Trademark License Agreement - Ctrip Computer Technology (Shanghai) Co. Ltd.
TRANSLATION
Trademark License Agreement
This Trademark License Agreement (hereinafter referred to as "This Agreement")
has been executed by and between the following parties on September 10, 2003 in
Shanghai:
Licensor: Ctrip Computer Technology (Shanghai) Co., Ltd.
Address: 3rd fl., Building 63, Hong Cao Road, Shanghai
Licensee: An affiliated Chinese entity of Licensor
Address: Room ___, Building ___, _______ Street, Beijing
Whereas:
(1) Party A is a wholly foreign owned enterprise established in
Shanghai in accordance with laws of the People's Republic of China
(hereinafter referred to as "China") and owns the registered
trademark shown in Attachment 1 to this Agreement;
(2) Party B is a company with exclusively domestic capital registered
in China and may engage in the air-ticketing business as approved
by China Aviation Northern China Management Bureau;
(3) Licensor agrees to grant to Licensee the right to use the
aforementioned registered trademark on the terms and conditions of
this Agreement, and Licensee also agrees to accept the
aforementioned license on the terms and conditions of this
Agreement.
Wherefore, through mutual discussion, the parties have reached the following
agreements:
1. The Grant of License
1.1 Trademark license
According to the terms and conditions of this Agreement, Licensor agrees to
grant Licensee the entire registered trademark shown in Attachment 1 or any
portion thereof. Licensee agrees to accept the license granted by Licensor and
use any of the graphics, text, symbol and visual image of the entire said
registered trademark or any portion thereof (hereinafter collectively referred
to as the "Trademark"). The nature of the right to use the Trademark under this
Agreement shall be a non-exclusive license.
1.2 Scope
1.2.1 The right to use the Trademark granted by this Agreement shall only be
used in the business operated by Licensee. Licensee agrees not to
directly or indirectly use or authorize any other party to use the
aforementioned Trademark in any other manner, unless there are contrary
provisions in this Agreement.
1.2.2 The License granted by this Agreement to Licensee shall be valid in
China only. Licensee agrees not to directly or indirectly use or
authorize any other party to use the aforementioned Trademark in any
other region.
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2. Method of Payment
Licensee agrees to pay a royalty to Licensor. For the specific calculation
method and method of payment of the royalty, see Attachment 2 to this Agreement.
At any time, Licensor shall have the right to relieve Licensee of the obligation
to pay the royalty based on the actual use or make an adjustment to the amount
set forth in Attachment 2.
3. Goodwill
Licensee acknowledges the value of the goodwill associated with the
aforementioned License, acknowledges that aforementioned License and the rights
relating thereto and the goodwill associated with the aforementioned License
only belong to Licensor. The aforementioned License shall have an appurtenant
meaning in public impression.
4. Confidentiality
4.1 Licensee shall maintain the confidentiality of any materials and
information (hereinafter referred to as "Confidential Information") of
Licensor that Licensee learns or has access to due to its acceptance of
the aforementioned Trademark License; upon the termination of this
Agreement, Licensee shall return any document, material or software
that contains such Confidential Information to Licensor at Licensor's
request, or shall destroy same, shall delete any Confidential
Information from the relevant memory devices and shall not continue to
use such Confidential Information. Without the written consent of
Licensor, Licensee shall not disclose, give or transfer such
Confidential Information to any third party.
4.2 The parties agree that Section 4.1 shall survive changes to, rescission
or termination of this Agreement.
5. Representations and Warranties
5.1 Licensor represents and warrants as follows:
5.1.1 Licensor is a wholly foreign owned enterprise legally registered and
validly existing in accordance with Chinese laws.
5.1.2 Licensor shall execute and perform this Agreement within the scope of
its corporate authority and business; has taken necessary corporate
actions to give appropriate authorization and to obtain the approval
and permission from third parties and government authorities, and shall
not violate restrictions by laws and contracts binding or having an
effect thereon.
5.1.3 This Agreement shall constitute Licensor's legitimate, valid and
binding obligations as soon as it is legally executed, and shall be
enforceable against it.
5.1.4 Licensor has exclusive ownership of the Registered Trademark under this
Agreement.
5.2 Licensee represents and warrants as follows:
5.2.1 Licensee is a company legally registered and validly existing in
accordance with Chinese laws and may engage in agency business in the
sales of air transportation upon approval by China Aviation Northern
China Management Bureau;
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5.2.2 Licensee shall execute and perform this Agreement within the scope of
its corporate authority and business; has taken necessary corporate
actions to give appropriate authorization and to obtain the approval
and permission from third parties and government authorities, and shall
not violate restrictions by laws and contracts binding or having an
effect thereon.
5.2.3 This Agreement shall constitute Licensee's legitimate, valid and
binding obligations as soon as it is legally executed, and shall be
enforceable against it.
6. Ownership and Protections of Licensor's Rights
6.1 Licensee agrees that during the term of this Agreement and thereafter,
it shall not challenge the ownership and other rights Licensor retains
with respect to the aforementioned Trademark, shall not challenge the
validity of this Agreement, and shall not engage in any actions or
omission deemed harmful by Licensor to such rights and Trademark.
6.2 Licensee agrees to provide necessary assistance to Licensor to protect
the rights owned by Licensor with respect to the aforementioned
Trademark. As soon as any third party files a claim against the
Trademark, Licensor may at its discretion, respond to the claim lawsuit
in its own name, Licensee's name or the name of both parties. Upon the
occurrence of any infringement by any third party with respect to the
aforementioned Trademark, Licensee shall to the extent of its knowledge
immediately inform Licensor in writing of the infringement with respect
to the aforementioned Trademark; only Licensor shall have the right to
decide whether to take action against such infringement.
6.3 Licensee agrees to use the aforementioned Trademark only in accordance
with this Agreement, and shall not use the aforementioned Trademark in
any manner deemed fraudulent or misleading by Licensor or any other
manner harmful to the aforementioned Trademark or Licensor's
reputation.
7. Best Efforts
Licensee shall use its best efforts to improve the quality of its business, so
as to be able to protect and enhance the reputation represented by the
aforementioned Trademark.
8. Publicity
In any event, in the event that Licensee needs to use publicity materials
regarding the Trademark, the cost of preparing such publicity materials shall be
borne by Licensee. Licensor shall have the exclusive right to all copyrights and
other intellectual property rights relating to the publicity materials of the
Trademark under this Agreement, regardless of whether such publicity materials
have been prepared or used by Licensee. Licensee agrees that without the prior
written consent of Licensor, there shall be no publicity or advertising about
the Trademark under this Agreement on radio and television, in newspapers and
magazines or on the Internet or other media.
9. Effectiveness and Term
9.1 This Agreement shall be executed as of the date first above written and
shall take effect as of the even date therewith. Unless terminated
early in accordance with this Agreement, this Agreement shall be valid
for a term of ten years. After the
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execution of this Agreement, Licensor and Licensee shall review the
contents of this Agreement every three months, to determine whether to
make corresponding amendments or supplements to this Agreement based on
the circumstances then.
9.2 This Agreement may be renewed for one year upon written confirmation by
Licensor prior to the expiration of the term thereof, provided that
Licensee shall not have the right to confirm whether this Agreement
shall be renewed.
10. Filing
Within three months of the execution of this Agreement, Licensor shall submit a
copy of this Agreement to the competent trademark management authorities of
China for filing.
11. Termination
11.1 Termination on the date of expiration
Unless renewed in accordance with this Agreement, this Agreement shall be
terminated upon the date of expiration.
11.2 Early Termination
Upon the occurrence of any material breach by either party, including but not
limited to violations of the obligations under Section 6.1, Section 6.2 and
Section 6.3 of this Agreement and in the event that within 30 days after receipt
of notice from the non-breaching party regarding the occurrence and existence of
the breach, the breaching fail to cure its breach, this Agreement may be
immediately terminated upon written notice to the other party, provided that the
termination of this Agreement shall not compromise the rights or remedies that
the terminating party is entitled to at law or for any other reasons.
During the term of this Agreement, Licensor may terminate this Agreement at any
time upon written notice to Licensee, and such a notice of termination shall
take effect 30 days after the issuance thereof.
11.3 Provisions After Termination
Articles 3, 5, 6 and 16 shall survive the termination of this Agreement.
12. Force Majeure
12.1 "Force majeure" shall refer to any event beyond the reasonable control
of either party and that still cannot be avoided even if the party
affected has exercised reasonable care, including but not limited
government actions, acts of God, fire, explosions, storms, flood,
earthquakes, tides, lightning or war. But a lack of credit, funds or
financing shall not be deemed a circumstances beyond the reasonable
control of either party. The party affected by a "force majeure event"
shall notify the other party of such relief from liability as soon as
possible.
12.2 In the event that the performance of this Agreement is delayed or
impeded by the aforementioned "force majeure," the party affected by
such force majeure shall not be liable in any way under this Agreement
to the extent of such delay or impedance. The party affected shall take
appropriate measures to mitigate or eliminate the impact of such "force
majeure" and shall attempt to resume the performance of obligations
delayed or impeded by such "force majeure." As soon
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as the force majeure event is eliminated, the parties agree to use
their best efforts to resume the performance of this Agreement.
13. Notices
Notices or other communications sent by either party as required by this
Agreement shall be written in Chinese, and a notice shall be deemed served when
it is delivered to the address of either party or the addresses of both parties
below by personal delivery, registered mail, mail with prepaid postage or
recognized express mail or facsimile.
To Licensor: Ctrip Computer Technology (Shanghai) Co., Ltd.
Address: 3rd fl., Building 63, Hong Cao Road, Shanghai
Facsimile: (021) 542651600
Phone: (021) 34064880
To Licensee: An affiliated Chinese entity of Licensor
Address: Room ___, ____ Building, ______ Street, Beijing
Facsimile:
Phone:
14. Reassignment and Sublicense
The rights and obligations granted to Licensee by this Agreement and by Licensor
under this Agreement shall not be assigned, leased, pledged and sublicensed by
Licensee to any third party without the written consent of Licensor, nor shall
Licensee transfer to any third party in any other manner any portion of the
economic benefits from the License or the rights under this Agreement.
15. Resolution of Disputes
In the event of any dispute with respect to the construction and performance of
the provisions of this Agreement, the parties shall hold consultations in good
faith to resolve same. Upon failure by the parties to reach an agreement on the
resolution of such a dispute within 30 days after any party submits a request to
resolve same through consultations, any party may submit the relevant dispute to
the China International Economics and Foreign Trade Arbitration Commission
Shanghai Chapter for resolution by arbitration, in accordance with its
arbitration rules effective then. The arbitration shall be performed in
Shanghai, and the language used during arbitration shall be Chinese. The
arbitration ruling shall be final and binding on both parties.
16. Applicable Laws
The effectiveness, construction and enforcement of this Agreement shall be
governed by Chinese laws.
17. Amendments and Supplements
The parties shall make amendments and supplements to this Agreement 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.
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18. Severability
In the event that any provisions of this Agreement are invalid or unenforceable
due to inconsistency with law, then such provisions shall only be invalid or
unenforceable to the extent of the jurisdiction of such law, and shall not
affect the legal validity of the remaining provisions of this Agreement.
19. Attachments
Any attachment to this Agreement shall be an integral part thereof, and shall
have the same legal validity as this Agreement.
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IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first above written.
Licensor: Ctrip Computer Technology (Shanghai) Co., Ltd.
Authorized representative:
Licensee:
Authorized representative:
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Attachment 1
Trademark Registration Certificate
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Attachment 2
Calculation Method and Method of Payment of Royalty
The royalty rate for the Trademark shall be RMB3,000 per year, and Licensee
shall pay the trademark licensing fee for the current year to Licensor's
designated account by April 1 each year. Licensor shall have the right to decide
at its discretion whether to exempt Licensee's Trademark royalty.