Domain Name License Agreement - Beijing Super Channel Network Ltd. and Beijing Lei Ting Wan Jun Network Technology Co. Ltd.
[Translation of Chinese original]
DOMAIN NAME LICENSE AGREEMENT
This Domain Name License Agreement (the "Agreement") is entered into as of
September 26, 2003 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 the People's Republic of China (the"PRC"), has the
right to license the domain names of tom.com, bj.tom.com and cn.tom.com and owns
the domain names music974.com.cn, 974.com.cn and ctn.com.cn (collectively the
"Domain Names").
WHEREAS, the Licensee, a company registered in Beijing under the laws of
the PRC, is licensed by Beijing Municipal Telecommunication Management Bureau to
the business of the internet information provision service, Internet access
service, mobile network value-added telecommunications service, and owns and
operates the net of Tom website;
WHEREAS, the Licensor agrees 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 Tom website operated by Licensee. The Licensee agrees that it will not
make, or authorize any direct or indirect use, of the Domain Names by any
other means, unless otherwise stipulated 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 is 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 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 the license 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 all and any documents, information or
software containing such Confidential Information to the Licensor or
destroy 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 in good standing
under the applicable laws of the PRC;
5.1.2 the Licensor has the exclusive ownership of the domain names
music974.com.cn and 974.com.cn and has the right to license the
domain names tom.com, bj.tom.com and cn.tom.com to others;
5.1.3 the Licensor, subject to its business scope, has full
corporate, power and authority and has taken all corporate
actions and has obtained all necessary approvals and
authorizations by any other third party and government
authorities to enter into and execute this Agreement, which
will not constitute or result in a violation of any enforceable
and effective laws or previous agreements;
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5.1.4 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.
5.2 The Licensee represents and warrants as follows:
5.2.1 the Licensee is a company duly registered and validly existing
under the laws of the PRC and is licensed by Beijing Municipal
Telecommunication Management Bureau to engage in the business
of providing Internet Information Provision Service, Internet
access service and mobile network value-added telecommunication
service;
5.2.2 the Licensee, subject to its business scope, has full
corporate, power and authority and has taken all corporate
actions and has obtained all necessary approvals and
authorizations by any other third party and government
authorities to enter into and execute this Agreement, which
will not constitute or result in a violation of any enforceable
and effective laws or previous agreements;
5.2.3 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.
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, and will not engage in any activities in
detriment to the ownership, other rights or approval by the Licensor's
judgement.
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 detrimental to the damages such Domain Names or the reputation
of the Licensor.
7. Quality
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The Licensee shall use its reasonable best efforts to improve the quality
of the net of Tom, so to protect and enhance the reputation of the Domain
Names.
8. Promotion
8.1 In all cases where the Licensee produces promotional material
involving the Tom website, 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.
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, the Licensor's parent
company or affiliate of the Licensor's parent company at the present time
or any time in the future, 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 become
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 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
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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 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 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 but is not limited to acts of
governments, natural force, 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.
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 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.
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
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prepaid mail or by a recognized courier service or by facsimile
transmission to the address of the relevant party or parties set forth
below.
Party A: 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
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
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 Beijing.
The arbitration award shall be final and binding upon the parties and shall
be enforceable in accordance with its terms.
17. Applicable Law
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The validity, interpretation and implementation of this Agreement shall be
governed by the laws of PRC.
18. Amendment and Supplement
The Agreement shall not be amended, supplemented or modified except by a
written instrument 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.
19. Severability
Any provision of this Agreement which is invalid or unenforceable due to
the violation of the relevant laws in any jurisdiction shall only be void
of effectiveness or building force within the relevant fields of such
jurisdiction, 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.
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
Licensee should pay Licensor License fee Renminbi 1000 per year. 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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Schedule to Exhibit 10.28
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 10.28.
Exhibit 10.28 Filed
Agreement: Domain Name License Agreement
Date: September 26, 2003
Licensor: Beijing Super Channel Network Limited
Licensee: Beijing Lei Ting Wan Jun Network Technology Company Limited
Scope: The domain names licensed to the Licensee are the domain names
relating to the Tom website operated by the Licensee.
Agreements Substantially Identical to Exhibit 10.28 and Omitted
Agreement: Domain Name License Agreement
Date: September 26, 2003
Licensor: Beijing Super Channel Network Limited
Licensee: Shenzhen Freenet Information Technology Company Limited
Scope: The domain name licensed to the Licensee is the 163.net domain
name.
Agreement: Domain Name License Agreement
Date: November 19, 2003
Licensor: Beijing Super Channel Network Limited
Licensee: Beijing Lei Ting Wu Ji Network Technology Company Limited
Scope: The domain names licensed to the Licensee are the ltwj.com and
tomkid.com.cn domain names.
Agreement: Domain Name License Agreement
Date: November 19, 2003
Licensor: Puccini Network Technology (Beijing) Limited
Licensee: Beijing Lei Ting Wu Ji Network Technology Company Limited
Scope: The domain name licensed to the Licensee is the ltwj.com domain
name.