Domain Name License Agreement - KongZhong Information Technology (Beijing) Co. Ltd. and Beijing Boya Wuji Technologies Co. Ltd.
DOMAIN NAME LICENSE AGREEMENT
This Domain Name License Agreement (the "Agreement") is entered into as of
March 31st, 2004 by and between the following two parties in Beijing.
The Licensor: KONGZHONG INFORMATION TECHNOLOGY (BEIJING) CO., LTD.
The Licensee: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
WHEREAS, the Licensor, a wholly foreign-owned enterprise registered in
Beijing under the laws of People's Republic of China (for the purpose of this
Agreement, 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" or "China"), 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;
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,
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non-exclusive and non-transferable.
1.2 Scope
1.2.1 The use of the domain names licensed by the Licensor to the
Licensee extends only to the business operated by the
Licensee. The Licensee agrees that it will not use, or
authorize any use, direct or indirect, of the licensed Domain
Names by any other means without the Licensor's consent.
1.2.2 The License in this Agreement is effective within the
territory of China and other areas as may be granted from time
to time by the Licensor in writing. Licensee agrees that
Licensee shall not directly or indirectly use or authorize any
use of the said domain name in other areas.
1.3 Standards
The Licensee shall comply with any standards and criteria the
Licensor requests from time to time when the Licensee uses the said
domain names.
1.4 Licensee's confirmation
The Licensee confirms that the Licensee does not enjoy 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 fee, the details of
the calculation method and method of payment is set forth in Exhibit 2 to
this Agreement.
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
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(collectively the "Confidential Information"). Upon termination or
expiration of this Agreement, the Licensee shall, at the Licensor's
option, return any and all documents, information or software
containing such Confidential Information to the Licensor or destroy
and delete such Confidential Information from any memory 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 not 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 modified, rescinded, or terminated, this Article is still
effective.
5. REPRESENTATIONS AND WARRANTIES
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 the 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 laws or agreements.
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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 laws or 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.
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
the Licensor may deem impairing 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
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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 promptly
notify the Licensor in writing of any infringements of the Domain
Names to its acknowledgement 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
radio, TV, newspapers, magazine, internet or any other media unless the
prior consent and approval from the Licensor in writing has acquired.
9. EFFECTIVE DATE AND TERM
9.1 This Agreement has been duly executed as of the date first set froth
above and shall be effective simultaneously. The term of this
Agreement is 10 (ten) years unless earlier terminated pursuant to
this Agreement.
9.2 Unless any other provisions set forth in written form, this
Agreement shall be applicable to any other domain names licensed to
the Licensee during the term of this Agreement. After the execution
of this Agreement, the Licensor and Licensee shall review this
Agreement every 3 months to determine whether to modify or renew
this Agreement under specific circumstances.
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9.3 This Agreement may be automatically extended for 10 (ten) years
unless otherwise terminated by the Licensor by a written notice to
the Licensee three (3) months before the expiration of this
Agreement. However, the Licensee has no right to confirm such
extension.
10. REGISTRATION
Within three (3) months of the execution of Agreement, both parties shall,
in accordance with the law of China, file the licensed domain names with
the relevant domain name administrative authorities (if applicable). Both
parties agree to execute or furnish the relevant documents necessary for
such filing based on the principals set forth in this Agreement and
requirements under relevant laws.
11. TERMINATION
11.1 This Agreement shall expire on the date due or when the license
right in possession of Licensor is terminated (the earlier date is
preferred) unless this Agreement is extended as set forth above.
11.2 Without prejudice to any legal rights or remedies, which are based
on any laws or causes, of the party who asks for termination of this
Agreement after the 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, which
shall be effective 30 days after sending. 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
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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 as soon
as possible.
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, Tower A, Yue Tan Building, 2#, Yue Tan Bei Jie,
Xi Cheng District, Beijing
Fax: (86) 10-68083118
Tel.:(86) 10-68081818
Receiver: Yunfan Zhou
The Licensee: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
Legal Address: Room 809, Tower A, Yue Tan Building, 2#, Yue Tan Bei Jie,
Xi Cheng District, Beijing
Fax: (86) 10-68083118
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Tel.: (86) 10-68081818
Receiver: Yang Zha
14. RE-TRANSFER, RE-LICENSE
Without the written consents of the Licensor, the rights and obligation
licensed of or under this Agreement shall not be transferred, leased, or
pledged 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 execution, validity, interpretation, implementation and disputes of
this Agreement shall be governed by the laws of the PRC.
17. AMENDMENT AND SUPPLEMENT
This Agreement shall not be amended, modified, or supplemented 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.
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.
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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 TECHNOLOGY (BEIJING) CO., LTD.
Authorized Representative: /s/ Nick Yang
The Licensee: BEIJING BOYA WUJI TECHNOLOGIES CO., LTD.
Authorized Representative: /s/ Yang Zha
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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 the
Licensee, the license fee shall be calculated on a quarterly basis and the
Licensee shall pay the Licensor within 15 days after the end of each quarter, if
the licensor considers it is helpful to the business of the Licensee, the
Licensor is entitled to reduce or exempt whole or part of the license fee.
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