Online Media Services Agreement - Tom.com International Ltd. and Tom Online Inc.
DATED 26 September 2003
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TOM.COM INTERNATIONAL LIMITED
and
TOM ONLINE INC.
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ON-LINE MEDIA SERVICES AGREEMENT
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THIS AGREEMENT is made on the 26th day of September 2003
BETWEEN:
(1) TOM.COM INTERNATIONAL LIMITED, a company incorporated in Hong Kong and
having its registered address and correspondence address at 48/th/ Floor,
The Center, 99 Queen's Road Central, Central, Hong Kong ("TOM"); and
(2) TOM ONLINE INC., a company incorporated in the Cayman Islands and having
its registered address/ correspondence address at P.O. Box 309 Ugland
House, South Church Street, George Town, Grand Cayman, Cayman Islands,
British West Indies ("Company").
WHEREAS:
(A) As at the Commencement Date (as hereinafter defined), the Matrix Group (as
hereinafter defined) is/was engaged in the businesses of, inter alia,
online advertising and mobile communication infotainment.
(B) TOM wishes to engage the Company to provide, and the Company has agreed to
provide and/or procure other members of the Matrix Group to provide,
certain goods and services upon the terms and subject to the conditions
hereinafter set out.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 The words and expressions set out below shall, unless the context otherwise
requires, have the meanings attributed to them below:
"Agreement"
this agreement including its schedule, as the same may be amended or
supplemented from time to time;
"business day"
a day on which banks in Hong Kong are open for business (excluding
Saturday and Sunday);
"Commencement Date"
Date of this Agreement;
"Fee"
the fee payable by the relevant members of the Matrix Group to the
relevant members of the TOM Group for the provision of the Goods and
Services hereunder and in the manner as more particularly referred to in
Clause 3;
"Goods and Services"
such goods and/or services provided or to be provided by any member of the
Matrix Group to any member of the TOM Group from time to time as referred
to in Clause 2 and set out in the Schedule in connection
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with the management and operation of the business of such relevant member
of the TOM Group;
"holding company"
has the same meaning as ascribed to such expression in section 2 of the
Companies Ordinance (Chapter 32 of the Laws of Hong Kong);
"Hong Kong"
the Hong Kong Special Administrative Region of the People's Republic of
China;
"Matrix Group"
the Company and its subsidiaries from time to time;
"Parties"
the Parties to this Agreement and "Party" means either of them;
"subsidiary"
has the same meaning as ascribed to such expression in section 2 of the
Companies Ordinance (Chapter 32 of the Laws of Hong Kong);
"TOM.COM"
TOM.COM LIMITED; and
"TOM Group"
TOM.COM and its subsidiaries from time to time.
1.2 Clause headings in this Agreement are for ease of reference only and shall
not affect the interpretation or construction of this Agreement.
1.3 References in this Agreement to Clauses, Recitals and Schedule are to
clauses and recitals of, and schedule to, this Agreement unless the context
requires otherwise and the Recitals and the Schedule shall form part of
this Agreement.
1.4 Words denoting one gender shall include any gender and vice versa, words
denoting individuals shall include bodies corporate and unincorporated
associations, words denoting the singular number shall include the plural
and vice versa.
1.5 References to any person shall include references to any individual,
company, body corporate, association, partnership, firm, joint venture,
trust and governmental agency.
1.6 Reference to any legislation or subsidiary legislation includes a reference
to that legislation or subsidiary legislation as from time to time amended,
extended or re-enacted.
2. PROVISION OF GOODS AND SERVICES
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2.1 Subject to the terms and conditions herein contained, TOM hereby appoints
the Company and the Company hereby agrees, to provide and/or procure the
provision of the Goods and Services to the TOM Group on a non-exclusive
basis and on such terms and conditions as may be separately determined and
agreed by any member of the TOM Group and any member of the Matrix Group on
and with respect to each separate individual transaction as may from time
to time be entered into between such relevant
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members of the TOM Group and Matrix Group during the Term (as defined
under Clause 4 below).
2.2 In fulfilling the Company's obligations under this Agreement, TOM
acknowledges and agrees that the Company may, from time to time:
(a) use or procure any member of the Matrix Group to provide the Goods and
Services, provided that such member shall be required to render such
Goods and Services in accordance with all the terms and conditions of
this Agreement and the relevant agreements entered into by such
relevant members of the TOM Group and the Matrix Group ("Separate
Agreement") and the Fee payable shall be determined in accordance with
Clause 3 below; and
(b) subject to the prior written consent of the relevant members of the
TOM Group (which consent shall not be unreasonably withheld or
delayed), the Company may engage third party sub-contractor(s) to
provide of all or any part of the Goods and Services to members of the
Matrix Group provided that all fees payable to such third party
con-contractor(s) in respect thereof shall be reimbursed by the
relevant member of the TOM Group to the Company or other relevant
member(s) of the Matrix Group on a cost basis.
3. FEE
---
The Parties agree that the Fee for the Goods and Services provided shall be
separately determined and agreed between such member of the Matrix Group
who provides the relevant Goods and Services and such member of the TOM
Group who requested the said Goods and Services prior to their entering
into each of such transaction provided that the Fee shall be, in any event,
settled by the relevant member of the TOM Group within 30 days after
receipt of a written invoice from the relevant member of the Matrix Group
relating to the Goods and Services provided for the relevant period agreed
between the relevant members of the TOM Group and the Matrix Group and that
the Fee shall be calculated with reference to the market rate for the
provision of the Goods and Services.
4. DURATION
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The term of this Agreement ("Term") shall be deemed to have commenced on
the Commencement Date and remain effective until December 31, 2006, unless
terminated earlier in accordance with Clause 8.
5. CONDITIONS PRECEDENT
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Notwithstanding anything contained herein, this Agreement is conditional
upon the approval of the independent shareholders of TOM.COM Limited
("TOM") and/or the Company (if required) in respect of the transactions
contemplated herein having been obtained.
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6. UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES
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6.1 Each of TOM and the Company hereby represents and warrants to each other,
which representations and warranties shall survive the execution and
delivery of this Agreement and the carrying out of the transactions herein
contemplated, as follows:
(a) it is a limited company duly incorporated, validly existing and in
good standing under the laws of its country of incorporation; and
(b) it has all the requisite power and capacity to enter into and perform
its obligations under this Agreement. This Agreement and all documents
and instruments executed pursuant hereto are, and when delivered will
be, valid and legally binding obligations of TOM or the Company and
that the execution, performance and implementation of this Agreement
and the matters contemplated hereby has been duly authorized by all
necessary corporate action and this Agreement has been duly executed
by TOM or the Company (as the case may be).
6.2 The Company hereby undertakes with TOM that it will use due care and
diligence in providing the Goods and Services to the TOM Group.
7. INDEMNITY
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7.1 The Company shall fully indemnify and keep indemnified the TOM Group, its
employees or agents ("TOM Indemnified Persons") from and against all
claims, damages, costs, liabilities, losses and expenses which any of the
TOM Indemnified Persons may incur, suffer or sustain as a result of or in
connection with any breach, wilful default, misconduct, negligence or
omission on the part of Matrix Indemnified Persons (as hereinafter defined)
in the performance of the obligations of the Company hereunder except to
the extent that such claims, damages, costs, liabilities, losses and
expenses shall be incurred, suffered or sustained as a result of or in
connection with, whether directly or indirectly, the wilful default,
misconduct, gross negligence or omission on the part of any of the TOM
Indemnified Persons in the performance of the obligations of TOM hereunder.
In the event that any action, suit or proceeding is brought against any of
the TOM Indemnified Persons with respect to which the Company may have
liability under any indemnity contained herein, the Company shall have the
right, at its sole cost and expense, to defend such action in the name and
on behalf of any of the TOM Indemnified Persons and in connection with any
such action, suit or proceeding, the Parties hereto agree to render to each
other such assistance as may reasonably be required in order to ensure the
proper and adequate defence of any such action, suit or proceeding.
7.2 TOM shall fully indemnify and keep indemnified the Matrix Group, its
employees or agents ("Matrix Indemnified Persons") from and against all
claims, damages, costs, liabilities, losses and expenses which any of
Matrix Indemnified Persons may incur, suffer or sustain as a result of or
in connection with any breach, wilful default, misconduct, negligence or
omission an the part of any of the TOM Indemnified Persons
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in the performance of the obligations of TOM hereunder except to the extent
that such claims, damages, costs, liabilities, losses and expenses shall be
incurred, suffered or sustained as a result of or in connection with,
whether directly or indirectly, the wilful default, misconduct, gross
negligence or omission on the part of any of the Matrix Indemnified Persons
in the performance of the obligations of the Company hereunder. In the
event that any action, suit or proceeding is brought against the TOM or
Matrix Indemnified Persons with respect to which TOM may have liability
under any indemnity contained herein, TOM shall have the right, at its sole
cost and expense, to defend such action in the name and on behalf of any of
the Matrix Indemnified Persons and in connection with any such action suit
or proceeding, the Parties hereto agree to render to each other such
assistance as may reasonably be required in order to ensure the proper and
adequate defence of any such action, suit or proceeding.
7.3 Notwithstanding anything to the contrary contained herein, neither Party
shall have any liability with respect to, and shall not be obligated to
indemnify or hold harmless the TOM Indemnified Persons or the Matrix
Indemnified Persons (as the case may be) from or against any losses and
expenses for special, incidental, indirect or consequential damages arising
out of or otherwise in respect of this Agreement or the activities
contemplated under this Agreement.
8. TERMINATION
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8.1 Without prejudice to the generality of the provisions of Clause 8.2, either
Party shall be entitled to terminate this Agreement without penalty by
giving not less than three months' advance written notice to the
non-terminating Party.
8.2 Either Party shall be entitled to terminate this Agreement at any time
forthwith by written notice to the other if:
(a) that other Party is guilty of any breach, non-observance or
non-performance of any of its obligations hereunder which is material
in the context of this Agreement and, in the case of a breach capable
of remedy, fails to remedy the same within 60 days after receipt of a
written notice giving full particulars of the breach and requiring it
to be remedied;
(b) an encumbrancer takes possession or a receiver is compulsorily
appointed over any of the property or assets of that other Party;
(c) that other Party makes any voluntary arrangement with its creditors or
becomes subject to an administration order;
(d) that other Party goes into liquidation (except for the purposes of
amalgamation or reconstruction and in such manner that the company
resulting therefrom effectively agrees to be bound by or assume the
obligations imposed on that other Party under this Agreement); or
(e) anything having a substantially similar effect to any of the events
specified in Clauses 8.2(b) to 8.2(d) inclusive occurs in relation to
that other Party under the laws of any jurisdiction.
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9. EFFECT OF TERMINATION
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9.1 Unless otherwise agreed, upon termination or expiry of this Agreement and
subject to any express provisions to the contrary in this Agreement and the
relevant Separate Agreement,
(a) within 30 days of the date of termination or expiry of this Agreement,
the Company and/or (as the case may be) the relevant member of the
Matrix Group shall render a final invoice to TOM and/or (as the case
may be) the relevant member of the TOM Group for the provision of
Goods and Services; and
(b) within 30 days after the date of the said invoice, TOM and/or (as the
case may be) the relevant member of the TOM Group shall pay the
Company and/or (as the case may be) the relevant member of the Matrix
Group all sums in respect of which TOM and/or (as the case may be) the
relevant member of the TOM Group shall be liable hereunder to the
Company and/or (as the case may be) the relevant member of the Matrix
Group.
9.2 Termination of this Agreement under Clause 8 shall not affect any right of
the Company and/or the relevant member of the Matrix Group to receive
payment of amounts accrued prior to termination or affect the rights or
liabilities hereunder arising out of any antecedent breach of this
Agreement or any right or remedy, at law or in equity, of either Party in
respect of any breach of the other Party of its obligations hereunder.
10. CONFIDENTIALITY
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10.1 Each Party undertakes that it shall not reveal, and shall cause its
shareholders, directors, senior executives, employees and agents not to
reveal, to any third Party any information concerning the transactions
contemplated hereunder and/or the contents hereof (collectively,
"Confidential Information") without the prior written approval of the other
Party hereto.
10.2 Nothing in this Clause 10 shall prevent a Party hereto from using or
disclosing any Confidential Information which: (a) is already known by such
Party at the time it is disclosed to it; (b) has been rightfully received
by such Party from a third Party without a breach of an obligation of
confidentiality; (c) is in the public domain through no wrongful act of
such Party; (d) is independently developed by such Party without use,
directly or indirectly, of the Confidential Information; or (e) is required
to be disclosed by applicable law, regulation or legal process or by
judicial order.
10.3 Notwithstanding anything contained in this Agreement, the Company
acknowledges and agrees that TOM.COM may be required by law or any
competent regulatory body (including but without limitation The Stock
Exchange of Hong Kong Limited and the Securities and Futures Commission) to
issue announcements or issue circulars relating to this Agreement or
matters contemplated under this Agreement. The Company acknowledges and
agrees that TOM.COM may make the said announcements, circulars
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and/or press releases relating to this Agreement or matters contemplated
under this Agreement on or after the date of this Agreement.
11. FURTHER ASSURANCE
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Each of the Company and TOM hereby agrees to do all reasonable acts, deeds,
matter and things and sign and execute all applications, agreements,
documents or deeds necessary for or connected with the implementation of
the terms and conditions of this Agreement in so far as such acts, deeds,
matters and things are required by and wherever are so required by the
other Party to give effect to the spirit and intent of this Agreement.
12. SEVERABILITY
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If any provision of this Agreement shall be held unenforceable or invalid
by any court of competent jurisdiction, such holding, if not inconsistent
with the Parties' principal understanding shall not affect the
enforceability or validity of the remainder of the provisions of this
Agreement. To the extent permitted by applicable law, each Party hereby
waives any provision of law which would otherwise render any provision of
this Agreement unenforceable or invalid.
13. ENTIRE AGREEMENT
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This Agreement sets forth the entire agreement and understanding between
the Parties inter se in connection with the matters referred to in this
Agreement and cancels all previous letters of intent, correspondence,
understanding, arrangements, agreements and undertakings (if any) between
the Parties or any of them with respect to such matters referred to herein,
whether written or oral.
14. SUCCESSORS AND ASSIGNS
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This Agreement may not be assigned or otherwise transferred by any Party
without the prior written consent of the other Party. This Agreement shall
be binding upon each Party's successors and permitted assigns.
15. NOTICES
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15.1 Any notice or other communication given or to be given pursuant to this
Agreement shall be in writing sent or delivered to the Party at the address
as set out below or as may be notified by such Party to the other:
To TOM:
Address : 48/th/ Floor, The Center, 99 Queen's Road
Central, Hong Kong
Attention : Company Secretary
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Fax no. : (852) 2189 7446
To the Company:
Address :
Attention :
Fax no. :
15.2 Any notice or other communication shall be deemed to have been received if
sent by facsimile, on the date of transmission, or if delivered personally,
when delivered, or if sent by post, 7 days if overseas and 48 hours if
local after the date of posting.
15.3 Reference in Clause 15.1 to writing shall include a notice or communication
by facsimile.
16. AMENDMENT
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This Agreement shall not be amended, modified, varied or supplemented
except in writing signed by the Parties hereto.
17. WAIVER
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No failure or delay on the part of either Party hereto to exercise any
right or remedy under this Agreement shall be construed or operate as a
waiver thereof nor shall any single or partial exercise of any right or
remedy as the case may be.
18. EXECUTION AND COUNTERPARTS
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This Agreement may be executed in one or more counterparts each of which
shall be binding on each Party by whom or on whose behalf it is so
executed, but which together shall constitute a single instrument. For the
avoidance of doubt this Agreement shall not be binding on any Party hereto
unless and until it shall have been executed by or on behalf of all persons
expressed to be Party hereto.
19. GOVERNING LAW AND JURISDICTION
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19.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of Hong Kong.
19.2 Each Party hereto irrevocably agrees that the courts of Hong Kong shall
have jurisdiction to hear and determine any suit, action or proceeding, and
to settle and disputes which may arise out of or in connection with this
Agreement.
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SCHEDULE
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GOODS AND SERVICES
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1. Content.
2. Mobile communication infotainment services or related telecommunication
services.
3. Website development maintenance and hosting services.
4. Provision of online advertising services and other related online services.
5. Any other services as may from time to time be agreed by the parties
hereto.
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IN WITNESS whereof the Parties have executed this Agreement the date first above
written.
SIGNED by Tommei Tong )
for and on behalf of )
TOM.COM INTERNATIONAL LIMITED )
in the presence of: )
)
SIGNED by Tommei Tong )
for and on behalf of )
TOM ONLINE INC. )
in the presence of: )
)
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