EXCLUSIVE TECHNOLOGY CONSULTING AND SERVICES AGREEMENT
Exhibit 4.41
This Exclusive Technology Consulting Services Agreement (this
“Agreement”) is entered into in Beijing, PRC on
December 28, 2010 between the following two parties:
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Party A:
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Baidu Online Network Technology (Beijing) Co., Ltd. | |
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Legal Address:
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Xxxxx Xxxxxx, Xx. 00, Xxxxxxx 10th Street,, Haidian District, Beijing, PRC, 100085 | |
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Party B:
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Baidu HR Consulting (Shanghai) Co., Ltd. (the “Company”) | |
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Legal Address:
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Xx. 000-0, Xx. 000 Xxxxxxx Xxxx, Xxxxxxx District, Shanghai, PRC, 201807 |
WHEREAS:
1. Party A is a wholly foreign-owned enterprise duly
incorporated under the laws of the People’s Republic of
China (the “PRC”), which has the technology expertise
and practical experience in the development and design of
computer software, and also has rich experience and a team of
professionals specializing in information technology and
services;
2. Party B is a limited liability company duly incorporated
in Shanghai, PRC, which carries out the business of value-added
telecommunication services such as Internet information services;
3. Party A plans to provide exclusive technology consulting
and related services to Party B and Party B plans to accept such
services. Both parties wish to continue this cooperation and
sign a written agreement to stipulate their respective rights
and obligations.
NOW THEREFORE, both parties, through negotiations, agree
as follows:
1. Exclusive Technology Consulting and Services; Sole and
Exclusive Interests
1.1 During the term of this Agreement, Party A agrees, on a
global scale, as the exclusive technology consulting and
services provider of Party B, to provide the exclusive
technology consulting and services to Party B in accordance with
the terms and conditions of this Agreement (the content of such
services is specified in Appendix 1 hereto).
1.2 Party B agrees to accept the exclusive technology
consulting and services provided by Party A and further agrees
that, during the term of this Agreement, Party B shall not
accept such technology consulting and services for the aforesaid
business from another party without the prior written consent of
Party A.
2. Calculation, Payment and Guarantee of the Fees for the
Technology Consulting and Services (the “Fee”)
2.1 Both parties agree to calculate and pay the Fee under
this Agreement in accordance with the methods listed on
Appendix 2 hereof.
2.2 Party B’s shareholders shall pledge the equity
interests of Party B to Party A for securing the Fee payable by
Party B pursuant to this Agreement.
3. Intellectual Property Rights
3.1 Party A shall be the sole owner of the copyrights of
the software designed by Party A and other relevant software,
any intellectual property obtained through the research and
development by Party A
and/or any
derivative rights arising from the performance of this Agreement
or any other agreement reached by both parties, including, but
not limited to, patent application rights, copyrights or other
intellectual property rights of the software, technical
documents and materials and the rights to license or transfer
such intellectual property, etc.
3.2 During the performance of this Agreement, if Party B
needs to use Party A’s software programs or systems, both
parties shall sign a separate agreement setting forth the scope,
method and fee of such license.
4. Representations and Warranties
4.1 Party A hereby represents and warrants as follows:
4.1.1 Party A is a wholly foreign-owned enterprise duly
incorporated and validly existing under PRC law;
4.1.2 The execution and performance of this Agreement by
Party A are within its corporate power and business scope. Party
A has taken necessary corporate actions and obtained appropriate
authorizations, and has obtained the necessary consents or
approvals from other third parties or government agencies. The
execution and performance of this Agreement by Party A do not
violate the laws and contracts binding upon or influencing Party
A; and
4.1.3 Upon execution, this Agreement will constitute a
legal, valid and binding obligation of Party A enforceable
against Party A in accordance with its terms.
4.2 Party B hereby represents and warrants as follows:
4.2.1 Party B is a limited liability company duly
incorporated and validly existing under the laws of the PRC;
4.2.2 The execution and performance of this Agreement by
Party B are within its corporate power and business scope. Party
B has taken necessary corporate actions and obtained appropriate
authorizations, and has obtained the necessary consents or
approvals from other third parties or government agencies. The
execution and performance of this Agreement by Party B do not
violate the laws and contracts binding upon or influencing Party
B; and
4.2.3 Upon execution, this Agreement will constitute a
legal, valid and binding obligation of Party B enforceable
against Party B in accordance with its terms.
5. Confidentiality
5.1 Party B agrees to take all reasonable steps to protect
and maintain the confidentiality of the confidential data and
information acknowledged or received by Party B through
accepting the exclusive consulting and services from Party A
(collectively, the “Confidential Information”). Party
B shall not disclose, give or transfer any Confidential
Information to any third party without Party A’s prior
written consent. Upon termination of this Agreement, Party B
shall, at Party A’s request, return any and all documents,
information or software containing any of such Confidential
Information to Party A or destroy it at its own discretion, and
delete all of such Confidential Information from any memory
devices, and cease to use such Confidential Information.
5.2 Both parties acknowledge and confirm that any oral or
written materials exchanged pursuant to this Agreement are
confidential. Each party shall keep confidential all such
materials and not disclose any such materials to any third party
without the prior written consent from the other party except in
the following situations: (a) such materials are or will
become known by the public (through no fault of the receiving
party); (b) any materials as required to be disclosed by
the applicable laws or rules of the stock exchange; and
(c) any materials disclosed by each party to its legal or
financial advisors relating to the transactions contemplated by
this Agreement, and such legal or financial advisors shall
comply with the confidentiality provisions set forth in this
Article 5. Any disclosure of confidential information by
the personnel of any party or by the institutions engaged by
such party shall be deemed as a disclosure by such party, and
such party shall be liable for the breach under this Agreement.
5.3 Both parties agree that this Article 5 shall
survive the invalidity, cancellation, termination or
unenforceability of this Agreement.
6. Indemnity
Party B shall indemnify and hold harmless Party A from and
against any losses, damages, liabilities or expenses arising
from any litigation, claims or other request against Party A,
which arises from or is caused by the content of consulting and
services required by Party B.
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7. Effective Date and Term
7.1 This Agreement shall be signed and take effect as of
the date first set forth above.
7.2 The term of this Agreement is ten (10) years
unless terminated earlier as set forth herein or in accordance
with the terms set forth in other agreements entered into by
both parties.
7.3 This Agreement may be extended with the written consent
of both parties at its expiration, and the extended term shall
be determined by both parties through negotiation. If both
parties fail to reach any agreement on such extension, this
Agreement shall be extended for one (1) year automatically
at its expiration (including any expiration of extended term)
unless Party A informs Party B of its decision not to extend
this Agreement with a written notice before the expiration date.
7.4 If the duration of operation (including any extension
thereof) of either party is expired or terminated for other
reasons within the term set forth in Sections 7.2 and 7.3
hereof, this Agreement shall be terminated simultaneously,
except in the situation where such party has assigned its rights
and obligations in accordance with Article 13 hereof.
8. Termination
8.1 Termination upon Expiration
This Agreement shall be terminated on its expiration date unless
it is extended in accordance with the provisions hereof.
8.2 Early Termination
During the term of this Agreement, Party B shall not terminate
this Agreement unless Party A engages in acts of gross
negligence, fraud, other illegal acts or becomes bankrupt.
Notwithstanding the foregoing provisions, Party A may terminate
this Agreement at any time with a written notice to Party B
given thirty (30) days in advance. During the term of this
Agreement, if Party B breaches this Agreement and has not cured
its breach within fourteen (14) days upon receipt of Party
A’s written notice of such breach, Party A may inform Party
B with a written notice of the termination of this Agreement.
8.3 Survival
The rights and obligations to both parties under
Articles 5, 10 and 12 shall continue to be effective upon
the termination of this Agreement.
9. Governing Law
The performance, interpretation and enforcement of this
Agreement shall be governed by the laws of the PRC.
10. Dispute Resolution
Any dispute arising in connection with the interpretation and
performance of the provisions of this Agreement shall be
resolved by the parties in good faith through negotiations. In
case no resolution can be reached by the parties within thirty
(30) days after either party makes a request for a dispute
resolution through negotiations, either party may refer such
dispute to the China International Economic and Trade
Arbitration Commission (the “CIETAC”) for arbitration
in accordance with CIETAC’s arbitration rules then in
effect. The seat of arbitration shall be in Beijing, and the
language of the proceedings shall be Chinese. The arbitral award
shall be final and binding upon both parties.
11. Force Majeure
11.1 Force Majeure, which includes but not limited to acts
of governments, change of laws and regulations, acts of nature,
fires, explosions, typhoons, floods, earthquakes, tides,
lightning or war, means any unforeseen event that is beyond the
party’s reasonable control and cannot be prevented with
reasonable care of the affected party. However, any
insufficiency of creditworthiness, capital or financing shall
not be regarded as an event beyond the party’s reasonable
control. The party affected by Force Majeure and seeks for the
exemption from performing the
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obligations under this Agreement shall inform the other party of
such exemption and any action taken by it for performing this
Agreement.
11.2 In the event that the affected party is delayed in or
prevented from performing its obligations under this Agreement
by Force Majeure, and only to the extent of such delay or
prevention, the affected party shall not be liable for the
obligations under this Agreement. The affected party shall take
appropriate measures to minimize or remove the effects of Force
Majeure and attempt to resume the performance of the obligations
delayed or prevented by the event of Force Majeure. Once the
event of Force Majeure is removed, both parties agree to resume
the performance of this Agreement using their best efforts.
12. Notices
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
postage prepaid mail or by a recognized courier service or by
facsimile transmission to the address of each relevant party or
both parties set forth below or such other address or addressees
as specified by such party from time to time. The date when the
notice is deemed to be duly served shall be determined as
follows: (a) a notice delivered personally is deemed duly
served upon delivery; (b) a notice sent by mail is deemed
duly served the tenth (10th) day after the date when the postage
prepaid registered airmail was sent out (as is shown on the
postmark), or the fourth (4th) day after the delivery date to
the internationally-recognized courier service agency; and
(c) a notice sent by facsimile transmission is deemed duly
served upon the receipt time as is shown on the transmission
confirmation for relevant documents.
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Party A:
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Baidu Online Network Technology (Beijing) Co., Ltd. | |
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Address: Xxxxx Xxxxxx, Xx. 00, Xxxxxxx 10th Street,, Haidian District, Beijing, PRC, 100085 |
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| Attn: | ||
| Fax: | ||
| Tel: |
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Party B:
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Baidu HR Consulting (Shanghai) Co., Ltd. | |
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Address:
Xx. 000-0,
Xx. 000 Xxxxxxx Xxxx, Xxxxxxx District, Shanghai, PRC, 201807 |
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| Attn: | ||
| Fax: | ||
| Tel: |
13. Assignment
13.1 Party B shall not assign its rights or obligations
under this Agreement to any third party without the prior
written consent of Party A.
13.2 Party B hereby agrees that Party A may assign its
rights and obligations under this Agreement as Party A deems
necessary and such transfer shall only be subject to a written
notice sent to Party B by Party A, without further consent from
Party B required.
14. Entire Agreement
Notwithstanding Article 7.1 herein both parties confirm
that once this Agreement becomes effective, it shall constitute
the entire agreement of both parties hereto with respect to the
subject matters hereof and supersede all prior oral
and/or
written agreements and understandings by the parties with
respect to the subject matters hereof.
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15. Severability
If any provision of this Agreement is judged to be invalid or
unenforceable because it is inconsistent with applicable laws,
such invalidity or unenforceability shall be only with respect
to such laws, and the validity, legality and enforceability of
the other provisions hereof shall not be affected.
16. Amendment or Supplement
Any amendment or supplement to this Agreement shall be made by
the parties in writing. The amendments or supplements duly
executed by each party shall form an integral part of this
Agreement and shall have the same legal effect as this Agreement.
17. Counterparts
This Agreement shall be executed in two originals, with each
party holding one original. All originals shall have the same
legal effect.
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IN WITNESS WHEREOF, each party hereto have caused this
Agreement to be duly executed by its legal representative or a
duly authorized representative on its behalf as of the date
first set forth above.
Party A:
Baidu Online Network Technology (Beijing) Co., Ltd.
| Legal or Authorized Representative: |
/s/ Xxxxx
Xxxx
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Seal: [Baidu Online Network Technology (Beijing) Co., Ltd. seal]
Party B:
Baidu HR Consulting (Shanghai) Co., Ltd.
| Legal or Authorized Representative: |
/s/ Xxxxxxx
Xx
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Seal: [Baidu HR Consulting (Shanghai) Co., Ltd. seal]
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Appendix 1
Content
of Technology Consulting and Services
1. Server maintenance and supporting services for network
platform management;
2. Development, renewal and update of server application
software, and application of any website owned and operated by
Party B;
3. Development, renewal and update of application software
for online user;
4. E-commerce
technical service, including but not limited to services for
design of
e-commerce
platform and maintenance;
5. Provide Party B advertising design, software design,
webpage creation, technical support and other technical services
for its advertising business and value-added telecommunication
services such as Internet information services, and provide
management consulting advices;
6. Provide labor supporting as Party B’s request,
including but not limited to lending or dispatching related
staff (Party B shall burden the expenses for such staff);
7. Training for technical and professional staff;
8. Statistical analysis of website flux;
9. Technical support for online mutual communication
platform users;
10. Publish of advertising scheduling; and
11. Other services agreed by both parties.
Appendix 2
Calculation
and Payment of the Fee for the Technology Consulting and
Services
Both parties agree that Party B shall pay 100% of its net income
to Party A as services fees (the “fees”) for the
technical consulting and other services Party A provide to Party
B. Whereas, through negotiation and prior written consent by
Party A, the fees shall be adjusted according to the services
for current month and the actual needs of Party B. The fees
shall be paid monthly. Party B shall, within 30 days of the
last day of each month, (a) provide Party A management
report and operating data, which include net income for current
month; (b) pay Party A100% of Party B’s net income or
amount agreed by Party A. Party B shall, within 90 days of
the end of every fiscal year, (a) provide Party A audited
financial statements for the full fiscal year; such financial
statements shall be audited and certified by the independent CPA
approved by Party A; (b) if the audited financial
statements show that there is an insufficiency, Party B shall
pay Party A the difference.
