Business Cooperation Agreement
Business Cooperation Agreement
This Business Cooperation Agreement (hereinafter referred to as this “Agreement”) is made and entered into by the following Parties in on , 2019:
Party A: Domestic affiliate of Fang Holdings Limited (hereinafter referred to as “Fang” or “Party A”), a limited liability company validly incorporated and legally existing under the laws of the People’s Republic of China (“China”, for the purposes of this Agreement, excludes the Hong Kong Special Administrative Region, the Macao Special Administrative Region and the Taiwan Region of the People’s Republic of China), with registered address at .
Party B: Beijing Xxxxx Xxx Xxx Xxxxx Data Information Technology Co., Ltd. or other domestic entities (hereinafter referred to as “Xxxxx Xxx Xxx Xxxxx” or “Party B”), a limited liability company validly incorporated and legally existing under the laws of China, with registered address at .
The foregoing Parties shall hereinafter be referred to individually as a “Party” and collectively as the “Parties”.
Whereas:
1. Party A and Party B agree to reach the following consensus on business separation: (1) Party A shall exclusively operate all residential real estate businesses related to the Parties, and Party B may not separately operate any residential real estate businesses on its own platform or via any third-party platform, but Party B may continue its services related to residential real estate clients already carried out by it before signing this Agreement; (2) Party B shall exclusively operate all commercial real estate businesses related to the Parties, and Party A may not separately operate any commercial real estate businesses on its own platform or via any third-party platform; (3) Party B may continue its services related to residential real estate clients, other than advertisement putting and real estate listing, including data and analysis service, one-stop promotion and other services for residential real estate clients, already carried out by it before signing this Agreement.
2. Party A and Party B further agree to cooperate as follows in the area of commercial real estate business: (1) Party A agrees to grant Party B a royalty-free exclusive license to, on Commercial Channels, use certain trademarks, software copyrights, patents and other relevant intellectual properties held by Party A, in order to facilitate Party B’s better operation of the foregoing commercial real estate businesses; (2) Party B is responsible for seeking clients related to commercial real estate business, conducting market development and providing relevant content required by Party A, and Party A is responsible for assisting with advertisement putting and Commercial Channel operation related works on its own platform including office buildings, stores, estates, lands, industries, storages and other Commercial Channels (channels other than Commercial Channels are “Residential Channels”); (3) Party B shall seek clients related to commercial real estate and put advertisements through Residential Channels on behalf of Party A..
NOW, THEREFORE, through friendly negotiation, in accordance with the provisions of the Contact Law and other relevant laws and regulations, in line with the principles of equality and reciprocity, the Parties reach the following agreement for mutual compliance:
Article 1 Business Separation
1.1 Residential Real Estate Business: Party B agrees that, except as otherwise agreed herein, Party A shall exclusively operate all residential real estate businesses. Party B shall not open any Residential Channel on any domain name, software or any other platform held by it (“Own Platform”) or via any third-party platform, and shall not separately operate any residential property business.
1.2 Commercial Real Estate Business: The commercial real estate business referred to herein refers to real estate business other than business related to residential real estate, including but not limited to business related to office buildings, stores, estates, lands, etc. Party A agrees that Party B shall exclusively operate all commercial real estate businesses related to the Parties, including online listing, advertising service and others of commercial real estate, land and so forth.
1.3 Business Retention: The Parties agree that, for the avoidance of doubt, Party B may continue its services related to residential real estate clients, including data and analysis service, one-stop promotion and other services for residential real estate clients, already carried out by it before signing this Agreement (see Appendix 1 Schedule of Retained Businesses for details), with all relevant income to be owned by Party B.
Article 2 Cooperation on Commercial Real Estate Business
2.1 Advertisement Cooperation: The Parties agree that Party B is responsible for seeking clients related to commercial real estate business, conducting market development and providing relevant content required by Party A, and Party A is responsible for assisting with advertisement putting and real estate listing through the Commercial Channels on its own platform and with other work related to Commercial Channels operation. Without the consent of Party B, Party A shall not allow any third party to provide advertising service through Party A’s Commercial Channels. The details of the Commercial Channels can be found in Appendix 2. At the same time, Party B shall seek clients related to commercial real estate and put advertisements on Residential Channels on behalf of Party A.
2.2 Intellectual Property Licensing: Party A agrees to grant Party B a royalty-free license, for the purpose of the cooperation hereunder, to use certain trademarks, software copyrights, patents and other relevant intellectual properties held by Party A, in order to facilitate Party B’s operation of the commercial real estate businesses. The details of such intellectual property licensing can be found in the Intellectual Property Licensing Agreement.
2.3 Domain Name Cooperation: Party A is responsible for the website construction and operation of the commercial real estate channels, including server maintenance, software upgrading, bandwidth maintenance, background editing and other technical and personnel support; Party B is responsible for providing website content and related management consulting services. As a condition of advertisement cooperation between the Parties, Party B shall bear the operating costs and expenses of the foregoing certain website resources, including actually incurred costs for server maintenance, software upgrading, bandwidth, technical and personnel support, and so forth.
2.4 Way of Performance: Each Party shall perform and shall procure its affiliates to perform the obligations hereunder in good faith, in accordance with professional industry standards, in a reasonable way.
2.5 Each Party shall cooperate and shall procure its affiliates to cooperate reasonably with the other Party on all matters concerning the provision and receipt of services.
2.6 Income Sharing: The Parties agree that the income from the foregoing advertisement cooperation shall be shared depending on advertisement putting, real estate listing or the channels otherwise cooperated and the contents thereof, in accordance with the following specific rules:
2.6.1. If advertisement putting, real estate listing or the channels otherwise cooperated are Residential Channels and the contents are related to residential real estate businesses, Party A shall be entitled to own all such income, and Party B shall obtain none of such income.
2.6.2. If advertisement putting, real estate listing or the channels otherwise cooperated are Commercial Channels and the contents are related to residential real estate businesses, Party A, as service provider for advertising business on Commercial Channels, shall be entitled to 15% of such income, and Party B shall be entitled to 85% of such income.
2.6.3. If advertisement putting, real estate listing or the channels otherwise cooperated are Residential Channels and the contents are related to commercial real estate business, Party A shall be entitled to 85% of such income, and Party B, as Party A’s exclusive commercial real estate advertising agency through Residential Channels, shall be entitled to 15% of such income.
2.6.4. If advertisement putting, real estate listing or the channels otherwise cooperated are Commercial Channels and the contents are related to commercial real estate business, Party A shall obtain none of such income, and Party B shall be entitled to all such income.
2.7 The Parties agree that after Party B has obtained a value-added telecommunications business license and other qualifications required for operation, Party B shall conduct commercial real estate businesses by itself and obtain all income therefrom.
Article 3 Parties’ Representations and Warranties
3.1 Each Party hereby represents and warrants to the other Party that it has full and independent legal status and legal capacity to execute, deliver this Agreement and perform the obligations hereunder, and shall not violate any relevant laws, regulations or government orders, or conflict with any contract or agreement to which it is a Party or on which its assets are binding.
3.2 After signing this Agreement, neither Party may engage in any action that conflicts with the performance of this Agreement.
Article 4 Liability for Breach
4.1 After signing this Agreement, except for force majeure, if either Party fails to perform its obligations or undertakings hereunder or the representations or warranties made by either Party are false or materially wrong, such Party shall be deemed to have committed a breach.
4.2 The breaching Party shall continue performing its obligations, take remedial measures or pay comprehensive and sufficient compensation to the non-breaching Party as required by the non-breaching Party. The foregoing compensation shall cover direct losses and indirect losses, but shall not cover any losses other than such losses possibly caused by the breach as the breaching Party foresees or should have foreseen at the time of signing this Agreement. If relevant breach constitutes a material breach, thereby causing frustration of the purpose of this Agreement, the non-breaching Party shall be entitled to terminate this Agreement by a written notice to the breaching Party and claim liabilities for damages from the breaching Party according to this Agreement.
Article 5 Effectiveness, Alteration and Termination of Agreement
5.1 This Agreement shall be concluded and become effective as of the date of signing by both Parties.
5.2 This Agreement shall be valid for ten (10) years from the effective date.
5.3 This Agreement may be modified, altered or amended upon mutual agreement by and between the Parties. No modification, alteration or amendment shall be valid unless made in writing, signed and went through necessary procedures by both Parties.
5.4 Except as required by law or as otherwise agreed herein, this Agreement may be rescinded or terminated only when both Parties agree in writing to rescind or terminate this Agreement.
Article 6 Force Majeure
6.1 The term “Force Majeure Event” as used herein means any objective circumstance or event that occurs after the signing date of this Agreement, that unforeseeable, unavoidable or insurmountable by the affected Party, which makes such Party objectively impossible to perform all or part of its obligations hereunder.
6.2 A Party claiming that it is affected by a Force Majeure Event shall notify the other Party in writing of the occurrence of such Force Majeure Event in the shortest time as possible as practical. A Party claiming that a Force Majeure Event has made it objectively impossible to perform this Agreement is obligated to make every reasonable effort to eliminate or mitigate the effects of such Force Majeure Event.
6.3 Failure to perform part or all of the obligations hereunder due to the effects of a Force Majeure Event as stipulated herein shall not constitute a breach, and the performance of such obligation shall be suspended during the period when such Force Majeure Event hinders its performance. Upon termination or elimination of such Force Majeure Event or its effects, both Parties shall immediately resume the performance of their respective obligations hereunder.
Article 7 Notice
7.1 All notices, requirements or other communications required or permitted to be sent or made by this Agreement shall be in writing, and may be sent by personal delivery, commercial overnight courier, or email, to the recipient to the address or email address of relevant Party as set out herein (or other address or email address of which relevant Party may formally notify the other Party in writing from time to time). Any of such notices, requirements or other communications shall be deemed to be effectively delivered immediately (if sent by personal delivery or by email), or three (3) working days following the date of sending (if sent by commercial overnight courier); in the case of personal delivery or email, if there is evidence proving that such notices, requirements or other communications are properly addressed and are sent out or relevant proof of service shows that the letters are properly addressed, sent out and delivered, such evidence or proof of service are sufficient to prove the effective delivery. For the purpose hereof, the Parties’ addresses and emails shall be as follows:
Party A: Fang Holdings Limited
Recipient: XXXX Xxxxxxxx
Contact Address: Xxxxx X, 00 Xxxxxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Contact Number: [REDACTED]
E-mail: [REDACTED]
Party B: Beijing Xxxxx Xxx Xxx Xxxxx Data Information Technology Co., Ltd.
Recipient: XXXX Xxxx
Contact Address: Xxxxx X, 00 Xxxxxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
Contact Number: [REDACTED]
E-mail: [REDACTED]
Article 8 Governing Law and Dispute Resolution
8.1 The conclusion, validity, interpretation, and performance of and the resolution of disputes arising from and related to this Agreement shall be governed by and interpreted according to the laws of China.
8.2 All disputes arising from or in connection with this Agreement shall be resolved by the Parties through friendly negotiation. If any dispute cannot be resolved through negotiation, either Party shall be entitled to submit such dispute to the Beijing Arbitration Commission for arbitration according to the arbitration rules of the commission then in force. The arbitration award shall be final and binding on both Parties.
8.3 During dispute resolution, the Parties may continue enjoying their other respective rights hereunder and shall continue performing their respective obligations hereunder.
Article 9 Miscellaneous
9.1 This Agreement shall be written in Chinese. Where this Agreement is written in any other language, in the event of any conflict between or among different versions, the Chinese version shall prevail.
9.2 If any provision of this Agreement is invalid or unenforceable under its applicable law, such provision shall be deemed as never existed and shall not affect the validity of other provisions of this Agreement, and the Parties shall, to the extent permitted by law, negotiate to determine a new provision, so as to ensure the realization of the intention of the original provision as far as possible.
9.3 Except as otherwise provided herein, neither failure to exercise nor delay in the exercise of any rights hereunder shall constitute a waiver of such rights, and neither single nor partial exercise of any rights hereunder shall exclude the exercise of any other rights.
9.4 Except as otherwise provided herein, neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party.
9.5 Except as otherwise provided herein, each Party shall bear the legal and other costs incurred by itself in connection with the preparation, negotiation and execution of this Agreement.
9.6 Each Party undertakes to the other Party that, without the prior written consent of the other Party, it shall not disclose to any third party, and shall also procure its directors, equity holders, officers, employees, agents or affiliates (collectively referred to as “Representatives”) not to disclose any Confidential Information to any third party, nor shall it use any Confidential Information in a way being harmful to the other Party. The term “Confidential Information” as used in this section means, (a) any information on the organization, business, technology, intellectual property, security record, investment, finance, transactions or other affairs of any Party, or such Party’s directors, officers, or employees, whether communicated orally, in writing or otherwise, and whether provided on, before, or after the effective date of this Agreement; (b) the terms of this Agreement, or the identity of the Parties and their respective affiliates; and (c) any other information prepared by a Party or any of its Representatives that contains or otherwise reflects, arises from, or derives from the information specified in abovementioned (a). This section shall not apply to: (a) any disclosure of any Confidential Information that is generally available to the public or becomes available to the public, except disclosure by a Party or any of its Representatives in violation of this Agreement; (b) any disclosure by a Party to one of its Representatives or affiliates when such disclosure is necessary for its performance of its obligations or exercise of its rights according to this Agreement, provided that such Representative or affiliate (i) bears a similar confidentiality obligation or (ii) has another binding professional confidentiality obligation; or (c) any disclosure required by the rules of any stock exchange on which a Party or its parent company is listed or the legal or judicial or regulatory proceedings applicable to a Party or its parent company, or related to the judicial process of any relevant legal action, suit or proceeding arising out of or in connection with this Agreement, provided that the other Party is notified in advance as far as then practically possible and any feasible arrangement is made for confidentiality. Neither Party may, and each Party shall procure its officers, employees, agents and affiliates and the officers, employees and agents of such affiliates not to, without consulting with the other Party and obtaining the written consent of the other Party, make any announcement or comment on this Agreement or the transaction contemplated in this Agreement, except any disclosure required by law or any applicable stock exchange regulations, made according to any court order, or required by any stock exchange on which such Party or its affiliate is listed or required by any government or regulatory agency with jurisdiction. The execution, validity, performance, and interpretation of and the resolution of disputes arising from and related to this Agreement shall be governed by the laws of China.
9.7 The headings of the terms of this Agreement are for reference only and shall not affect the interpretation of this Agreement.
9.8 This Agreement is made in two (2) copies and each Party holds one (1) copy with the same legal effect.
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Appendix 1 Schedule of Retained Businesses
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Appendix
Appendix 2 Schedule of Commercial Channel
Note: All the following domain names are the second-level domain names under the first-level domain name “xxxx.xxx”. The registration information and registered number of the second-level domain names are consistent with that of the first-level domain name.
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Registration |
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Appendix
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Party A: Fang Holdings Limited (Seal)
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Signature Page
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Party B: Beijing Xxxxx Xxx Xxx Xxxxx Data Information Technology Co., Ltd. (Seal)
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Signature Page
