Domain Name License Agreement - Tom.com Enterprise Ltd. and Beijing Super Channel Network Ltd.
[Translation of Chinese original]
DOMAIN NAME LICENSE AGREEMENT
This Domain Name License Agreement (the "Agreement") is entered into as of
September 26, 2003 by and between the following two parties in Beijing.
The Licensor: tom.com enterprise Limited
Legal Address: Offshore Incorporations Limited, P.O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin
Islands
The Licensee: Beijing Super Channel Network Limited
Legal Address: F09 2/F 3 Yongchangbeilu Road, Beijing Economic and
Technological Development Zone, China
WHEREAS, the Licensor, an enterprise registered in British Virgin Islands
("BVI") under the laws of the BVI, which owns the domain names tom.com,
bj.tom.com and cn.tom.com (collectively the "Domain Names").
WHEREAS, the Licensee, a wholly foreign owned company 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 services;
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
Under the terms and conditions hereinafter set forth, the Licensor hereby
grants a general license for the Domain Names to the Licensee free of
charge. Such license is nonexclusive. Notwithstanding the provisions
aforesaid, the Licensee shall pay fees to the Licensor for its use of the
Domain Names and the standards for such license fees shall be decided by
both parties through negotiation, in the event that the shares held by
Licensor's shareholder, Tom.com Limited, in TOM Online Inc. (holding
indirectly the shares of the Licensee) are less than 30%. However, in
disrespect of the above provisions, the licensee is entitled to have the
option to demand for perpetual use right for price through negotiated or
for $5,000,000 (take the lower one as standard). Only if the licensor is
still entitled to use the above Domain Names.
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1.2 Assignment and Sublicense
The Licensor agrees the Licensee can sublicense the Domain Names hereunder
to any subsidiary companies within the group of Tom Online Inc. without
prior written consent of the Licensor; however, the Licensee shall obtain
the Licensor's the prior written consent if the Licensee sublicense the
Domain Names to any third party outside the group of Tom Online Inc.;
provided that the scope of any of the aforesaid sublicense shall not exceed
the Licensee's right to the Domain Names hereunder.
1.2.2 The Licensee shall not assign, lease, pledge, or in any other way
transfer the rights, obligations, and 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.
2. 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 an
underlying association with the Licensor by public perception.
3. Confidentiality
3.1 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 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 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.
3.2 Section 3.1 shall survive any amendment, expiration or termination of
this Agreement.
4. Representations and Warranties
4.1 The Licensor represents and warrants as follows:
4.1.1 the Licensor is a company duly registered and in good standing
under the applicable laws of the BVI;
4.1.2 the Licensor has the exclusive ownership of the domain names
tom.com,
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bj.tom.com and cn.tom.com;
4.1.3 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 loans or
previous agreements;
4.1.4 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.
4.2 The Licensee makes to the Licensor the following representation and
warrenties:
4.2.1 the Licensee is a wholly foreign owned company duly registered
and in good standing under the applicable laws of the PRC;
4.2.2 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 loans
or previous agreements;
4.2.3 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.
5. The Licensor's Title and Protection of the Licensor's Rights
5.1 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
license.
5.2 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.
5.3 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
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such Domain Names or the reputation of the Licensor.
6. Promotion
6.1 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.
6.2 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.
7. Effective Date and Term
7.1 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)
year(s) 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 or supplement to the
Agreement is necessary depending on the circumstances.
7.2 This Agreement may be extended for one year 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.
8. Termination
8.1 Termination on Expiration.
This Agreement shall expire on the date due unless this Agreement is
extended as set forth above.
8.2 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
but not limited to the provisions in Section 5.1, 5.2 and 5.3 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.
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8.3 Survival.
Article 2, 3, 5 and 12 shall survive after the termination or expiration of
this Agreement.
9. 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 the Domain Names to others and the
Licensee will refrain from further use of the Domain Names or any direct or
indirect use.
10. Force Majeure
10.1 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.
10.2 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. After the event of Force Majeure is
removed, both parties agree to resume the performance of this
Agreement with their best efforts.
11. 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.
Party A: tom.com enterprise Limited
48/F the Center, 99 Queen's Road Central, Hong Kong
Attention: Secretary of the company
Telephone No.: 852-21217838
Facsimile No.: 852-21897446
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Party B: Beijing Super Channel Network Limited..
8/F Tower W3 Oriental Plaza, 1 DongChangan Avenue, Dongcheng
District, Beijing, China
Attention:
Telephone No.: 010-65283399
Facsimile No.: 010-85181160
12. Dispute Resolution
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.
13. Applicable Law
The validity, interpretation and implementation of this Agreement shall be
governed by the laws of the PRC.
14. 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.
15. Severability
Any provision of this Agreement which is invalid or unenforceable due to
the violation of relevant lans 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.
16. Appendices
The Appendices referred to in this Agreement are an integral part of this
Agreement and have the same legal effect as this Agreement.
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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.
Licensor : tom.com enterprise Limited
Representative:
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Licensee: Beijing Super Channel Network Limited
Representative:
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