Technology Development and Application Service Agreement Between Shenzhen FangDD Network Technology Co, Ltd. (Service Receiver) And Shenzhen FangDD Information Technology Co, Ltd. (Service Provider) March 2014
Exhibit 10.9
Technology Development and Application Service Agreement
Between
Shenzhen FangDD Network Technology Co, Ltd.
(Service Receiver)
And
Shenzhen FangDD Information Technology Co, Ltd.
(Service Provider)
March 2014
Table of Contents
| 1. Definitions |
3 | |||
| 2. Entrustment |
4 | |||
| 3. Scope of Technology Development and Application Services |
4 | |||
| 4. Authorization |
5 | |||
| 5. Payment and Settlement of Service Charges |
5 | |||
| 6. Party A’s Undertakings |
6 | |||
| 7. Party B’s Undertakings |
6 | |||
| 8. Taxes |
7 | |||
| 9. Representations and Warranties |
7 | |||
| 10. Indemnity and Limitation of Liability |
8 | |||
| 11. Liability for Breach of Contract |
8 | |||
| 12. Force majeure |
8 | |||
| 13. Termination |
9 | |||
| 14. Governing Law and Dispute Resolution |
9 | |||
| 15. Notices |
10 | |||
| 16. Miscellaneous Provisions |
10 | |||
Technology Development and Application Service Agreement
This Technology Development and Application Service Agreement (hereinafter referred to as the” Agreement”) is made in Shenzhen, the People’s Republic of China (“PRC”) as of March 21, 2014 by and between:
| (1) | Shenzhen FangDD Network Technology Co, Ltd., having its registered office at Room 9E, Commercial Residential Building, Yihai Square, Chuangye Road North, Nanshan District, Shenzhen and with Xx Xxxx as its legal representative (“Party A”); and |
| (2) | Shenzhen FangDD Information Technology Co, Ltd., having its registered office at Room 1805E, West Tower, Haian Building, Haide 3rd Road, Nanshan District, Shenzhen and with Xx Xxxx as its legal representative (“Party B”); |
Party A and Party B are hereinafter collectively referred to as the “Parties” and individually as a “Party” or “Other Party”. Whereas:
| 1. | Party A is a limited liability company established in accordance with the laws of the PRC. The business scope and main business of Party A cover “technology development, technical consultation, technical service and technology transfer in the field of network technology and information technology, computer software and hardware development and sales, advertising business, marketing planning, business information consultation, real estate brokerage, investment consultation, computer network product technology development and domestic trade (excluding those prohibited by the laws, administrative regulations and decisions of the State Council, and items restricted thereby can be operated only after obtaining the permission)” (“Main Business”); |
| 2. | Party B is a foreign-funded enterprise established in accordance with the laws of the PRC and has rich experience in technology development and application; |
| 3. | Party A desires to entrust Party B to provide Party A with technology development and application services related to the Main Business, and Party B accepts the entrustment from Party A to provide it with relevant services. |
NOW, THEREFORE, after friendly consultation, the Parties hereby agree as follows:
| 1. | Definitions |
Unless otherwise stipulated herein, the following terms shall have the meaning ascribed to them as follows:
| 1.1 | “Main Business” has the meaning set forth in the whereas clause hereof. |
| 1.2 | “Facilities Systems” mean hardware equipment and software systems purchased by Party A or Party B for the Main Business, including but not limited to servers, computers and application software. |
| 1.3 | “Technology Development” means any technology development services required for the operation of the Main Business which are provided by Party B to Party A in accordance with this Agreement. |
| 1.4 | “Technology Application” means any technology application services required for the operation of the Main Business which are provided by Party B to Party A in accordance with this Agreement, including the provision of various application software development for the operation and management platform of the Main Business operated by Party A. |
| 1.5 | “Service Charges” means any charges payable by Party A to Party B as set forth in Clause 5.1 hereof in respect of the technology development and application services as set forth in Clause 3 hereof which are provided by Party B to Party A pursuant to this Agreement. |
| 1.6 | “Cooperation Period” means the period beginning on the date of signing of this Agreement and ending on the date of termination of Party B’s operation period and such early termination period as may be confirmed in writing by the Parties. |
| 1.7 | “Prudent Industry Practices” mean any recognized standards that may be amended from time to time for the operation, maintenance and management of facility systems by enterprises which are engaged in the same or similar business as Party B to the extent of safety, efficiency, economy, reliability and related manufacturer’s recommendations. |
| 2. | Entrustment |
Party A hereby designates Party B as its exclusive provider of technology development and application services, and Party B accepts Party A’s entrustment and agrees to provide technology development and application services to Party A in accordance with the terms and conditions of this Agreement.
| 3. | Scope of Technology Development and Application Services |
| 3.1 | During the Cooperation Period, Party B shall provide Party A with the following technology development services to Party A in a loyal and efficient manner: |
| 3.1.1 | Party B shall provide its planning, program development, design and testing services related to the Main Business. |
| 3.2 | During the Cooperation Period, Party B shall provide Party A with the following technology application services to Party A in a loyal and efficient manner: |
| 3.2.1 | Party B shall, according to the needs of Party A’s operation, develop the operation and management platform necessary for Party A’s Main Business; |
| 3.2.2 | Party B shall warrant that Party A can purchase any software products owned by Party B relating to the operation and management of the Main Business according to its own needs; |
| 3.2.3 | Party B shall regularly upgrade and develop the operation and management platform sold to Party A for the main business according to Party A’s needs. |
| 3.3 | In addition to the services as set out in Sub-clauses 3.1 and 3.2 hereof above, the services provided by Party B to Party A under this Agreement shall also include any other technology development and technical support services provided at Party A’s request. |
| 4. | Authorization |
| 4.1 | In order to enable Party B to provide technology development and application services more efficiently, Party A hereby irrevocably appoints Party B (and any of its assignees or sub-assignees) as its agent to, on behalf of and in the name of Party A or otherwise (at its own discretion), |
| 4.1.1 | Sign any relevant documents with any third parties (including but not limited to suppliers and customers); |
| 4.1.2 | Handle any matters that Party A is obligated to handle under this Agreement but has not handled; and |
| 4.1.3 | Sign all necessary documents and handle all necessary matters so that Party B may fully exercise all or any of its rights under this Agreement. |
| 4.2 | Where necessary, Party A shall, at Party B’s request, issue an independent power of attorney to Party B at any time in respect of a certain matter. |
| 4.3 | Party A shall retroactively recognize and confirm any matters that the agent handles or intends to handle pursuant to the terms of appointment as set forth herein. |
| 5. | Payment and Settlement of Service Charges |
| 5.1 | In consideration of Party B’s provision of technology development and application services to Party A, the service charges to be paid by Party A to Party B shall be based on the actual number of personnel and number of days devoted by Party B and the comprehensive consideration of the category, type, difficulty, value and other factors of the technology development or application services provided by Party B and the reference to market prices, and shall be calculated and paid by the Parties on an annual basis. |
| The Parties agree that Party B shall reserve the right to adjust the above charge. If Party B determines the adjustment of the above charge, it shall notify Party A in writing. |
| 5.2 | Party B shall summarize the service charges on an annual basis and notify Party A of the service charges for the previous year within thirty days from the date of the beginning of each year. Party A shall, within 30 days after Party B gives the above notice, pay the amount of the service charges contained in such notice to Party B’s designated bank account. Party A shall adjust at any time the time and method of payment of the service charges in accordance with Party B’s specific requirements. |
| 5.3 | In case of any delay in payment by Party A of any amount payable under this Agreement, Party A shall pay a default fine for the overdue payment to Party B in accordance with this Agreement. Such default fine for the overdue payment shall be calculated on the basis of 0.04% of the overdue payment per day from the due date of payment to the date on which Party B receives the full payment (together with such default fine). |
| 6. | Party A’s Undertakings |
Party A agrees and undertakes that, during the Cooperation Period,
| 6.1 | Party A shall, at Party B’s reasonable request from time to time, allow Party B or its assignees to consult and obtain any financial reports, financial statements and other information relating to Party A’s financial information, business and operating conditions; |
| 6.2 | Party A shall, at Party B’s request, provide Party B with all materials and information required for Party B’s provision of the services as set forth in this Agreement, and shall ensure the authenticity and accuracy of such materials and information; |
| 6.3 | Party A shall obtain at its own expense all government approvals, permits and licenses relating to its Main Business and other business, and shall maintain them in full force and effect; |
| 6.4 | If Party A is informed of any breach of this Agreement, it shall notify Party B promptly and provide Party B with the details of any measures that Party A is taking or plans to take to remedy or mitigate any consequences arising from such event and to protect Party B’s rights and interests under this Agreement; |
| 6.5 | Party A shall comply with and observe the terms and conditions of this Agreement during the Cooperation Period, and Party A shall not procure or permit any operation of its Main Business in any way contrary to the laws or regulations of the PRC; |
| 6.6 | Party A shall pay and discharge or cause to be paid and discharged all debts due and payable and damages; |
| 6.7 | Party A shall promptly pay any registration fees, taxes, fines, penalties or interests thereon to be paid by it in accordance with the law |
| 6.8 | Party A shall promptly provide Party B with all agreements relating to the operation of the Main Business as may be reasonably required by Party B from time to time, and shall keep any relevant accurate, complete and up-to-date records. |
| 6.9 | Unless approved by the Board of Directors of Party B and agreed in writing, Party A shall not engage any third parties to provide it with all or part of the services under this Agreement. |
| 7. | Party B’s Undertakings |
| Party | B agrees and undertakes that, during the Cooperation Period, |
| 7.1 | Party B shall obtain all government approvals, permits and licenses required for the provision of technology development and application services, and shall maintain them in full force and effect; |
| 7.2 | If Party B is informed of any breach of this Agreement, it shall notify Party A promptly and provide Party A with the details of any measures that Party B is taking or plans to take to remedy or mitigate any consequences arising from such event and to protect Party A’s rights and interests under this Agreement; |
| 7.3 | Party B shall, during the duration of this Agreement, comply with and observe the terms and conditions as set forth in this Agreement, and Party B shall not provide its technology development and application services in any way contrary to the laws or regulations of the PRC; |
| 7.4 | Party B shall employ sufficient and qualified employees to perform its obligations to provide technology development and application services under this Agreement. Party B shall ensure that any employees employed by it provide services to Party A in a loyal and efficient manner; |
| 7.5 | Party B shall formulate specific regulations for management of technology development and application service in accordance with Prudent Industry Practices. Party B shall also establish, record and maintain any data and archives of its outsourced management technology development and application services in accordance with Prudent Industry Practices; |
| 7.6 | Party B shall establish and maintain accurate, complete and up-to-date records for the provision of technology development and application services. |
| 8. | Taxes |
| 8.1 | The Parties agree that any taxes payable by each party for the performance of this Agreement shall be paid by such party in accordance with the relevant laws and regulations of the PRC. |
| 8.2 | The Parties shall pay their respective expenses in relation to this Agreement. |
| 9. | Representations and Warranties |
| Each | party represents and warrants to the other party that, as of the date of signing of this Agreement, |
| 9.1 | such party shall have the full powers, rights and authority to enter into this Agreement and to perform each of its obligations under this Agreement; |
| 9.2 | Any provisions of this Agreement shall constitute the legal, effective and binding obligations of such party. |
| 9.3 | Neither the signing of this Agreement by such Party nor the performance of its obligations under this Agreement shall contravene, conflict with or cause any breach of the terms, provisions or conditions of such party’s articles of association or other legal documents or constitute a non-performance of the above terms, provisions or conditions. |
| 10. | Indemnity and Limitation of Liability |
| 10.1 | Indemnity |
| 10.1.1 | Party B shall be liable for, indemnify and hold harmless Party A from and against all losses, damages, costs, liabilities, actions, penalties or any other relevant expenses incurred by Party A due to any willfulness or gross neglect of duty by Party B’s employees, including but not limited to any legal costs and expenses incurred by Party A therefor. |
| 10.1.2 | Party A shall be liable for, indemnify and hold harmless Party B from and against all losses, damages, costs, liabilities, actions, penalties or any other relevant expenses incurred by Party B due to any willfulness or gross neglect of duty by Party A’s employees, including but not limited to any legal costs and expenses incurred by Party B therefor. |
| 10.2 | Limitation of Liability |
| 10.2.1 | Notwithstanding the provisions of Clause 10.1.1 hereof, within each contract year, Party B’s indemnity liability under Clause 10.1.1 hereof shall be limited to the amount of the service charges actually collected by Party B in the year of the end of the liability event. |
| 10.2.2 | Notwithstanding the provisions of Clause 10.1.2 hereof, within each contract year, Party A’s indemnity liability under Clause 10.1.2 hereof shall be limited to the amount of the service charges that Party B is entitled to collect in the year of the end of the liability event. |
| 11. | Liability for Breach of Contract |
| 11.1 | The Parties shall consciously perform this Agreement based on the principle of good faith. Except as otherwise agreed herein, if either party breaches this Agreement, such party shall be liable for its breach of this Agreement in accordance with this Agreement and the applicable law. Notwithstanding the foregoing, neither party shall be liable to the other party for any indirect losses or damages under this Agreement. |
| 11.2 | The Parties agree and acknowledge that, for any breach of this Agreement during the Cooperation Period, the claim for damages and the specific performance shall be the full and all remedies available to the observant party; in any case during the Cooperation Period, the observant party shall waive its right to request the termination of this Agreement under any applicable law due to any breach of this Agreement by the breaching party. |
| 11.3 | Notwithstanding any other provisions of this Agreement, the validity of Article 11 hereof shall not be affected by the termination of this Agreement. |
| 12. | Force majeure |
| Force majeure under this Agreement means natural disasters, wars, political events and adjustments of laws, regulations and national policies. If any force majeure event directly affects the performance of this Agreement by either party on such terms and conditions as may be agreed upon by it, such party shall promptly notify the Other Party or its authorized agent of such event, and shall, within fifteen (15) days, provide the details of such force majeure and the reasons and valid supporting documents (issued by the notary office in the place where such force majeure occurs) for the failure to perform or fully perform this Agreement or the necessity to delay the performance of this Agreement. The Parties shall, to the extent of the impact of such force majeure on the performance of this Agreement, decide through consultation on the performance of this Agreement and whether to agree to the incomplete performance, delay in performance or non-performance by the party involved in such force majeure event of its obligations under this Agreement. |
| 13. | Termination |
| 13.1 | This Agreement shall be canceled only if: |
| 13.1.1 | The Parties unanimously agree to terminate this Agreement; |
| 13.1.2 | The Cooperation Period has expired, and the Parties are not intended to extend the Cooperation Period; or |
| 13.1.3 | Any force majeure events render the performance of this Agreement to become impossible. |
| 13.2 | Rights and obligations of the Parties upon termination of this Agreement |
| 13.2.1 | If this Agreement is terminated pursuant to Sub-Clause13.1.1 hereof above, any rights and obligations of the Parties upon termination of this Agreement of this Agreement shall be subject to the termination agreement between the Parties; |
| 13.2.2 | If this Agreement is terminated pursuant to Sub-Clause 13.1.2 hereof above, the Parties shall immediately conduct settlement in accordance with the provisions of this Agreement for the annual settlement; or |
| 13.2.3 | If this Agreement is terminated pursuant to Sub-Clause 13.2.3 hereof above, the Parties shall immediately conduct settlement in accordance with the provisions of this Agreement for the annual settlement, and each Party shall not assume any obligations to the Other Party from the completion of the settlement, provided that such party shall not be discharged from its liability for breach of this Agreement prior to the occurrence of the force majeure events. |
| 14. | Governing Law and Dispute Resolution |
| 14.1 | This Agreement shall be governed by and construed in accordance with the published and publicly available laws of the PRC, provided that if the published and publicly available laws do not provide for any specific matters relating to this Agreement, reference shall be made to general international business practices. |
| 14.2 | Any disputes arising out of the performance of this Agreement or in relation to this Agreement shall be resolved through friendly consultation between the Parties. |
| 14.3 | If any disputes can not be resolved through consultation within 60 days after one Party notifies the Other Party of its opinion on such disputes, either Party may submit such disputes to Hong Kong International Arbitration Centre for resolution through arbitration. The arbitration shall be conducted in accordance with the arbitration rules of Hong Kong International Arbitration Centre then in force, and the place of arbitration shall be Hong Kong. All proceedings for arbitration shall be conducted in Chinese. The arbitral award shall be final and binding on either Party hereto. |
| 15. | Notices |
| 15.1 | Any notices or other communications given by either Party under this Agreement shall be in writing and shall be delivered by personal delivery, letter or fax to the address of the other party as set forth below or such other designated address as may be notified by the Other Party to such party from time to time. The date on which any notices are deemed to have been actually delivered shall be determined as follows: (a) if delivered by personal delivery, they shall be deemed to have been actually delivered on the date of personal delivery; (b) if sent by letter, they shall be deemed to have been actually delivered on the seventh (7th) day after the date of posting (as indicated by the postmark) of the registered airmail with postage prepaid or on the fourth (4th) day after the delivery to an internationally recognized courier service agency; (c) if sent by fax, they shall be deemed to have been actually delivered at the time of receipt as shown in the acknowledgement of transmission of the relevant document; and (d) if sent by email, they shall be deemed to have been actually delivered when an email enters the electronic data interchange system of the email address provided by the party to be served. |
| Party | A: Shenzhen FangDD Network |
Technology Co, Ltd.
Contact: Xxxxxxxxx Xx
Address: 17/F, Yanxiang Science and Technology Building, Gaoxinzhong
4th Ave., Nanshan District, Shenzhen
Postal Code: 518000
Fax: 0000-00000000
E-mail: xxx@xxxxxx.xxx
| Party | B: Shenzhen FangDD Information Technology Co, Ltd. |
Contact: Xxxxxxxxx Xx
Address: 17/F, Yanxiang Science and Technology Building, Gaoxinzhong
4th Ave., Nanshan District, Shenzhen
Postal Code: 518000
Fax: 0000-0000000
E-mail: xxx@xxxxxx.xxx
| 16. | Miscellaneous Provisions |
| 16.1 | This Agreement shall enter into force on the date of signature and seal by the Parties hereto. |
| 16.2 | Any amendment, waiver, cancellation or termination of any provisions of this Agreement shall be in writing and shall not enter into force until signed by the Parties hereto. |
| 16.3 | Without the written consent of the other party hereto, either Party hereto shall not divulge, use or apply any form of information in relation to the Other Party and/or this Agreement, including but not limited to the signing of this Agreement and the contents of this Agreement. The confidentiality obligations as set forth in this sub-clause shall survive the termination of this Agreement, provided that the provisions of this sub-clause shall not (1) apply to any disclosure by either party of any confidential information to its affiliates, professional consultants and employees of each party hereto, provided that in such a case such information shall be disclosed only to any persons or entities that need to know such information for their reasonable business; (2) prevent either party from making any announcement or disclosure as required by the applicable laws, regulations or rules of the stock exchange based on its good faith judgment. |
| 16.4 | This Agreement shall constitute an entire agreement between the Parties in respect of the subject matter of this Agreement and supersede any prior expressions of intent or understandings in relation to this Agreement, and shall not be modified or amended unless made in writing and signed by the respective authorized representative of the Parties hereto. |
| 16.5 | No rights, powers and remedies conferred on each party by any provisions of this Agreement shall preclude any other rights, powers or remedies enjoyed by such party in accordance with the law and other provisions of this Agreement, and no exercise by either party of its rights, powers and remedies shall preclude any exercise by such party of its other rights, powers and remedies. |
| 16.6 | To the extent permitted by the laws of the PRC, no failure or delay by either party hereto in the exercise of all its rights under this Agreement shall be deemed to be a waiver of such rights; no single or partial exercise of a right shall preclude any further exercise of such right in the future. |
| 16.7 | All provisions of this Agreement may be separated and distinguished from each other. No invalidity, illegality or unenforceability of any provisions of this Agreement shall affect or impair the validity, legality or enforceability of any other provisions of this Agreement. |
| 16.8 | This Agreement is executed in four (4) copies, two (2) of which shall be held by each party respectively. |
(The remainder of this page is intentionally left blank)
(This page is intentionally left blank as the signature page of the Technology Development and Application Service Agreement between Shenzhen FangDD Network Technology Co, Ltd. and Shenzhen FangDD Information Technology Co, Ltd.)
IN WITNESS WHEREOF, the parties have personally executed or caused their respective legally authorized representative to execute this Agreement as of the date first written above.
Shenzhen FangDD Network Technology Co, Ltd. (Seal)
/s/Shenzhen FangDD Network Technology Co, Ltd
Signature of Legal Representative:
/s/Xx Xxxx
Xx Xxxx
(This page is intentionally left blank as the signature page of the Technology Development and Application Service Agreement between Shenzhen FangDD Network Technology Co, Ltd. and Shenzhen FangDD Information Technology Co, Ltd.)
IN WITNESS WHEREOF, the parties have personally executed or caused their respective legally authorized representative to execute this Agreement as of the date first written above.
Shenzhen FangDD Information Technology Co, Ltd. (Seal)
/s/Shenzhen FangDD Information Technology Co, Ltd.
/s/Xx Xxxx
Xx Xxxx
