SHANGHAI CRIC INFORMATION TECHNOLOGY CO., LTD. and SHANGHAI TIAN ZHUO ADVERTISING CO., LTD. CONSULTING AND SERVICE AGREEMENT April 1, 2008
Exhibit 4.13
SHANGHAI CRIC INFORMATION TECHNOLOGY CO., LTD.
and
SHANGHAI XXXX XXXX ADVERTISING CO., LTD.
April 1, 2008
This Consulting and Service Agreement (hereinafter, this “Agreement”) is entered into in Shanghai
of the People’s Republic of China (hereinafter, the “PRC”) as of April 1, 2008 by and between the
following Parties:
| (1) | Shanghai Xxxx Xxxx Advertising Co., Ltd., a limited liability company incorporated and
validly existing under the PRC law, with its registered address at Xxxx 000, Xxxxxxxx 0, Xx.
00 Xxxxxxxx Xxxx, Xxxxxxxx Town, Jinshan District, Shanghai (hereinafter referred to as
“Shanghai Xxxx Xxxx”); and |
| (2) | Shanghai CRIC Information Technology Co., Ltd., a wholly foreign-owned enterprise
incorporated and validly existing under the PRC law, with its legal address at Xxxx 000,
Xxxxxxxxxx Xxxxx X, Xx. 000 Xxxxxxxx Xxxx, Xxxxxxxx (hereinafter referred to as “Shanghai
CRIC”) |
(In this Agreement, each Party shall be referred to individually as a “Party” or collectively, as
the “Parties”.)
WHEREAS, Shanghai Xxxx Xxxx is a company with limited liability registered and legally existing in
Shanghai, PRC, and its main business covers advertising design, producing, agency, release,
computer technology development, technical services, technical consulting, sale of computer,
software and supporting equipment and electrical products and other business operations;
WHEREAS, Shanghai CRIC is a wholly foreign-owned company with limited liability registered and
legally existing in Shanghai, PRC, with its main business covering technical development, technical
consulting, investment consulting, and business consulting; and
WHEREAS, Shanghai Xxxx Xxxx needs Shanghai CRIC to provide consulting and services relevant to its
Business (as defined below), and Shanghai CRIC agrees to provide Shanghai Xxxx Xxxx with such
consulting and services.
THEREFORE, the Parties hereby have reached the following agreements upon friendly consultations:
Article 1 Definitions
| 1.1 | Unless otherwise required herein or the context otherwise requires, for the purpose of this
Agreement, the following terms shall be interpreted to have the following meanings: |
“Business”
|
shall mean all business operated and developed
by Shanghai Xxxx Xxxx, both currently and at
any time during the validity term of this
Agreement. |
|
“Services”
|
shall mean all services provided by Shanghai
CRIC to Shanghai Xxxx Xxxx in connection with
the Business of Shanghai Xxxx Xxxx, in
accordance with the provisions of this
Agreement. |
|
“Service Fees”
|
shall mean all fees payable by Shanghai Xxxx
Xxxx to Shanghai CRIC in accordance with
Article 3 hereof in respect of the consulting
and services provided by Shanghai CRIC. |
|
“Confidential Information”
|
shall have the meaning set forth in Section 6.1 of this Agreement. | |
“Defaulting Party”
|
shall have the meaning set forth in Section 11.1 of this Agreement. | |
“Default”
|
shall have the meaning set forth in Section 11.1 of this Agreement. | |
“Rights” |
shall have the meaning set forth in Section 13.5 of this Agreement. |
| 1.2 | The references to any laws and regulations (hereinafter the “Law”) herein shall be deemed (1)
to include the references to the amendments, changes, supplements and reenactments of such
Law, irrespective of whether they take effect before or after the formation of this Agreement;
and (2) to include the references to other decisions, notices or regulations enacted in
accordance therewith or effective as a result thereof. |
| 1.3 | Except as otherwise stated in the context herein, all references to an article, clause, item
or paragraph shall refer to the relevant part of this Agreement. |
Article 2 Services
| 2.1 | The Parties further acknowledge that under this Agreement, the Services provided by Shanghai
CRIC to Shanghai Xxxx Xxxx shall include: (1) provision of consulting services to Shanghai
Xxxx Xxxx in respect of operation and management necessary for the Business of Shanghai Xxxx
Xxxx; (2) assisting Shanghai Xxxx Xxxx in conducting employee training; (3) assisting Shanghai
Xxxx Xxxx in carrying out relevant industry research; (4) assisting Shanghai Xxxx Xxxx to seek
investment opportunities, researching investment environment, formulating and carrying out
each strategic investment; and (5) other relevant consulting service required by Shanghai
Xxxx Xxxx from time to time. Shanghai CRIC shall, within its business scope, provide
Services to Shanghai Xxxx Xxxx according to the requirements of Shanghai Xxxx Xxxx and the
terms and conditions of this Agreement. To this end, Shanghai CRIC shall make sufficient
resources and personnel reasonably necessary for the provision of Services, so as to meet the
needs of Shanghai CRIC’s provision of high-quality Services to Shanghai Xxxx Xxxx. |
| 2.2 | For the purpose of provision of Services, Shanghai CRIC shall communicate with Shanghai Xxxx
Xxxx all information relevant to the Business and/or customers of Shanghai Xxxx Xxxx. |
Article 3 Service Fees
| 3.1 | In respect of the Services to be provided by Shanghai CRIC pursuant to this Agreement,
Shanghai Xxxx Xxxx agrees to pay Shanghai CRIC, pursuant to Section 3.2 hereof, the Service
Fees as follows: |
| (1) | service fee equivalent to 100% of the pre-tax aggregate profits of Shanghai Xxxx
Xxxx for the then-current year before the calculation of the Service Fees hereunder; and |
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| (2) | service fee for specific consulting and services provided by Shanghai CRIC from
time to time as requested by Shanghai Xxxx Xxxx; the specific amount and payment method
shall be otherwise agreed by the Parties based on the circumstance. |
| 3.2 | The Parties agree that the Service Fees should be paid as follows: |
| (1) | Shanghai Xxxx Xxxx shall pay Shanghai CRIC Service Fees for the preceding year
set forth in Section 3.1(1) before April 30 of each year based on its annual income,
cost and expenditure of the preceding year. |
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| (2) | After the end of each accounting year of Shanghai Xxxx Xxxx, the Parties shall,
on the basis of Shanghai Xxxx Xxxx’x total annual business income, cost and expenditure
in the preceding year confirmed by the auditing report issued by a PRC certified public
accountants firm which is mutually accepted by the Parties, carry out the overall
examination and verification on the Service Fees actually payable by Shanghai Xxxx Xxxx.
Shanghai Xxxx Xxxx undertakes to Shanghai CRIC that it will provide all necessary
materials and assistance to the PRC certified public accountants firm, and procure such
firm to complete
and issue to the Parties the auditing report concerning the preceding accounting year
within the first thirty (30) working days after the end of each year. |
| 3.3 | The Parties agree that in principle, the payment of such Service Fees should not cause
difficulties to either Party’s operation in the then-current year, and to this end and within
the extent of realization of such principle, Shanghai CRIC may agree to Shanghai Xxxx Xxxx’x
delay in payment of the Service Fees. Alternatively, upon consensus, the Parties may adjust
in writing the percentage and/or the specific amounts of the Service Fees payable by Shanghai
Xxxx Xxxx to Shanghai CRIC under Section 3.1. |
| 3.4 | Shanghai Xxxx Xxxx shall, pursuant to Article 3 hereof, pay all Service Fees to the bank
account designated by Shanghai CRIC on schedule. If Shanghai CRIC changes its bank account,
it shall notify Shanghai Xxxx Xxxx of such change in writing seven (7) working days in
advance. |
Article 4 Obligations of Shanghai Xxxx Xxxx
| 4.1 | During the validity term of this Agreement, without prior written consent of Shanghai CRIC,
Shanghai Xxxx Xxxx may not enter into any agreement with any third party or otherwise agree to
engage such third party to provide services the same as or similar to those provided by
Shanghai CRIC. |
| 4.2 | In order to facilitate Shanghai CRIC’s provision of Services, Shanghai Xxxx Xxxx shall
provide Shanghai CRIC with relevant materials required by Shanghai CRIC in a timely manner. |
| 4.3 | Shanghai Xxxx Xxxx shall pay Service Fees to Shanghai CRIC on schedule and in full amount
according to Article 3 hereof. |
| 4.4 | Shanghai Xxxx Xxxx shall maintain its good reputation, and with the assistance of Shanghai
CRIC, actively develop its business to pursue maximum profits. |
Article 5 Intellectual Property Rights
| 5.1 | Intellectual property rights on the work products created during Shanghai CRIC’s provision of
Services shall belong to Shanghai CRIC. |
| 5.2 | As the operation of Shanghai Xxxx Xxxx’x Business relies on Shanghai CRIC’s provision of
Services hereunder, Shanghai Xxxx Xxxx agrees to the following arrangements in respect of the
Business-related technology developed by Shanghai Xxxx Xxxx on the basis of such Services: |
| (1) | if the Business-related technology is further developed by Shanghai Xxxx Xxxx upon
entrustment of Shanghai CRIC, or is jointly completed by Shanghai Xxxx Xxxx and Shanghai
CRIC, the titles thereon and relevant application right for patent shall be enjoyed by
Shanghai CRIC; |
| (2) | if the Business-related technology is further developed by Shanghai Xxxx Xxxx
independently, the titles thereon shall be enjoyed by Shanghai Xxxx Xxxx, provided that
(A) Shanghai Xxxx Xxxx informs Shanghai CRIC of the details of such Business-related
technology in time and provides relevant materials required by Shanghai CRIC; (B) in the
event that Shanghai Xxxx Xxxx proposes to license or transfer such Business-related
technology, Shanghai CRIC shall have the priority to purchase, or Shanghai Xxxx Xxxx
shall xxxxx Shanghai CRIC an exclusive license, subject to compliance with mandatory
provisions of the PRC law, and Shanghai CRIC may use such Business-related technology
within the scope transferred or granted by Shanghai Xxxx Xxxx (but Shanghai CRIC has the
right to determine whether to accept such transfer or license). Only when Shanghai CRIC
waives its priority to purchase or the exclusive right to use such Business-related
technology, Shanghai Xxxx Xxxx may transfer the title on such Business-related technology
to any third party or license any third party to use such Business-related technology
provided that the conditions (including but not limited to transfer price or license
fees) should not be favorable than those offered to Shanghai CRIC, and Shanghai Xxxx Xxxx
shall guarantee that such third party fully complies with and performs the relevant
liabilities and obligations to be complied with and performed by Shanghai Xxxx Xxxx
hereunder; and (C) except for the circumstances set forth in item (B) above, within the
period provided by Section 8.1 hereof, Shanghai CRIC is entitled to purchase such
Business-related technology, at which time Shanghai Xxxx Xxxx shall consent to such
purchase by Shanghai CRIC, subject to compliance with mandatory provisions of the Law of
the PRC, at a price of One Renminbi (RMB1.00) or the minimum price permitted by the then
effective Law. |
| 5.3 | If Shanghai CRIC is exclusively licensed to use the Business-related technology according to
Section 5.2(2) hereof, such license is subject to the provisions below: |
| (1) | the license term shall be at least five (5) years (commencing from the effective
date of the relevant license agreement); |
| (2) | the scope of license shall be defined to the fullest extent; |
| (3) | within the term and scope of the license, except Shanghai CRIC, no other party
(including Shanghai Xxxx Xxxx) may use or license others to use such Business-related
technology in any manner; |
| (4) | subject to compliance with Section 5.3(3), Shanghai Xxxx Xxxx is entitled to
determine, at its sole discretion, to license such technology to other third party to
use; and |
| (5) | upon expiry of the license term, Shanghai CRIC is entitled to request renewal of
the license agreement, and Shanghai Xxxx Xxxx shall agree. The renewed license agreement
shall have the same terms with the original one, except for changes acknowledged by
Shanghai CRIC. |
| 5.4 | Notwithstanding the above Section 5.2(2) hereof, the patent application for any
Business-related technology described in that section shall be conducted in accordance with
the following provisions: |
| (1) | if Shanghai Xxxx Xxxx intends to apply for patent on any Business-related
technology described in such Section, Shanghai CRIC’s prior written consent is required; |
| (2) | Shanghai Xxxx Xxxx may apply for patent by itself or transfer such application
right to a third party only upon Shanghai CRIC’s waiver of the right to purchase such
application right for patent. If Shanghai Xxxx Xxxx transfers the aforesaid application
right for patent to a third party, it shall guarantee that such third party fully
complies with and performs the relevant liabilities and obligations to be complied with
and performed by Shanghai Xxxx Xxxx hereunder; in addition, the conditions of Shanghai
Xxxx Xxxx’x transfer of the application right for patent to a third party (including but
not limited to transfer price) shall not be favorable than those proposed to Shanghai
CRIC pursuant to paragraph 3 of this Section. |
| (3) | during the term of this Agreement, Shanghai CRIC may at any time require Shanghai
Xxxx Xxxx to apply for patent on such Business-related technology, and decide at its own
discretion whether to purchase such application right for such patent. At Shanghai
CRIC’s requirement, Shanghai Xxxx Xxxx shall transfer such application right to Shanghai
CRIC, subject to compliance with mandatory provisions of the PRC law, at a price of one
Renminbi (RMB1.00) or the minimum price permitted by the then effective law. Shanghai
CRIC shall becomes the legal owner of such patent after it acquires the application right
for patent on such Business-related technology and applies for and obtains such patent. |
| 5.5 | Each of the Parties warrants to the other Party that it will compensate the other Party for
any and all economic losses incurred by the other Party due to its infringement of any other
person’s intellectual property rights (including copyright, trademark, patent and know-how). |
Article 6 Confidentiality
| 6.1 | Whether this Agreement is terminated or not, both Parties shall be obliged to keep in strict
confidence business secrets, proprietary information and business information of the other
Party acquired during the execution and performance of this Agreement and all other
information with a confidential nature (hereinafter the “Confidential Information”). The
receiving party of the Confidential Information shall not disclose the Confidential
Information to any third party unless with the prior written consent of the other Party, or
required by relevant laws and regulations or listing requirements. The receiving party may
not use, directly or indirectly, such Confidential Information for purposes other than
performing its obligations under this Agreement. |
|
| 6.2 | The following information is not Confidential Information: |
| (1) | any information that is proved by written evidence to be known to the receiving
party previously through legitimate manner; |
| (2) | any information that comes into public domain not due to the fault of the
receiving party, or becomes known to the public for other reasons; |
| (3) | any information that is obtained by the receiving party through other legitimate
manner after receiving such information. |
| 6.3 | The receiving party may disclose the Confidential Information to its relevant employees,
agents or professionals it retains, but shall ensure that such persons obey the relevant terms
and conditions of this Agreement and assume any liabilities arising from the breach of the
relevant terms and conditions of this Agreement by any of the foregoing persons. |
Article 7 Representations and Warranties
| 7.1 | Shanghai Xxxx Xxxx hereby represents, warrants and undertakes as follows: |
| 7.1.1 | it is a limited liability company duly registered and validly existing under the
PRC law with independent legal person qualification, with full and independent legal
status and legal capacity to execute, deliver and perform this Agreement, and may act
independently as a subject of actions; |
| 7.1.2 | it has full corporate internal power and authorization to execute and deliver this
Agreement and all other documents related to the transaction
contemplated hereunder and to be executed by it, and it has full power and
authorization to complete the transaction contemplated hereunder. This Agreement
shall be lawfully and duly executed and delivered by it and shall constitute legally
binding obligations on it and is enforceable against it pursuant to the terms
hereof; |
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| 7.1.3 | it has obtained complete business permits necessary for its operations upon
effectiveness of this Agreement; it has sufficient rights and qualification to conduct
the business it is currently engaged in within the PRC; |
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| 7.1.4 | it shall notify Shanghai CRIC in a timely manner any situation which has or may
have material adverse effect on its Business and operation, and shall make its best
efforts to prevent the occurrence of such situation and/or the expansion of losses; |
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| 7.1.5 | without written consent from Shanghai CRIC, Shanghai Xxxx Xxxx shall not, in
whatever ways, dispose of its material assets (including but not limited to any trademark
or other intellectual property rights and/or the equity interest of any other company or
similar interests held by it) or change its current shareholding structure; |
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| 7.1.6 | without written consent from Shanghai CRIC, Shanghai Xxxx Xxxx shall not increase
or decrease the registered capital in the company, divide the company, or merge with any
other entity; |
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| 7.1.7 | without written consent from Shanghai CRIC, Shanghai Xxxx Xxxx shall not enter
into any other agreement in conflict with this Agreement or any other agreement which may
damage the interests of Shanghai CRIC under this Agreement; and |
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| 7.1.8 | without written consent from Shanghai CRIC, Shanghai Xxxx Xxxx shall not lend or
borrow any loan, or provide guarantee or other forms of security arrangements, or
undertake any material obligations other than in the ordinary course of business. |
| 7.2 | Shanghai CRIC hereby represents and warrants as follows: |
| (1) | it is a limited liability company duly registered and validly existing under the
PRC law with independent legal person qualification, with full and independent legal
status and legal capacity to execute, deliver and perform this Agreement, and may act
independently as a subject of actions; |
| (2) | it has full corporate internal power and authorization to execute and deliver this
Agreement and all other documents related to the transaction contemplated hereunder and
to be executed by it, and it has full power and authorization to complete the transaction
hereunder. This Agreement shall be lawfully and duly executed and delivered by it and
shall constitute legally binding obligations on it and is enforceable against it pursuant
to the terms hereof. |
Article 8 Term of Agreement
| 8.1 | The Parties hereby acknowledge that this Agreement shall become effective upon due execution.
Unless termination by the Parties in writing, this Agreement shall remain valid for 10 years.
Upon expiration of this Agreement, this Agreement may be automatically renewed for 10 years
if requried by Shanghai CRIC. |
| 8.2 | The obligations of the Parties under Article 3 and Article 6 hereof shall survive the
termination of this Agreement. |
Article 9 Indemnification
Shanghai Xxxx Xxxx shall indemnify Shanghai CRIC against any losses arising from any litigation,
repayment pursuit, arbitration, claims lodged by any third party or administrative investigations
and/or penalties by government authorities against Shanghai CRIC in relation to its execution and
perform of this Agreement; provided, however, that losses arising from Shanghai CRIC’s intentional
misconduct or gross negligence shall not be entitled to such indemnification.
Article 10 Notices
| 10.1 | Any notice, request, demand and other correspondence required by or made in accordance with
this Agreement shall be in writing and delivered to the relevant Party. |
| 10.2 | The aforesaid notice or other correspondence shall be deemed to have been delivered upon
delivery when it is transmitted by facsimile or telex; or upon handover to the receiver when
it is delivered in person; or on the fifth (5) day after posting if delivered by mail. |
Article 11 Default Liability
| 11.1 | The Parties agree and confirm that, if any Party (hereinafter the “Defaulting Party”) commits
material breach of any provision hereof, or materially fails to
perform any obligation hereunder, such breach or failure shall constitute a default under
this Agreement (hereinafter a “Default”), then the non-defaulting Party shall be entitled to
demand the Defaulting Party to rectify such Default or take remedial measures within a
reasonable period. If the Defaulting Party fails to rectify such Default or take remedial
measures within such reasonable period or within 15 days following the written notice issued
by the non-defaulting Party and the rectification requirement, the non-defaulting Party shall
be entitled to decide to, at its discretion: (1) terminate this Agreement and require the
Defaulting Party to indemnify all the damages; or (2) require the performance of the
obligations hereunder and require the Defaulting Party to indemnify all the damages. |
| 11.2 | Notwithstanding Section 11.1 above, the Parties agree and acknowledge that under no
circumstances shall Shanghai Xxxx Xxxx be entitled to terminate this Agreement for whatever
reason, unless otherwise provided by law or this Agreement. |
| 11.3 | Notwithstanding any other provisions herein, the validity of this Article 11 shall survive
the suspension or termination of this Agreement. |
Article 12 Force Majeure
In the event of earthquake, typhoon, flood, fire, war, computer virus, loophole in the design of
tooling software, hacker attack on internet or change of policies or laws, and other unforeseeable
or unpreventable or unavoidable event of force majeure, which directly prevents a Party from
performing this Agreement or performing pursuant to the agreed conditions, the Party affected by
such a force majeure event shall forthwith issue a notice by facsimile and, within thirty (30)
days, present the documents evidencing the details of such force majeure event and the reasons for
failure of or delay in its performance, and such documents shall be issued by the notary
institution of the area where such force majeure event takes place. The Parties shall discuss
with each other and decide whether this Agreement shall be waived in part or postponed in its
performance with regard to the extent of impact of such force majeure event on the performance of
this Agreement. No Party shall be liable for the economic losses suffered by the other Party
resulting from the force majeure event.
Article 13 Miscellaneous
| 13.1 | This Agreement is made in Chinese in two (2) originals with each Party holding one.
Additional counterparts (if any) may be executed accordingly for registration or filing
purposes. |
| 13.2 | The execution, effectiveness, performance, amendment, interpretation and
termination of this Agreement shall be governed by the PRC law. |
| 13.3 | Any dispute arising hereunder and in connection herewith shall be settled through
consultations between the Parties, and if the Parties cannot reach an agreement regarding such
dispute within thirty (30) days upon its occurrence, such dispute shall be submitted to the
Shanghai Sub-commission of China International Economic and Trade Arbitration Commission for
arbitration in Shanghai in accordance with the arbitration rules thereof, and the arbitration
award shall be final and binding on the Parties. |
| 13.4 | Any rights, powers and remedies granted to any Party by any provisions herein shall not
preclude any other rights, powers and remedies enjoyed by such Party in accordance with laws
and other provisions under this Agreement, and the exercise of its rights, powers and remedies
by a Party shall not preclude its exercise of its other rights, powers and remedies by such
Party. |
| 13.5 | No failure or delay by a Party in exercising any of its rights, powers and remedies hereunder
or in accordance with law (hereinafter the “Rights”) shall be construed as a waiver of such
Rights, and the waiver of any single or partial exercise of the Rights shall not preclude its
exercising of such Rights in any other way and other Rights. |
| 13.6 | The headings of the articles herein are for reference only, and in no circumstances shall
such headings be used in or affect the interpretation of the provisions hereof. |
| 13.7 | Each provision contained herein shall be severable and independent from other provisions, and
if at any time one or more terms herein become invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions herein shall not be affected
as a result thereof. |
| 13.8 | This Agreement shall, upon execution, supersede any other legal document between the Parties
in respect of the same subject hereof. Any amendments or supplements to this Agreement shall
be made in writing and shall become effective upon due execution by the Parties hereto. |
| 13.9 | Without prior written consent from Shanghai CRIC, Shanghai Xxxx Xxxx shall not assign any of
its rights and/or obligations hereunder to any third party. To the extent permitted by law,
Shanghai CRIC is entitled to assign any of its rights and/or obligations hereunder to any
third party upon written notice to Shanghai Xxxx Xxxx. |
|
| 13.10 | This Agreement shall be binding on the agents or legal successors of the Parties. |
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| 13.11 | The Parties undertake that they shall respectively make tax declaration and
payment pursuant to law in connection with the transaction hereunder. |
[The following is intentionally left blank]
[Execution Page]
IN WITNESS WHEREOF, the Parties have caused this Exclusive Consulting and Service Agreement to be
executed as of the date and at the place first set forth above.
Shanghai Xxxx Xxxx Advertising Co., Ltd.
(Company chop)
By:
|
/s/ Shanghai Xxxx Xxxx Advertising Co., Ltd. | |||
| Name: | ||||
| Position: |
Shanghai CRIC Information Technology Co., Ltd.
(Company chop)
By:
|
/s/ Shanghai CRIC Information Technology Co., Ltd. | |||
| Name: | ||||
| Position: |
