发布时间：2011-7-17 12:04:00|| 点击：6844次|| 文章分类：翻译学习|| 发布人：翻译家(Fanyijia.com)
5. 总经理、副总经理、总会计师或其他高级职员应维护公司的合法权益，未经董事会批准均不得在可能与公司形成竞争的任何经济组织中任职，或参与该等经济组织与公司的竞争。5. The general manager, deputy general manager, chief accountant or other officers shall protect the legitimate rights and interests of the Company. Without the approval by the board of directors, none of them may concurrently hold any position in any economic organization that is likely to compete against the Company, or joint it in competing against the Company.
6. If the general manager, the deputy general manager, the chief accountant or any other officer wishes to resign from his office, he shall submit a prior written report to the board of directors three (3) months in advance.
If any of the above personnel commits an act of graft or serious dereliction of duty, the board of directors may decide to dismiss him at any time. He who has violated the criminal law shall be prosecuted according to law.
Chapter 10 Confidentiality
1: Each party undertakes with the other party that it shall treat as strictly confidential all information received or obtained by it or its employees, agents or advisers as a result of entering into or performing this Agreement including information relating to the provisions of this Agreement, the negotiations leading up to this Agreement, the subject matter of this Agreement or the business or affairs of the other Party or any member of the other Party’s group of companies and that it shall not as any time hereafter make use of or disclose or divulge to any person any such information and shall use its best endeavors to prevent the publication or disclosure of any such information.
2: From and after the date of this Agreement, Party A shall, and shall cause its affiliates and successors to, use the same efforts to maintain the confidentiality of any Confidential Information as Party A used to maintain the confidentiality of such information prior to the date hereof. Notwithstanding the foregoing, Party A and its affiliates and successors shall, after prior notice to, and consultation with Party B, be permitted to disclose any such Confidential Information to the extent （仅）legally required or necessary for obtaining appropriate regulatory licenses or approvals.
3: All Proprietary Information disclosed by either Party or its affiliates to the CJV in accordance with the provisions of this Contract and the Technology License Agreement and/or the Trademark License Agreement to be entered into between an affiliate of Party B and the CJV on or about the date hereof substantially in the form attached hereto as Appendix X shall be used by the CJV and its personnel solely for the CJV’s account and purposes. Each Party and any of its affiliates shall maintain the secretary of all Proprietary Information that may be disclosed or furnished to it by the CJV or the other Party and its affiliates, and neither of the Parties or their affiliates shall disclose or reveal any such Proprietary Information to any third party without explicit written authorization from the other Party. Any Proprietary Information obtained by the CJV or a Party or its affiliates may be disclosed only to the designated employees of the CJV or that Party and its affiliates whose duties so require for the implementation of this Contract. The CJV and each Party and its affiliates shall take all reasonable precautions (including the conclusion of confidentiality contracts with each such employee) to prevent such employees form using and disclosing the Proprietary Information in contravention of this Article 3.
4: “Confidential Information” means all documents, software and documentation, reports, financial or other data, records, forms, tools, products, services, methodologies, present and future research, technical knowledge, marketing plans, trade secrets, and other materials obtained by Consultant and Client form each other in the course of performing any Services, whether tangible or intangible and whether or not stored, compiled, or memorized physically, electronically, graphically, in writing, or by any means now known or later invented. Confidential Information includes without limitation records and information and Consultant’s Information (i) that has been marked as proprietary or confidential; (ii) whose confidential nature has been made known by Client or Consultant; or (iii) that due to its character and nature, a reasonable person under like circumstances would treat as confidential. Notwithstanding the foregoing, Confidential Information does not include information which (i) is already known to the recipient at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of the recipient; (iii) is independently developed by the recipient without benefit of the other party’s Confidential Information; or (iv) is received form a third party which is not under and does not thereby breach an obligation of confidentiality. Each party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its won proprietary and confidential materials, but in no event with less than a reasonable standard of care. Consultant will deliver to Client all Confidential Information and all copies thereof (and all other property obtained from or through Client) when Client requests the same or immediately upon termination of this Agreement, whichever occurs earlier, except for one copy thereof that Consultant may retain for its records. Neither party shall, except with respect to those of its employees with a need to know under this Agreement, use or disclose to any person, firm or entity and Confidential Information of the other party without such other party’s express, prior written permission; provided, however, that notwithstanding the foregoing, Consultant may disclose Confidential Information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order. The confidentiality restrictions and obligations imposed by this Section 4 shall terminate two (2) years after the expiration or termination of this Agreement.
5: During the term of this Agreement, all the oral and written information, including but not limited to manufacturing technologies, procedures, methods, formulas, data, techniques, experiences, know-how, and business information (“Confidential Information”) to be provided by Party A to Party B shall be treated as strictly confidential and shall be used only for the purpose set forth herein. Title to such information and the interest related hereto shall remain with Party A at all time.
Party B agrees to take all necessary steps to prevent Confidential Information form being disclosed to third parties and shall require its personnel to abide by the same confidentiality regulation. Party B shall not disclose Confidential Information to anyone other than to such persons who require access thereto for the exclusive purpose provided hereunder and who are aware of their obligations of confidentiality hereunder.
6: Party A acknowledges that the System, all technical documentation delivered to Party A by Party B hereunder, and all other information relating to the design, development, configuration, sue, installation, operation and maintenance of the System constitutes confidential or proprietary information of Party B, and Party B acknowledges that Party A may provide confidential or proprietary information to Party hereunder (collectively referred to as “Confidential Information”). Each Party agrees to use Confidential Information received from the other Party only for the purpose contemplated by this Agreement and for no other purposes. Except as specified in this Agreement, no other rights express or implied, including but not limited to licenses, of trademarks inventions, copyrights, patents, or any other intellectual property rights whatsoever, are granted hereunder or by the conveying of Confidential Information. Confidential Information provided is not to be reproduced in any form except as required to accomplish the intent of, and in accordance with the terms of, this Agreement. Each Party shall provide the same care to avoid disclosure or unauthorized use of the other Party’s Confidential Information as it provides to protect its own similar proprietary information. Confidential Information must be kept by the receiving Party in a secure place with access limited to only such Party’s employees, contractors, or agents who need to know such information for the purpose of this Agreement and who have similarly agreed to keep such information confidential pursuant to a written confidentiality agreement which reflects the terms hereof. Except as provided herein and unless otherwise specified in writing, all Confidential Information (i) remains the property of the disclosing Party, and (ii) must be returned to the disclosing Party or destroyed after the receiving Party’s need for it has expired. At the request of the request of the disclosing Party, the receiving Party shall furnish a certificate signed by a director or authorized office of the receiving Party certifying that Confidential Information not returned to the disclosing Party has been destroyed.
甲方承认此系统，乙方依照本协议送交甲方的所有技术文献资料以及其它与该系统的设计、开发、构造、使用、安装、操作和保养有关的一切信息构成了乙方的机密信息或专有信息，并且以方承认甲方应依照本协议向乙方提供机密信息和专有信息（以下全部简称为“机密信息”）。各方同意仅按照本协议拟定的目的而非其它的目的使用从另一方得到的机密信息。除本协议具体列出的商标权、发明权、版权、专利权或其他任何的知识版权外，本协议不承认其他任何明示或默示的权力（包括但不限于特许），并不将之作机密信息处理。各方提供的机密信息不可以任何的方式复制，但可为了完成本协议的目标并依照本协议的规定进行复制。机密信息必须由收受方放在安全的地方保管，接触该机密信息的人须限制在依照本协议需要知晓该等机密信息，并依照反映本条款有关规定的书面保密协议也同意对该等信息保密的该收受方的雇员、承包人或代理人。除去在此提出的并除非有另外的具体的书面明示，所有的机密信息 (i) 均归披露方所有，并 (ii) 收受方在该等机密信息的使用期满之后，必须将该等机密信息归还给披露方或是彻底销毁。如果披露方要求，收受方应向披露方提供证明材料证明没有归还给披露方的机密信息已经被销毁，证明上要有董事或收受方授权的官员的签字。
甲方确认，系统，乙方依照本协议送交甲方的所有技术文献资料以及其它与该系统的设计、开发、构造、使用、安装、操作和保养有关的一切信息构成了乙方的机密信息或专有信息，并且以方承认甲方应依照本协议向乙方提供机密信息和专有信息（以下全部简称为“机密信息”）。各方同意仅按照本协议拟定的目的而非其它的目的使用从另一方得到的机密信息。除本协议具体列出的商标权、发明权、版权、专利权或其他任何的知识版权外，本协议不承认其他任何明示或默示的权力（包括但不限于特许），并不将之作机密信息处理。各方提供的机密信息不可以任何的方式复制，但可为了完成本协议的目标并依照本协议的规定进行复制。机密信息必须由收受方放在安全的地方保管，接触该机密信息的人须限制在依照本协议需要知晓该等机密信息，并依照反映本条款有关规定的书面保密协议也同意对该等信息保密的该收受方的雇员、承包人或代理人。除去在此提出的并除非有另外的具体的书面明示，所有的机密信息 (i) 均归披露方所有，并 (ii) 收受方在该等机密信息的使用期满之后，必须将该等机密信息归还给披露方或是彻底销毁。如果披露方要求，收受方应向披露方提供证明材料证明没有归还给披露方的机密信息已经被销毁，证明上要有董事或收受方授权的官员的签字。
1. A joint venture shall set up a board of directors, the member and composition of which shall be specified in the contract and articles of association by the parties to the joint venture through consultation. The directors shall be appointed and replaced by the parties. Chairman or vice-chairman shall be determined by the parties to the joint venture through consultation or elected by the board of directors. Where the Chinese party or the foreign party assumes the office of chairman, the other party shall be the vice-chairman. The board of directors shall decide important matters concerning the joint venture on the principles of equality and mutual benefit.
2. As its functions and powers, the board of directors shall, in accordance with the provisions of the articles of association of the joint venture, discuss and decide all important matters concerning the joint venture, namely, the enterprise expansion plan, plans for production and business activities, budget for revenues and expenditures, profit distribution, plans concerning labor and wages and winding up, as well as the appointment or engagement of the general manager, deputy general manager, chief engineer, chief accountant, and auditors and their functions and powers, and salaries and benefits.
3. The board of directors shall be the highest authority of a joint venture. It shall decide all major matters concerning the joint venture.
4. The board of the directors shall consist of no less than three members. The number of directors to be appointed by each party shall be determined through consultation by the parties to the joint venture with reference to the proportion of their respective capital contribution.
The term of office for each director shall be four years. Such term shall be renewed when a director is re-appointed by the original appointing party to the joint venture.
5. The board meeting shall be convened at least once a year, which shall be called and presided over by the chairman of the board. If the chairman is unable to call the meeting, he shall appoint the vice-chairman or another director the power to call and preside over the meeting. The chairman may convene an interim meeting upon a proposal made by more than one third of the total number of directors.
The board meeting shall be held only when over two-third of the directors are present. If a director is unable to attend the meeting, he may issue a power of attorney to appoint a proxy to represent him and vote on his behalf.
The board meeting shall generally be held at the location of the joint venture’s legal address.
6. Resolutions on the following matters shall be made only after they have been unanimously approved by the directors present at the board meeting:
(1) amendment to the articles of association;
(2) termination and dissolution of the joint venture;
(3) increase in and reduction of the joint venture’s registered capital; and
(4) merger or division of the joint venture.
Resolutions on other matters may be made in accordance with the rules of procedure stated in the articles of association of the joint venture.
7. The chairman of the board is the legal representative of the joint venture. When the chairman is unable to perform his duties, he shall authorize the vice-chairman or another director to represent the joint venture.
1. The day of the issuance of the JV Company’s business license shall be date of the establishment of the JV Company and the board of directors.
2. 董事会由5名董事组成，其中3名董事由甲方委派，2名董事由乙方委派。. 董事长由甲方委派。董事长和其他董事的任期为3年，经委派方再次委派可连任。
2. The board of directors shall consist of 5 directors, of whom three (3) shall be appointed by Party A and two (2) shall be appointed by Party BThe chairman of the board shall be appointed by Party A. The term of office of the chairman and other directors shall be three (3) years, and they may serve consecutive terms when they are re-appointed by the original appointing Party.
When a vacancy arises on the board of directors, the original appointing Party shall promptly appoint a successor. Any Party may at any time appoint a new director (including the chairman of the board). When a new director, chairman or vice-chairman is appointed, the appointing party shall notify the board of directors and the other party seven (7) days in advance.
3. The chairman of the board is the legal representative of the JV Company. He shall be responsible for calling and presiding over the board meeting. Without the prior written authorization by the board of directors in the form of a resolution, the chairman shall have no right to take any action that is binding on the JV Company or the board of directors. Should the chairman be unable to perform his duties, he shall appoint another director to perform the duties of the chairman and represent the JV Company for the time being.
4. The board meeting shall be convened at least once a year. The chairman of the board shall give each director a written notice fourteen (14) days prior to the date of the board meeting, stating the agenda, time and place of the meeting. Each director may at any time prior to the date of a meeting specified in the notice of meeting issued by the chairman, by giving at least five (5) days’ notice to the chairman, request for additional matters to be discussed at such meeting. The chairman of the board shall forthwith distribute a revised notice of meeting to each of the directors following receipt of any such request. The board of directors may not at any meeting adopt any resolutions on subjects not specified in the notice of the meeting unless approved by all the directors.
5. Where the director is unable to attend a board meeting for any reason, he may appoint a proxy by a power of attorney to attend the meeting on his behalf. If the director or his proxy fails to attend the duly convened board meeting, such director shall be deemed to have abstained form voting.
The quorum of the board meeting shall be two-thirds of the total number of directors. Resolutions passed by a board meeting attended by less than two-thirds of the directors shall be invalid.
6. Detailed minutes of the board meeting shall be prepared in Chinese and English by the General Manager’s office and shall be delivered to each director within fourteen (14) days of the conclusion of the meeting to be signed and confirmed by each of the directors who attended the board meeting. The minutes of the board meeting shall actually fully and truly record the opinions of the directors or their proxies on the matters being resolved, and any objection raised by any director or his proxy shall also be recorded in the minutes. No director may refuse to sign the minutes of the board meeting on the ground that he objects to any resolution adopted at the board meeting. The minutes of the board meeting that are signed by the directors shall be the true record of the matters discussed and voted on at the board meeting, and shall be kept and complemented by the General Manager’s office. Photocopies thereof shall be promptly signed by the chairman (or his proxy attended at the time) and distributed to each director. In case of any discrepancy between the Chinese and English versions, the minutes of the meeting prepared in Chinese shall prevail.
7. An action may be taken by the board of directors without the convening of a board meeting if all the members of the board of directors consent in writing to the action. Such written consent shall be placed on record, and shall have the same force and effect as a unanimous affirmative vote taken at a duly convened board meeting.
Chapter 11 Breach and Infringement
1：If Party A materially breaches this Contract, Party B or its successor in interest is entitled to terminate this Contract or claim damages for the breach of contract. If Party B materially breaches this Contract, Party A is entitled to request Party B, by issuing a written notice, to redress the breach within fifteen (15) days upon receiving such notice. If Party B fails to redress the breach within the fifteen (15)-day period, Party A is entitled to rescind the Contract and claim damages for the breach of contract.
2：If a Party materially fails to perform any of its obligations under this Contract or if a Party’s representation or warranty under this Contract is materially untrue or inaccurate, such Party shall be deemed to have breached this Contract. The Party in breach shall have thirty (30) days from receipt of a notice form the other party specifying the breach to correct such breach if it is remediable. The Party in breach shall in any case be liable to the other Party for all damages caused by the breach. Liability for such damages shall not be waived in the event the non-breaching Party terminates this Contract under Article X. All remedies provided for herein and under law shall be cumulative.
3：The Licensee shall promptly notify the Licensor, in writing, of any acts of infringement or suspected infringement or acts of unfair competition involving the Trademarks and of any applications or registrations of confusingly similar marks which may come to its attention. The Licensee shall not be entitled to take any proceedings or call on the Licensor to take any proceedings in any of the aforesaid matters; provided, however, that the Licensor may, at its own discretion and cost, prosecute or otherwise stop or prevent such actual or threatened infringement in the name of both the Licensor and the Licensee or either of them, and in each case the Licensee shall render all reasonable assistance required by the Licensor.
4：Infringement and Legal Proceedings 侵权及法律诉讼
(a) The Licensee shall give the Licensor in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, trademark or get-up of goods or means of promotion or advertising which amounts to or is likely to amount to infringement of the rights of the Licensor in relation to the Licensed Trademarks or contravention of the Anti-unfair Competition Law as soon as it becomes aware of such use or proposed use.
(b) If the Licensee becomes aware that any other person, firm or company alleges that any of the Licensed Trademarks is invalid or that use of the Licensed Trademarks infringes any rights of another party, the Licensee shall immediately give the Licensor in writing full particulars thereof and may make no disclosure of information or admission to any third party in respect thereof.
(c) The Licensor shall conduct all legal proceedings in respect of any infringement or alleged infringement of the Licensed Trademarks and any claim or counterclaim brought or threatened to be brought in connection with the use or registration of the Licensed Trademarks and shall in its absolute discretion decide what to do. The Licensor shall not be obliged to bring or defend any proceedings in relation to the Licensed Trademarks if the Licensee decides in its sole discretion to do so.
(d) The Licensee will, at the request of the Licensor and at the Licensor’s expense, give full cooperation to the Licensor in any action or claim brought or threatened to be brought in respect of the Licensed Trademarks, including joining in as a party to any proceedings.
5：If any party fails to perform any of its obligations in any material respect under this Agreement or breaches any of the terms or Warranties set out in this Agreement in any material respect, then without prejudice to all and any other rights and remedies available at any time to a non-defaulting party (including but not limited to the right to damages for any loss suffered by that party), the not-defaulting party may, by notice either require the defaulting party to perform such obligations or remedy such breach, or treat the defaulting party as having repudiated this Agreement and rescind the same. The rights conferred upon the respective parties by the provisions of this Clause are additional to and do not prejudice any other rights the respective parties may have.
6：In the event that Licensor or Licensee becomes aware of an actual or threatened infringement of a Patent anywhere in the Territory, that party shall promptly notify the other party in writing. Licensor shall have the right but not the obligation to bring, at its own expense, an infringement action against any third party and use Licensee’s name in connection therewith and to name Licensee as a party thereto.
7：In the event of the institution of any suit by a third party against Licensor, Licensee or its sub-licensees or distributors for patent infringement involving the manufacture, use, sale, distribution or marketing of the Product anywhere in the Territory, the party sued shall promptly notify the other party in writing. Licensor shall have the right but not the obligation to defend such suit at its own expense. Licensor and Licensee shall assist each other and co-operate in any such litigation at the other’s request without expense to the requesting party.
1. The total amount of investment (including borrowings) of a joint venture refers to the sum total of the capital construction funds and the circulating funds required to be invested in conformity with the joint venture’s production scale as set out in the contract and the articles of association of the joint venture.
2. The registered capital of a joint venture refers to the total capital registered with the registration authority for the establishment of the joint venture. It shall be the sum of the capital contributions subscribed by all parties to the joint venture.
The registered capital shall generally be denominated in Renminbi or may be in a foreign currency agreed upon by the parties to the joint venture.
3. No joint venture may reduce its registered capital during the term of the joint venture. If there is a real need for reduction of the registered capital due to changes in the total amount of investment, the scale of production and operation, or other circumstances, such reduction shall be subject to approval by the examination and approval authority.
4. If a party to a joint venture intends to transfer all or part of its equity to a third party, consent shall be obtained form the other parties to the joint venture, and approval from the examination and approval authority shall be required. Such transfer shall be registered with the registration authority for the corresponding changes in the registration particulars.
When a party transfers all or part of its equity, the other parties shall have the preemptive right.
In case one of party to the Joint Venture intends to transfer all or part of its interest rights, the other party shall be entitled to the preemptive right to buy such interest rights.
When a party transfers its equity to a third party, the conditions offered for such transfer may not be more favorable than those offered to the other parties to the joint venture.
Any transfer in contravention of the above provisions shall be invalid.
Any transfer in breach of the proceeding provisions shall be void.
5. Any increase in or reduction of the registered capital of a joint venture shall be approved by a board meeting and submitted to the examination and approval authority for approval. Such increase or reduction shall be registered with the registration authority for the corresponding changes in the registration particulars.
6. A party to a joint venture may make its capital contribution in money, or in the form of buildings, factory premises, machinery, equipment or other materials, industrial property, proprietary technology or site use rights, the value of which shall be appraised. Where the contribution is in the form of buildings, factory premises, machinery, equipment or other materials, industrial property or proprietary technology, the value thereof shall be determined by the parties to the joint venture through consultation and on the principle of fairness and reasonableness or shall be appraised by a third party agreed upon by parties to the joint venture.
7. The foreign exchange contribution made by the foreign party shall be converted into Renminbi or cross exchanged into a predetermined foreign currency at the standard exchange rate published by the People’s Bank of China on the day the payment is made.
Where the cash contribution in Renminbi made by the Chinese party needs to be converted into a foreign currency, it shall be converted at the standard exchange rate published by the People’s Bank of China on the day the payment is made.
8. The machinery, equipment or other materials contributed by the foreign party shall be those that are indispensable for the production of the joint venture.
The valuation of the machinery, equipment or other materials mentioned in the proceeding paragraph may not be higher than the current international market price of machinery, equipment or other materials of the same kind.
9. The industrial property or proprietary technology contributed by the foreign party shall meet one of the following conditions:
(1) It is capable of notably improving the performance and quality of existing products and raising productivity; or
(2) It is capable of notably economizing on raw materials, fuel or power.
10. A foreign party who contributes industrial property or proprietary technology shall deliver documentation relating to, including photocopies of the letters patent or trademark registration certificates, statements of validity, technical features and practical value thereof, the basis for calculating the price, and the agreement signed with the Chinese partner on the value thereof, as annexes attached to the joint venture contract.
11. The machinery, equipment or other materials, industrial property or proprietary technology contributed by the foreign parties shall be submitted to the examination and approval authority for approval.
12. Each party to a joint venture shall make its capital contribution in full and within the time limited prescribed in the contract. If a party delays in making its contribution or fails to make its contribution in full, it shall pay interest on such default or compensate for any losses pursuant to the provisions of the contract.
13. After the parties have made their capital contributions to the joint venture, such contributions shall be verified by a certified public accountant registered in China. Upon the issuance of the capital verification report by the said accountant, the joint venture shall issue a capital contribution certificate to each party, which shall contain the following particulars: the name of the joint venture, the date, month and year of the establishment of the joint venture, the names of the parties and their capital contribution, the date, month and year on which their capital contribution is made, and the date, month and year of the issuance of the capital contribution certificate.
1. The total amount of investment of the JV Company is fifteen million (15,000,000) US Dollars, and the registered capital of the JV Company is ten million (10,000,000) US dollars.
2. Party A shall contribute the Reminbi (“RMB”) equivalent of eight million (8,000,000) US Dollars in cash to the JV Company, accounting for 80% of the registered capital of the JV Company. Party shall contribute the RMB equivalent of two million (2,000,000) US Dollars in cash to the JV Company, accounting for 20% of the registered capital of the JV Company, provided, however, that Party B will provide evidence proving the lawful source of its RMB contribution.
3. Party B shall contribute 1000% of its share of the registered capital of the JV Company (i.e. the RMB equivalent of US $ 2,000,000) within ninety (90) days after the JV Company obtains its business license. Party A shall contribute (i) 25% of its share of the registered capital of the JV Company (i.e. the RMB equivalent of US $ 2,000,000) within ninety (90) days after the JV Company obtains its business license; (ii) 25% of its share of the registered capital of the JV Company (i.e. the RMB equivalent of US $ 2,000,000) by the end of May, 2002; (iii) 50% of its share of the registered capital of the JV Company (i.e. the RMB equivalent of US $ 4,000,000) within three years after the JV Company obtains its business license.
4. If either party fails to make its contribution to the registered capital as required by Article 3 above, such failure shall be dealt with in accordance with Article 6 and 7 of the Several Provisions Concerning Capital Contributions by Parties to the Chinese-Foreign Equity Joint Venture Enterprises. In addition, interest shall accrue and shall be payable by such party to JV Company on the value of each late contribution from its scheduled contribution date specified in Article 3 till the date when such contribution is actually made. The rate of interest shall be equal to one percent over the monthly London interbank offered rate for US Dollars.
5. 在（i）乙方全部缴清其对合营公司注册资本的出资额，且甲方缴纳其第二期对合营公司注册资本的出资额后，及（ii）甲方缴清其对合营公司注册资本的出资额后，合营公司应聘请在中国注册的会计师（“注册会计师”）对各方的出资进行验资。注册会计师出具验资报告后，合营公司应向各方颁发由董事长签字的出资证明书，写明该方的名称及其累计的出资额。5.The JV Company shall engage a certified public accountant registered in China (“CAP”) to verify the contribution to the JV Company made by each of the Parties (i) after party B has contributed its share of the registered capital of the JV Company in full and Party A has paid its second installment of contribution to the registered capital of the JV Company, and (ii) after Party A has paid in full its contribution to the registered capital of the JV Company. After the CPA has issued each capital verification report, the JV Company shall issue to each Party a capital contribution certificate signed by the Chairman of the Board of directors, indicating the name of the party and the cumulative amount of its contribution.
6. The difference between the total investment and the registered capital of the JV Company is five million (5,000,000) US Dollars ( the “Difference”). The Parties agree to cooperate in raising the Difference for the JV Company. To this end Party B shall procure one of its affiliates to lend to the JV Company an amount of up to four million two hundred thousand (4,200,000) US Dollars in installments (the “Party B Loan”). The specific terms and conditions of the Party B Loan, including without limitation the interest rates, conditions precedent to advancement of each installment and other relevant terms shall be set forth in a Loan agreement to be entered into by and between the JV Company and Party B’s affiliate. The principal of and interest on the Party B Loan shall be repaid over a term of ten years from the date of issuance of the JV Company’s business license.
The amount to make up the shortage in the Difference (i.e. 800,000 US Dollars) shall be borrowed by the JV Company in or out of PRC pursuant to the decisions of the board of directors.
7. Should one Party transfer all or part of its share of the registered capital of the JV Company, prior consent shall be obtained in writing from the other Party. In addition, the other Party shall have the preemptive right on the same terms and conditions and to the extent permitted by law.
Upon the transfer of all or part of either Party’s share of the registered capital to the JV Company, the transferee thereof shall assume the corresponding obligations and responsibilities of the transferring Party as stipulated in this contract.
Chapter 12 Assignment/Transfer
1: Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent, except to any corporation resulting from any merger, consolidation or other reorganization involving the assignment Party, and any entity to which the assignment may transfer all or substantially all of its assets; provided that the assignee agree in writing to be bound by all the terms and conditions of this Agreement and provides documentation as evidence that the assignee has the ability and capability of meeting all of the obligation under this Agreement.
2: Without prior written approval, no Party shall assign any and all of its rights and interests and delegate its responsibilities under this Agreement to any third party. However, Party B shall have the right to assign its rights and interests and delegate its responsibilities hereunder to an affiliate; provided that Party B shall continue to warrant that such affiliate will complete the purchase of the equity interest in the manner contemplated by this Agreement.
3: Neither Party hereto shall assign this Agreement or any of its rights and interests hereunder without the other Party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the above provision of this Clause, (a) Party A shall have the right to assign its rights to any subsidiary, affiliate or successor entity as long as Party A remains liable to perform all of its obligations under this Agreement as applicable, and (b) Party B may, without the consent of Party A, assign in whole, but not in part, its rights hereunder to any subsidiary, affiliate or successor entity of Party B or its ultimate parent company (provided that any such assignment to any such subsidiary shall not be deemed as a release of Party B’s obligations hereunder unless Party A shall have given prior written consent to any such release and Party B shall remain liable to Party A in respect of any breach of this Clause). Any attempted assignment in contravention of this Clause shall be void.
4: Transfer of Registered Capital
Either Party may transfer all or part of its registered capital contribution to the Company to any third party, provided that it first obtains the unanimous approval of the Board and the approval of the Approval Authority and complies with the provisions of this Article.
When a Party (the ‘Disposing Party’) wishes to transfer all or part of its registered capital contribution to a third party, it shall provide a written notice (the ‘Notice’) to the other Party (the ‘Non-Disposing’ Party). The Notice shall state that the Disposing Party withes to make the transfer and shall specify the interest it wishes to transfer, the terms and conditions of the transfer, and the identity of the proposed transferee (the ‘Transferee’).
The Non-Disposing Party shall have a preemptive right to purchase the whole of such interest (i) on terms and conditions no less favorable than those specified in the Notice or (ii) at a fair market value appraised as set forth in paragraph (e). If the Non-Disposing Party elects to exercise its preemptive right, it shall notify the Disposing Party in writing (the ‘Acceptance Notice’) within thirty (30) days of the actual delivery of the Notice to the Non-Disposing Party that in intends to purchase the whole of the interest to be transferred.
If the Non-Disposing Party fails to respond in writing to the Notice within such thirty (30)-day period, the Non-Disposing Party shall be deemed to have consented to the transfer. If the Non-Disposing Party consents, or is deemed to have consented to the transfer, the Disposing Party may transfer such interest to the Transferee, on the terms and conditions set forth in the Notice, but not otherwise, provided that such transfer takes place within six (6) months after the delivery of the Notice and that the Transferee agrees in writing to become subject to and to comply with the terms and conditions of this Contract and the Articles of Association. The Disposing Party shall provide the Non-Disposing Party with a duplicate of its executed transfer agreement with the Transferee within fourteen (14) days after the agreement is executed.
If the Non-Disposing Party elects to purchase the interest to be transferred at fair market value, the Non-Disposing Party shall state in the Acceptance Notice that is so elects, and shall include in the Acceptance Notice a list of at lest two (2) internationally recognized accounting firms with expe, rience in conduction valuations in China. The Disposing Party shall, within thirty (30) days after receiving the Acceptance Notice, by notice in writing delivered to the Non-Disposing Party, nominate one of the accounting firms whose names were provided by the Non-Disposing Party to value the interest to be transferred. The Non-Disposing Party shall arrange the valuation, which shall be completed within three (3) months after the delivery of the Acceptance Notice.
The rights and obligations of the JVC under this Agreement may not be assigned or sub-contracted in whole or in part without the prior written consent of Party A.
Should one Party assign all or part of its registered capital, prior written consent shall be obtained from the other Party. In addition, the other Party shall have a preemptive right on the same terms and conditions to the extent permitted by law.
Notwithstanding the foregoing, a Party hereby waives its preemptive right in the case of any assignment of all or part of the other Party’s registered capital to an affiliate of the other Party. Each of the Parties further agrees to cause the director(s) it has appointed to the Board of Directors to vote in favor of any such proposed assignment. If, as a result of its corporate restructuring, Party A transfers its equity interest in the CJV to one of its newly-founded affiliates (“Party A Affiliate”), Party A shall provide Party B with a written assurance guaranteeing the performance of the obligations under this Contract by Party A Affiliate.
If a Party (“Intending Transferor”) intends to sell or otherwise transfer (collectively referred to in this Clause as “Transfer”) all or part of its equity interest in the JV Company (collectively referred to in this Clause as “Transferred Equity Interest”), it shall first send a written notice (“Transfer Notice”) to the other two Parties, stating its intention to make the transfer, the quantity of the Transferred Equity Interest, the conditions for purchase thereof and the identity of the proposed transferee. The other two Parties shall have the preemptive right to purchase the Transferred Equity Interest. If the other two Parties exercise their preemptive right to purchase all (but not part) of the Transferred Equity Interest, they shall, within ninety (90) days of receipt of the Transfer Notice, purchase the Transferred Equity Interest at a price equal to the selling price set out in the Transfer Notice. If the other two Parties fail to exercise such preemptive right to purchase or pay the selling price to the Intending Transferor within the ninety (90)-day period, they shall be deemed to have given their prior written consent to the proposed transfer. When the Intending Transferor transfers the Transferred Equity Interest, the actual conditions for such transfer may not be more favourable than the conditions for purchase set out in the Transfer Notice. Where the Intending Transferor is either Party B or Party C, and Party A cannot increase its Equity Ration in the registered capital of the JV Company due to the restriction imposed by Chinese law, then Party A shall have the right to assign its preemptive right of the purchase to a third party approved by Party A.
1. Chinese-foreign equity joint ventures (hereinafter referred to as joint ventures) established within Chinese territory upon the approval in accordance with the Law on Chinese-Foreign Equity Joint Ventures are Chinese legal persons, who shall be governed and protected by Chinese law.
2. Joint ventures established within Chinese territory shall be able to promote the development of the economy and the enhancement of the science and technology of China and facilitate China’s socialist modernization.
Industries in which the establishment of joint ventures is encouraged, permitted, restricted or prohibited by the State shall be determined in accordance with provisions of the State in the Regulations on Foreign Investment Guidelines and the Guideline Catalogue of Foreign Investment Industries.
3. The establishment of a joint venture within Chinese territory shall be subject to the examination and approval by the Ministry of Foreign Trade and Economic Cooperation of the People’s Republic of China (MOFTEC). Upon approval, MOFTEC shall issue a certificate of approval thereof.
4. The State Council shall delegate to the people’s governments of the provinces, autonomous regions and municipalities directly under the Control Government or the relevant departments under the State Council the power to examine and approve joint ventures which meet the following conditions:
(1) The total investment of a joint venture is within the amount limited by the authority as granted by the State Council for examination and approval of investment, and the source of capital of the Chinese party has been ascertained; and
(2) No additional allocation of raw materials by the State is required and the national balance in respect of fuel, power, transportation, foreign trade export quota is not affected.
Joint ventures established in accordance with provisions of the proceeding paragraphs shall be reported to MOFTEC for record.
MOFTEC and the people’s governments of provinces, autonomous regions, municipalities directly under the Central Government authorized by the State Council or the relevant departments under the State Council shall hereinafter be referred to as the examination and approval authority.
5. When applying for establishing a joint venture, the Chinese and foreign partners shall jointly submit the following documents to the examination and approval authority:
(1) an application for the establishment of the joint venture;
(2) the feasibility study report jointly prepared by the parties to the joint venture;
(3) the joint venture agreement, contract and articles of association executed by the duly authorized representatives of the parties to the joint venture;
(4) list of the candidates for the chairman, vice-chairman and directors of the joint venture nominated by the parties to the joint venture; and
(5) other documents specified by the examination and approval authority.
The documents listed in the proceeding paragraphs must be written in Chinese, among them. Documents (2), (3) and (4) may be written simultaneously in a foreign language agreed upon by the parties to the joint venture. Documents written in both languages shall be equally authentic.
If anything inappropriate is found in the documents submitted, the examination and approval authority shall require that it be amended within the specified time.
6. The examination and approval authority shall, within three months of the receipt of all the documents stipulated in Article 5 of these regulations, decide whether to approve or not to approve such documents.
7. The applicant shall, within one month of the receipt of the certificate of approval, go through the registration procedures with the administrative authority of industry and commerce in accordance with the relevant stipulations of the State. The date on which the business license of a joint venture is issued shall be the date of the establishment of the joint venture.
1. In accordance with the Law of the People’s Republic of China on Chinese-Foreign Equity Joint Ventures and other relevant Chinese laws and regulations, Shanghai Sun Co., Ltd. (hereinafter referred to as “Party A”) and Warren Inc. (hereinafter referred to as “Party B”), adhering to the principles of equality and mutual benefit, and through friendly consultations, agree to jointly establish an equity joint venture company (the “JV company”) in Shanghai, the People’s Republic of China (“China”), and hereby enter into this Equity Joint Venture Contract (“Contract”).
2. 合营公司的中文名称为“上海太阳-沃伦有限公司”，英文名称为“Shanghai Sun-Warren Co., Ltd.”。合营公司的法定地址为中国上海市东怡路1705号。
The name of the JV company is “上海太阳-沃伦有限公司” in Chinese, and “Shanghai Sun-Warren Co., Ltd.” in English. The legal address of the JV Company is 1705 Dong Yi Road, Shanghai, China.
If either party ceases to be a party of the JV Company at any time during the Joint Venture Term, and if at such time any word in any language and/or logo which is the same as or similar to the corporate name and/or logo of that party appears in any part of the name and/or logo of the JV Company, the other party shall procure that the JV Company shall forthwith change its name to exclude such word and/or logo from the corporate name within sixty (60) days of that party ceasing to be a party to the JV Company, and shall procure that the all stationary, written materials and publications containing any reference to such corporate name and/or logo shall be forthwith destroyed.
3. The JV Company shall be a limited liability company. It shall be liable to the full extent of its assets. The liability of each party to the JV Company shall be limited to the amount it has contributed to the registered capital of the JV Company pursuant to this Contract. Unless otherwise agreed by the parties, neither party shall have any liability to the JV Company in excess of such amount. Neither of the party shall be jointly and severally liable to any third party for the JV Company’s liabilities and obligations.
4. The JV Company shall be a limited liability company. Each party’s liability to the Company shall be limited to the amount of capital contribution subscribed by it. The parties shall share the profits and bear the risks and losses in proportion to their respective contribution to the registered capital of the JV Company.
5. JV Company is a legal person in China who shall be governed and protected by Chinese law. All its activities shall comply with the provisions of Chinese laws and regulations.
6. In accordance with the Law of the People’s Republic of China on Foreign Investment Enterprises and its implementation rules and other relevant laws and regulations of China, the Parties to this Contract agree to jointly operate a wholly foreign-owned enterprise in Shanghai, China.
7. The company shall be a legal person in China, which is by nature a wholly foreign-owned enterprise. It shall be governed and protected by Chinese law. And, it shall comply with the provisions of the laws and regulations of China in all its activities. It shall be entitled to all preferential treatment accorded by the State and the local governments to wholly foreign-owned enterprises.
Distribution Contract [中英对照]
DATED 200 [●] 200[ ]年[ ]月[ ]日
[PRODUCT NAME] DISTRIBUTION CONTRACT [产品名称] 经销合同
- by and between - 由
[SUPPLIER NAME] （供应商名称）
- and - - 与 -
[DISTRIBUTOR NAME] （经销商名称）
TABLE OF CONTENTS 目录
PRELIMINARY STATEMENT 前言
1. DEFINITIONS AND INTERPRETATION 定义
2. SCOPE OF CONTRACT 合同范围
3. CONDITIONS OF SALE 销售条件
4. ORDERING 订货
5. PROMOTION 营销
6. STORAGE AND PRODUCT RETRIEVAL 库存和产品召回
7. REPAIR AND MAINTENANCE SERVICE 维修和保养服务
8. REPORTING 报告
9. COMPLIANCE WITH LOCAL LAWS 遵守当地法律
10. INTELLECTUAL PROPERTY RIGHTS 知识产权
11. CONDITIONS PRECEDENT 先决条件
12. REPRESENTATIONS AND WARRANTIES 陈述及担保
13. TERM 合同期限
14. TERMINATION 合同终止
15. CONFIDENTIALITY 保密义务
16. BREACH OF CONTRACT 违约
17. FORCE MAJEURE 不可抗力
18. SETTLEMENT OF DISPUTES 争议的解决
19. MISCELLANEOUS PROVISIONS 其他规定
SCHEDULE A 附录一-定义
ANNEX 1 [产品名称]经销合同附件一
ANNEX 2 [产品名称]经销合同附件二
ANNEX 3 [产品名称]经销合同附件三
CAVEATS AND DRAFTING NOTES 注意事项与说明
[PRODUCT NAME] DISTRIBUTION CONTRACT [产品名称] 经销合同
THIS CONTRACT ("Contract") is made in [city and province], China on this [●] day of [●], 200[●] by and between [Supplier name], [Supplier entity form] organized and existing under the laws of [Supplier jurisdiction of incorporation] with its [registered address][principle place of business] at [address] (hereinafter referred to as "Supplier"), and [Distributor name], [Distributor entity form] established and existing under the laws of China, with its [registered address][principle place of business] at [address] (hereinafter referred to as "Distributor"). Distributor and Supplier shall hereinafter be referred to individually as a "Party" and collectively as the "Parties".
本合同(“本合同”)于200[•]年[•]月[•]日由以下双方在中国[省市]签订：[供应商名称]，一家根据[供应商组建地]法律组建及存续的[供应商组织形式]，[注册地址][ ]，[主要营业地点][ ]（以下简称“供应商”）与[经销商名称]，一家根据中国法律组建及存续的 [经销商组织形式]，[注册地址][ ]，[主要营业地点][ ]（以下简称“经销商”）。供应商和经销商以下各称“一方”，合称“双方”。
After friendly consultations conducted in accordance with the principles of equality and mutual benefit, the Parties have agreed to enter into a distributorship relationship in accordance with Applicable Laws and the provisions of this Contract.
Now the Parties Hereby Agree as Follows:
1. DEFINITIONS AND INTERPRETATION
Unless the terms or context of this Contract otherwise provide, this Contract shall be interpreted in accordance with, and each of the terms used herein shall have the meaning ascribed to it in Schedule A.
2. SCOPE OF CONTRACT
(a) The Supplier hereby appoints Distributor as its [non-]exclusive distributor in the Territory for the Products listed in Annex 1 to this Contract as may be amended by written agreement between Supplier and Distributor from time to time.
(b) The Distributor shall purchase all its requirements of the Products from Supplier or its Affiliates during the Term.
2.2 Restriction on Sales by Supplier
The Supplier shall not supply the Products in the Territory to any other person during the Term [for resale but Supplier reserves the right to sell the Products direct to end users in the Territory].
2.3 Competing Products
The Distributor shall not (and shall procure that none of its Affiliates shall) manufacture or sell in the Territory any products that compete with the Products during the Term.
2.4 Restrictions on Resale
The Distributor shall not sell the Products to any person outside the Territory[ or to any person who has the intention to transport the Products outside the Territory].
2.5 Minimum Purchases and Stocks
(a) The Distributor shall purchase from Supplier at least the minimum quantities of the Products specified in Annex 1 to this Contract.
(b) The Distributor shall at all times during the Term carry the full range of Products and shall maintain at least [three (3) months] stocks of the Products.
At least [two (2)] representatives of Distributor shall attend a training course in the service and repair of the Products at Supplier's place of business, all expenses in connection therewith to be met by the [Supplier except travelling and subsistence expenses] [Distributor].
3. CONDITIONS OF SALE
3.1 Sale and Purchase of Products
The Supplier shall sell and Distributor shall purchase the Products subject to the conditions of sale set out in Annex 2 to this Contract, which shall be deemed to be incorporated into and form part of this Contract. If there is any conflict or inconsistency between the provisions of Annex 2 and the rest of this Contract, the latter shall prevail.
3.2 Distributor's Terms Not Applicable
Neither Distributor's standard conditions of purchase nor any terms or conditions in any order forms or other documents prepared by Distributor shall apply to the sale of the Products by Supplier to Distributor.
4.1 Written Order
The Distributor shall during the Term submit in writing to Supplier on a monthly basis:
(a) firm orders for Products to be supplied within the [two (2) months] following the month in which the order is submitted; and
(b) detailed estimates of its requirements for Products to be supplied in the [four (4) months] thereafter.
4.2 Acceptance of Order
This Contract establishes the framework under which the sale and purchase of Products between Supplier and Distributor will be conducted. However, no rights and obligations for the supply of the Products shall arise between Supplier and Distributor unless and until a firm order has been accepted in writing by Supplier.
5.1 Distributor's Best Endeavours
The Distributor shall, at all times during the term of this Contract, actively promote and use its best endeavours to increase sales of the Products in the Territory and shall not do anything that may prevent sales or interfere with the development of sales of the Products in the Territory.
5.2 Distributor's Promotion Obligations
In particular (but without limiting the generality of Article 5.1) Distributor shall:
(a) employ a sufficient number of adequately trained salesmen, demonstrators and other necessary sales personnel;
(b) establish and maintain adequate sales systems, including, by way of example, demonstrations, exhibitions and lectures to interested groups, to deal with the requirements of its customers and potential customers within the Territory;
(c) distribute promotional literature about the Products; and
(d) exhibit at relevant trade exhibitions.
5.3 Consultation with Supplier
The Distributor shall consult with and obtain the approval of Supplier before advertising or publishing promotional material for the Products [save that nothing in this Article or elsewhere in this Contract shall limit Distributor's freedom to set its own resale prices for the Products].
6. STORAGE AND PRODUCT RECALL
6.1 Storage and Transport of Products
The Distributor shall store and transport the Products in conditions that will preserve the Products in good condition and will comply with any reasonable requests made by Supplier concerning the conditions in which the Products are to be stored or transported. The Distributor shall permit Supplier or its representatives to inspect Products in its possession from time to time [on reasonable prior [written] notice].
6.2 Product Recall
If requested by Supplier, Distributor shall give all reasonable assistance in locating and recovering any defective Products and preventing their sale to third parties and, in particular, shall comply with any product recall procedures adopted by Supplier and shall use its best endeavours to ensure that its customers co-operate in a similar manner.