Domain Name License Agreement - KongZhong Information Technologies (Beijing) Co. Ltd. and Beijing AirInBox Information Technologies Co. Ltd.
DOMAIN NAME LICENSE AGREEMENT
This Domain Name License Agreement (the "Agreement") is entered into as of
April 1st, 2004 by and between the following two parties in Beijing.
The Licensor: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD ("KongZhong
(Beijing)")
Legal Address: 12th floor, Zhong Dian Building, Zhong Guan Cun Nan Da Jie, Hai
Dian District, Beijing
Legal Representative: Yunfan Zhou
The Licensee: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
Legal Address: 12th floor, Zhong Dian Building, Zhong Guan Cun Nan Da Jie, Hai
Dian District, Beijing
Legal Representative: Yunfan Zhou
WHEREAS, the Licensor, a wholly foreign-owned enterprise registered in
Beijing under the laws of People's Republic of China (not including Hong Kong,
Macau and Taiwan, hereinafter called "China"), which owns the domain names
listed in the Exhibit 1 of this Agreement;
WHEREAS, the Licensee, a limited liability company sponsored by natural
persons in China registered in Beijing under the laws of the People's Republic
of China (the"PRC"), is licensed to engage in the business of providing Internet
information and the telecom value-added services;
WHEREAS, the Licensor agrees to license the said Domain Names to the
Licensee in accordance with the terms and conditions set forth herein and the
Licensee as well agrees to accept the license on the terms and conditions set
forth herein;
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NOW THEREFORE, on the basis of mutual benefit and friendly negotiation,
the parties agree as follows:
1. Grant of License
1.1 The Domain Names
Under the terms and conditions hereinafter set forth, the Licensor
hereby grants to the Licensee and the Licensee accepts from the
Licensor parts of or all parts of the Domain Names listed in Exhibit
1, and the Licensee may deal its business with these domain names.
Such license is non-monopolized, non-exclusive and non-transferable.
1.2 Range
1.2.1 The Licensee agrees to use the licensed domain name in the
field of it own business operation. The Licensee cannot
directly or indirectly sublicense the Domain Names hereunder to
any others unless the Licensor agrees.
1.2.2 The License in this Agreement is effective in China and where
the Licensor may from time to time grant a license to the
Licensee in the writing form. Licensee agrees that Licensee
shall not directly or indirectly use or sublicense to the
others the said domain name.
1.3 Standards
The Licensee shall comply with any standards and criteria the Licensor
may request from time to time when the Licensee uses the said domain
names.
1.4 Licensee's confirm
The Licensee confirms that the Licensee is not entitled any rights,
titles and interests of the said domain names except the rights,
titles and interests in the said domain names under this Agreement.
2. PAYMENT
The Licensee agrees to pay the Licensor the license fees determined in
accordance with the calculation method and the way of payment provided in
Exhibit 2 of this Agreement.
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3. GOODWILL
The Licensee recognizes the value of the goodwill associated with the
Domain Names and the relevant rights, and acknowledges that the Domain
Names therein and goodwill (including but not limited to the goodwill
occurs from the Licensee's use) pertaining thereto shall be the sole and
exclusive property of the Licensor.
4. CONFIDENTIALITY
4.1 By accepting the granting of the Domain Name licenses from the
Licensor, the Licensee agrees to protect and maintain the
confidentiality of any and all confidential data and information
acknowledged or received by the Licensee (collectively the
"Confidential Information"). Upon termination or expiration of this
Agreement, the Licensee shall, at the Licensor's request, return any
and all documents, information or software containing such
Confidential Information to the Licensor or destroy and delete such
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 and will not use the
Confidential Information without the Licensor's written consent.
Licensee shall disclose the protected confidential information to the
necessary employees, agents or consultants by the necessary measures,
and shall urge the necessary employees, agents or consultants to
observe the obligations under this Agreement.
4.2 The above limitations shall not apply to the situations as follows:
4.2.1 The materials which can be obtained in public in the time of
disclosure;
4.2.2 The public materials disclosed not due to the mistake of
Licensee;
4.2.3 The Licensee may prove that before the disclosure the materials
were under its title and were obtained directly or indirectly
from the other resources;
4.2.4 Upon the legal demands of any party, the confidential
information shall be disclosed to the government authorities,
security exchange agent, and etc.; and upon the general
operation needs, the above confidential information shall be
disclosed to direct legal consultants and financial advisor.
4.3 With the consent of both parties, no matter whether this Agreement is
terminated, rescinded, or modified, this Article is still effective.
5. REPRESENTATIONS AND WARRANTIES
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5.1 The Licensor represents and warrants as follows:
5.1.1 the Licensor is a company duly registered and in good standing
under the applicable laws of China;
5.1.2 the Licensor, within its business scope, has full corporate
power and authority and has taken all corporate actions and has
obtained all necessary approvals and authorizations from third
parties and government authorities to execute and perform the
obligations under this Agreement, which will not constitute or
result in a violation of any enforceable and effective
agreements;
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 legally hold the said domain names under this
Agreement.
5.2 The Licensee makes to the Licensor the following representation and
warranties:
5.2.1 the Licensee is a company duly registered and in good standing
under the applicable laws of the China, and is approved by the
relevant authorities to provide the internet information
services and the value-added telecom service.
5.2.2 the Licensee, within its business scope, has full corporate,
power and authority and has taken all corporate actions and has
obtained all necessary approvals and authorizations from third
parties and government authorities to execute and perform the
obligations under this Agreement, which will not constitute or
result in a violation of any enforceable and effective
agreements;
5.2.3 the Licensee will timely subscribe the files and the cases
pertaining to the domain name, which the Licensor considered
shall be subscribed or dealt with.
5.2.5 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.
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6. The Licensee further makes to the Licensor the following representation and
warranties:
6.1 The Licensee agrees that it will not, during the term of this
Agreement, or thereafter, challenge the title or any rights of the
Licensor in and to the Domain Names or challenge the validity of this
Agreement, and shall not perform or un-perform any act, which may
impair the interest in the above rights or the 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 Domain Names, and the Licensor, if it so desires, may
commence or prosecute any claims or lawsuits in its own name or in the
name of the Licensee or join the Licensee as a party thereto. The
Licensee shall notify the Licensor in writing of any infringements of
the Domain Names that 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.
6.3 The Licensee further agrees to use the Domain Names only in accordance
with this Agreement and shall not use the Domain Names in any way
that, in the opinion of the Licensor, is deceptive, misleading or in
any way damaging to such Domain Names or the reputation of the
Licensor.
7. QUALITY
The Licensee shall make every effort to improve its service quality as to
protect the goodwill represented by the said domain name.
8. PROMOTION
In all cases where the Licensee produces promotional material involving the
Domain Name, 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 Domain Name thereto shall be the sole and exclusive
property of the Licensor whether developed by the Licensor or the Licensee.
The Licensee agrees that the Licensee shall not promote or advertise the
said domain names under this agreement in any newspapers, TV, magazine,
radio, internet or any other media unless the prior consent and approval in
writing has acquired.
9. EFFECTIVE DATE AND TERM
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9.1 This Agreement is subscribed and goes into effect in the date
indicated in the front of this agreement. The term of this Agreement
is 10 (ten) years unless earlier terminated as set forth in this
Agreement.
9.2 Unless otherwise agreed upon by the parties in writing, this Agreement
shall be applicable to any other domain names licensed to the Licensee
within the term of this Agreement. After the subscription of this
Agreement, the Licensor and Licensee shall review this Agreement every
3 months to determine whether to modify or renew this Agreement upon
the detail situation.
9.3 This Agreement may be extended for 10 (ten) years only if the Licensor
gives the Licensee its written consent of the extension of this
Agreement prior to the expiration of this Agreement. However, the
Licensee has no right to confirm such extension.
10. REGISTER
Within 3(three) months of the subscription of Agreement, both parties shall
in compliance with the law of China put the licensed domain name on records
in the relevant domain name administrative authorities. Both parties agree
to subscribe or furnish the relevant files and materials the administrative
authorities require on the basis of the principals and related laws under
this Agreement.
11. TERMINATION
11.1 This Agreement shall expire on the date due or when the license right
in possession of Licensor is terminated unless this Agreement is
extended as set forth above.
11.2 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 but not limited to the provisions in 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.
11.3 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.
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The Licensee shall not terminate this Agreement in prior.
11.4 Article 3, 4, 6, 15 and 16 shall survive after the termination or
expiration of this Agreement.
12. FORCE MAJEURE
12.1 Force Majeure means any event that is beyond the party's reasonable
control and cannot be prevented with reasonable care including but not
limited to the acts of governments, nature, fire, explosion, typhoon,
flood, earthquake, tide, lightning and war. 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 measures 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, and the affected party will not be responsible to such
performance and will only be responsible to the delayed parts of
performance. After the event of Force Majeure is removed, both parties
agree to resume the performance of this Agreement with their best
efforts.
13. NOTICES
Notice 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 set forth below.
The Licensor: KONGZHONG INFORMATION TECHNOLOGY (BEIJING) CO., LTD
Legal Address: Room 809, Block A, Yue Tan Building, 2#, Yue Tan Bei Jie, Xi
Cheng District, Beijing
Fax: (86) 10-68083118
Tel.: (86) 10-68081818
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Receiver: Yunfan Zhou
The Licensee: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
Legal Address: Room 809, Block A, Yue Tan Building, 2#, Yue Tan Bei Jie, Xi
Cheng District, Beijing
Fax: (86) 10-68083118
Tel.: (86) 10-68081818
Receiver: Yunfan Zhou
14. RE-TRANSFER, RE-LICENSE
Without the consent of Licensee, the rights and obligation licensed under
this Agreement shall not be transferred, leased, or mortgaged to any third
party.
15. DISPUTE RESOLUTION
15.1 The parties shall strive to settle any disputes arising from the
interpretation or performance through negotiation in good faith. In
the event that no settlement can be reached through negotiation within
30 days after one party issues a negotiating notice, either 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 with its terms.
15.2 Except the dispute issues, all parties shall perform their own duties
pursuant to the provisions in good faith.
16. APPLICABLE LAW
The subscription, validity, interpretation, implementation and any disputes
of this Agreement shall be governed by the laws of the PRC.
17. AMENDMENT AND SUPPLEMENT
This Agreement shall not be amended, supplemented or modified except by a
written instrument signed by both parties. The amendment or supplement duly
executed by both parties shall constitute part of this Agreement and shall
have the same legal effect as this Agreement.
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18. SEVERABILITY
Any provision of this Agreement which is invalid or unenforceable due to
the violation of relevant laws in any jurisdiction shall, as to that
jurisdiction, be ineffective or void of binding force only to the extent of
such invalidity or unenforceability, without affecting in any way the
remaining provisions hereof.
19. WAIVER
Any party cannot perform the rights, power, or privileges under this
Agreement shall not be deemed as waiver. Any wholly or partly performance
of the rights, power, or privileges shall not exclude the performance of
any other rights, power, or privileges.
20. EXHIBITS
The Exhibits referred to in this Agreement are an integral part of this
Agreement and have the same legal effect as this Agreement.
IN WITNESS THEREOF the parties hereto have caused this Agreement to be
duly executed by a duly authorized representative each on behalf of the
party here to as of the date first set forth above.
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[Signature page, no Agreement]
The Licensor: KONGZHONG INFORMATION TECHNOLOGIES (BEIJING) CO., LTD
Authorized Representative: /s/ Nick Young
The Licensee: BEIJING AIRINBOX INFORMATION TECHNOLOGIES CO., LTD
Authorized Representative: /s/ Yunfan Zhou
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EXHIBIT 1
LIST OF LICENSED DOMAIN NAMES
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EXHIBIT 2
CALCULATION METHOD AND PAYMENT METHOD OF THE LICENSE FEE
The license fee under this Agreement shall be 5% of the total income of
Licensee, the license fee shall be paid every quarter and the Licensor shall pay
the Licensee within 15 days after each quarter, if the licensor considers it is
helpful to the business of Licensee, the Licensor has its right to determine the
whole or parts of the license fee can be reduced or exempted.
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