Exhibit
10.3


 


Amended and Restated Exclusive
Technology


Consulting and Management Service Agreement


 


THIS AMENDED AND RESTATED EXCLUSIVE TECHNOLOGY CONSULTING AND
MANAGEMENT SERVICE AGREEMENT (the “Agreement”) is
entered into in Beijing on July 28,
2010 by and between:


 


Party
A: Xuecheng Century (Beijing) Information Technology Co., Ltd.


 


Registered
Address: Room 172, Building No.1, 3 Xijing Road, Badachu High Technology
Park, Shijingshan District, Beijing


 


Party
B:  Beijing Xueda Information Technology
Co., Ltd.


 


Registered
Address: Rooms 9506-9508, Building No.3, Block 1, 19 Xinjiekouwai Street,
Haidian District, Beijing


 


WHEREAS,


 


(1) 
Party A is a wholly foreign-owned enterprise organized in the People’s Republic
of China (“PRC”) and it possesses resources and qualifications for technology
consulting and management services.


 


(2) 
Party B is a domestic limited liability incorporated in the PRC; and it
requires a professional technology firm to provide it with technical support
and technology services for its operations and management.


 


(3) 
Party A and Party B entered into an Exclusive Technology Consulting and
Management Service Agreement dated August 28, 2009 which sets out the
terms and conditions for the provision by Party A of the technical support and
technology services to Party B;


 


(4) 
Party A and Party B have mutually agreed to amend and restate the aforesaid
Exclusive Technology Consulting and Management Service Agreement to the effect
that their respective rights and obligations shall be governed by the Exclusive
Technology Consulting and Management Service Agreement so amended and restated.


 


NOW, THEREFORE, the parties by way of mutual consultations
agree as follows:


 


1. Technology Consulting and Management Services; Sole and Exclusive
Rights and Interests


 

















 


1.1
During the term hereof, Party A agrees to furnish, as Party B’s technology
consulting and management services provider, relevant technology consulting and
management services (as more fully described in Schedule 1 hereto) to Party B
in accordance with the conditions hereof.


 


1.2
Party B agrees to accept the technology consulting and management services
provided by Party A. Party B further agrees that except with prior written
consent of Party A it shall not accept during the term hereof same or similar
technology consulting and management services from any third party.


 


1.3
Party A shall solely and exclusively own any and all rights and interests
arising out of the performance of this Agreement, including without limitation
all ownership rights, intellectual property rights (copyrights, patents, etc),
technology secrets, trade secrets and the like, regardless of whether they are
developed by Party A or Party B on the basis of the intellectual property
rights originally owned by Party A.


 


2.  Calculation and Payment of
Technology Consulting and Management Services Fee (“Consulting Service Fee”)


 


The
parties agree that the Consulting Service Fee hereunder shall be determined and
paid as set out in Schedule 2 hereto.


 


3. Representations and Warranties


 


3.1
Party A hereby represents and warrants that:


 


3.1.1
It is a company lawfully organized and validly existing under the laws of PRC.


 


3.1.2
The execution and performance by it of this Agreement falls within its
corporate powers and business scope; it has taken or obtained necessary
corporate actions and appropriate approvals as well as third party and
governmental authority consents and approvals; and it will not, as a result of
the foregoing, contravene any restrictions imposed by any laws or contracts
binding upon or affecting it.


 


3.1.3
This Agreement, once executed, will constitute its lawful, valid and binding
obligations and is enforceable against it in accordance with its terms.


 


3.2
Party B hereby represents and warrants that:


 


3.2.1
It is a company lawfully organized and validly existing under the laws of PRC.


 


3.2.2
The execution and performance by it of this Agreement falls within its
corporate powers and business scope; it has taken or obtained necessary
corporate actions and


 


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appropriate
approvals as well as third party and governmental authority consents and
approvals; and it will not, as a result of the foregoing, contravene any
restrictions imposed by any laws or contracts binding upon or affecting it.


 


3.2.3
This Agreement, once executed, will constitute its lawful, valid and binding
obligations and is enforceable against it in accordance with its terms.


 


4. Confidentiality


 


4.1
Party B agrees to take, on a best effort basis, all reasonable measures to
maintain in confidence all confidential materials and information (“Confidential
Information”) coming into its knowledge or accessed by it as a result of its
acceptance of Party A’s exclusive consulting work and services and except with
prior written consent of Party A, it will not disclose, transfer or assign such
Confidential Information to any third party. Upon termination of this
Agreement, Party B shall at the request of Party A either return to Party A or
destroy on its own any file, material or software containing the Confidential
Information, shall remove any Confidential Information from any relevant memory
devices, and shall refrain from any further use of the Confidential
Information.


 


4.2  The parties agree that the provisions under
this Article 4 shall survive any modification, dissolution or termination
of this Agreement.


 


5. Indemnity


 


Party
B shall fully indemnify Party A against any loss, damage, liability and/or
costs resultant from any suit, claim or other demand against Party A arising
out of or in connection with the content of the consulting work and services
requested by Party B, and shall hold Party A harmless from any damage and loss
suffered by Party A as a result of any action of Party B or any third party claims
arising out of any action of Party B.


 


6. Effectiveness and Term


 


6.1
This Agreement shall be executed on the date first above written and shall
therewith become effective. Unless earlier terminated pursuant to the
provisions hereof or an instrument separately entered into by the parties, this
Agreement shall have a term of ten (10) years. Upon expiry of such term,
this Agreement shall be automatically extended by ten (10) years if Party
A has not proposed any cessation of such extension, and any further extension
of this Agreement will be dealt with in accordance with the same principle.


 


7. Termination


 


7.1 Termination upon Expiry


 


Unless
extended pursuant to relevant provisions hereof, this Agreement shall terminate
on its expiry date.


 


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7.2 Early Termination


 


During
the term hereof, except on the grounds of Party A’s gross negligence, fraud or
other illegal act, or Party A’s bankruptcy or lawful dissolution or
termination, Party B may not early terminate this Agreement. This Agreement
shall automatically terminate if Party B becomes bankrupt or is lawfully
dissolved or terminated before the expiry date of this Agreement.
Notwithstanding the foregoing, Party A shall at all times have the right to
terminate this Agreement by a 30 days written notice to Party B.


 


7.3 Surviving Provisions


 


The
rights and duties of the parties under Sections 4 and 5 shall survive any
termination of this Agreement.


 


8. Dispute Resolution


 


Any
dispute between the parties in connection with the interpretation or
performance of the provisions hereof shall be resolved in good faith by the
parties through consultations. If the parties fail to resolve any dispute
within thirty (30) days of receipt of a written notice served by one party on
the other party requesting such consultations, either party may submit the
dispute to China International Economic and Trade Arbitration Commission for
arbitration in accordance with the then effective arbitration rules of
such commission. The place of arbitration shall be Beijing. The language of
arbitration shall be Chinese. The arbitration award shall be final and shall be
binding upon both parties.


 


9. Force Majeure


 


9.1  A “force majeure” event means any event which
is beyond the reasonable control of a party and which remains unavoidable
despite reasonable care on the part of such affected party, including without
limitation acts of government, acts of God, fire, explosion, storm, flood,
earthquake, tide, lightening or war. Any inadequacy in creditworthiness,
capital or financing shall not be deemed an event beyond the reasonable control
of a party. The party affected by a force majeure event seeking to be excused
from performance of its obligations hereunder shall notify the other party of
such excusing event as well as the steps to be taken by it for the purpose of
performance of such obligations.


 


9.2  If the performance of this Agreement is
delayed or prevented by any force majeure event as defined above, the party
affected by such force majeure event shall be relieved from any liability
hereunder to the extent of such delay or prevention. Such affected party shall
take appropriate measures to mitigate or remove the effect of the force majeure
and shall seek to resume the performance of those obligations delayed or
prevented by such force majeure event. The parties agree to use their best
efforts to resume the performance hereunder immediately upon removal of the
force majeure event.


 


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10. Assignment


 


Except
with prior written consent of Party A, Party B may not assign to any third
party any rights and/or any obligations assumed by it hereunder.


 


11. Severability


 


If
any provision hereof is found invalid or unenforceable due to any inconsistency
with relevant laws, such provision shall be invalid or unenforceable only to
the extent of the scope of application of such laws and shall not affect the
legal validity of any other provision of this Agreement.


 


12. Amendment; Supplement


 


Any
amendment of or supplement to this Agreement shall be effected by a written
agreement of the parties. Any amending or supplementary agreement, as duly
executed by the parties, shall be an integral part of this Agreement and shall
have the same legal force and effect as this Agreement.


 


13. Governing Law


 


This
Agreement shall be governed by and implemented and interpreted in accordance
with the laws of the PRC.


 


IN
WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first above written.


 


(Signature Page Follows; No Operative Text Below)


 


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Party A: Xuecheng Century (Beijing) Information Technology Co., Ltd.


(Seal)


 


	
  Authorized
  Representative:

  	
  /s/
  HSU William Shang Wi

  
	
   

  
	
  Name:   HSU
  William Shang Wi

  



 


Party B:
Beijing Xueda Information Technology Co., Ltd.


(Seal)


 


	
  Authorized
  Representative:

  	
  /s/
  LI Rubin

  



 


Name:   LI
Rubin


 


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Schedule 1 List of the Scope of Technology Consulting and


Management Services


 


Party
A will provide Party B with the following technology consulting and management
services:


 


(1) 
research and development in connection with the relevant technologies required
for the business of Party B, including the development, design and preparation
of such database software, user interface software and other relevant
technologies as applied in the storage of relevant business information; and
licensing of such technologies to Party B;


 


(2) 
application and implementation of relevant technologies for the business
operations of Party B, including without limitation system overall design
planning, system installation and commissioning, and system trial operation;


 


(3) 
daily maintenance, monitoring, debugging and trouble-shooting of the computer
network equipment of Party B, including without limitation timely inputting of
user information into the databases; timely updating of the databases based on
such other business information as provided at any time by Party B; regular
updating of user interfaces; and the provision of other relevant technology
services;


 


(4) 
training of and technology assistance to the staff of Party B in respect of the
operating activities of Party B, including without limitation industry information
training, process training, and training related to customer services and other
aspects; and


 


(5) 
provision of other technology services and management consulting according to
the business needs of Party B, such as consulting and services related to cost
control, risk management and market analysis.


 


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Schedule 2 Calculation and Payment of Technology Consulting and


Management Service Fee


 


The
service fee shall be determined based on the following factors:


 


(1) 
the sophistication of the technology involved and the complexity of the
consulting and management services;


 


(2) 
the time required for the provision of relevant technology consulting and
management services; and


 


(3) 
the specific content and commercial value of relevant technology consulting and
management services.


 


Each
quarter, Party A will per the price agreed by the parties issue an invoice to
Party B on the basis of the work volume and commercial value of the technology
services provided to Party B and Party B shall pay the relevant Consulting
Service Fee to Party A per the date and amount set out in such invoice. Party A
shall at all times be entitled to adjust the standards of the Consulting
Service Fee based on the quantity and content of the consulting services
provided to Party B.


 


The
aforesaid Consulting Service Fee shall be an amount to be approved by the
boards of Party A and China Xueda Education LTD, the parent company of Party A
(“OffshoreCo”) (including the consent by at least one director (if any)
appointed by the A-Class preferred stockholders of OffshoreCo(“A-Class Director”)).
Such Consulting Service Fee shall be evaluated and adjusted from time to time
but in no event less than once a year. Any adjustment of or change to the
Consulting Service Fee shall be approved by the boards of Party A and the
OffshoreCo ((including the consent by at least one A-Class director (if
any)).


 


Within
fifteen (15) days of the end of each year, Party B shall provide Party A with
the financial statements of the year together with all operating records,
business contracts and financial and accounting materials. If Party A has any
doubt about such financial and accounting materials provided by Party B, Party
A may appoint a reputable independent accounting firm to audit relevant
materials and Party B shall cooperate with such audit.


 


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