Trademark License Agreement - Hurray! Times Communications (Beijing) Ltd. and Beijing Cool Young Information Technology Co. Ltd.
TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement (the "Agreement") is entered into as of
May 5, 2004 between the following two parties in Beijing.
The Licensor: Hurray! Times Communications (Beijing) Ltd.
Legal Address: Room B 07 Tong Heng Plaza, No.4 Huanyuan Road, Haidian
District, Beijing
The Licensee: Beijing Cool Young Information Technology Co., Ltd.
Legal Address: Hua Ao Center, Apt. 9E, No.31 Zizhuyuan Road, Haidian
District, Beijing
WHEREAS, the Licensor, a limited liability company registered in Beijing
under the laws of the People's Republic of China (the "PRC"), owns the
trademarks registered in China as defined in Appendix 1.
WHEREAS, the Licensee, a limited liability company registered in Beijing
under the laws of the PRC, is approved by relevant governmental authority to
carry on the business of value added telecommunication;
WHEREAS, the Licensor agrees to license the trademarks to the Licensee in
accordance with the terms and conditions set forth herein and the Licensee
agrees to accept the license on the terms and conditions set forth herein;
NOW, THEREFORE, the parties through mutual negotiations agree as follows:
1. Grant of License
1.1 Trademark license
Upon the terms and conditions hereinafter set forth, the Licensor hereby
grants a general license to the Licensee for part of or all of its registered
trademarks as defined in Appendix 1, and the Licensee hereby accepts the general
license to use the trademarks as defined in Appendix 1, including all the
trademarks, any part of the trademarks, and any design, character, symbol, and
visual representation of the trademarks (collectively the "Trademarks"). The
license hereunder is non-exclusive.
1.2 Territory
1.2.1 The use of the Trademarks granted by Licensor to Licensee
extends only to the scope of the business of value added
telecommunication services operated by the Licensee. The Licensee
agrees that it will not make, or authorize any use,
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direct or indirect, of the Trademarks by any other means, unless
there are opposite stipulations in this Agreement.
1.2.2 The license hereby granted extends only to the PRC. The Licensee
agrees that it will not make, or authorize any use, direct or
indirect of the Trademarks in any other area.
2. Terms of Payment
The Licensee agrees to pay to the Licensor a license fee and the details of
license fee and the form of payment are set forth in Appendix 2.
3. Goodwill
The Licensee recognizes the goodwill associated with the Trademarks, and
acknowledges that the Trademarks and all intellectual property rights therein
and goodwill pertaining thereto shall be the sole and exclusive property of the
Licensor, and that the Trademarks have a secondary meaning in the mind of the
public.
4. Confidentiality
4.1 The Licensee shall protect and maintain the confidentiality of any and
all confidential data and information acknowledged or received by the
Licensee by accepting licensing of the Trademarks from the Licensor
(collectively the "Confidential Information"). Upon termination or
expiration of this Agreement, the Licensee shall, at the Licensor's
option, return all and any documents, information or software
contained any of such Confidential Information to the Licensor or
destroy it and delete the Confidential Information from any electronic
devices and cease to use them. The Licensee shall not disclose, grant
or transfer any Confidential Information to any third party without
the Licensor's prior written consent.
4.2 The parties agree that Section 4.1 shall survive any amendment
expiration or termination of this Agreement.
5. Representations and Warranties
5.1 The Licensor represents and warrants as follows:
5.1.1 the Licensor is a company duly registered and validly existing
under the laws of the PRC;
5.1.2 the Licensor, subject to its business scope, has full right,
power, authority and capacity and all necessary consents and
approvals of any other third party and
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government to execute and perform this Agreement, which shall not
be against any enforceable and effective laws or contracts;
5.1.3 the Agreement will constitute a legal, valid and binding
agreement of the Licensor and will be enforceable against the
Licensor in accordance with its terms upon its execution;
5.1.4 the Licensor has the exclusive ownership of the Trademarks.
5.2 The Licensee represents and warrants as follows:
5.2.1 the Licensee, subject to its business scope, is a company duly
registered and validly existing under the laws of the PRC and is
licensed by the relevant PRC government to engage in the business
of information services on the value added telecommunication
services of the second category;
5.2.2 the Licensee has full right, power, authority and capacity and
all necessary consents and approvals of any other third party and
government to execute and perform this Agreement, which shall not
be against any enforceable and effective laws or contracts;
5.2.3 the Agreement will constitute a legal, valid and binding
agreement of the Licensee and will be enforceable against the
Licensee in accordance with its terms upon its execution.
6. The Licensor's Right of Licensing and Protection of the Licensor's Rights
6.1 The Licensee agrees that it will not during the term of this
Agreement, or thereafter, attack the right of licensing or any rights
of the Licensor in and to the Trademarks or attack the validity of
this license or otherwise take or fail to take any action that impairs
such rights or license.
6.2 The Licensee agrees to assist the Licensor to the extent necessary in
the procurement of any protection or to protect any of the Licensor's
rights to the Trademarks. In the event any third party lodges a claim
concerning the Trademarks, the Licensor, if it so desires may commence
or prosecute any claims or suits in its own name or in the name of the
Licensee or join the Licensee as a party thereto. In the event any
third party infringes on the above mentioned Trademarks, the Licensee
shall notify the Licensor in writing of any infringements or
imitations by others of the Trademarks which may come to the
Licensee's attention, and the Licensor shall have the sole right to
determine whether or not any action shall be taken on account of any
such infringements.
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6.3 The Licensee further agrees to use the Trademarks only in accordance
with this Agreement and shall not use such Trademarks in any way,
which, in the opinion of the Licensor, is deceptive, misleading or in
any way damages such Trademarks or the reputation of the Licensor.
7. Quality
The Licensee shall use its reasonable best efforts to improve the quality
of Trademark, so to protect and enhance the reputation of the Trademarks.
8. Promotion
In all cases where the Licensee makes promotion material involving the
Trademarks, the production cost of such material thereof shall be borne by the
Licensee. All copyrights or other intellectual property rights of such material
concerning the Trademarks thereto shall be the sole and exclusive property of
the Licensor whether developed by the Licensor or the Licensee. The Licensee
agrees not to advertise or publicize any of the Trademarks on radio, television,
papers, magazines, Internet or otherwise without prior written consent of the
Licensor.
9. Effective Date and Term
9.1 This Agreement has been duly executed by their authorized
representatives of the parties as of the date first set forth above
and shall be effective simultaneously. The term of this Agreement is
ten (10) years or the date of the expiration of period of validity of
the Trademark (which ever occurs earlier) unless earlier terminated as
set forth below. However, the Licensor and the Licensee shall review
this Agreement every 3 months to determine whether any amendment to
the Agreement is necessary after considering the circumstances.
9.2 This Agreement may be extended for an additional year if the Licensor
gives the Licensee its written consent of the extension of this
Agreement before the expiration of this Agreement. However, the
Licensee has no right to confirm such extension.
10. Record Filing
Within three (3) months after the execution of the Agreement, the Licensor
shall make a record filing of the copy of the Agreement to the relevant
trademark management authority of China.
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11. Termination
11.1 Termination on Expiration.
This Agreement shall expire on the earlier date of the date due or the
date when the Licensor's right of licensing attached in Appendix I
expires, unless this Agreement is extended as set forth above.
11.2 Early Termination
Without prejudice to any legal or other rights or remedies of the
party who asks for termination of this Agreement, any party has the
right to terminate this Agreement immediately with written notice to
the other party in the event the other party materially breaches this
Agreement including without limitation Section 6.1, 6.2 and 6.3 of
this Agreement and fails to cure its breach within 30 days from the
date it receives written notice of its breach from the non-breaching
party.
During the term of this Agreement, the Licensor may terminate this
Agreement at any time with a written notice to the Licensee 30 days
before such termination.
11.3 Survival.
Articles 3, 4, 6 and 16 shall survive after the termination or
expiration of this Agreement.
12. Force Majeure
12.1 Force Majeure, which includes acts of governments, acts of nature,
fire, explosion, typhoon, flood, earthquake, tide, lightning, war,
means any event that is beyond the party's reasonable control and
cannot be prevented with reasonable care. However, any shortage of
credit, capital or finance shall not be regarded as an event of Force
Majeure. The party affected by Force Majeure shall notify the other
party without delay.
12.2 In the event that the affected party is delayed in or prevented from
performing its obligations under this Agreement by Force Majeure, only
within the scope of such delay or prevention, the affected party will
not be responsible for any damage by reason of such a failure or delay
of performance. The affected party shall take appropriate means to
minimize or remove the effects of Force Majeure and attempt to resume
performance of the obligations delayed or prevented by the event of
Force Majeure. After the event of Force Majeure is removed, both
parties agree to resume performance of this Agreement with their best
efforts.
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13. Notices
Notices or other communications required to be given by any party pursuant
to this Agreement shall be written in English and Chinese and shall be deemed to
be duly given when it is 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 the relevant party or parties set forth below.
Licensor: Hurray! Times Communications (Beijing) Ltd.
Address: Room B 07 Tong Heng Plaza, No.4 Huanyuan Road, Haidian District,
Beijing
Licensee: Beijing Cool Young Information Technology Co., Ltd.
Address: Hua Ao Center, Apt.9E, No.31 Zizhuyuan Road, Haidian District,
Beijing
14. No Assignment or Sublicense by the Licensee
This Agreement and all the rights and duties hereunder are personal to the
Licensee. The Licensee agrees that it will not assign, lease, pledge,
sublicense, or in any other way transfer the economic benefits of the license
granted hereby or any portion of the rights included therein to any third party
without the prior written consent of the Licensor.
15. Settlement of Disputes
The parties shall strive to settle any dispute arising from the
interpretation or performance in connection with this Agreement through friendly
consultation within 30 days after one party ask for consultation. In case no
settlement can be reached through consultation, each party can submit such
matter to China International Economic and Trade Arbitration Commission (the
"CIETAC"). The arbitration shall follow the current rules of CIETAC, and the
arbitration proceedings shall be conducted in Chinese and shall take place in
Beijing. The arbitration award shall be final and binding upon the parties and
shall be enforceable in accordance as its terms.
16. Applicable Law
The validity, interpretation and implementation of this Agreement shall be
governed by the laws of PRC.
17. Amendment and Supplement
Any amendment and supplement of this Agreement shall come into force only
after a written agreement is signed by both parties. The amendment and
supplement duly
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executed by both parties shall be part of this Agreement and shall have the same
legal effect as this Agreement.
18. Severability
Any provision of this Agreement which is invalid or unenforceable because
of violating the relevant laws in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
19. Appendices
The Appendices referred to in this Agreement are an integral part of this
Agreement and have the same legal effect as this Agreement.
20. Others
This Agreement is executed by Chinese in three copies.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be duly
executed on their behalf by a duly authorized representative as of the date
first set forth above.
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By: /s/ Xiang Songzuo
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The Licensor: Hurray! Times Communications (Beijing) Ltd.
Representative: Xiang Songzuo
By: /s/ Wei Hongbin
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The Licensee: Beijing Cool Young Information Technology Co., Ltd.
Representative: Wei Hongbin
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Appendix 1
List of Trademarks
Hurray! Starcom
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Appendix 2
Licensee should pay for each the trademark RMB1,000 per year to Licensor as a
license fee. Licensor may waive this fee. The Licensor has the sole right to
determine whether or not to exempt the Licensee's duty to pay License fee.
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