exv10w5






Exhibit 10.5




Exclusive Business Cooperation Agreement



This Exclusive Business Cooperation Agreement (this “Agreement”) is made and entered into by
and between the following Parties on the      day of           , in Beijing, China.




	 	 	 

	Party A:

	 	Beijing Bitauto Internet Information Company
	Address:

	 	Beijing New Century Hotel Office Building 6 Flr, No.6 Beijing
Capital Stadium Road South, Haidian District, Beijing, P.R. China
100044
	 
	 	 
	Party B:

	 	[one of our PRC SPEs]
	Address:

	 	[•]





Each of Party A and Party B shall be hereinafter referred to as a “Party” respectively, and as the
“Parties” collectively.




Whereas,





	1.	 	Party A is a Wholly Foreign Owned Enterprise established in the People’s Republic of China
(“China”), and has the necessary resources to provide technical services and business
consulting services;






	2.	 	Party B is a company with exclusively domestic capital registered in China and may engage in
e-commerce and internet content provision business as approved by the relevant governmental
authorities in China;






	3.	 	Party A is willing to provide Party B, on an exclusive basis, with technical, consulting and
other services in relation to the e-commerce and internet content provision business of Party
B during the term of this Agreement, utilizing its own advantages in human resources,
technology and information, and Party B is willing to accept such exclusive services provided
by Party A or Party A’s designee(s), each on the terms set forth herein.




Now, therefore, through mutual discussion, Party A and Party B have reached the following
agreements:





	1.	 	Services Provided by Party A






	 	1.1	 	Party B hereby appoints Party A as Party B’s exclusive services provider to
provide Party B with complete business support and technical and consulting services
during the term of this Agreement, in accordance with the terms and conditions of this
Agreement, which may include all services within the business scope of Party B as may
be determined from time to time by Party A, such as but not limited to technical
services, network support, business consultations, intellectual property licenses,
equipment or property leasing, marketing




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	 	 	 	consultancy, system integration, product research and development, and system
maintenance.






	 	1.2	 	Party B agrees to accept all the consultations and services provided by Party
A. Party B further agrees that unless with Party A’s prior written consent, during the
term of this Agreement, Party B shall not accept any consultations and/or services
provided by any third party and shall not cooperate with any third party regarding the
matters contemplated by this Agreement. Party A may appoint other parties, who may
enter into certain agreements described in Section 1.3 with Party B, to provide Party
B with the consultations and/or services under this Agreement.
	 
	 	1.3	 	Service Providing Methodology






	 	1.3.1	 	Party A and Party B agree that during the term of this
Agreement, both Parties, directly or through their respective affiliates, may
enter into further technical service agreements or consulting service
agreements, which shall provide the specific contents, manner, personnel, and
fees for the specific technical services and consulting services.
	 
	 	1.3.2	 	To fulfill this Agreement, Party A and Party B agree that
during the term of this Agreement, both Parties, directly or through their
respective affiliates, may enter into intellectual property (including but
not limited to software, trademark, patent and know-how) license agreements,
which shall permit Party B to use Party A’s relevant intellectual property
rights, at any time and from time to time based on the needs of the business
of Party B.
	 
	 	1.3.3	 	To fulfill this Agreement, Party A and Party B agree that
during the term of this Agreement, both Parties, directly or through their
respective affiliates, may enter into equipment or property leases which
shall permit Party B to use Party A’s relevant equipment or property based on
the needs of the business of Party B.






	2.	 	The Calculation and Payment of the Service Fees






	 	 	The Parties agree that the service fees under this Agreement shall be determined and paid
based on the methods set forth in the separate agreements to be entered between Party A and
Party B described in Section 1.3.






	3.	 	Intellectual Property Rights and Confidentiality Clauses






	 	3.1	 	Party A shall have exclusive and proprietary rights and interests in all
rights, ownership, interests and intellectual properties arising out of or created
during the performance of this Agreement, including but not limited to copyrights,
patents, patent applications, trademarks, software,




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	 	 	 	technical secrets, trade secrets and others, regardless of whether they have been
developed by Party A or Party B.






	 	3.2	 	The Parties acknowledge that any oral or written information exchanged among
them with respect to this Agreement is confidential information. Each Party shall
maintain the confidentiality of all such information, and without obtaining the
written consent of the other Party, it shall not disclose any relevant information to
any third parties, except in the following circumstances: (a) such information is or
will be in the public domain (provided that this is not the result of a public
disclosure by the receiving Party); (b) information disclosed as required by
applicable laws or rules or regulations of any stock exchange; or (c) information
required to be disclosed by any Party to its legal counsel or financial advisor
regarding the transaction contemplated hereunder, and such legal counsel or financial
advisor are also bound by confidentiality duties similar to the duties in this
Section. Disclosure of any confidential information by the staff members or agencies
hired by any Party shall be deemed disclosure of such confidential information by such
Party, which Party shall be held liable for breach of this Agreement. This Section
shall survive the termination of this Agreement for any reason.






	 	3.3	 	The Parties agree that this Section shall survive changes to, and rescission
or termination of, this Agreement.






	4.	 	Representations and Warranties






	 	4.1	 	Party A hereby represents and warrants as follows:






	 	4.1.1	 	Party A is a company legally registered and validly
existing in accordance with the laws of China.
	 
	 	4.1.2	 	Party A’s execution and performance of this Agreement is
within its corporate capacity and the scope of its business operations; Party
A has taken necessary corporate actions and been given appropriate
authorization and has obtained the consent and approval from third parties
and government agencies, and will not violate any restrictions in law or
otherwise binding or having an impact on Party A.
	 
	 	4.1.3	 	This Agreement constitutes Party A’s legal, valid and
binding obligations, enforceable in accordance with its terms.






	 	4.2	 	Party B hereby represents and warrants as follows:






	 	4.2.1	 	Party B is a company legally registered and validly
existing in accordance with the laws of China and may engage in the
e-commerce and Internet content provision business as approved by the
relevant governmental authorities of China;




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	 	4.2.2	 	Party B’s execution and performance of this Agreement is
within its corporate capacity and the scope of its business operations; Party
B has taken necessary corporate actions and given appropriate authorization
and has obtained the consent and approval from third parties and government
agencies, and will not violate any restrictions in law or otherwise binding
or having an impact on Party B.
	 
	 	4.2.3	 	This Agreement constitutes Party B’s legal, valid and
binding obligations, and shall be enforceable against it.






	5.	 	Effectiveness and Term






	 	5.1	 	This Agreement is executed on the date first above written and shall take
effect as of such date. Unless earlier terminated in accordance with the provisions of
this Agreement or relevant agreements separately executed between the Parties, the
term of this Agreement shall be 10 years. After the execution of this Agreement, both
Parties shall review this Agreement every three months to determine whether to amend
or supplement the provisions in this Agreement based on the actual circumstances at
that time.
	 
	 	5.2	 	The term of this Agreement may be extended if confirmed in writing by Party A
prior to the expiration thereof. The extended term shall be determined by Party A, and
Party B shall accept such extended term unconditionally.






	6.	 	Termination






	 	6.1	 	Unless renewed in accordance with the relevant terms of this Agreement, this
Agreement shall be terminated upon the date of expiration hereof.
	 
	 	6.2	 	During the term of this Agreement, unless Party A commits gross negligence,
or a fraudulent act, against Party B, Party B shall not terminate this Agreement prior
to its expiration date. Nevertheless, Party A shall have the right to terminate this
Agreement upon giving 30 days’ prior written notice to Party B at any time.
	 
	 	6.3	 	The rights and obligations of the Parties under Articles 3, 7 and 8 shall
survive the termination of this Agreement.






	7.	 	Governing Law and Resolution of Disputes






	 	7.1	 	The execution, effectiveness, construction, performance, amendment and
termination of this Agreement and the resolution of disputes hereunder shall be
governed by the laws of China.




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	 	7.2	 	In the event of any dispute with respect to the construction and performance
of the provisions of this Agreement, the Parties shall negotiate in good faith to
resolve the dispute. In the event the Parties fail to reach an agreement on the
resolution of such a dispute within 30 days after any Party’s request for resolution
of the dispute through negotiations, any Party may submit the relevant dispute to the
China International Economic and Trade Arbitration Commission for arbitration, in
accordance with its then-effective arbitration rules. The arbitration shall be
conducted in Beijing, and the language used during arbitration shall be Chinese. The
arbitration ruling shall be final and binding on both Parties.
	 
	 	7.3	 	Upon the occurrence of any disputes arising from the construction and
performance of this Agreement or during the pending arbitration of any dispute, except
for the matters under dispute, the Parties to this Agreement shall continue to
exercise their respective rights under this Agreement and perform their respective
obligations under this Agreement.






	8.	 	Indemnification






	 	 	Party B shall indemnify and hold harmless Party A from any losses, injuries, obligations or
expenses caused by any lawsuit, claims or other demands against Party A arising from or
caused by the consultations and services provided by Party A at the request of Party B,
except where such losses, injuries, obligations or expenses arise from the gross negligence
or willful misconduct of Party A.






	9.	 	Notices






	 	9.1	 	All notices and other communications required or permitted to be given
pursuant to this Agreement shall be delivered personally or sent by registered mail,
postage prepaid, by a commercial courier service or by facsimile transmission to the
address of such Party set forth below. A confirmation copy of each notice shall also
be sent by email. The dates on which notices shall be deemed to have been effectively
given shall be determined as follows:






	 	9.1.1	 	Notices given by personal delivery, by courier service or
by registered mail, postage prepaid, shall be deemed effectively given on the
date of delivery or refusal at the address specified for notices.
	 
	 	9.1.2	 	Notices given by facsimile transmission shall be deemed
effectively given on the date of successful transmission (as evidenced by an
automatically generated confirmation of transmission).






	 	9.2	 	For the purpose of notices, the addresses of the Parties are as follows:




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	 	Party A:
	 	Beijing Bitauto Internet Information Company
	 

	 	Address:
	 	Beijing New Century Hotel Office Building 6 Flr, No.6
	 

	 	 	 	Beijing Capital Stadium Road South, Haidian District,
	 

	 	 	 	Beijing, P.R. China 100044
	 

	 	Attn:
	 	Ye Jing/Li Bin
	 

	 	Phone:
	 	6849 2345
	 

	 	Facsimile:
	 	6849 2726
	 
	 	 	 	 
	 

	 	Party B:
	 	[one of our PRC SPEs]
	 

	 	Address:
	 	
	 

	 	Attn:
	 	
	 

	 	Phone:
	 	
	 

	 	Facsimile:
	 	







	 	9.3	 	Any Party may at any time change its address for notices by a notice
delivered to the other Party in accordance with the terms hereof.






	10.	 	Assignment






	 	10.1	 	Without Party A’s prior written consent, Party B shall not assign its rights
and obligations under this Agreement to any third party.
	 
	 	10.2	 	Party B agrees that Party A may assign its obligations and rights under this
Agreement to any third party upon a prior written notice to Party B but without the
consent of Party B.






	11.	 	Severability






	 	 	In the event that one or several of the provisions of this Agreement are found to be
invalid, illegal or unenforceable in any aspect in accordance with any laws or regulations,
the validity, legality or enforceability of the remaining provisions of this Agreement
shall not be affected or compromised in any aspect. The Parties shall strive in good faith
to replace such invalid, illegal or unenforceable provisions with effective provisions that
accomplish to the greatest extent permitted by law and the intentions of the Parties, and
the economic effect of such effective provisions shall be as close as possible to the
economic effect of those invalid, illegal or unenforceable provisions.






	12.	 	Amendments and Supplements






	 	 	Any amendments and supplements to this Agreement shall be in writing. The amendment
agreements and supplementary agreements that have been signed by the Parties and that
relate to this Agreement shall be an integral part of this Agreement and shall have the
same legal validity as this Agreement.






	13.	 	Language and Counterparts






	 	 	This Agreement is written in both Chinese and English language in two copies, each Party
having one copy with equal legal validity; in case there is any
conflict between the Chinese version and the English version, the Chinese version shall
prevail.




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     IN WITNESS WHEREOF, the Parties have caused their authorized representatives to execute this
Exclusive Business Cooperation Agreement as of the date first above written.



	 	 	 	 	 

	Party A:

	 	Beijing Bitauto Internet Information Company	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	Legal Representative	 	 






[Signature Page to Exclusive Business Cooperation Agreement — Bitauto IT]




 









 





	 	 	 	 	 

	Party B:

	 	[one of our PRC SPEs]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 



	 	 
	Title:

	 		 	 






[Signature Page to Exclusive Business Cooperation Agreement — Bitauto IT]