TRADEMARK LICENSE AGREEMENT
Exhibit 10.4
EXECUTION COPY
This Trademark License Agreement (the “Agreement”) is entered into as of December 31,
2010 (the “Effective Date”), by and between Chindex International, Inc., a Delaware
corporation (“Licensor”), and Chindex Medical Limited, a Hong Kong company limited by
shares with company number 1528489 (“Licensee”). Licensor and Licensee are each herein
referred to herein as a “Party” and collectively referred to as the “Parties”. Any
capitalized term not otherwise defined herein have the meaning ascribed in the Formation Agreement
(as defined herein).
WHEREAS, (a) Licensor, Licensee, Chindex Medical Holdings (BVI) Limited, a company limited by
shares incorporated and existing under the laws of the British Virgin Islands (“New BVI”),
Fosun Industrial Co., Limited, a company incorporated in Hong Kong (“Fosun”), Ample Up
Limited (
in Chinese), a Hong Kong company limited by shares with company number
1439452 (“FSPV”), and Shanghai Fosun Pharmaceutical (Group) Co., Ltd. (
in Chinese),
a stock company limited by shares listed on the Shanghai Stock Exchange
incorporated and existing under the laws of China with its registered address at Xxxxx 0, Xx. 000,
Xxx Xxxx Xxxx, Xxxxxxxx, PRC (“Fosun Pharma”), have previously entered into a Formation
Agreement, dated December 28, 2010 relating to the formation of a joint venture between certain
Subsidiaries of Licensor and Fosun Pharma (the “Formation Agreement”), and (b) wholly-owned
Subsidiaries of Licensor and Fosun are contemporaneously herewith entering into a certain Joint
Venture Governance and Shareholders Agreement relating to the ownership and governance of Licensee
(the “Shareholders Agreement”); and
in Chinese), a Hong Kong company limited by shares with company number
1439452 (“FSPV”), and Shanghai Fosun Pharmaceutical (Group) Co., Ltd. ( in Chinese),
a stock company limited by shares listed on the Shanghai Stock Exchange
incorporated and existing under the laws of China with its registered address at Xxxxx 0, Xx. 000,
Xxx Xxxx Xxxx, Xxxxxxxx, PRC (“Fosun Pharma”), have previously entered into a Formation
Agreement, dated December 28, 2010 relating to the formation of a joint venture between certain
Subsidiaries of Licensor and Fosun Pharma (the “Formation Agreement”), and (b) wholly-owned
Subsidiaries of Licensor and Fosun are contemporaneously herewith entering into a certain Joint
Venture Governance and Shareholders Agreement relating to the ownership and governance of Licensee
(the “Shareholders Agreement”); and
WHEREAS, in connection with the transactions contemplated by the Formation Agreement, Licensor
has agreed to grant to Licensee a license to use the Marks (as defined herein) pursuant to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, understandings and agreements
hereinafter set forth, the Parties hereby agree as follows:
1. License Grant.
1.1 License Grant. Subject to the terms and conditions set forth in this Agreement,
Licensor hereby grants to Licensee, and Licensee hereby accepts, a limited, worldwide,
sublicensable (solely as provided herein), non-exclusive, non-transferable, royalty-free (except as
otherwise specifically provided in Section 4.1) right and license to use the Marks solely
in connection with (a) Licensee’s corporate name and (b) any advertising, marketing and/or
promotional activity in connection with the (i) the marketing, distribution and servicing of
medical equipment in the PRC and Hong Kong (except that sales and distribution related activities
in relation to sales and servicing in the PRC and Hong Kong may take place in other jurisdictions)
and (ii) the manufacturing, marketing, sales and distribution of medical devices and medical
equipment and consumables (collectively, the “Business”) and solely during the Term (as
defined herein) subject to the terms and conditions of this Agreement and as specifically approved
by Licensor, except that without the prior written consent of Licensor, which consent may be
granted or withheld by Licensor in its sole discretion, Licensee shall not, and the
foregoing grant shall not include any right or license to, (x) incorporate or affix the Marks
on any
products developed, manufactured, distributed or sold by or on behalf of Licensee or (y) use
the Marks in connection with any URLs (Uniform Resource Locators) or domain names (including any
corresponding sub-domains and derivations thereof). As used herein, the term “Marks” means
(i) the trademarks, trade names and service marks “Chindex” and the Chindex design/logo, as more
fully identified and described on Exhibit A hereto and (ii) the trade and corporate name
“Chindex”.
1.2 Right to Sublicense. Subject to the last sentence of this Section 1.2,
Licensee shall have the right to sublicense the rights granted to Licensee pursuant to Section
1.1 to any Subsidiary of which it is the majority-owner, solely as necessary to exercise its
rights hereunder in connection with the Business; provided, however, that (a) any grant by
Licensee of such rights shall automatically terminate upon the occurrence of any event pursuant to
which any applicable sublicensee shall cease to be a wholly-owned Subsidiary of Licensee and (b)
the foregoing right to sublicense shall not relieve or modify any obligations of Licensee under
this Agreement. Each such sublicense shall be subject to and subordinate to this Agreement,
including without limitation, the terms and conditions of Section 4.1, and shall terminate
automatically upon the termination of this Agreement. Notwithstanding anything to the contrary set
forth herein, in the event that Licensee determines, in it sole discretion, to enter into any
sublicense, it shall, prior to execution, provide Licensor with a copy of such proposed sublicense.
Licensee may execute such sublicense at any time following ten (10) days from Licensor’s receipt
of same; provided, however, that if prior to the expiration of such ten (10) day
period Licensor provides Licensee with comments to the proposed sublicense, Licensee shall use
commercially reasonable efforts to revise the proposed sublicense to address Licensor’s comments
prior to execution.
1.3 Limitations. In no event shall Licensee or any sublicensee use any of the Marks
for any purpose other than in connection with the Business, without the prior written consent of
Licensor, which consent may be granted or withheld by Licensor in its sole discretion.
2. Reservation of Rights. Except for the limited right and license granted to
Licensee pursuant to this Agreement and subject to the applicable obligations and restrictions set
forth herein, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely
affect the Marks or any of Licensor’s rights or interests therein or any other intellectual
property, brands, information, content, processes, methodologies, products, goods, services,
materials or rights, tangible or intangible, that Licensor may own or control.
3. Covenants, Restrictions, Obligations of Licensee.
3.1 In order to maintain the high reputation and goodwill associated with the Marks, Licensee
shall: (a) ensure that the business conducted under and in connection with the Marks is of a
quality consistent with industry-accepted standards for the provision of similar goods and
services; (b) conform with the highest ethical standards in the conduct of its business practices
and corporate governance; (c) refrain from engaging in any illegal, deceptive, unfair or unethical
trade practices, (d) refrain from using or exploiting the Marks in any country or territory in
which Licensor is restricted from conducting business, as provided in any written notice from
Licensor that may be given to Licensee from time to time during the Term; (e) observe all
requirements with respect to trademark notices, credits and other forms of attribution as Licensor
may, in its sole discretion, direct and communicate to Licensee in connection with any use of
the
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Marks; and (f) comply with all applicable statutes, laws, rules, regulations, orders,
ordinances or judgments in connection with any use of, or any business conducted under the use of,
the Marks, including registering as an authorized user of the Marks and/or registering this
Agreement in jurisdictions in which such registration is required.
3.2 All goodwill arising from Licensee’s use of the Marks shall inure to the benefit of
Licensor and Licensee agrees that it shall not: (a) contest, attack or question the validity of,
or assist any individual or entity in contesting, attacking or questioning, the title or any rights
of or claims by Licensor in and to the Marks; (b) directly or indirectly seek for itself or assist
any third party to use, register, record, obtain, acquire or attempt to pursue any rights,
proprietary or otherwise in the Marks; (c) in any way seek to avoid Licensee’s duties or
obligations under this Agreement because of the assertion or allegation by any individual or entity
that the Marks are invalid or by reason of any contest concerning the rights of or claimed by
Licensor; (d) file or prosecute one or more trademark applications in connection with Licensee’s
use or intended use of the Marks or any xxxx or designation of any kind that is confusingly similar
to or dilutive of the Marks, unless expressly requested to do so in writing by Licensor; (e) adopt,
adapt, use or display any marks, logos, names, brands, distinctive identification or other material
of any kind that is or may be likely to cause confusion to any consumers or otherwise dilute or
adversely affect Licensor’s rights in the Marks; (f) create a combination or composite xxxx
consisting of the Marks, commingle the Marks with the trademarks of any third party, or use the
Marks in any manner that, directly or indirectly, would dilute, demean, ridicule or otherwise
tarnish the image of the Marks or Licensor; or (g) take any action, directly or indirectly, or fail
to take any action required hereunder, which is or could be construed as detrimental, damaging or
inconsistent with the rights of Licensor in the Marks. For the avoidance of doubt, (i) Licensor
shall have the sole and exclusive right to obtain, hold and renew, in its own name and for its own
benefit, all applicable intellectual property right protections in connection with the Marks and
all applications and registrations therefor; and (ii) Licensee shall be solely responsible for any
and all costs and expenses incurred by Licensor during the Term in connection with the maintenance,
registration, recordation and/or enforcement of the Marks and/or Licensor’s right, title and
interest therein, including all costs and expenses incurred in connection with administrative
proceedings, prosecutions, suits or other actions.
3.3 Upon request of Licensor made (a) periodically but not more than once per year during the
Term, or (b) at any time in the event that Licensor has a good faith reason to believe that
Licensee may be engaging in any activity which may be in breach of the terms and conditions of
Article 1, Section 3.1 and/or Section 3.2, Licensee shall, at its sole cost
and expense, promptly send to Licensor representative specimens of all uses of the Marks (including
all materials, brochures, advertising, signs or the like bearing the Marks) that Licensee makes or
intends to make pursuant to the terms of this Agreement.
3.4 Licensee agrees to provide Licensor with prompt written notice of any infringement or
passing off involving the Marks which comes to its attention, and of any action involving the Marks
that is threatened or instituted against Licensee or any third party. If Licensor takes any action
to terminate such improper use or undertakes the defense of any such action, Licensee shall
cooperate with and assist Licensor in such proceedings. It is within Licensor’s sole discretion to
take any action against third party infringement or passing off of the
Marks or to refrain from such action. Further, Licensee shall execute any and all documents
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which Licensor or any of its designees may request in support of any registrations, filings,
maintenance or renewals in connection with the Marks and provide to Licensor and its designees any
and all assistance, information, materials, samples, evidence, testimony and documentation
reasonably requested by Licensor in connection with any administrative proceedings, prosecutions,
suits or other actions regarding the Marks or as otherwise requested to enable Licensor to perfect,
preserve, register, record and enforce its right, title and/or interest in and to the Marks.
3.5 During the Term and in accordance with the terms and conditions of this Agreement,
Licensee shall make open and commercial use of the Marks in such a manner as to satisfy the use
requirements of each applicable jurisdiction and prevent the loss of rights in the Marks for
failure to use the Marks. Such use shall be of a sufficient nature to protect the Marks from
cancellation by the local trademark offices for non-use in the applicable jurisdiction and from
challenges by third parties claiming abandonment of the Marks for non-use in trademark office or
court proceedings. Notwithstanding the foregoing, except as otherwise required to comply with any
order entered by a court of competent jurisdiction, failure by Licensee to make open and commercial
use of the Marks for any period of six consecutive months shall be deemed a material breach of this
Agreement and shall entitle Licensor, at its option, to terminate this Agreement pursuant to
Section 7.2(f) hereof.
4. Royalties.
4.1 Calculation of Royalty. In consideration of the rights and licenses granted
herein with respect to use of the Marks by or on behalf of Licensee, solely in the event that
Licensor and its Affiliates own or control, in the aggregate, less than thirty percent (30%) of the
total equity in Licensee, Licensee shall pay to Licensor during the Term an annual royalty (the
“Royalty” or “Royalties”) equal to (a) two percent (2%) of Gross Sales (as such
term is defined below) from the sale of goods manufactured by or for Licensee (and its Subsidiaries
and sublicensees) and (b) one percent (1%) of Gross Sales from the sale of goods distributed by
Licensee (and its Subsidiaries and sublicensees) but not manufactured by or for Licensee (or its
Subsidiaries or sublicensees). For clarity, Gross Sales from the sale of goods distributed by any
Subsidiary shall be included in the computation of the Royalties regardless of whether any such
Subsidiary is party to any sublicense granted under the terms and conditions of Section
1.2. Such Royalties shall accrue from and after the effective date of any transaction or other
occurrence resulting Licensor and its Affiliates owning or controlling less than thirty percent
(30%) of the total equity in Licensee. All Royalty payments, if any, shall be due and payable to
Licensor not later than sixty (60) days following the end of each applicable calendar year during
the Term; provided, however, that, in the event that, during any applicable period
during which Royalties were accrued, Licensee did not realize a Net Profit (as such term is defined
below), Licensee’s obligation to pay such Royalties shall be held in abeyance until the earlier of
(y) sixty (60) days following the end of any subsequent calendar year in which Licensee realizes a
Net Profit or (z) an initial public offering of Licensee. As used herein, the term “Gross
Sales” means all revenue recorded in accordance with GAAP and/or Chinese GAAP (as such terms
are defined in the Formation Agreement) by Licensee and its Subsidiaries and sublicensees during
any applicable period, whether or not Licensee or any such Subsidiary used the Marks in connection
with the products, goods, services or other offerings from which such revenue was derived, but
excluding revenue solely from Excluded Operations (as defined below) but only to
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the extent
the Marks were not used or otherwise exploited in connection with such Excluded Operations. For
clarity, to the extent any Excluded Operations make use of or otherwise exploit any of the Marks,
the revenues from such Excluded Operations shall be included in the computation of the Royalties.
As used herein, the term “Excluded Operations” means the operations conducted by and the
products, goods, services and offerings of the Fosun Contributed Companies (as defined in the
Formation Agreement) as of the Effective Date. As used herein, the term “Net Profit” means
pre-tax income of JVCO and its subsidiaries, exclusive of extraordinary or nonrecurring items of
expense, determined on a consolidated basis in accordance with Chinese GAAP.
4.2 Royalty Reporting. Following the expiration of each calendar year during the Term
in which any Royalties are accrued pursuant to Section 4.1, Licensee shall submit to
Licensor a report detailing the Royalty amounts that have accrued during such period, if any (each,
a “Royalty Report”). Each Royalty Report shall be sufficient to enable Licensor to
calculate and verify the correctness of the Royalty amounts payable to Licensor pursuant to
Section 4.1.
4.3 Audit Rights. Licensee shall maintain accurate records sufficient to verify the
accuracy of the Royalty. Licensor shall have the right, at its expense upon reasonable advance
written notice to Licensee and no more than once per calendar year, to examine and audit such
records during Licensee’s normal business hours, solely for the purposes of verifying the
correctness of the Royalty amounts paid under this Agreement. In the event that any such audit
reveals any undisputed under reporting or underpayment to Licensor, then Licensee shall promptly
pay Licensor the incremental undisputed amounts that should have been paid. In the event of a
dispute regarding any alleged under reporting or underpayment to Licensor, Licensee and Licensor
shall use reasonable, good faith efforts to resolve the same. Any disputed amounts shall not
affect payment of undisputed Royalty amounts.
5. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. THE MARKS ARE LICENSED TO
LICENSEE HEREUNDER “AS IS” AND “AS AVAILABLE”. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING
SENTENCE, LICENSOR MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE MARKS AND/OR LICENSEE’S
USE THEREOF (OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT), INCLUDING, WITHOUT
LIMITATION, AS TO MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR ANY PARTICULAR PURPOSE,
AND LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND/OR WARRANTIES, WHETHER EXPRESS
OR IMPLIED, OR ORAL OR WRITTEN.
6. Indemnification. Licensee, at its own cost and expense, shall at all times
indemnify, defend and hold harmless Licensor, its Affiliates, Subsidiaries, representatives,
employees, and agents (collectively, the “Licensor Indemnitees”) from and against any and
all losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses)
resulting from or arising out of any third party claim, action, suit or proceeding against any
Licensor Indemnitee arising out of or relating to Licensee’s use of the Marks. Licensee shall have
the right to conduct the defense of any such claim, action, suit or proceeding and all negotiations
for its settlement or compromise; provided, however, that (a) no settlement or compromise
that would impose any
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obligation or restriction of any nature whatsoever on, or involve any admission of any nature
whatsoever, by any Licensor Indemnitee may be entered into or agreed to without Licensor’s prior
written approval and (b) Licensor has the right to participate, at its own expense, in the defense
and/or settlement of any such claim or action in order to protect its own interests.
7. Term; Termination; Effect of Termination.
7.1 Term. This Agreement shall become effective on the Effective Date and shall
continue until terminated pursuant to the terms and conditions of Section 7.2 hereof (the
“Term”).
7.2 Termination. Licensor may terminate this Agreement, in whole or in part,
effective immediately, without notice or prior opportunity to cure any default by Licensee (except
as set forth in clause (d) herein), if: (a) Licensee is declared or adjudicated bankrupt
or makes a general assignment for the benefit of creditors, institutes proceedings to be adjudged
bankrupt or insolvent or consents to the institution of such proceedings, or admits in writing
inability to pay debts generally as they become due, or a petition is filed against Licensee under
applicable bankruptcy legislation, or a liquidator, trustee in bankruptcy, custodian, receiver,
receiver and manager, or any other officer with similar powers is appointed of or for Licensee; (b)
Licensee assigns, transfers, conveys or subcontracts or attempts to assign, transfer, convey or
subcontract this Agreement or any right or license under this Agreement in violation of the terms
and conditions hereof; (c) FSPV, Licensee, any Subsidiary of Licensee or any Affiliate of FSPV
fails to comply in any material respect with the Minority Rights Provisions (as such term is
defined in the Shareholders Agreement) of the Shareholders Agreement, which non-compliance and
fails to cure any such non-compliance within 30 days after receipt of notice from Licensor
regarding the same; (d) the joint venture provided for in the Shareholders Agreement to be
conducted through Licensee and its Subsidiaries is terminated; (e) Licensee is liquidated or
otherwise undergoes a dissolution and/or (f) Licensee materially breaches any of the covenants,
obligations or restrictions set forth in this Agreement and fails to cure any such breach within 30
days after the receipt of notice from Licensor regarding the same.
7.3 Effect of Termination. Upon any expiration or termination of the Term, (a) all
rights and licenses granted by Licensor to Licensee herein shall immediately terminate, (b)
Licensee shall discontinue, cease and terminate all use of the Marks; and (c) Licensee shall remove
the Marks or destroy all remaining materials in its and its agents’ possession, custody or control
within or upon which the Marks appear.
8. Miscellaneous.
8.1 Expenses. Except for any costs expressly assumed by Licensor under this Agreement,
Licensee shall be solely responsible for all costs and expenses relating to the exercise of its
rights and performance of its obligations under this Agreement.
8.2 Further Assurances. From time to time, without the payment of any additional
consideration except as otherwise set forth in this Agreement, each Party will execute all such
instruments and take all such actions as the other Party, being advised by counsel, shall
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reasonably request in connection with carrying out and effectuating the intent and purpose
hereof and all transactions and things contemplated by this Agreement.
8.3 Severability. To the fullest extent that they may effectively do so under
applicable Law, the Parties hereto hereby waive any provision of Law which renders any provision of
this Agreement invalid, illegal or unenforceable in any respect. The Parties further agree that
any provision of this Agreement which, notwithstanding the preceding sentence, is rendered or held
invalid, illegal or unenforceable in any respect in any relevant jurisdiction shall be ineffective,
but such ineffectiveness shall be limited as follows: (a) if such provision is rendered or held
invalid, illegal or unenforceable in such jurisdiction only as to a particular Person or Persons or
under any particular circumstance or circumstances, such provision shall be ineffective, but only
in such jurisdiction and only with respect to such particular Person or Persons or under such
particular circumstance or circumstances, as the case may be; (b) without limitation of clause (a),
such provision shall in any event be ineffective only as to such jurisdiction and only to the
extent of such invalidity, illegality or unenforceability, and such invalidity, illegality or
unenforceability in such jurisdiction shall not render invalid, illegal or unenforceable such
provision in any other jurisdiction; and (c) without limitation of clause (a) or (b), such
ineffectiveness shall not render invalid, illegal or unenforceable this Agreement or any of the
remaining provisions hereof. Without limitation of the preceding sentence, (A) it is the intent of
the Parties hereto that, in the event that in any court or arbitral proceeding, such court or
arbitral body determines that any provision of this Agreement is illegal, invalid or unenforceable
in any relevant jurisdiction to any extent, such court or arbitral body shall have the power to,
and shall, (1) modify such provision (including by limiting the Persons against whom, or the
circumstances under which, such provision shall be effective in such jurisdiction) for purposes of
such proceeding to the minimum extent necessary so that such provision, as so modified, may then be
enforced in such proceeding and (2) enforce such provision, as so modified pursuant to clause (1),
in such proceeding and (B) upon any determination that any provision of this Agreement is invalid,
illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of such parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as originally contemplated
to the greatest extent possible. Nothing in this Section 8.3 is intended to, or shall, (x)
limit the ability of any Party hereto to appeal any court ruling or enforce or seek to vacate or
modify any arbitral award or the effect of any favorable or unfavorable ruling on appeal or (y)
limit the intended effect of Section 8.10 or Section 8.13.
8.4 Entire Agreement. This Agreement constitutes the entire agreement of the Parties
hereto with respect to the subject matter hereof and thereof and supersedes all prior agreements
and undertakings, both written and oral, between the Parties with respect to the subject matter
hereof.
8.5 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by an internationally recognized overnight
courier service, or by facsimile to the respective Parties hereto at the following addresses (or at
such other address for a Party as shall be specified in a notice given in accordance with this
Section 8.5):
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If to Licensor:
Chindex International, Inc.
0000 Xxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer and Corporate Secretary
Facsimile: 000-000-0000
0000 Xxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer and Corporate Secretary
Facsimile: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile: 000-000-0000
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
Facsimile: 000-000-0000
If to Licensee:
To the registered office of Licensee in Hong Kong
With a copy to:
Shanghai Fosun Pharmaceutical (Group) Co., Ltd.
Xx. 0 Xxxx Xxxxxx Xxxx
Xxxxxxxx 000000
P.R. China
Attention: Ding Xiaojun
Facsimile: (00) 000 00000000
Xx. 0 Xxxx Xxxxxx Xxxx
Xxxxxxxx 000000
P.R. China
Attention: Ding Xiaojun
Facsimile: (00) 000 00000000
8.6 Assignment. Licensee may not assign, transfer, convey or subcontract this
Agreement, or any rights or obligations hereunder, in whole or in part, to any other party without
Licensor’s prior, express written consent, as determined by Licensor in its sole and absolute
discretion, and any attempt to do so shall be null and void ab initio. Licensor reserves to itself
the right, in its sole and absolute discretion, to assign, transfer, convey or subcontract this
Agreement, or any of its rights or obligations hereunder, in whole or in part, to any third party,
without Licensee’s consent, upon notice to Licensee. This Agreement shall be binding upon, and
enforceable by, and shall inure to the benefit of the Parties hereto and their respective
successors and permitted assigns. In the event of any permitted assignment by Licensee, the
assignee shall agree as a condition to the effectiveness of such assignment in a written agreement
in form and substance satisfactory to Licensor (an executed copy of which shall be delivered to
Licensor) to assume and agree to be bound by the obligations of Licensee set forth in this
Agreement.
8.7 Amendment. This Agreement may not be amended or modified except by an instrument
in writing signed by, or on behalf of, each of the Parties.
8.8 Waiver. The provisions, terms and covenants of this Agreement may be waived only
by a written instrument executed by the Party hereto waiving compliance. The failure of
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any Party hereto at any time or times to require performance of any provision of this
Agreement shall in no manner affect the right of such Party at a later date to enforce the same.
No waiver by any Party hereto of any breach of any provision, term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of the breach of any other provision, term or covenant
of this Agreement.
8.9 No Third Party Beneficiaries. Except as set forth in Article 6, this
Agreement is for the sole benefit of the Parties hereto and their respective successors and
permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any
other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
8.10 Governing Law; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance with, the Laws
of the State of New York applicable to contracts executed in and to be performed in that State,
without regard to the principles of conflict of Laws of the State of New York or any other
jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
8.11 Construction.
(a) Unless otherwise expressly specified herein, (i) defined terms in the singular
shall also include the plural and vice versa, (ii) the words “hereof”, “herein”, “hereunder” and
other similar words refer to this Agreement as a whole, (iii) Section, Article and Exhibit
references in this Agreement are to Sections and Articles of and Exhibits to this Agreement, and
(iv) words of any gender (masculine, feminine or neuter) mean and include correlative words of the
other genders.
(b) The captions in this Agreement are for convenience only and shall not in any way
affect the meaning or construction of any provision of this Agreement.
(c) All references to “days” shall be to calendar days unless Business Days are
specified.
(d) Unless the context otherwise requires, (i) “or” is not exclusive and (ii)
“including” means “including but not limited to” and “including without limitation”.
(e) If any date provided for in this Agreement shall fall on a day that is not a
Business Day, the date provided for shall be deemed to refer to the next Business Day.
8.12 Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission or portable document format (“.pdf”)) in one or more counterparts,
and by
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the different Parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original, but all of which taken together shall constitute one and the same
agreement.
8.13 Dispute Resolution; Arbitration. Any dispute, controversy or claim arising out
of or relating to this Agreement or the transactions contemplated hereby shall be resolved by
binding arbitration in accordance with Section 8.03 of the Formation Agreement.
8.14 Relationship of the Parties. No Party hereto is an agent of the other Party
hereto and no Party hereto has any authority to bind any other Party hereto, transact any business
in any other Party’s name or on behalf of any other Party, or make any promises or representations
on behalf of any other Party. Each Party hereto will perform all of its respective obligations
under this Agreement as an independent contractor, and no joint venture, partnership or other
similar relationship shall be created or implied by this Agreement
8.15 Survival. Articles 2 through (and including) this Article 8 (but
not, for the avoidance of doubt, Article 1) shall survive (indefinitely) the cancellation,
expiration or termination of this Agreement or of the Term.
8.16 Specific Performance. The Parties hereto acknowledges that Licensor would not
have an adequate remedy at law for money damages in the event that any of the covenants or
agreements set forth in this Agreement were not performed or threatened to not being performed by
Licensee in accordance with their terms and, therefore, Licensee agrees that Licensor shall be
entitled to specific performance, injunctive and other equitable relief in addition to any other
remedy to which it may be entitled at law or in equity (without the necessity of proving the
inadequacy as a remedy of money damages or the posting of a bond).
8.17 Absence of Presumption. With regard to each and every term and condition of this
Agreement and any and all agreements and instruments subject to the terms hereof, the Parties
hereto understand and agree that the same have or has been mutually negotiated, prepared and
drafted, and if at any time the Parties hereto (or any court or arbitral tribunal) desire or are
required to interpret or construe any such term or condition or any agreement or instrument subject
hereto, no consideration will be given to the issue of which Party hereto actually prepared,
drafted or requested any term or condition of this Agreement or any agreement or instrument subject
hereto.
[Signature page follows]
10
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
CHINDEX INTERNATIONAL, INC.
|
CHINDEX MEDICAL LIMITED | ||||||
| By: | /s/ Xxxxxxxx Xxxxxx
|
By: | /s/ Xxxxxxxx Xxxxxx
|
||||
| Name: | Xxxxxxxx Xxxxxx |
Name: | Xxxxxxxx Xxxxxx |
||||
| Title: | Chief Financial Officer
|
Title: | Director | ||||
[Trademark License Agreement Signature Page]
EXHIBIT A
MARKS
CHINDEX
A-1
