方高级管理人员讨论乙方的经营、财务和帐目。

5.3           Corporate Franchises.  Party B will do or cause to be done, all things necessary to preserve and keep in full force and effect its existence and maintain its material rights and licenses.


5.4           Compliance with Laws.  Party B shall abide by all applicable laws, regulations and orders of all relevant governmental administration, in respect to its business and the ownership of its property, including, without limitation, maintenance of valid and proper governmental approvals and licenses necessary to provide the services, unless such noncompliance could not, in the aggregate, have a material adverse effect on the business, operations, property, assets, condition or prospects of Party B.

遵守法律。乙方就其业务、财产所有权(包括但不限于保持有效和合适的政府审批和许可以便提供相关服务)应当遵守所有适用的法律、法规、政府机构的行政命令;除非此类不遵守,总体而言,对乙方的业务、经营、财产和&# 36130;务状况及未来发展不会带来重大不利影响。

Consulting Services Agreement

6.           NEGATIVE COVENANTS (不作为保证)

Party B covenants and agrees that, during the term of this Agreement, without the prior written consent of Party A:


6.1           Equity.  Party B will not issue, purchase or redeem any equity or debt securities of Party B.


6.2           Liens.  Party B will not create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of Party B whether existing or hereafter acquired, provided that the provisions of this Clause 6.2 shall not prevent the creation, incurrence, assumption or existence of:

担保。乙方不会设定、招致、承担或者忍受任何加诸于其财产(动产或者不动产,有形或者无形)之上的担保权,不管这类财产是现在拥有的还是之后获得的,但是本协议第6.2条没有阻止下列情况的产生、招! 268;或者承受:

6.2.1        Liens for taxes not yet due, or Liens for taxes being contested in good faith and by appropriate proceedings for which adequate reserves have been established; and

未到期税款的担保,由善意及恰当程序提起争议的税款担保且为此已建立足够的保留; 以及

6.2.2        Liens in respect to Party B’s property or assets imposed by law, which were incurred in the ordinary course of business, and (i) which do not in the aggregate, materially detract from the value of Party B’s property or assets or materially impair the use thereof in the operation of Party B’s business or (ii) which are being contested in good faith by appropriate proceedings and proceedings which have the effect of preventing the forfeiture or sale of the property of assets subject to any such Lien.

在通常业务中产生的,置于乙方财产之上的担保权,并且(i)该担保权不会在总体上重大减损此类财产的价值或者重大损害乙方在业务经营中对其的使用;或者(ii)此类担保通过合适的程 序善意地进行,而此类程序依据担保的效力具有防止相关财产转移和出售的效力。

Consulting Services Agreement

6.3           Consolidation, Merger, Sale of Assets, etc.  Party B will not wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that (i) Party B may sell inventory in the ordinary course of business and (ii) Party B may sell equipment which is uneconomic or obsolete, in the ordinary course of business.

合并、兼并和资产出售等。乙方不会进行清盘、清算或者解散,或者签订任何兼并合并协议、或者转让、出售、出租或者放弃(或者同意在未来进行任何前述的活动)所有或者其部分财产;不会购买或者另行获取(通过一次或& #32773;一系列相关联的交易行为)任何人的全部或者部分财产(除非通过正常的交易购买、获取任何存货、材料和设备);除非(i)乙方通过通常的方式出售存货;(ii)乙方在日常业务中出售其多余或者高成本的设备。

6.4           Dividends.  Party B will not declare or pay any dividends, or return any capital, to its shareholders or authorize or make any other distribution, payment or delivery of property or cash to its shareholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for a consideration, any shares of any class of its capital stock now or hereafter outstanding (or any options or warrants issued by Party B with respect to its capital stock), or set aside any funds for any of the foregoing purposes.

分红。乙方不会宣布任何红利方案或者支付红利,不会向其股东退返任何资本,不会授权或者直接向股东进行任何分配、支付或者交付任何财产或者现金;回赎、撤资、购买或者直接或者间接通过支付对价的方式获取现在已发&# 34892;或者以后将发行的任何种类的资本(或者乙方依据其股本发行之任何期权或者股权凭证),不会为了前述的目的拨留款项。

6.5           Leases.  Party B will not permit the aggregate payments (including, without limitation, any property taxes paid as additional rent or lease payments) by Party B under agreements to rent or lease any real or personal property to exceed US$1 million in any fiscal year of Party B.


Consulting Services Agreement

6.6           Indebtedness.  Party B will not contract, create, incur, assume or suffer to exist any indebtedness, except accrued expenses and current trade accounts payable incurred in the ordinary course of business, and obligations under trade letters of credit incurred by Party B in the ordinary course of business, which are to be repaid in full not more than one (1) year after the date on which such indebtedness is originally incurred to finance the purchase of goods by Party B.


6.7           Advances, Investment and Loans.  Party B will not lend money or grant credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, except that Party B may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms.

预付款、投资和借款。 乙方不得出借、给予信用安排或者提供预付款给任何人,不得购买任何人的股权、义务或者证券及其相关利益,不得向任何人注资;除非:产生于通常的交易并且依照商业惯例是应当& #25903;付和履行的,乙方获得因此产生的应收账款。

6.8           Transactions with Affiliates.  Party B will not enter into any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of Party B, other than on terms and conditions substantially as favorable to Party B as would be obtainable by Party B at the time in a comparable arm’s-length transaction with a Person other than an Affiliate and with the prior written consent of Party A.


6.9           Capital Expenditures.  Party B will not make any expenditure for fixed or capital assets (including, without limitation, expenditures for maintenance and repairs which are capitalized in accordance with generally accepted accounting principles in the PRC and capitalized lease obligations) during any quarterly period which exceeds the aggregate the amount contained in the budget as set forth in Section 5.1.5.


Consulting Services Agreement

6.10           Modifications to Debt Arrangements, Agreements or Articles of Association.  Party B will not (i) make any voluntary or optional payment or prepayment on or redemption or acquisition for value of (including, without limitation, by way of depositing with the trustee with respect thereto money or securities before due for the purpose of paying when due) any existing Indebtedness or (ii) amend or modify, or permit the amendment or modification of, any provision of any existing Indebtedness or of any agreement (including, without limitation, any purchase agreement, indenture, loan agreement or security agreement) relating to any of the foregoing or (iii) amend, modify or change its Articles of Association or business license, or any agreement entered into by it, with respect to its capital stock, or enter into any new agreement with respect to its capital stock.

对于债权安排、协议或者章程的修改。乙方不会(i) 对于任何现存的债务进行任何自愿的、选择性的支付、预先的支付、回购或者获得。(包括但不限于为到期支付而在受托人处预存钱款或证券)(ii)对于现存的任何债务或者与此有关的任何协议进行修正、修改或者允许这种修正或者修改(包括但不限于任何购买协议、契约& #12289;贷款协议或者担保协议)。(iii)修正、修改或者改变其章程、营业执照、或者任何其签订的有关资本的协议;或者签订与其资本有关的新协议。

6.11           Line of Business.  Party B will not engage (directly or indirectly) in any business other than those types of business prescribed within the business scope of Party B’s business license except with the prior written consent of Party A.


7.           TERM AND TERMINATION (有效期和终止)

7.1           This Agreement shall take effect on the date of execution of this Agreement and shall remain in full force and effect unless terminated pursuant to Clause 7.2.


7.2           This Agreement may be terminated:


Consulting Services Agreement

7.2.1        By either Party giving written notice to the other Party if the other Party has committed a material breach of this Agreement (including, but not limited to, the failure by Party B to pay the Consulting Services Fee) and such breach, if capable of remedy, has not been so remedied within fourteen (14) days, in the case of breach of a non-financial obligation, following the receipt of such written notice;


7.2.2        By either Party giving written notice to the other Party if the other Party becomes bankrupt or insolvent or is the subject of proceedings or arrangements for liquidation or dissolution or ceases to carry on business or becomes unable to pay its debts as they become due;


7.2.3        By either Party giving written notice to the other Party if, for any reason, the operations of Party A are terminated;


7.2.4        By either Party giving written notice to the other Party if the business license or any other license or approval material for the business operations of Party B is terminated, cancelled or revoked;


7.2.5        By either Party giving written notice to the other Party if circumstances arise which materially and adversely affect the performance or the objectives of this Agreement; or


7.2.6        By election of Party A with or without reason.


Consulting Services Agreement

7.3           Any Party electing to terminate this Agreement pursuant to Clause 7.2 shall have no liability to the other Party for indemnity, compensation or damages arising solely from the exercise of such termination right, provided that the expiration or termination of this Agreement shall not affect the continuing obligation of Party B to pay any Consulting Services Fees already accrued or due and payable to Party A.  Upon expiration or termination of this Agreement, all amounts then due and unpaid to Party A by Party B hereunder, as well as all other amounts accrued but not yet payable to Party A by Party B, shall thereby become due and payable by Party B to Party A.

一方有根据第7.2条终止本协议,并不承担仅由于行使该权利而产生的向另一方补偿和赔偿的责任。本协议的到期或者终止不应当影响已经产生的乙方向甲方支付咨询费的责任。在本协议终止或者到期时,本协# 758;规定的任何到期未支付以及所有其他已经产生但是未到支付期的钱款,应当就此到期并且由乙方支付。

8.           PARTY A’S REMEDY UPON PARTY B’S BREACH (甲方因为乙方违约而应得到的救济)

In addition to the remedies provided elsewhere under this Agreement, Party A shall be entitled to remedies permitted under PRC laws, including, without limitation, compensation for any direct and indirect losses arising from the breach and legal fees incurred to recover losses from such breach.


9.           AGENCY (代理)

The Parties are independent contractors, and nothing in this Agreement shall be construed to constitute either Party to be the agent, partner, legal representative, attorney or employee of the other for any purpose whatsoever.  Neither Party shall have the power or authority to bind the other except as specifically set out in this Agreement.


Consulting Services Agreement


10.1           Governing Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the PRC.


10.2           Arbitration.  Any dispute arising from, out of or in connection with this Agreement shall be settled through amicable negotiations between the Parties.  Such negotiations shall begin immediately after one Party has delivered to the other Party a written request for such negotiation.  If, within ninety (90) days following the date of such notice, the dispute cannot be settled through negotiations, the dispute shall, upon the request of either Party with notice to the other Party, be submitted to arbitration in China under the auspices of China International Economic and Trade Arbitration Commission (the “CIETAC”).  The Parties shall jointly appoint a qualified interpreter for the arbitration proceeding and shall be responsible for sharing in equal portions the expenses incurred by such appointment.  The arbitration proceeding shall take place in Shanghai, China.  The outcome of the arbitration shall be final and binding and enforceable upon the Parties.

仲裁。双方应尽量通过友好协商解决与本协议解释或履行相关的任何争议。此类协商应当在一方向另一方递交请求协商的书面要求后立即进行。如果在通知发出后90天内争议仍无法通过协商解决,相关争议应ô 03;根据任一协议方向另一方发出的通知而提交中国国际经贸仲裁委员会(CIETAC)仲裁。各方应当联合任命一名合格的仲裁翻译并且对于由此产生的花费承担相同的比例。仲裁地为上海。仲裁裁决是终局性的,对双方均有约束力,并可根据其条款予以强制执行。

10.2.1      Number and Selection of Arbitrators. There shall be three (3) arbitrators.  Party B shall select one (1) arbitrator and Party A shall select one (1) arbitrator, and both arbitrators shall be selected within thirty (30) days after giving or receiving the demand for arbitration.  Such arbitrators shall be freely selected, and the Parties shall not be limited in their selection to any prescribed list.  The chairman of the CIETAC shall select the third arbitrator.  If a Party does not appoint an arbitrator who consents to participate within thirty (30) days after giving or receiving the demand for arbitration, the relevant appointment shall be made by the chairman of the CIETAC.


Consulting Services Agreement

10.2.2      Arbitration Language and Rules.  Unless otherwise provided by the arbitration rules of CIETAC, the arbitration proceeding shall be conducted in Chinese.  The arbitration tribunal shall apply the arbitration rules of the CIETAC in effect on the date of execution of this Agreement.  However, if such rules are in conflict with the provisions of this clause, or with Section 10 of this Agreement, then the terms of Section 10 of this Agreement shall prevail.

语言与适用法律。除非CIETAC的仲裁规则另有规定,仲裁使用中文。仲裁庭应当使用本协议签字时CIETAC有效的仲裁规则。但是,如果此类规则和本条款或本协议第十节相冲突,应采用本协议第十节相关条款的规 ;定。

10.2.3      Cooperation; Disclosure. Each Party shall cooperate with the other Party in making full disclosure of and providing complete access to all information and documents requested by the other Party in connection with such proceedings, subject only to any confidentiality obligations binding on such Parties.


10.2.4       Jurisdiction. Judgment rendered by the arbitration may be entered into by any court having jurisdiction, or application may be made to such court for a judicial recognition of the judgment or any order of enforcement thereof.


10.3           Continuing Obligations. The Parties shall continue their implementation of this Agreement during the period when the relevant dispute is being resolved.


11.           ASSIGNMENT (转让)

No part of this Agreement shall be assigned or transferred by either Party without the prior written consent of the other Party.  Any such assignment or transfer shall be void, provided that Party A may assign its rights and obligations under this Agreement to an Affiliate without Party B’s consent.


Consulting Services Agreement

12.           NOTICES (通知)

Notices or other communications required to be given by any Party pursuant to this Agreement shall be written in English and Chinese and delivered personally or sent by registered mail or prepaid mail or by a recognized courier service or by facsimile transmission to the address of the other Party set forth below or to such other address of the Party as specified by such Party from time to time. The date when the notice is deemed to be duly served shall be determined as the follows: (a) a notice delivered personally is deemed duly served upon the delivery; (b) a notice sent by mail is deemed duly served the tenth (10th) day after the date, or the fourth (4th) day after the delivery date of an internationally recognized courier service; and (c) a notice sent by facsimile transmission is deemed duly served upon the time shown on the transmission confirmation of relevant documents.

任何一方根据本协议要求发出的通知或其他函件应以英文和中文制作,在以专人递送、或挂号信或邮资预付邮件、或知名邮件服务机构或传真方式等送达到下列相关各方的地址或者各方不时通知的地址。通知有效送达的日期应&# 24403;由以下条件决定:(a) 由专人递送的通知,在递交时视作有效送达;(b) 通过邮递送达的,在邮资预付的航空挂号邮件投递后(见邮戳)的第十天视为有效送达;如果通过国际知名快递公司邮寄的,在投递后的第四天视为有效送达;(c)如果一份邮件是通过传真递送的,在相关文件传输确认单上显示的接受时间应当视作有效送达日期。
Party A
Orient New Energy (Xi’an) Co., Ltd.
Address: No.J40 Tower, No.1 Enterprise Park, No. 2 West Area Street, New Industrial Park, High-tech District, Xi’an City
Attn: YAO Anping
联系人: 姚安平
Party B:
Xi’an Orient Petroleum Group Co., Ltd.
Address: Rm. 2201 Cuiting Tower, No. 1 Xingqing Road, Xi’an City
地址: 西安市兴庆路1号翠庭大厦2201
Attn: YAO Anping
联系人: 姚安平

Consulting Services Agreement

13.           GENERAL (一般条款)

13.1           The failure or delay in exercising a right or remedy under this Agreement shall not be constituted as a waiver of the right or remedy, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy.


13.2           Should any clause or any part of any clause contained in this Agreement be declared invalid or unenforceable for any reason whatsoever, all other clauses or parts of clauses contained in this Agreement shall remain in full force and effect.


13.3           This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and supersedes all previous agreements.


13.4           No amendment or variation of this Agreement shall be valid unless it is in writing and executed by the Parties or their authorized representatives.


13.5           This Agreement shall be executed in two (2) duplicate originals in English. Each Party shall receive one (1) duplicate original, and all originals shall be equally valid.



Consulting Services Agreement


IN WITNESS WHEREOF this Agreement is duly executed by each Party or its legal representatives.


Orient New Energy (Xi’an) Co., Ltd.
Legal/Authorized Representative: /s/ YAO Anping
Name: YAO Anping
姓名: 姚安平
Title: Legal Representative
职务: 法定代表人
Xi’an Orient Petroleum Group Co., Ltd.
Legal/Authorized Representative: /s/ YAO Anping
Name: YAO Anping
姓名: 姚安平
Title: Legal Representative
职务: 法定代表人
Consulting Services Agreement