Domain Name License Agreement - Linktone Ltd. and Shanghai Weilan Computer Co. Ltd.
DOMAIN NAME LICENSE AGREEMENT
This Domain Name License Agreement (the "Agreement") is entered into as of
27 November, 2003 between the following two parties in Shanghai.
THE LICENSOR: LINKTONE LTD.
LEGAL ADDRESS: Cayman Islands in British West Indies
THE LICENSEE: SHANGHAI WEILAN COMPUTER CO., LTD.
LEGAL ADDRESS: No.558, Luzhendizhi West Road, Jiading District, Shanghai
WHEREAS, the Licensor, a company registered in Cayman Island under the laws
of the Cayman Island, which has the right to licence the domain names
linktone.com (the "Domain Names").
WHEREAS, the Licensee, a company registered in Shanghai under the laws of
the PRC, is licensed by Shanghai Municipal Telecommunication Management Bureau
to carry on the business of the information provision service(not include the
Internet Information Service and telephone information service);
WHEREAS, the Licensor desires to license the Domain Names to the Licensee
in accordance with the terms and conditions set forth herein and the Licensee
wishes to accept the license on the terms and conditions set forth herein;
NOW THEREFORE, the parties agree as follows:
1. GRANT OF LICENSE
1.1 THE DOMAIN NAMES
Upon the terms and conditions hereinafter set forth, the Licensor hereby
grants a general license to the Licensee the Domain Names, and the Licensee
hereby accepts the general license to use the Domain Names.
1.2 SCOPE
The use of the Domain Names granted by Licensor to Licensee extends only to
the business operated by Licensee. The Licensee agrees that it will not
make, or authorize any use, direct or indirect, of the Domain Names by any
other means, unless there are opposite stipulations in this Agreement.
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2. TERMS OF PAYMENT
The Licensee agrees to pay the Licensor license fees and the specified
amount of the license fees and the form of payment are set forth in
Appendix 1.
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 pertaining thereto shall be the sole and
exclusive property of the Licensor, and that the Domain Names 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 the licence of the Domain Names from the
Licensor (collectively the "Confidential Information"). Upon
termination or expiration of this Agreement, the Licensee shall, at
the Licensor's option, return Confidential Information to the Licensor
or destroy it itself and delete 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.
4.2 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 Cayman Island;
5.1.2 the Licensor has the exclusive ownership of domain name
linktone.com and has the right to licence the domain names
linktone.com to others;
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.
5.2 The Licensee represents and warrants as follows:
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5.2.1 the Licensee is a company duly registered and validly existing
under the laws of the PRC and is licensed by Shanghai Municipal
Telecommunication Management Bureau to engage in the business of
the information provision service(not include the Internet
Information Service and telephone information service);
5.2.2 the Licensee, subject to its business scope, 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;
5.2.3 the Agreement will constitute a legal, valid and binding
agreement of the Licensee will be enforceable against the
Licensee in accordance with its terms upon its execution.
6. THE LICENSOR'S TITLE 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 title, right of licencing or any
rights of the Licensor in and to the Domain Names or attack the
validity of this 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 suits 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 damages such Domain Names or the reputation of the Licensor.
7. QUALITY
The Licensee shall use its reasonable best efforts to improve the quality
of the net of Domain Name, so to protect and enhance the reputation of the
Domain Names.
8. PROMOTION
8.1 In all cases where the Licensee makes promotion material involving the
net of Tom, 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
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Domain Name thereto shall be the sole and exclusive property of the
Licensor whether developed by the Licensor or the Licensee.
8.2 The Licensee agrees not to advertise or publicize any of the Domain
Names on radio, television, papers, magazines, the Internet or
otherwise without the prior written consent of the Licensor.
9. COMPETITIVE WEB SITE
In the event that any of the Domain Names contradict with any of the
trademark or domain name used by any of the Licensor's parent company or
affiliate of the Licensor's parent company at the present time or any time
in the future, then the Licensor shall have the right to terminate the
Agreement by a written notice to the Licensee 30 days before such
termination.
10. EFFECTIVE DATE AND TERM
10.1 This Agreement has been duly executed by both parties' authorized
representatives 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 Domain
Names (which ever is the shorter) unless earlier terminated as set
forth below. However, the Licensor and the Licensee shall review this
Agreement every three (3) months to determine whether any amendment to
the Agreement is necessary after considering the circumstances.
10.2 This Agreement may be extended one year only 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.
11. TERMINATION
11.1 Termination on Expiration.
This Agreement shall expire on the early date of the date due or the
date when the Licensor's right to grant a license is terminated 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
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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.
Article 3, 4, 6 and 16 shall survive after the termination or
expiration of this Agreement.
12. EFFECT OF TERMINATION OR EXPIRATION
Upon and after the expiration or termination of this license, all rights
granted to the Licensee hereunder shall forthwith revert to the Licensor,
who shall be free to license others to use the Domain Names and the
Licensee will refrain from further use of the Domain Names or any, direct
or indirect use.
13. FORCE MAJEURE
13.1 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.
13.2 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 the performance of this Agreement with their
best efforts.
14. 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.
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Party A: LINKTONE LTD..
Cayman Islands in British West Indies
Party B: SHANGHAI WEILAN COMPUTER CO., LTD.
No.558, Luzhendizhi West Road, Jiading District, Shanghai
15. NO ASSIGNMENT OR SUBLICENSE BY THE LICENSEE
15.1 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.
15.2 The Licensee hereby agrees that the Licensor shall be able to transfer
all or any of its rights and obligation under this Agreement to any
third party at its discretion, and such transfer shall only be subject
to a written notice serviced to the Licensee by the Licensor, and no
any further consent from the Licensee will be required.
16. SETTLEMENT OF DISPUTES
The parties shall strive to settle any dispute arising from the
interpretation or performance through friendly consultation. In case no
settlement can be reached through consultation within 30 days after one
party ask for 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 Shanghai.
The arbitration award shall be final and binding upon the parties and shall
be enforceable in accordance with its terms.
17. APPLICABLE LAW
The validity, interpretation and implementation of this Agreement shall be
governed by the laws of PRC.
18. AMENDMENT AND SUPPLEMENT
Any amendment and supplement of this Agreement shall come into force only
after both parties sign a written agreement. The amendment and supplement
duly executed by both parties shall be part of this Agreement and shall
have the same
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legal effect as this Agreement.
19. 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.
20. APPENDICES
The Appendices referred to in this Agreement are an integral part of this
Agreement and have the same legal effect as this Agreement.
21. OTHERS
This Agreement is executed by Chinese and English in duplicate, and in case
of confliction, the Chinese version is prevail.
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.
THE LICENSOR : LINKTONE LTD.
Representative: /s/ Jun Wu
THE LICENSEE: SHANGHAI WEILAN COMPUTER CO., LTD.
Representative: /s/ Raymond Lei Yang
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APPENDIX 1
Licensee should pay for each the domain name RMB10,000 per year to Licensor
as license fee. The Licensor has the sole right to determine whether or not to
exempt the Licensee's obligation to pay License fee.
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