TRADEMARK LICENSE AGREEMENT
Exhibit 10.34
EXECUTION VERSION
CONFIDENTIAL
This Trademark License Agreement (the “Agreement”) is made and entered into, by and
between Beijing SINA Internet Information Service Co., Ltd. (
), a
limited liability company organized under the laws of the People’s Republic of China (hereinafter
“Licensor”) and Beijing Yisheng Leju Information Services Co., Ltd., a limited liability
company organized under the laws of the People’s Republic of China (“Licensee” and together
with Licensor, the “Parties” and each a “Party”) and is made effective as of the
Effective Date (defined below).
), a
limited liability company organized under the laws of the People’s Republic of China (hereinafter
“Licensor”) and Beijing Yisheng Leju Information Services Co., Ltd., a limited liability
company organized under the laws of the People’s Republic of China (“Licensee” and together
with Licensor, the “Parties” and each a “Party”) and is made effective as of the
Effective Date (defined below).
RECITALS
WHEREAS, SINA Corporation, a company organized under the laws of the Cayman Islands
(“SINA”), and CRIC Holdings Limited, a company organized under the laws of the Cayman
Islands (“CRIC”), entered into that certain Share Purchase Agreement dated July 23, 2009
(the “Share Purchase Agreement”), pursuant to which SINA subscribes from CRIC the
Subscription Shares (as defined in the Share Purchase Agreement);
WHEREAS, Licensor owns certain trademarks as more particularly described below that are
related to the Business which it desires to license to Licensee and Licensee desires to obtain a
license from Licensor to such trademarks to use in connection with its operation of the Business on
the terms and conditions set forth herein; and
WHEREAS, Licensor and Shanghai SINA Leju Information Technology Co. Ltd. (“SINA Leju”)
entered into that certain Trademark License Agreement dated May 8, 2008 (the “Original
Agreement”) and (i) Licensor and SINA Leju desire to terminate the Original Agreement pursuant
to the Mutual Termination Agreement attached hereto as Exhibit B and (ii) Licensee and
Licensor desire to enter into this Agreement, on or prior to the consummation of the transactions
contemplated by the Share Purchase Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreement of the Parties
and the faithful performance thereof, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
As used herein, the following terms shall have the meanings ascribed to them below.
“Action” has the meaning set forth in Section 8.1.
“Affiliate” means, when used with respect to any specified Person, a Person that
directly or indirectly through one or more intermediaries, controls, is controlled by, or is under
common control with, such specified Person. For the purposes of this definition, “control”
(including the terms “controlled by” and “under common control with”) with respect to the
relationship between or among two or more Persons, means the possession, directly or indirectly
or as trustee, personal representative or executor, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the ownership of voting
securities, as trustee, personal representative or executor, by contract, credit arrangement or
otherwise.
“Agency Agreement” means that certain Advertising Sale Agency Agreement by and between
SINA Corporation and China Online Housing Technology Corporation, dated as of the date hereof.
“AIC” has the meaning set forth in Section 10.17.
“Branding Guidelines” has the meaning set forth in Section 3.1.
“Business” means an online real estate media platform in the PRC that (i) provides
information and updates related to real estate, home furnishing and construction in the PRC and
provides real estate, home furnishing and construction advertising services, and (ii) operates a
business-to-business and business-to-consumer Internet platform targeting participants in the PRC
real estate industry, in each case, as currently conducted or contemplated to be conducted on the
websites owned or operated by Licensee or any of Licensee’s Affiliates in the PRC.
“Business Day” means any day that is not a Saturday, a Sunday or other day on which
banks are required or authorized by Law to be closed in Beijing.
“Change of Control” means (i) the consummation of any acquisition or purchase,
directly or indirectly, by any Person or related group of Persons, that results in a Competitor
owning more ordinary shares in CRIC than E-House and SINA, and in each case, their respective
controlled Affiliates, own in the aggregate or (ii) an event pursuant to which a Competitor
acquires the right to nominate a member to the board of directors of CRIC.
“Claimant” has the meaning set forth in Section 10.12.
“Commission” has the meaning set forth in Section 10.12.
“Competitor” means any Person whose business includes an online portal.
“Confidential Information” has the meaning set forth in Section 9.1.
“Dispute” has the meaning set forth in Section 10.12.
“Effective Date” means the Closing Date as set forth in the Share Purchase Agreement.
“E-House Licensed Data and Information” means the data and information licensed to
CRIC Holdings Limited and its subsidiaries, for the operation of the CRIC system pursuant to the
Master Transaction Agreement.
“Exclusive Licensed Marks” means the following Trademarks: 
and
, as identified on Exhibit A.
and
, as identified on Exhibit A.
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“Governmental Authority” means any federal, national, supranational, state,
provincial, local or other government, governmental, regulatory or administrative authority, agency
or commission or any court, tribunal, or judicial or arbitral body.
“Initial Term” has the meaning set forth in Section 6.1.
“Law” means any federal, national, supranational, state, provincial, local or similar
statute, law or ordinance, regulation, rule, code, order, requirement or rule of law (including
common law).
“Licensed Marks” means the Exclusive Licensed Marks and the Non-Exclusive Licensed
Marks, as listed on Exhibit A attached hereto.
“Licensed Products” means products and services related to the Business which bear, or
are sold, provided or marketed under, a Licensed Xxxx.
“Licensee Parties” has the meaning set forth in Section 8.1.
“Licensee Websites” means the websites located at xxx.xxxx.xxx and the channels
located at xxxxx.xxxx.xxx.xx, xxxxx.xxxx.xxx.xx and xxxxxxxxxxxx.xxxx.xxx.xx.
“Licensor Parties” has the meaning set forth in Section 8.2.
“Master Transaction Agreement” means the Master Transaction Agreement entered into by
and between E-House (China) Holdings Limited and CRIC Holdings Limited, dated as of July 27, 2009.
“Non-Exclusive Licensed Marks” means the following Trademarks: sina, sina 
, and
, as identified on Exhibit A.
, and
, as identified on Exhibit A.
“Person” means any individual, partnership, firm, corporation, limited liability
company, association, trust, unincorporated organization or other entity, as well as any syndicate
or group that would be deemed to be a person under Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended.
“PRC” or “Territory” means the People’s Republic of China, excluding Hong
Kong, Macau and Taiwan.
“Recipient” has the meaning set forth in Section 9.1
“Respondent” has the meaning set forth in Section 10.12.
“Rules” has the meaning set forth in Section 10.12.
“Shareholders Agreement” means that certain Shareholders Agreement by and among SINA
Corporation, E-House (China) Holdings Limited and CRIC Holdings Limited dated as of [ ], 2009.
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“Term” has the meaning set forth in Section 6.1.
“Trademarks” means trademarks, service marks, domain names, trade dress, trade names,
corporate names, logos, designs, symbol, slogan and other identifiers of source or goodwill.
ARTICLE II
GRANT OF LICENSE
GRANT OF LICENSE
2.1. Grant of License.
(a) Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee,
and Licensee hereby accepts from Licensor a non-exclusive, non-transferable (except as set forth in
Section 10.7), non-sublicensable (except as provided in Section 2.1(c)), limited right and license
to use the Non-Exclusive Licensed Marks in connection with the Business in the Territory during the
Term solely (i) on Licensed Products, (ii) on Licensee Websites, and (iii) in Licensee’s marketing
and advertising efforts and materials to promote such Licensed Products. Except as provided in
Section 2.2, Licensee’s use of the Non-Exclusive Licensed Marks under the terms of this Agreement
shall be free of any fees.
(b) Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee,
and Licensee hereby accepts from Licensor an exclusive, non-transferable (except as set forth in
Section 10.7), non-sublicensable (except as provided in Section 2.1(c)), limited right and license
to use the Exclusive Licensed Marks in connection with the Business in the Territory during the
Term solely (i) on Licensed Products, (ii) on Licensee Websites, and (iii) in Licensee’s marketing
and advertising efforts and materials to promote such Licensed Products. Except as provided in
Section 2.2, Licensee’s use of the Exclusive Licensed Marks under the terms of this Agreement shall
be free of any fees.
(c) Licensor hereby acknowledges that Licensee owns all right, title and interest in and to
the “Leju (
)” Trademark. Licensee hereby grants Licensor a non-exclusive, non-transferable,
non-sublicensable, limited right and license to use the “Leju ()” Trademark in connection with
the application(s) for the Exclusive Licensed Marks and maintaining registrations for the Exclusive
Licensed Marks resulting therefrom. All rights in and to the Leju Trademark not expressly granted
herein are hereby exclusively reserved by Licensee. Nothing in this Agreement shall preclude
Licensee, its Affiliates, or any of their respective successors or assigns from using or permitting
other Persons to use the Leju Trademark in any manner, or taking any action to enforce its or their
rights therein.
)” Trademark. Licensee hereby grants Licensor a non-exclusive, non-transferable,
non-sublicensable, limited right and license to use the “Leju ()” Trademark in connection with
the application(s) for the Exclusive Licensed Marks and maintaining registrations for the Exclusive
Licensed Marks resulting therefrom. All rights in and to the Leju Trademark not expressly granted
herein are hereby exclusively reserved by Licensee. Nothing in this Agreement shall preclude
Licensee, its Affiliates, or any of their respective successors or assigns from using or permitting
other Persons to use the Leju Trademark in any manner, or taking any action to enforce its or their
rights therein.
(d) Notwithstanding anything in this Agreement to the contrary, Licensee has no right to
sublicense any rights granted hereunder to any third party, or otherwise permit any third party to
use any Licensed Marks; provided, however, that any rights granted to Licensee
hereunder with respect to the Licensed Marks may, without the prior consent of Licensor, be
sublicensed to SINA Leju and Licensee’s Affiliates that are controlled by SINA Leju solely for the
purpose of operating the Business in the Territory during the Term. All rights in and to the
Licensed Marks not expressly granted herein are hereby reserved exclusively by Licensor. Licensee
shall be responsible for the compliance of the terms and conditions of this Agreement
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by all of its sublicensees. Without limiting the foregoing, in the event any sublicensee
undertakes any action (or inaction) that would be deemed a breach of this Agreement had Licensee
taken such action (or inaction), such action (or inaction) shall be deemed a breach by Licensee
under this Agreement.
2.2. Fees. In the event E-House Research and Training Institute becomes entitled to
charge, invoice, or otherwise receive from, Licensee any royalties, fees or other remuneration for
use of the E-House Licensed Data and Information pursuant to amendments to the Master Transaction
Agreement or through other means, Licensor and Licensee shall use good faith efforts to amend this
Agreement such that Licensor becomes entitled to charge, invoice, or otherwise receive fees from
Licensee to use the Licensed Marks, such fees to be agreed upon by the Parties, provided
that (i) such fees shall be commercially reasonable and (ii) such fees shall not exceed the fees
charged by Licensor to unaffiliated third parties for use of the Licensed Marks, taking into
account any other consideration received by Licensor (including, but not limited to, discounted
services offerings from the third party).
2.3. Usage Restrictions.
(a) Licensee shall ensure that all uses of Licensed Marks are in compliance with the
requirements of this Agreement.
(b) Without limiting the restriction set forth in Section 2.3(a), Licensee shall not (i) use
any Licensed Marks with any other Trademark so as to form a composite xxxx, or (ii) use any
Licensed Xxxx as an element of Licensee’s company name (except in the same manner in which such
Licensed Xxxx is used prior to the Effective Date, provided Licensee shall not misrepresent
its relationship or affiliation with Licensor).
(c) Without Licensor’s prior written consent, Licensee shall not transfer (except as permitted
pursuant to Section 10.7) or create any security interest upon the Licensed Marks or this
Agreement.
(d) Licensee shall not, nor authorize any other Person within Licensee’s control to, publicly
disseminate, distribute or use any Licensed Marks (i) on any products, packaging, labels,
advertisements or other materials that have not been previously approved or deemed approved by
Licensor (provided, however, that the use of the Licensed Marks in the same manner
used by Licensee prior to the Effective Date is deemed approved, provided Licensee shall
not misrepresent its relationship or affiliation with Licensor), or (ii) in connection with
sponsoring, endorsing or claiming any affiliation with Licensor, in each case of (i) and (ii),
without prior consultation with Licensor, including providing Licensor with samples, specimens or
descriptions thereof (provided, however, that the use of the Licensed Marks in the
same manner used by Licensee or SINA Leju prior to the Effective Date is deemed approved,
provided Licensee shall not misrepresent its relationship or affiliation with Licensor).
In the event that Licensor does not provide any objections or requests for modifications within ten
(10) days from receipt of such samples, specimens or descriptions, such use shall be deemed
approved. In the event that Licensor provides any reasonable objections or requests for
modifications, Licensee shall address such objections or requests for modifications to Licensor’s
reasonable satisfaction
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prior to such public dissemination, distribution or use. Notwithstanding the foregoing,
nothing in this Section 2.3(d) shall limit Licensor’s rights under Article III of this Agreement.
2.4. Territory Restrictions. Licensee’s use of the Licensed Marks shall be limited to
the Territory and Licensee shall not use or authorize the use of Licensed Marks in any manner,
directly or indirectly, outside the Territory. Licensor acknowledges that use by Licensee, or its
permitted sublicensees, of the Licensed Marks in connection with an internet site(s) featuring
content directed to end users in the Territory does not constitute use outside the Territory for
purposes of this Agreement.
2.5. Licensor’s Use. Nothing in this Agreement shall preclude Licensor, its
Affiliates or any of their respective successors or assigns from using or permitting other Persons
to use the Licensed Marks, outside the Territory, in any manner, whether or not such entity
directly or indirectly competes or conflicts with Licensee, subject to the provisions of Section
4.1 (Non-Competition) of the Shareholders Agreement and Section 2.1(c) hereof.
ARTICLE III
QUALITY CONTROL
QUALITY CONTROL
3.1. Quality Control. In order to preserve the inherent value of the Licensed Marks,
Licensee shall ensure that the nature and quality of Licensed Products in connection with which
Licensee uses the Licensed Marks shall continue to be at least equal to the nature and quality of
the products and services offered in connection with the Business immediately prior to the
Effective Date. Licensee agrees to use the Licensed Marks in the Territory only in accordance with
such branding and style guidelines as used by the Business immediately prior to the Effective Date
or as otherwise may be established by Licensor in connection with its own business and communicated
in writing to Licensee from time to time or as may otherwise be agreed to by the Parties from time
to time (the “Branding Guidelines”), provided that Licensee shall be afforded the
same period of time to implement such Branding Guidelines as is afforded to Licensor’s Affiliates
and other third parties. In the event that Licensor reasonably determines that any use by Licensee
of the Licensed Marks is in violation of this Section 3.1, Licensee shall remedy such
non-conforming use as soon as practicable and if the use poses an immediate threat to the validity
or enforceability of the Licensed Marks or harm to Licensor’s business, reputation or goodwill,
Licensee shall, promptly following receipt of notice from Licensor, cease and desist all such
non-conforming uses.
3.2 Compliance with Laws. Licensee shall ensure that the Business complies with all
applicable Laws in respect of operation, advertising and promotion of the Business and use of the
Licensed Marks in connection therewith.
ARTICLE IV
OWNERSHIP
OWNERSHIP
4.1. Ownership. Licensee acknowledges that Licensor is the owner of all right, title
and interest in and to the Licensed Marks, and all such right, title and interest shall remain
exclusively with Licensor. All goodwill and improved reputation generated by Licensee’s use of the
Licensed Marks shall inure solely to the benefit of Licensor. Licensee shall not knowingly
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(a) use the Licensed Marks in any manner that tarnishes, degrades, disparages or reflects
adversely on Licensor or Licensor’s business or reputation, or which dilutes or otherwise xxxxx the
value, reputation, or distinctiveness of the Licensed Marks or the goodwill of the Licensor
therein, (b) in any jurisdiction, file applications to register any Trademarks that consist of, in
whole or in part, or are confusingly similar to, any of the Licensed Marks, (c) contest, challenge
or otherwise make any claim or take any action adverse to Licensor’s ownership of or interest in
the Licensed Marks, (d) register any domain names that consist of, in whole or in part, or are
confusingly similar to any of the Licensed Marks, or register the Licensed Marks as a trade names
and/or company names for Licensee or any of its Affiliates, or (e) use, associate or link, in any
manner, any Licensed Marks in connection with any illegal materials, pornographic, obscene or
sexually explicit materials, materials of a violent nature, or politically sensitive materials. If
Licensee desires (i) the right to use any Trademark, other than the Licensed Marks, consisting of
or containing “SINA” (or 
) or (ii) Licensor to apply for registration in the Territory of any
Trademark, other than the Licensed Marks, consisting of or containing “SINA” (or ), Licensee
and Licensor shall discuss such request in good faith and upon agreement of the Parties, Licensor
shall file such application and the schedule of Licensed Marks set forth on Exhibit A shall
be amended to include any such agreed-upon Trademarks.
) or (ii) Licensor to apply for registration in the Territory of any
Trademark, other than the Licensed Marks, consisting of or containing “SINA” (or ), Licensee
and Licensor shall discuss such request in good faith and upon agreement of the Parties, Licensor
shall file such application and the schedule of Licensed Marks set forth on Exhibit A shall
be amended to include any such agreed-upon Trademarks.
4.2. Prosecution and Maintenance.
(a) As between Licensee and Licensor, Licensor shall have sole and exclusive discretion and
control with respect to prosecuting, obtaining, maintaining, renewing and protecting applications
and registrations for the Licensed Marks, and shall do so at its own cost and expense during the
Term. Licensor shall renew any registration for any Licensed Xxxx(s) that is scheduled to expire
during the Term and shall re-record this Agreement at the Trademark Office of China at such time
that Licensor renews such registration.
(b) With respect to the Exclusive Licensed Marks (
) and
) Licensor shall diligently pursue the registration of such Licensed Marks. Once such Licensed Xxxx
is registered, Licensor shall record this Agreement at the Trademark Office of China as set forth
in Section 10.17.
) and
) Licensor shall diligently pursue the registration of such Licensed Marks. Once such Licensed Xxxx
is registered, Licensor shall record this Agreement at the Trademark Office of China as set forth
in Section 10.17.
ARTICLE V
ENFORCEMENT
ENFORCEMENT
5.1. Notification. Each Party shall promptly notify the other Party in writing and
provide the other with all relevant background facts upon becoming aware of: (a) any use by a third
party of, or any application or registration by a third party for, any Trademark in the Territory
that does or may conflict with any of the Licensed Marks; or (b) any misuse or act by a third party
of infringement, dilution, misappropriation or unfair competition in the Territory involving any of
the Licensed Marks or any confusingly similar variant thereof.
5.2. Licensor Enforcement.
(a) Licensor shall have the right, but not the obligation, to take action against third
parties in the courts, administrative agencies or otherwise, at Licensor’s cost and expense, to
prevent or terminate misuse, infringement, dilution, misappropriation, imitation or illegal use of
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the Licensed Marks and to oppose or cancel applications or registrations for any Trademarks
that conflict with any of the Licensed Marks, or to defend the Licensed Marks.
(b) Licensee shall reasonably cooperate with Licensor at Licensor’s expense in any action,
suit or proceeding that the Licensor may undertake under this Section 5.2 (including without
limitation, executing, filing and delivering all documents and evidence reasonably requested by the
Licensor) and shall lend its name to such action, suit or proceeding if reasonably requested by the
Licensor or required by applicable Law. The Licensee shall have the right to participate and be
represented in any such action, suit or proceeding by its own counsel at its own expense.
(c) All damages or other compensation of any kind recovered in any action, suit or proceeding
undertaken under this Article V, or from any settlement or compromise thereof, shall be for the
benefit of the Licensor, provided, however, that any compensation granted or
awarded in light of any losses incurred by Licensee shall be for the benefit of the Licensee after
Licensor’s reasonable expenses for taking such action, suit or proceeding have been paid.
ARTICLE VI
TERM AND TERMINATION
TERM AND TERMINATION
6.1. Term. The initial term of this Agreement (the “Initial Term”) shall
commence on the Effective Date and shall continue for a period of ten (10) years thereafter.
Beginning twelve (12) months prior to the expiration of the Initial Term, the Parties shall use
good faith efforts to negotiate an extension of the term of this Agreement (the Initial Term
together with any applicable extension, the “Term”).
6.2. Termination for Bankruptcy. Either Party may immediately terminate this
Agreement in the event that the other Party (a) becomes insolvent or unable to pay its debts as
they mature; (b) makes an assignment for the benefit of its creditors; (c) seeks relief, or if
proceedings are commenced against such other Party or on its behalf, under any bankruptcy,
insolvency or debtors’ relief law and such proceedings have not been vacated or set aside within
seven (7) days from the date of commencement thereof.
6.3. Termination for Breach.
(a) By Licensor. Licensor may terminate this Agreement at any time in the event that
Licensee is in material default or breach of any provision of this Agreement, and, if such default
or breach is capable of cure, such default or breach continues uncured for a period of thirty (30)
days after receipt of written notice thereof; provided, however, that in the event
that Licensee has in good faith commenced cure within such thirty (30) day period, but cannot
practically complete such cure within such thirty (30) day period, the Parties shall negotiate a
reasonable additional time to cure.
(b) By Licensee. Licensee may terminate this Agreement at any time in the event that
the Licensor is in material default or breach of any provision of this Agreement, and, if such
default or breach is capable of cure, such default or breach continues uncured for a period of
thirty (30) days after receipt of written notice thereof; provided, however, that
in the event that
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the Licensor has in good faith commenced cure within such thirty (30) day period, but cannot
practically complete such cure within such thirty (30) day period, the Parties shall negotiate a
reasonable additional time to cure.
6.4. Termination for a Change of Control. Licensor may terminate this Agreement by
providing prior written notice to Licensee upon the occurrence of a Change of Control.
6.5. Termination in the Event of Termination of Agency Agreement. In the event that
the Agency Agreement is terminated pursuant to Section 9.02(c)(iii) or 9.02(d)(i) thereof, this
Agreement shall automatically be terminated as of the effective date of the termination of the
Agency Agreement and shall thereafter be of no further force or effect except as set forth in
Section 6.7.
6.6. Effect of Termination. Upon termination (but not expiration) of this Agreement
for any reason, Licensee shall be entitled to use the Licensed Marks for a limited period of time,
not to exceed ninety (90) days, during which it shall diligently work to transition to another
solution. Upon expiration of this Agreement or such 90-day period, (a) all rights granted to
Licensee under this Agreement with respect to the Licensed Marks shall immediately cease, and (b)
Licensee shall immediately discontinue all use of the Licensed Marks.
6.7. Survival. The duties and obligations of the Parties under Articles IV, VI, VIII,
IX and X and Sections 2.1(c) and 7.2 of this Agreement shall survive any termination or expiration
of this Agreement.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties.
(a) By Each Party. Each of Licensee and Licensor represents and warrants to each
other Party that: (a) it is a corporation duly incorporated, validly existing and in good standing
under applicable Law; (b) the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby are within its corporate powers; (c) it has
taken necessary steps to obtain authority and all necessary consents and approvals of any other
third party or Governmental Authority to execute and perform this Agreement; (d) this Agreement has
been duly executed and delivered by it and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, or other laws affecting the rights of creditors’
generally or by general principals of equity; and (e) the execution, delivery and performance of
this Agreement will not conflict with or result in any breach of its charter or certificate of
incorporation, bylaws, or other governing document, or any instrument, obligation, or contract to
which it or its properties is bound.
(b) By Licensor. Licensor represents and warrants that:
i. It has the right to grant the licenses granted to Licensee hereunder; and
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ii. The Licensed Marks are, and the rights granted hereunder in connection with the
Licensed Marks are, substantially similar to the rights that were granted to SINA Leju prior
to the Effective Date.
7.2. Disclaimer. LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY
SET FORTH HEREIN OR IN THE SHARE PURCHASE AGREEMENT, THE LICENSED MARKS ARE PROVIDED WITHOUT
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY, VALIDITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, AND LICENSOR HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES.
ARTICLE VIII
INDEMNIFICATION
INDEMNIFICATION
8.1. Indemnification by Licensor. Licensor shall defend, indemnify and hold harmless
Licensee and its Affiliates, and their respective officers, directors, employees, agents,
shareholders, successors and assigns, (collectively, the “Licensee Parties”) from and
against any claim, suit, demand or action (“Action”), and any and all direct losses
suffered or incurred by Licensee in connection with any third party claims (a) arising out of or
resulting from any breach by Licensor of any provision of this Agreement or (b) that use of the
Licensed Marks by Licensee in accordance with the terms and conditions of this Agreement infringes
or otherwise violates a third party’s Trademarks. Licensor’s obligation to indemnify Licensee
shall be conditioned on (a) Licensee’s provision to Licensor of prompt notice of such an Action
(except where any delay does not materially prejudice Licensor); (b) Licensee’s reasonable
cooperation with Licensor in the defense and settlement of such an Action at Licensor’s cost; and
(c) Licensor having exclusive control of the defense, settlement and/or compromise of such an
Action (provided that Licensor may not settle any Action in a manner that adversely affects
Licensee without Licensee’s prior written consent, not to be unreasonably withheld or delayed).
8.2. Indemnification by Licensee. Licensee shall defend, indemnify and hold harmless
Licensor and its Affiliates, and their respective officers, directors, employees, agents,
shareholders, successors and assigns, (collectively, the “Licensor Parties”) from and
against any Action, and any and all direct losses suffered or incurred by Licensor in connection
with any third party claims (a) arising out of or resulting from any breach by Licensee of any
provision of this Agreement, or (b) alleging actual or alleged defects in or intellectual property
infringement (other than Trademark infringement based on the Licensed Marks) by any Licensed
Products. Licensee’s obligation to indemnify Licensor shall be conditioned on (a) Licensor’s
provision to Licensee of prompt notice of such an Action (except where any delay does not
materially prejudice Licensee); (b) Licensor’s reasonable cooperation with Licensee in the defense
and settlement of such an Action at Licensee’s cost; and (c) Licensee having exclusive control of
the defense, settlement and/or compromise of such an Action (provided that Licensee may not settle
any Action in a manner that adversely affects Licensor without Licensor’s prior written consent,
not to be unreasonably withheld or delayed).
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ARTICLE IX
CONFIDENTIALITY
CONFIDENTIALITY
9.1. Confidential Information. In performing its obligations under this Agreement,
either Party (the “Recipient”) may obtain certain Confidential Information of the other
Party. For purposes of this Agreement, “Confidential Information” shall mean information,
documents and other tangible things, provided by either Party to the other, in whatever form,
relating to such Party’s business and marketing, including such Party’s financial information,
personal information, customer lists, product plans and marketing plans, whether alone or in its
compiled form and whether marked as confidential or not. The Recipient shall maintain in
confidence all Confidential Information and shall not disclose such Confidential Information to any
third party without the express written consent of the other Party except to those of its
employees, subcontractors, consultants, representatives and agents as are necessary in connection
with activities as contemplated by this Agreement. In maintaining the confidentiality of
Confidential Information, the Recipient shall exercise the same degree of care that it exercises
with its own confidential information, and in no event less than a reasonable degree of care. The
Recipient shall ensure that each of its employees, subcontractors, consultants, representatives and
agents holds in confidence and makes no use of the Confidential Information for any purpose other
than those permitted under this Agreement or otherwise required by applicable Law. Upon request by
the other Party, the Recipient shall return, destroy or otherwise handle as instructed by the other
Party, any documents or software containing such Confidential Information, and shall not continue
to use such Confidential Information.
9.2. Exceptions. The obligation of confidentiality contained in Section 9.1 shall not
apply to the extent that (a) the Recipient is required to disclose information by order or
regulation of a Governmental Authority or a court of competent jurisdiction; provided,
however, that, to the extent permitted by applicable Law, the Recipient shall not make any
such disclosure without first notifying the other Party and allowing the other Party a reasonable
opportunity to seek injunctive relief from (or a protective order with respect to) the obligation
to make such disclosure; or (b) the Recipient can demonstrate that (i) the disclosed information
was at the time of such disclosure to the Recipient already in (or thereafter enters) the public
domain other than as a result of actions of the Recipient, its directors, officers, employees or
agents in violation hereof, (ii) the disclosed information was rightfully known to the Recipient
prior to the date of disclosure (other than pursuant to disclosure by the other Party pursuant to
other agreements in effect between the Parties), or (iii) the disclosed information was received by
the Recipient on an unrestricted basis from a source unrelated to any Party and not under a duty of
confidentiality to the other Party.
ARTICLE X
GENERAL PROVISIONS
GENERAL PROVISIONS
10.1. Taxes. Each Party shall be responsible for taxes that should be borne by it in
accordance with applicable Law. If any Party pays any taxes that should have been borne by the
other Party in accordance with Law, such other Party shall reimburse such Party within seven (7)
days after its receipt of documentation evidencing such tax payment so incurred by such Party.
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10.2. Expenses. Except as otherwise specified in this Agreement, all costs and
expenses, including, fees and disbursements of counsel, financial advisors and accountants,
incurred in connection with this Agreement and the transactions contemplated by this Agreement
shall be borne by the party incurring such costs and expenses, whether or not the Closing shall
have occurred.
10.3. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed duly given, made or received (i) on the date of
delivery if delivered in person or by messenger service, (ii) on the date of confirmation of
receipt of transmission by facsimile (or, the first (1st) Business Day following such
receipt if (a) such date of confirmation is not a Business Day or (b) confirmation of receipt is
given after 5:00 p.m., Beijing time) or (iii) on the date of confirmation of receipt if delivered
by an internationally recognized overnight courier service or registered or certified mail (or, the
first (1st) Business Day following such receipt if (a) such date of confirmation is not
a Business Day or (b) confirmation of receipt is given after 5:00 p.m., Beijing time) 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 10.3):
if to Licensor:
SINA Corporation
20/F Beijing Ideal International Plaza
No. 58 Northwest 4th Ring Road
Haidian District, Beijing, 100090
People’s Republic of China
Facsimile: x00 00 0000 0000
Attention: Head of Legal Department (Xxx Xxxxxx)
20/F Beijing Ideal International Plaza
No. 58 Northwest 4th Ring Road
Haidian District, Beijing, 100090
People’s Republic of China
Facsimile: x00 00 0000 0000
Attention: Head of Legal Department (Xxx Xxxxxx)
with a copy (which shall not constitute notice) to:
Shearman & Sterling LLP
12th Floor East Tower, Twin Towers
B-12 Jianguomenwai Dajie
Beijing 100022
People’s Republic of China
Facsimile: x00 00 0000 0000
Attention: Xxx Xxxxxxx, Esq.
12th Floor East Tower, Twin Towers
B-12 Jianguomenwai Dajie
Beijing 100022
People’s Republic of China
Facsimile: x00 00 0000 0000
Attention: Xxx Xxxxxxx, Esq.
if to Licensee:
Beijing Yisheng Leju Information Services Co., Ltd.
x/x XXXX Xxxxxxxx Xxxxxxx
Xx. 000 Xxxxxxxx Xxxx
Xxxxxxxx 000000
People’s Republic of China
Facsimile: + 00 (00) 0000 0000
Attention: President
x/x XXXX Xxxxxxxx Xxxxxxx
Xx. 000 Xxxxxxxx Xxxx
Xxxxxxxx 000000
People’s Republic of China
Facsimile: + 00 (00) 0000 0000
Attention: President
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with a copy (which shall not constitute notice) to:
Skadden, Arps, Xxxxx, Xxxxxxx & Xxxx
00/X, Xxxxxxxxx Tower, The Landmark
00 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Xxxxxxxx X. Xxxxx, Esq. and Z. Xxxxx Xxx, Esq.
00/X, Xxxxxxxxx Tower, The Landmark
00 Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Xxxxxxxx X. Xxxxx, Esq. and Z. Xxxxx Xxx, Esq.
10.4. Public Announcements. Other than (i) the filing with the SEC of the Form F-1,
any amendments thereto and any other documents filed in connection with the Form F-1, including the
filing of this Agreement or (ii) any communications with the relevant stock exchange or regulators
in connection with the IPO, in each case, as deemed necessary or desirable in the sole discretion
of CRIC, neither party to this Agreement shall make, or cause to be made, any press release or
public announcement in respect of this Agreement or the transactions contemplated by this Agreement
or otherwise communicate with any news media without the prior written consent of the other party
unless otherwise required by Law or applicable stock exchange regulation, and the parties to this
Agreement shall cooperate as to the timing and contents of any such press release, public
announcement or communication.
10.5. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any Law or public policy, all other terms and provisions
of this Agreement shall nevertheless remain in full force and effect for so long as the economic or
legal substance of the transactions contemplated by this Agreement is not affected in any manner
materially adverse to either party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner in order that the transactions contemplated by this Agreement
are consummated as originally contemplated to the greatest extent possible.
10.6. Entire Agreement. This Agreement constitutes the entire agreement of the
Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, with respect to the subject matter hereof and thereto
(including the Original Agreement).
10.7. Assignment. This Agreement and any rights or authority granted hereunder shall
not be assigned or transferred by either Party, including by operation of law, merger or otherwise,
without the express written consent of the other Party, provided that Licensor may assign
this Agreement without consent to any of its Affiliates and Licensee may assign this Agreement
without consent to SINA Leju or an Affiliate of Licensee that is controlled by SINA Leju.
10.8. Amendment. This Agreement may not be amended or modified except (a) by an
instrument in writing signed by, or on behalf of, both Parties or (b) by a waiver in accordance
with Section 10.09.
10.9. Waiver. Either Party may (a) extend the time for the performance of any of the
obligations or other acts of the other Party, (b) waive any inaccuracies in the
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representations and warranties of the other Party contained herein or in any document
delivered by the other party pursuant hereto or (c) waive compliance with any of the agreements of
the other Party or conditions to such Party’s obligations contained herein. Any such extension or
waiver shall be valid only if set forth in an instrument in writing signed by the Party to be bound
thereby. No waiver of any representation, warranty, agreement, condition or obligation granted
pursuant to this Section 10.09 or otherwise in accordance with this Agreement shall be construed as
a waiver of any prior or subsequent breach of such representation, warranty, agreement, condition
or obligation or any other representation, warranty, agreement, condition or obligation. The
failure of either party hereto to assert any of its rights hereunder shall not constitute a waiver
of any of such rights.
10.10. No Third Party Beneficiaries. Except for the provisions of Article VII
relating to indemnified parties, this Agreement shall be binding upon and inure solely to the
benefit of the Parties and their respective successors and permitted assigns and nothing herein,
express or implied (including the provisions of Article VII relating to indemnified parties), is
intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy
of any nature whatsoever, including any rights of employment for any specified period, under or by
reason of this Agreement.
10.11. Governing Law. This Agreement and any dispute or claim arising out of or in
connection with it or its subject matter shall be governed by, and construed in accordance with,
the laws of the People’s Republic of China (without regard to its conflicts of laws rules that
would mandate the application of the laws of another jurisdiction).
10.12. Dispute Resolution. (a) Any dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination or invalidity thereof (each, a
“Dispute”), shall to the extent possible be settled through friendly consultation among the
Parties hereto. The claiming Party (the “Claimant”) shall promptly notify the other Party
(the “Respondent”) in a dated written notice that a Dispute has arisen and describe the
nature of the Dispute. Any Dispute which remains unresolved within sixty (60) days after the date
of such written notice shall be submitted to the China International Economic and Trade Arbitration
Commission (the “Commission”) to be finally settled by arbitration in Beijing, PRC in
accordance with the Commission’s then effective rules (the “Rules”) and this Section 10.12.
The language of the arbitration shall be Mandarin Chinese.
(b) The arbitration tribunal shall consist of three (3) arbitrators. The Claimant shall
appoint one (1) arbitrator, the Respondent shall appoint one (1) arbitrator, and the two (2)
arbitrators so appointed shall appoint a third arbitrator. If the Claimant and the Respondent fail
to appoint one (1) arbitrator, or the two (2) arbitrators appointed fail to appoint the third
arbitrator within the time periods set by the then effective Rules, the relevant appointment shall
be made promptly by the Commission.
(c) Any award of the arbitration tribunal established pursuant to this Section 10.12 shall be
final and binding upon the Parties, and enforceable in any court of competent jurisdiction. The
Parties shall use their best efforts to effect the prompt execution of any such award and shall
render whatever assistance as may be necessary to this end. The prevailing Party (as determined by
the arbitrators) shall be entitled to reimbursement of its costs
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and expenses, including reasonable attorney’s fees, incurred in connection with the arbitration
and any judicial enforcement, unless the arbitrators determine that it would be manifestly unfair
to honor this agreement of the Parties and determine a different allocation of costs.
(d) The foregoing provisions in this Section 10.12 shall not preclude any Party from seeking
interim or conservatory remedies, including injunctive relief, from any court having jurisdiction
to grant such relief.
10.13. No Presumption. The Parties acknowledge that each has been represented by
counsel in connection with this Agreement and the transactions contemplated by this Agreement.
Accordingly, any applicable Law that would require interpretation of any claimed ambiguities in
this Agreement against the Party that drafted it has no application and is expressly waived. If
any claim is made by a Party relating to any conflict, omission or ambiguity in the provisions of
this Agreement, no presumption or burden of proof or persuasion will be implied because this
Agreement was prepared by or at the request of any Party or its counsel.
10.14. Specific Performance. The parties hereto acknowledge and agree that
irreparable damage would occur if any of the provisions of this Agreement are not performed in
accordance with their specific terms and that any breach of this Agreement could not be adequately
compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or
remedy to which a party hereto may be entitled, at law or in equity, it shall be entitled to
enforce any provision of this Agreement by a decree of specific performance and to temporary,
preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of
the provisions of this Agreement, without posting any bond or other undertaking.
10.15. Force Majeure. Neither Party shall be liable for failure to perform any of its
obligations under this Agreement during any period in which such Party cannot perform due to hacker
attack, fire, flood or other natural disaster, war, embargo, riot or the intervention of any
Governmental Authority, provided, however, that the Party so delayed immediately
notifies the other Party of such delay. In no event shall such nonperformance by Licensee be
excused due to any such event for longer than ninety (90) days.
10.16. Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by 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.
10.17. Governmental Recordation. Licensor shall record this Agreement at the
Trademark Office of China within three (3) months after the Effective Date of this Agreement. The
Parties agree to work together in good faith to modify this Agreement or enter into one or more new
trademark license agreements subordinate to this Agreement as necessary in order to obtain such
recordation. In the event of any conflict or inconsistency between any provision of such new
trademark license agreement and the provisions set forth in the body of this Agreement, the
provisions set forth in this Agreement shall control and govern. If required by local
Administration for Industry and Commerce (“AIC”), each Party shall also file a copy of this
Agreement with the local AIC above the county level respectively where such Party domiciles.
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10.18. Termination of Original Agreement. Pursuant to the Mutual Termination
Agreement set forth in Exhibit B attached hereto, the Original Agreement shall be
terminated as of the Effective Date. Notwithstanding anything in this Agreement to the contrary,
this Agreement shall not become effective unless and until the Mutual Termination Agreement set
forth in Exhibit B is executed.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be executed by its duly
authorized representatives on the date first set forth above.
| Beijing SINA Internet Information Service Co., Ltd. |
||||
By: |
/s/ Xxxxxxx Xxxx | |||
| Name: | ||||
| Title: | ||||
Beijing Yisheng Leju Information Services Co., Ltd. |
||||
By: |
/s/ Xxx Xxx | |||
| Name: | ||||
| Title: | ||||
17
EXHIBIT A
LICENSED MARKS
NON-EXCLUSIVE LICENSED MARKS
| Registration | Registration/ | |||||||
| Status | Period/Application Date | Application No. | Category | |||||
sina |
Registered | 10/21/2000 — 10/20/2010 | 1463676 | 35 | ||||
sina  |
Registered | 10/14/2000 — 10/13/2010 | 1459585 | 35 | ||||
|
Registered | 10/21/2000 — 10/20/2010 | 1463781 | 35 |
EXCLUSIVE LICENSED MARKS
| Registration | Registration/ | |||||||||||
| Status | Period/Application Date | Application No. | Category | |||||||||
|
|
Application | 12/18/2008 | 7120368 | 35 | ||||||||
|
|
Application | 12/18/2008 | 7120374 | 35 | ||||||||
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EXHIBIT B
MUTUAL TERMINATION AGREEMENT
THIS MUTUAL TERMINATION AGREEMENT (“Termination Agreement”) is made and entered into
this day of , 2009, by and between Beijing SINA Internet Information Service Co.
(“Beijing SINA”) and Shanghai SINA Leju Information Technology Co. Ltd. (“SINA
Leju”).
WITNESSETH:
WHEREAS, Beijing SINA and SINA Leju entered into that certain Trademark License Agreement
dated May 8, 2008 (the “Original Agreement”); and
WHEREAS, Beijing SINA and SINA Leju desire to mutually terminate the Original Agreement
effective as of the date of this Termination Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, and
other good and valuable consideration, receipt of which is hereby acknowledged by each of the
parties hereto, the parties agree as follows:
1. Beijing SINA and SINA Leju agree that, upon the date of execution of this Termination
Agreement, the Agreement shall terminate and be of no further force or effect, and, for the
avoidance of doubt, no provisions of the Original Agreement survive such termination.
2. This Termination Agreement represents the complete, integrated, and entire agreement
between the parties, and may not be modified except in writing signed by the parties.
3. This Termination Agreement shall be governed by the laws of the PRC, without regard to
conflicts of law principles.
4. This Termination Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together will constitute one and the same instrument.
5. This Termination Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this Termination Agreement as of the date
first set forth above.
| Beijing SINA Internet Information Service Co., Ltd. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Shanghai SINA Leju Information Technology Co. Ltd. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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