Trademark License Agreement - Beijing Super Channel Network Ltd. and Beijing Lei Ting Wan Jun Network Technology Co. Ltd.
[Translation of Chinese original]
TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement (the "Agreement") is entered into as of
September 26, 2003 by and between the following two parties in Beijing.
The Licensor: Beijing Super Channel Network Limited.
Legal Address: F09 2/F, 3 Yongchangbeilu Road, Beijing Economic and
Technological Development Zone, China
The Licensee: Beijing Lei Ting Wan Jun Network Technology Co., Ltd.
Legal Address: C01, Yongchang Business Center, 3 Yongchangbeilu Road,
Beijing Economic and Technological Development Zone, China
WHEREAS, the Licensor, a wholly foreign-owned enterprise registered in
Beijing under the laws of PRC, has the right of licencing to the trademarks as
defined in Appendix 1.
WHEREAS, the Licensee, a wholly domestic invested company registered in
Beijing under the laws of the People's Republic of China (the"PRC"), is licensed
by Beijing Municipal Telecommunication Management Bureau to carry on the
business of the internet information provision service, Internet access service,
and mobile network value-added telecommunication service;
WHEREAS, the Licensor desires to license the trademarks 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 Trademarks
Upon the terms and conditions hereinafter set forth, the Licensor hereby
grants a general license to the Licensee the 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 Scope
1.2.1 The use of the Trademarks granted by Licensor to Licensee
extends only to the net of Tom/Tom/Beijing Tom Net
(collectively, "Net of Tom")
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operated by Licensee and the business relating to the Internet
operated by the Licensee in the PRC. The Licensee agrees that
it will not make, or authorize any use, direct or indirect, of
the Trademarks by any other means, unless there are
contradictory 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 direct
or indirect use 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 value of 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 an underlying association
with the Licensor by public perception.
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 licencing 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
including 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 It is agree that Section 4.1 shall survive any amendment expiration or
termination of this Agreement.
5. Representations and Warranties
5.1 The Licensor makes to the Licensee the following representations and
warranties:
5.1.1 the Licensor is a company duly registered and in good standing
under the laws of the PRC;
5.1.2 the Licensor, subject to its business scope, has full
corporate, power and
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authority and has taken all corporate actions and has obtained
all necessary approvals or authorizations from any other third
party and government authority to execute and perform this
Agreement, which will not constitute or result in a violation
of any enforceable and effective laws or former 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 has the exclusive ownership of the Trademarks.
5.2 The Licensee make to the Licensor the following representations and
warranties:
5.2.1 the Licensee, 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 providing Internet
access services;
5.2.2 the Licensee has full corporate, power and authority and has
taken all corporate actions and has obtained all necessary
approvals or authorizations from any other third party and
government authority to execute and perform this Agreement,
which will not constitute or result in a violation of any
enforceable and effective laws or former agreements;
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 Licencing and Protection of the Licensor's Rights
6.1 The Licensee agrees that it will not during the term of this
Agreement, or thereafter, challenge the right of licencing or any
rights of the Licensor in and to the Trademarks or challenge 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 lawsuits 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.
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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 detrimental to such Trademarks or the reputation of the
Licensor.
7. Quality
The Licensee shall use its reasonable best efforts to improve the quality
of Net of Tom, so to protect and enhance the reputation of the Trademarks.
8. Promotion
In all cases where the Licensee produces promotional 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, the Internet or otherwise without the prior written consent
of the Licensor.
9. Effective Date and Term
9.1 This Agreement has been duly executed by their authorized
representatives as of the date first set forth above and shall be
effective simultaneously. The term of this Agreement is ten (10) years
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
depending on the circumstances.
9.2 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.
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.
11. Termination
11.1 Termination on Expiration.
This Agreement shall expire on the earlier date of the date due and the
date when the Licensor's right of licensing is terminated, unless this
Agreement is extended
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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
but not limited to 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.
Article 3, 4, 6 and 16 shall survive after the termination or expiration of
this Agreement.
12. Force Majeure
12.1 Force Majeure, which includes but is not limited to acts of
governments, acts of nature, fire, explosion, typhoon, flood,
earthquake, tide, lightning and 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 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 performance of this Agreement with their best
efforts.
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.
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Party A: Beijing Super Channel Network Co., Ltd.
8/F Tower W3 Oriental Plaza, 1 DongChangan Avenue, Dongcheng
District, Beijing, China
Attention:
Telephone No.: 010-65283399
Facsimile No.: 010-85181160
Party B: Beijing Lei Ting Wan Jun Network Technology Co., Ltd.
8/F Tower W3 Oriental Plaza, 1 DongChangan Avenue, Dongcheng
District, Beijing, China
Attention:
Telephone No.: 010-65283399
Facsimile No.: 010-85181160
14. Assignment or Sublicense
The Licensee shall not assign, lease, pledge, sublicense, or in any other
way transfer the rights or responsibilities Licensed pursuant to the Agreement
to any third party/parties, or 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. 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 Beijing. The
arbitration award shall be final and binding upon the parties and shall be
enforceable in accordance as its terms.
16. Governing Law
The validity, interpretation and implementation of this Agreement shall be
governed by the laws of PRC.
17. Amendment and Supplement
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The Agreement shall not be amended or modified except by a written
instrument come into force only signed by both parties. The amendment and
supplement duly 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 due to
the violation of the relevant laws in any jurisdiction shall be void of
effectiveness and birding force within the relevant fields of such jurisdiction
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.
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 hereto
as of the date first set forth above.
Licensor : Beijing Super Channel Network Limited.
Representative:_____________________________
Licensee: Beijing Lei Ting Wan Jun Network Technology Co., Ltd.
Representative:_____________________________
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Appendix 1
Trademark Registration Certificate
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Appendix 2
Licensee should pay Licensor License fee Renminbi 1000 per year. Licensor may
waive this fee in the further. The Licensor has the sole right to determine
whether or not to exempt the Licensee's duty to pay License fee.
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Schedule to Exhibit 10.27
Pursuant to Instruction 2 to Item 601 of Regulation S-K under the
Securities Act of 1933, as amended, the following is a schedule of documents
substantially identical in all material respects except as to the parties
thereto, the dates of execution, or other material details from the document
filed as Exhibit 10.27.
Exhibit 10.27 Filed
Agreement: Trademark License Agreement
Date: September 26, 2003
Licensor: Beijing Super Channel Network Limited
Licensee: Beijing Lei Ting Wan Jun Network Technology Company Limited
Scope: The trademark licensed to the Licensee is for the websites of
tom.com, tom, bj.tom.com, and the Internet-related businesses
Internet of the Licensee.
Agreements Substantially Identical to Exhibit 10.27 and Omitted
Agreement: Trademark License Agreement
Date: September 26, 2003
Licensor: Beijing Super Channel Network Limited
Licensee: Shenzhen Freenet Information Technology Company Limited
Scope: The trademark licensed to the Licensee is for the website of
163.net and the Internet-related businesses of the Licensee.
Agreement: Trademark License Agreement
Date: November 19, 2003
Licensor: Beijing Super Channel Network Limited
Licensee: Beijing Lei Ting Wu Ji Network Technology Company Limited
Scope: The trademark license granted to the Licensee is for the
websites of ltwj.com and tomkid.com.cn and the Internet-related
businesses of the Licensee.