EX-4.19 TECHNOLOGY CONSULTING AND SERVICES AGMT






Exhibit 4.19




TRANSLATION




EXCLUSIVE TECHNOLOGY CONSULTING AND SERVICES AGREEMENT




This Exclusive Technology Consulting Services Agreement (this “Agreement”) is entered into in
[Location] on [Date] between the following two parties:



	 	 	 
	Party A:

	 	Baidu Online Network Technology (Beijing) Co., Ltd.
	 
	 	 
	Legal Address:

	 	12/F., Ideal International Plaza, No. 58 North-West 4th Ring, Haidian District, Beijing, PRC, 100080
	 
	 	 
	Party B:

	 	[Name of the consolidated affiliated PRC entity], (the “Company”)
	 
	 	 
	Legal Address:
	 	 






WHEREAS:





	1.	 	Party A is a wholly foreign-owned enterprise duly incorporated under the laws of the People’s
Republic of China (the “PRC”), which has the technology expertise and practical experience in
the development and design of computer software, and also has rich experience and a team of
professionals specializing in information technology and services;
	 
	2.	 	Party B is a limited liability company duly incorporated in [Location], which is licensed by
[Licensing Agency] to carry out the business of [Business];
	 
	3.	 	Since [Date], Party A has been providing exclusive technology consulting and related services
to Party B and Party B has agreed to accept such services. Both parties wish to continue this
cooperation and sign a written agreement to stipulate their respective rights and obligations.





NOW THEREFORE, both parties, through negotiations, agree as follows:




	1.	 	Exclusive Technology Consulting and Services; Sole and Exclusive Interests






	 	1.1	 	During the term of this Agreement, Party A agrees, as the exclusive technology
consulting and services provider of Party B, to provide the exclusive technology
consulting and services to Party B in accordance with the terms and conditions of this
Agreement (the content of such services is specified in Appendix 1 hereto).
	 
	 	1.2	 	Party B agrees to accept the exclusive technology consulting and services
provided by Party A and further agrees that, during the term of this Agreement, Party B
shall not accept such technology consulting and services for the aforesaid business from
another party without the prior written consent of Party A.






	2.	 	Calculation, Payment and Guarantee of the Fees for the Technology Consulting and Services
(the “Fee”)






	 	2.1	 	Both parties agree to calculate and pay the Fee under this Agreement in
accordance with the methods listed on Appendix 2 hereof.
	 
	 	2.2	 	Party B’s shareholders shall pledge the equity interests of Party B to Party A
for securing the Fee payable by Party B pursuant to this Agreement.






	3.	 	Intellectual Property Rights






	 	3.1	 	Party A shall be the sole owner of the copyrights of the software designed by
Party A and other relevant software, any intellectual property obtained through the
research and development by Party A and any derivative rights arising from the
performance of this Agreement or any other agreement reached by both parties, including,
but not limited to, patent application rights,
copyrights or other intellectual property rights of the software, technical documents
and materials and the rights to license or transfer such intellectual property, etc.




 









 






	 	3.2	 	During the performance of this Agreement, if Party B needs to use Party A’s
software programs or systems, both parties shall sign a separate agreement setting forth
the scope, method and fee of such license.






	4.	 	Representations and Warranties






	 	4.1	 	Party A hereby represents and warrants as follows:






	 	4.1.1	 	Party A is a wholly foreign-owned enterprise duly incorporated and
validly existing under PRC law;
	 
	 	4.1.2	 	The execution and performance of this Agreement by Party A are
within its corporate power and business scope. Party A has taken necessary
corporate actions and obtained appropriate authorizations, and has obtained the
necessary consents or approvals from other third parties or government agencies.
The execution and performance of this Agreement by Party A do not violate the laws
and contracts binding upon or influencing Party A; and
	 
	 	4.1.3	 	Upon execution, this Agreement will constitute a legal, valid and
binding obligation of Party A enforceable against Party A in accordance with its
terms.






	 	4.2	 	Party B hereby represents and warrants as follows:






	 	4.2.1	 	Party B is a limited liability company duly incorporated and validly
existing under the laws of the PRC, and is licensed by [Licensing Agency] to carry
out the business of [Business];
	 
	 	4.2.2	 	The execution and performance of this Agreement by Party B are
within its corporate power and business scope. Party B has taken necessary
corporate actions and obtained appropriate authorizations, and has obtained the
necessary consents or approvals from other third parties or government agencies.
The execution and performance of this Agreement by Party B do not violate the laws
and contracts binding upon or influencing Party B; and
	 
	 	4.2.3	 	Upon execution, this Agreement will constitute a legal, valid and
binding obligation of Party B enforceable against Party B in accordance with its
terms.






	5.	 	Confidentiality






	 	5.1	 	Party B agrees to take all reasonable steps to protect and maintain the
confidentiality of the confidential data and information acknowledged or received by
Party B through accepting the exclusive consulting and services from Party A
(collectively, the “Confidential Information”). Party B shall not disclose, give or
transfer any Confidential Information to any third party without Party A’s prior written
consent. Upon termination of this Agreement, Party B shall, at Party A’s request, return
any and all documents, information or software containing any of such Confidential
Information to Party A or destroy it at its own discretion, and delete all of such
Confidential Information from any memory devices, and cease to use such Confidential
Information.
	 
	 	5.2	 	Both parties acknowledge and confirm that any oral or written materials exchanged
pursuant to this Agreement are confidential. Each party shall keep confidential all such
materials and not disclose any such materials to any third party without the prior
written consent from the other party except in the following situations: (a) such
materials are or will become known by the public (through no fault of the receiving
party); (b) any materials as required to be disclosed by the applicable laws or rules of
the stock exchange; and (c) any materials disclosed by each party to its legal or
financial advisors relating to the transactions contemplated by this Agreement, and such
legal or financial advisors shall comply with the confidentiality provisions set forth
in this Article 5. Any disclosure of confidential information by the personnel of any
party or by the institutions
engaged by such party shall be deemed as a disclosure by such party, and such party
shall be liable for the breach under this Agreement.




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	 	5.3	 	Both parties agree that this Article 5 shall survive the invalidity,
cancellation, termination or unenforceability of this Agreement.






	6.	 	Indemnity






	 	 	 	Party B shall indemnify and hold harmless Party A from and against any losses, damages,
liabilities or expenses arising from any litigation, claims or other request against
Party A, which arises from or is caused by the content of consulting and services
required by Party B.






	7.	 	Effective Date and Term






	 	7.1	 	This Agreement shall be signed and take effect as of the date first set forth
above.
	 
	 	7.2	 	The term of this Agreement is ten (10) years unless terminated earlier as set
forth herein or in accordance with the terms set forth in other agreements entered into
by both parties.
	 
	 	7.3	 	This Agreement may be extended with the written consent of both parties at its
expiration, and the extended term shall be determined by both parties through
negotiation. If both parties fail to reach any agreement on such extension, this
Agreement shall be extended for one (1) year automatically at its expiration (including
any expiration of extended term) unless Party A informs Party B of its decision not to
extend this Agreement with a written notice before the expiration date.
	 
	 	7.4	 	If the duration of operation (including any extension thereof) of either party is
expired or terminated for other reasons within the term set forth in Sections 7.2 and
7.3 hereof, this Agreement shall be terminated simultaneously, except in the situation
where such party has assigned its rights and obligations in accordance with Article 13
hereof.






	8.	 	Termination






	 	8.1	 	Termination upon Expiration
	 
	 	 	 	This Agreement shall be terminated on its expiration date unless it is extended in
accordance with the provisions hereof.
	 
	 	8.2	 	Early Termination
	 
	 	 	 	During the term of this Agreement, Party B shall not terminate this Agreement unless
Party A engages in acts of gross negligence, fraud, other illegal acts or becomes
bankrupt. Notwithstanding the foregoing provisions, Party A may terminate this
Agreement at any time with a written notice to Party B given thirty (30) days in
advance. During the term of this Agreement, if Party B breaches this Agreement and has
not cured its breach within fourteen (14) days upon receipt of Party A’s written notice
of such breach, Party A may inform Party B with a written notice of the termination of
this Agreement.
	 
	 	8.3	 	Survival
	 
	 	 	 	The rights and obligations to both parties under Articles 5, 10 and 12 shall continue
to be effective upon the termination of this Agreement.






	9.	 	Governing Law
	 
	 	 	The performance, interpretation and enforcement of this Agreement shall be governed by the
laws of the PRC.
	 
	10.	 	Dispute Resolution
	 
	 	 	Any dispute arising in connection with the interpretation and performance of the provisions
of this Agreement shall be resolved by the parties in good faith through negotiations. In
case no resolution can
be reached by the parties within thirty (30) days after either party makes a request for a
dispute resolution through negotiations, either party may refer such dispute to the China
International Economic and Trade Arbitration Commission (the “CIETAC”) for arbitration in
accordance with CIETAC’s arbitration rules




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	 	 	then in effect. The seat of arbitration shall be
in Beijing, and the language of the proceedings shall be Chinese. The arbitral award shall be
final and binding upon both parties.
	 
	11.	 	Force Majeure






	 	11.1	 	Force Majeure, which includes but not limited to acts of governments, acts of
nature, fires, explosions, typhoons, floods, earthquakes, tides, lightning or war, means
any unforeseen event that is beyond the party’s reasonable control and cannot be
prevented with reasonable care of the affected party. However, any insufficiency of
creditworthiness, capital or financing shall not be regarded as an event beyond the
party’s reasonable control. The party affected by Force Majeure and seeks for the
exemption from performing the obligations under this Agreement shall inform the other
party of such exemption and any action taken by it for performing this Agreement.
	 
	 	11.2	 	In the event that the affected party is delayed in or prevented from performing
its obligations under this Agreement by Force Majeure, and only to the extent of such
delay or prevention, the affected party shall not be liable for the obligations under
this Agreement. The affected party shall take appropriate measures to minimize or
remove the effects of Force Majeure and attempt to resume the performance of the
obligations delayed or prevented by the event of Force Majeure. Once the event of Force
Majeure is removed, both parties agree to resume the performance of this Agreement using
their best efforts.






	12.	 	Notices
	 
	 	 	Notices or other communications required to be given by any party pursuant to this Agreement
shall be written in English and Chinese and delivered personally or sent by registered mail
or postage prepaid mail or by a recognized courier service or by facsimile transmission to
the address of each relevant party or both parties set forth below or such other address or
addressees as specified by such party from time to time. The date when the notice is deemed
to be duly served shall be determined as follows: (a) a notice delivered personally is deemed
duly served upon delivery; (b) a notice sent by mail is deemed duly served the tenth (10th)
day after the date when the postage prepaid registered airmail was sent out (as is shown on
the postmark), or the fourth (4th) day after the delivery date to the
internationally-recognized courier service agency; and (c) a notice sent by facsimile
transmission is deemed duly served upon the receipt time as is shown on the transmission
confirmation for relevant documents.





	 	 	 
	Party A:

	 	Baidu Online Network Technology (Beijing) Co., Ltd.
	 
	 	 
	 

	 	Address: 12/F, Ideal Intl. Plaza, No. 58 West-North 4th Ring, Beijing PRC, 100080
	 
	 	 
	 

	 	Attn:
	 
	 	 
	 

	 	Fax: [86 10 8260-7009]
	 
	 	 
	 

	 	Tel: [86 10 8262-1188]
	 
	 	 
	Party B:

	 	[Name of the consolidated affiliated PRC entity]
	 
	 	 
	 

	 	Address:
	 
	 	 
	 

	 	Attn:
	 
	 	 
	 

	 	Fax:
	 
	 	 
	 

	 	Tel:







	13.	 	Assignment






	 	13.1	 	Party B shall not assign its rights or obligations under this Agreement to any
third party without the prior written consent of Party A.




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	 	13.2	 	Party B hereby agrees that Party A may assign its rights and obligations under
this Agreement as Party A deems necessary and such transfer shall only be subject to a
written notice sent to Party B by Party A, without further consent from Party B
required.






	14.	 	Entire Agreement
	 
	 	 	Both parties confirm that once this Agreement becomes effective, it shall constitute the
entire agreement of both parties hereto with respect to the subject matters hereof and
supersede all prior oral and/or written agreements and understandings by the parties with
respect to the subject matters hereof.
	 
	15.	 	Severability
	 
	 	 	If any provision of this Agreement is judged to be invalid or unenforceable because it is
inconsistent with applicable laws, such invalidity or unenforceability shall be only with
respect to such laws, and the validity, legality and enforceability of the other provisions
hereof shall not be affected.
	 
	16.	 	Amendment or Supplement
	 
	 	 	Any amendment or supplement to this Agreement shall be made by the parties in writing. The
amendments or supplements duly executed by each party shall form an integral part of this
Agreement and shall have the same legal effect as this Agreement.
	 
	17.	 	Counterparts
	 
	 	 	This Agreement shall be executed in two originals, with each party holding one original. All
originals shall have the same legal effect.





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IN WITNESS WHEREOF, each party hereto have caused this Agreement to be duly executed by its legal
representative or a duly authorized representative on its behalf as of the date first set forth
above.



Party A: Baidu Online Network Technology (Beijing) Co., Ltd.




Legal or Authorized Representative:                     
                               
         




Seal:




Party B: [Name of the consolidated affiliated PRC entity]




Legal or Authorized Representative:                     
                
                        




Seal:




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Appendix 1




Content of Technology Consulting and Services




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Appendix 2




Calculation and Payment of the Fee for the Technology Consulting and Services





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