Trademark License Agreement - eLongNet Information Technology (Beijing) Co. Ltd. and General Chinese Reservation Network Ltd.
Trademark License Agreement
This Trademark License Agreement (hereinafter the Agreement) is entered into as of July 20, 2004 in the Peoples Republic of China (hereinafter the PRC) between the following two parties in Beijing:
(1) eLongNet Information Technology (Beijing) Co., Ltd. (hereinafter the Licensor), an wholly owned foreign enterprise under the laws of PRC, Legal Address: 10 Jiuxianqiao Street, Chaoyang District, Beijing;
(2) General Chinese Reservation Network Ltd. (Hereinafter the Licensee), a wholly domestic invested limited liability company under the laws of PRC, Legal Address: Room 1005, 81 Zhongshan Road, Nanjing, Jiangsu Province (hereinafter, one party will be called one party, two parties will be called both parties).
A. The Licensor is the owner of the registered trademarks (hereinafter the trademark) in Appendix 1, and it is in the process of application formalities, in order to become the owner of the trademarks in Appendix 2 and the trademarks in applying.
B. The Licensee desires to acquire non- exclusive license of the trademarks listed in Appendix 1 and Appendix 2 in accordance with the terms and conditions of this agreement, and the Licensor agree to grant the Licensee such license.
NOW THEREFORE, the parties agree as follows:
Unless otherwise provided for herein, the following words are specified as:
Affiliated Enterprise the entity with at least 10% ballot held by any one party directly or indirectly.
Force Majeure any earthquake, typhoon, fire, flood, war, and other calamity caused by nature or human which is unpredictable, unavoidable and overwhelming happened after the signing of this agreement, this event beyond any partys control and impedes the performance of all or part of this agreement.
PRC Law any promulgated and valid laws and regulations of PRC from the date stipulated on the head of this agreement.
Term the period stipulated in 3.1 of this agreement
Territory the territory of PRC, which does not include Hong Kong, Macao and Taiwan.
Trademark Office the trademark office of State Administration for Industry and Commerce.
Licensed Trademark the trademark registered in the Trademark Office by the
Trademark to be licensed the registered trademark under the process of assignment in the Trademark Office which will be assigned to the Licensor and the trademark in the application for registration, listed in Appendix 2
RMB the legal currency of the PRC.
2.1. Trademark License
The Licensor will grant the Licensee a license to use the Licensed Trademark and Trademark to be licensed in the Territory under the terms and conditions of this agreement in its term, except that the Licensor shall give the Licensed Trademark and Trademark to be licensed to its designated party.
2.2. Scope of Use
In the term of this Agreement, the Licensee can use the Licensed Trademark and Trademark to be licensed in the Territory under the circumstances set force as follows:
2.2.1 Use in the authorized commodities or services in accordance with the content in each certificate of registration.
2.2.2. Use in the documents of commercial transactions, advertising, exhibitions or other commercial actions related to Item 2.2.1
2.3.1. The Licensee shall not grant the license of the Licensed Trademark and Trademark to be licensed to any third party without the written consent of the Licensor in advance. Any sublicense without authorization is invalid.
2.4. Forbidden Action
The Licensee promises that in the term of this Agreement and any time after the expiration of this Agreement, it shall not:
2.4.1. Undertake any action, which will affect the Licensors right on the Licensed Trademark and Trademark to be licensed; or
2.4.2. Apply for the registration of the Licensed Trademark and Trademark to be licensed or any similar trademark in any country or region.
2.5. Providing of Signs
The Licensor shall provide the authorized signs of the Licensed Trademark and Trademark to be licensed to the Licensee with digital format stored in the floppy disk and printed format. The Licensee has right to copy the Licensed Trademark and Trademark to be licensed in accordance with the relevant designs.
2.6. Use Supervision
The Licensor has the right to dispatch personnel at any time to the sites of the Licensee for the supervision on the use of the Licensed Trademark and Trademark to be licensed after its notice in written.
2.7. No Hindrance
The licensee acknowledges the right owned by the Licensor to the Licensed Trademark and Trademark to be licensed, besides the warranty listed in 2.4, the licensee shall not undertake or promote any action that will hinder the right of the Licensed Trademark and Trademark to be licensed. The licensee shall not state to third party that it has any right on the Licensed Trademark and Trademark to be
licensed. The licensee acknowledges that the anticipated use of the Licensed Trademark and Trademark to be licensed will not create any ownership related to the goodwill of the Licensed Trademark and Trademark to be licensed for the licensee. All the use of this kind shall benefit the exclusive right of the Licensor as the owner of the Licensed Trademark and Trademark to be licensed.
Both parties of this Agreement acknowledge that the quality and goodwill of commodities and service signed with the Licensed Trademark and Trademark to be licensed is important to the operation of the Licensor. Any commodities and service signed with the Licensed Trademark and Trademark to be licensed shall reach the top standards and qualities, and it shall under the control, and accord with PRC law and other quality standards requested by any Licensor from time to time, and accept supervision and approval of the Licensor. The licensee shall obey all the standards about the commodities and service of the Licensor.
This Agreement will be effective from the date of signing the contract, until termination pursuant to Article 9.1. But the license of every Trademark to be licensed shall be effective from the date that the Trademark Office authorizes the assignment to the Licensor and the Licensor becomes the owner of the trademark. Except the circumstances stipulated in Article 9.1, the period of this agreement shall be equal to the expiration period (including any extended period) of the Licensor.
4.1. Application for Record
Within three (3) months after the effectiveness of this Agreement, both parties shall file this Agreement to the Trademark Office for record for the licensing of the Licensed Trademark according to the PRC laws. For the Trademark to be licensed, within three (3) months after the effectiveness set forth in Item 3.1, both parties shall file this Agreement to the Trademark Office for record.
The Licensee shall assume the fees about the application and renewal set forth in Article 4.1.
5. License Fee
The Licensee agrees to pay the Licensor the license fee, and both parties will decide its amount in accordance to the market price.
6. Statement and Warranties
6.1. Statement and Warranties of Both Parties
Every one party states and warrants, form the date of signing this Agreement:
6.1.1. It is an independent company duly registered in the place of establishment, and has gotten all the governments authorization and registration, which are continuously valid for its existence, and it has sufficient rights to operate according to its business license, business certificate of registration, articles of association or similar documents of company;
6.1.2. It has absolute authorization to sign this Agreement and perform the obligations under this agreement;
6.1.3. The representative has gotten absolute authorization to sign this Agreement (the signature of representative is in the place for signing);
6.1.4. The signing of this Agreement or the performance of the obligations under this agreement will not violate:
220.127.116.11. The business license, business certificate of registration, articles of association or similar documents of company;
18.104.22.168. Any law, regulation or the authorization or approval of government; and
22.214.171.124. Any binding agreement;
6.1.5. There is not any pending case of lawsuit, arbitration, other legal or governmental procedure that will has material adverse effects on this agreement to its knowledge;
6.1.6. It has disclosed all the documents to the other party, which will probably have material adverse effects on the obligations under this agreement issued by any branch of government;
6.1.7. It has not been the subject of liquidation or dissolution; and
6.1.8. It has not been declared bankruptcy by the court with jurisdiction.
6.2. Statement and Warranties of the Licensee
The Licensee further states and warrants to the Licensor:
6.2.1. It will use the Licensed Trademark and Trademark to be licensed only according to the purpose stipulated in 2.2;
6.2.2. It shall not use the Licensed Trademark and Trademark to be licensed beyond the method stipulated in this agreement;
6.2.3. It shall not change any appearance, text, content or their combination of the Licensed Trademark and Trademark to be licensed in any way.
6.2.4. It shall sign the name and origin of the Licensee on the commodities or services using the Licensed Trademark and Trademark to be licensed.
6.2.5. It shall obey all the PRC laws and regulations related with the products sign, packing and sale;
6.2.6. It shall allow any employee or agent of the Licensor access the site of the Licensee in business hour for the supervision on the quality of the commodities or services using the Licensed Trademark and Trademark to be licensed.
7. Claims and Tort
7.1. Tort to Third Party
If the use of any Licensed Trademark and Trademark to be licensed according to the stipulations in this Agreement by the Licensee cause the claim (the claim) for the tort of any intellectual property right of third party:
7.1.1. The Licensee shall notify the Licensor about such claim in written at once;
7.1.2. Without the written consent of the Licensor, the Licensee shall not make any promise or compromise with third party;
7.1.3. The Licensee shall let the Licensor take part in any negotiation and suit for the settlement of the claim;
7.1.4. According the reasonable require of the Licensor, the Licensee shall provide any acquired information to the Licensor and give every reasonable assistance.
7.1.5. If the Licensee violates the stipulations in this Agreement to use the Licensed Trademark and Trademark to be licensed, the Licensor wont bear any liability for the Licensee; the Licensee shall bear the liability by itself.
7.2. Tort of Third Party
If any third party takes the act of tort to the Licensed Trademark and Trademark to be licensed of this Agreement:
7.2.1. The Licensee shall notify the Licensor after it get to know the tort to the Licensed Trademark and Trademark to be licensed of the Licensor in any territory;
7.2.2. Both parties shall make joint consultations on juridical action to the torts or menacing actions. In order to avoid the doubtful point, the Licensee agrees that before the prior written consent of the Licensor, it shall not make any compromise with any third party by itself;
7.2.3. If both parties agree to take juridical action to the torts of the Licensed Trademark and Trademark to be licensed, the fees and the damages acquirable shall be divided equally. If the Licensee does not decide to take lawsuit to the event stipulated in the Licensor can decide to take the lawsuit by itself or through the affiliated enterprise, and bear the fees; the Licensee shall render assistance to the Licensor for such juridical action with its effort; and
7.2.4. All the damages acquired by the juridical action taken by the Licensor shall be owned by the Licensor.
8. Breaches and Compensation
8.1.1. Any party violates any stipulation, fails to perform the obligations or its performance does not accord with the stipulations of this agreement (the Party in Breach), and it will be taken as the breach of the obligations of this Agreement. The party who obey this Agreement (the Observant Party) has the right to notify the Party in Breach in written to correct its action within 10 days from the date it get the notice.
8.1.2. If any party breaches this Agreement, both parties shall keep on the performance of this Agreement; the Party in Breach shall take sufficient, efficient and timely measures to eliminate the result of breach, and compensate to the Observant Party all the damages caused by the breach.
The Party in Breach shall compensate the Observant Party according to 8.1.2, the compensation is the damages caused by the party in breach, including the benefits acquirable by the performance of this agreement, but it shall not exceed the damages reasonably foreseeable by the Party in Breach.
9. Cancellations, Termination and Renewal of Agreement
This Agreement will be terminated in the circumstances as follows:
9.1.1. By the written consultation of both parties;
9.1.2. By the notice of termination sent by the Licensor ten (10) days in advance;
9.1.3. The Observant Party has the right to terminate this Agreement at once if the party in breach materially breaches the Agreement and does not correct its actions within 30 days from the date it get the notice from the Observant Party;
9.1.4. Any party in liquidation, and its assets is in the takeover of assigned party;
9.1.5. Any party accesses to the bankrupt procedure, or stops business materially;
9.1.6. If the existence of force majeure exceeds 30 days, and has material adverse effects on the performance of the obligations under this agreement by any party, and at the same time, both parties cannot find a reasonable settlement according to 11.
9.2. The result of Termination
9.2.1. If the agreement terminated by any reason, the license under this Agreement will be terminated at once. The Licensee shall;
126.96.36.199. Stop using the Licensed Trademark and Trademark to be licensed in the actions related to its business;
188.8.131.52. Remove the Licensed Trademark and Trademark to be licensed form all the disseminating datum, handbooks, sign and other assets of the Licensee at its own expenses within 90 days from the termination of this Agreement; and
184.108.40.206. Stop using any license even with the prior approval of the Licensor, and take any necessary steps to stop the using of the Licensed Trademark and Trademark to be licensed by any relicensee.
9.2.2. No matter what reason cause the termination of this Agreement, it will not affect the rights or obligations still held by each one party.
10. Applicable Law and Settlement of Disputes
10.1. Applicable Law
The conclusion, validity, interpretation and implementation of this Agreement shall be governed by the laws of the PRC, and excludes the conflict rules, if there is no regulation prescribed in the laws of the PRC for the specific event, the international business practice shall be referred to.
10.2.1 Any dispute, tangle or claim arising from the Agreement or relating with the agreement (including any issue relating with the existence, validity or termination of the agreement) should be submitted to China International Economic and Trade Arbitration Commission (the Arbitration Commission). Arbitration Commission shall conduct arbitration in accordance with the current effective rules of Arbitration application. The arbitration award shall be final and binding upon both parties.
10.2.2 Arbitration place shall be in Beijing, PRC.
10.2.3 Arbitration language shall be English.
10.2.4 The court of arbitration shall compose of three arbitrators. Both parties should respectively appoint a arbitrator, the chairman of the court of arbitration shall be appointed by both parties through consultation. In case both parties do not coincide in opinion of the person selected for the chief arbitrator within twenty days from the date of their respectively appoint a arbitrator, the director of Arbitration Commission shall have right to appoint the chief arbitrator.
10.2.5 Both parties agreed that the court of arbitration established according to the regulation shall have right to provide actually performed relief on the proper situation according with PRC Law (including but not being limited to Law of Contract of the Peoples Republic of China). For the avoidance of doubt, both parties further that any court having jurisdiction (including PRC Court) shall carry out the arbitral award of actual performance issued by the court of arbitration.
10.2.6 Both parties agreed to conduct arbitration in accordance with this regulation, and irrepealably abstain the right to appeal, reexamine or prosecute to national court or other administration of justice in any form, and the precondition shall be that the aforesaid waiver is effective. However the waiver of both parties does not include any post-arbitration injunction, post-arbitration distress warrant or other command issued by any court having jurisdiction (including PRC Court) for terminating the arbitration procedure or carrying out any arbitral award.
10.3. Continuous Performance
In the period of arbitration, parties shall try to perform the part of this Agreement that is not in arbitration.
11. Force Majeure
11.1. Suspension of obligations
On the occurrence of force majeure, both parties shall negotiate at once in order to get consistent settlements. Both parties shall suspend their obligations in the range affected by force majeure.
11.2. Written Certificate
The party stating the influence by force majeure shall notify the other party within 15 days after the occurrence of force majeure, and render the written certificate issued by relevant authorities, and reduce the effect of such force majeure by its effort.
If the existence of force majeure exceeds 30 days, and has material adverse effects on the performance of the obligations under this agreement by any party, any party can terminate this Agreement according to 9.1.6.
Any notice of both parties shall be written in English, and send by fax, specific sending (including courier) or registered airpost. Without the notice of address changing, all the notices and communications shall be sent to the address as follows:
|eLongNet Information Technology (Beijing) Co., Ltd.|
|Address:||10 Jiuxianqiao Road, Chaoyang District, Beijing|
|Phone Number:||(86-10) 58602288|
|Fax Number:||(86-10) 64315872|
|General Chinese Reservation Network Ltd.|
|Address:||Room 1005, 81 Zhongshan Road, Nanjing, Jiangsu Province|
The chapters, articles or appendixes are the chapters, articles or appendixes under this Agreement. The titles of this Agreement are just for reference; they do not have binding force on this Agreement and do not affect its interpretation.
If any party cannot perform or delay in performance of any right, power or preferential right of this Agreement or other related agreement, it will not be treat as waiver. The separate or partly performance of any right, power or preferential right will not affect the latter performance of such right, power or preferential right.
Without the prior consent of the other party, any party shall not transfer all or part of the rights (obligations) under this Agreement to any third party.
The invalidity of any stipulations under this Agreement does not affect the validity of other irrelevant stipulations. Both parties shall modify any invalid or unenforceable stipulations in order to make these stipulations valid or enforceable.
The appendixes of this Agreement are the undividable part of this Agreement and shall have the same legal effect as this agreement. This Agreement and its appendixes constitute an integral agreement about the events between both parties, and it will replace all the prior discussions, negotiations and agreements.
This Agreement is executed in quadruplicate originals in Chinese. The Licensor holds one, and the Licensee holds two, the one remained will be filed to the Trademark Office for record.
This Agreement could only be modified by the written amendment signed by both parties.
This Agreement is signed for the rights of both parties and their legal successors and assignee, and will be binding on both parties and their legal successors and assignee with the same binding force.
12.10. Singular and Plurality
The singular and plurality can be used mutually.
12.11. Unstipulated events
The unstipulated events shall be disposed according to the agreements of both parties and relevant regulations of PRC laws.
The official authorized representative shall sign this Agreement at the date stipulated at the head of the Agreement for good faith.
eLongNet Information Technology (Beijing) Co., Ltd.
Authorized Representative: Tang Yue
Signature of Representative: /s/
Official Seal: /s/
General Chinese Reservation Network Ltd.
Authorized Representative: Tang Yue
Signature of Representative: /s/
Official Seal: /s/
Details of Licensed Trademark
|9||1570359||14 May 2001 - 13 May 2011|
|2||eLong.com||35||1607616||21 Jul 2001 - 20 Jul 2011|
|3||eLong.com||36||1739999||28 Mar 2002 - 27 Mar 2012|
|41||1535930||7 Mar 2001 - 6 Mar 2011|
|5||Xi Ci||35||1587892||14 Jun 2001 - 13 Jun 2011|
|6||Xi CiHu Tong||35||1587891||14 Jun 2001 - 13 Jun 2011|
|7||Xi Ci||38||1623768||21 Aug 2001 - 20 Aug 2011|
|8||Xi CiHu Tong||38||1623767||21 Aug 2001 - 20 Aug 2011|
|9||eLong.com+e||42||1599959||7 Jul 2001 - 6 Jul 2011|
|10||A logo||38||1623841||21 Aug 2001 - 20 Aug 2011|
|11||The world circles for you +eLong.com||35||1695505||7 Jan 2002 - 6 Jan 2012|
Business Travel Net
|9||1642574||28 Sep 2001 - 27 Sep 2011|
|13||Lohoo+logo||35||1719860||21 Feb 2002 - 20 Feb 2012|
|14||Lohoo+logo||36||1711506||7 Feb 2002 - 6 Feb 2012|
|15||Lohoo+logo||38||1711492||7 Feb 2002 - 6 Feb 2012|
|16||Lohoo+logo||39||1764897||7 May 2002 - 6 May 2012|
|17||Lohoo+logo||41||1749624||14 Apr 2002 - 13 Apr 2012|
|18||Lohoo+logo||42||1719681||21 Feb 2002 - 20 Feb 2012|
|19||e+ dragon +logo||41||1983708||7 Apr 2003 - 6 Apr 2013|
|20||e+ dragon +logo||42||2016041||14 Jan.2003 - 13 Jan 2013|
e+ dragon +
Travel Care Plan
|39||3279761||21 Mar 2004 - 20 Mar 2014|
e+ dragon +
Travel Care Plan
|43||3279762||14 Feb 2004 - 13 Feb 2014|
Details of Trademark to be licensed
1. Registered Trademark
|1||A logo||eLong.com, Inc||35||1631670||7 Sep 2001 - 6 Sep 2011|
|2||A logo||eLong.com, Inc||36||1749484||14 Apr 2002 - 13 Apr 2012|
|3||A logo||eLong.com, Inc||41||1731794||14 Mar 2002 - 13 Mar 2012|
2. Trademark to be Licensed
DATE OF APPLICATION
|12.||eLong Travel Net +eLong.com||35||3953009||11.Mar.2004|
|13.||eLong Travel Net+eLong.com||39||3953008||11.Mar.2004|
|14.||eLong Travel Net +eLong.com||41||3953010||11.Mar.2004|
|15.||eLong Travel Net +eLong.com||43||3953011||11.Mar.2004|
|16.||e+ dragon +logo||39||1994192||10.Sep.2001|