printer-friendly

Sample Business Contracts

Trademark License Agreement - Hurray! Times Communications (Beijing) Ltd. and Beijing Cool Young Information Technology Co. Ltd.

Sponsored Links

                           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,

<PAGE>

               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

                                       2

<PAGE>

               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.

                                       3

<PAGE>

     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.

                                       4

<PAGE>

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.

                                       5

<PAGE>

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

                                       6

<PAGE>

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.

                                       7

<PAGE>

(No text on this page)


By: /s/ Xiang Songzuo
    ------------------------------------
The Licensor: Hurray! Times Communications (Beijing) Ltd.

Representative: Xiang Songzuo


By: /s/ Wei Hongbin
    ------------------------------------
The Licensee: Beijing Cool Young Information Technology Co., Ltd.

Representative: Wei Hongbin

                                       8

<PAGE>

                                   Appendix 1

                               List of Trademarks

Hurray! Starcom

                                       9

<PAGE>

                                   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.

                                       10