Cooperation Agreement - Beijing Century Media Culture Co. Ltd. and Shanghai Camera Media Investment Co. Ltd.
DATED AS OF THE 1ST DAY OF NOVEMBER 2006
BEIJING CENTURY MEDIA CULTURE CO., LTD.
and
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD.
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COOPERATION AGREEMENT
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THIS AGREEMENT is dated as of the 1st day of November 2006.
BETWEEN:
BEIJING CENTURY MEDIA CULTURE CO., LTD., a company incorporated under the laws
of the PRC with a registered address of 18-338 Jianshe Road, Kaixuan Avenue,
Liangxiang Village, Fangshan District, Beijing, PRC (the "CONTENT PROVIDER");
and
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD., a company incorporated under the
laws of the PRC with a registered address of 3B10, No. 168 Tianshan Zhi Road,
Changning District, Shanghai, PRC (the "RECIPIENT")
WHEREAS:
(A) The Recipient and Inner Mongolia Television Station ("IMTV") entered into a
strategic cooperation agreement in December 2003 and, subsequently, into a
supplemental agreement (collectively, the "IMTV AGREEMENT").
(B) The Content Provider and its Affiliates are experienced in television
program sourcing and production, and agree to provide the Content to the
Recipient on the terms and conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Definitions. In this Agreement (including the Recitals and the Schedule),
unless the context otherwise requires, the following expressions shall have
the following meanings:
"AFFILIATES" of a specified Person means any other Person
that, directly or indirectly, through one or
more intermediaries, Controls, is Controlled
by, or is under the common Control with, such
specified Person or, in the case of a natural
Person, such Person's spouse, parents and
descendants (whether by blood or adoption and
including stepchildren);
"BUSINESS DAY" means any day other than Saturday or Sunday on
which banks are generally open for business in
the PRC;
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"CIETAC" shall have the meaning ascribed to it under
Clause 11;
"CONTENT" means content and information produced or
acquired by, on behalf or at the behest of the
Content Provider comprising business and
general information to be delivered to the
Recipient by the Content Provider from time to
time;
"CONTROL", "CONTROLS", means the possession, directly or indirectly,
"CONTROLLED" (or any of the power to direct or cause the direction
correlative term) of the management of a Person, whether through
the ownership of voting securities, by
contract, credit arrangement or proxy, as
trustee,, executor, agent or otherwise. For the
purpose of this definition, a Person shall be
deemed to Control another Person if such first
Person, directly or indirectly, owns or holds
more than 50% of the voting equity interests in
such other Person;
"FEES" means the consideration described under Clause
3.1;
"IMTV" shall have the meaning ascribed to it in
Recital A hereto;
"IMTV AGREEMENT" shall have the meaning ascribed to it in
Recital A hereto;
"PERSON" or "PERSONS" means any natural person, corporation, company,
association, partnership, organization,
business, firm, joint venture, trust,
unincorporated organization or any other entity
or organization, and shall include any
governmental authority;
"PRC" means the People's Republic of China; and
"TERM" shall have the meaning ascribed to it in Clause
4.1.
1.2 Interpretation. In this Agreement:
(a) references to statutory provisions shall be construed as references to
those provisions as amended or re-enacted or as their application is
modified by other statutory provisions (whether before or after the
date hereof) from time to time and shall include any provisions of
which they are re-enactments (whether with or without modification);
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(b) unless the context requires otherwise, words incorporating the
singular shall include the plural and vice versa and words importing a
gender shall include every gender; and
(c) references herein to Clauses and Recitals are to clauses and recitals
of this Agreement.
2. CONTENT DELIVERY
2.1 Content Delivery. In consideration of the Fees and subject to the terms and
conditions of this Agreement, the Content Provider agrees to provide or
procure its Affiliates to provide to Recipient the Content during the Term
on a non-exclusive basis.
2.2 Sublicense. Recipient shall and shall cause its successors, Affiliates,
officers, directors, employees and agents to comply with the terms of this
Agreement. Except as specifically set forth in this Agreement, Recipient
may not sublicense any of its rights under this Agreement, or allow others
to distribute or air the Content in whole or in parts, or otherwise
distribute or exploit any portion of any of the Content. Without limiting
the foregoing, Recipient must not, and must not authorize others to sell,
transfer, mortgage, hypothecate or permit any lien to attach upon the
Content or any part thereof.
2.3 Title to the Content. Recipient acknowledges and agrees that, unless
mutually agreed by the parties, as between Recipient and Content Provider,
all rights and title in and to the Content are the exclusive property of
the Content Provider or its Affiliates and that all rights not specifically
granted herein to Recipient are reserved to the Content Provider for its
own use and disposition.
2.4 Limited Use. The Content must only be used by the Recipient for the purpose
of and in connection with the IMTV Agreement only. Content Provider shall
ensure the Content it provides complies with relevant laws and the
requirements of IMTV and shall, if necessary, modify the Content in
accordance with the relevant laws and the requirements of IMTV.
3. FEES
3.1 Fees. In consideration for the provision of the Content, the Recipient
shall, after the Content Provider has provided the Content in compliance
with the terms hereunder, by no later than fourteen (14) days after the
Recipient received the invoice issued by the Content Provider for the
relevant Content, pay to the Content Provider the fees set out in such
invoice for the Content and ancillary services (if any) described therein
(the "FEES"). If there is any dispute with respect to the Fees, the parties
shall settle such dispute through friendly consultation.
3.2 Method of Payment. The Fees shall be paid in accordance with this Clause by
cash, transfer cheque or bank transfer or using such other method as may be
acceptable to the Content Provider to the account of the Content Provider
or such
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other parties as the Content Provider may direct in writing from time to
time.
4. TERM
4.1 Term. Unless otherwise terminated pursuant to Clause 5, the term of this
Agreement shall commence from the date hereof and shall continue in full
force and effect until 31 December 2023. Upon expiry of the said Term, this
Agreement shall be automatically extended for no less than ten (10) years,
the exact term of extension shall be determined by the parties in writing
(the "TERM").
5. TERMINATION
5.1 Termination. This Agreement may be terminated by the Content Provider at
any time without compensation by written notice served on the Recipient in
accordance with the terms of this Agreement 30 Business Days' prior to such
termination.
5.2 Termination for Material Breach. In the event either party materially
breaches this Agreement and fails to remedy such breach to the satisfaction
of the non-defaulting party within 10 Business Days from the date it
receives written notice of such breach from the non-defaulting party,
without prejudice to any legal or other rights or remedies which the
non-defaulting party may have, the non-defaulting party has the right to
terminate this Agreement upon expiry of the said 10 Business Days
immediately by written notice to the defaulting party.
6. TERMINATION CONSEQUENCES
6.1 Obligations on Termination. Upon termination of this Agreement for whatever
cause, the Recipient must forthwith:
(a) cease all use, including broadcasting, distribution and/or
syndication, of the Content; and
(b) cause its sublicensees (if any) and Affiliates to immediately cease
all use, including broadcasting, distribution and/or syndication, of
the Content.
6.2 Transitional Matters. Upon the termination of this Agreement for any
reason, the Recipient must fully cooperate with the Content Provider in all
necessary and reasonable transitional matters including, without limitation
and at the Recipient's cost and expense, taking all necessary actions on
the Content Provider's behalf reasonably necessary to protect and/or
perfect their right, title and interest in and to the Content.
7. PROPRIETARY RIGHTS
7.1 Copyright. The Recipient acknowledges that the copyright in the Content
(including any edited versions) shall remain exclusively with the Content
Provider or its Affiliates unless otherwise agreed by the parties. All
right and title
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in and to the Content (including any edited versions), including but not
limited to films and recordings, titles, names, trade marks, concepts,
stories, plots, incidents, animations, illustrations, ideas, formulas,
formats and any other literary, musical, artistic or other creative
material included therein, shall remain the exclusive property of the
Content Provider or its Affiliates.
7.2 Reservation of Rights. The Content Provider expressly reserves all rights
not expressly granted by the Content Provider to the Recipient under this
Agreement.
7.3 Attribution. The Recipient must provide attribution to the Content Provider
and must ensure it uses appropriate copyright or other proprietary rights
notices regarding the Content as reasonably instructed by the Content
Provider from time to time, to the extent customary in the broadcast
industry.
7.4 Protection of Rights. The Recipient must take any action and execute any
and all documents necessary to protect and/or perfect the Content
Provider's or its Affiliates' rights in the Content.
8. RECIPIENT'S WARRANTIES & REPRESENTATIONS
8.1 Recipient's Representation. The Recipient represents and warrants that it
is free to enter into this Agreement and to perform its obligations under
this Agreement.
8.2 Recipient's Covenants. Without limiting the generality of Clause 8.1, the
Recipient:
(a) must not introduce into the Content any defamatory or obscene matter
or other objectionable material of any kind whatsoever whether or not
it would give rise to any cause of action;
(b) warrants that it is duly authorised to broadcast, distribute and
syndicate the Content in accordance with the terms of this Agreement;
(c) warrants that the broadcast, distribution, syndication of the Content
under this Agreement is lawful within the PRC provided that the
Content itself does not violate the laws of the PRC and unless the
breach of any laws is caused by IMTV;
(d) must comply with all relevant laws and regulations of the PRC when
performing this Agreement, and must broadcast, distribute and
syndicate the Content in compliance with the laws and regulations of
the PRC; and
(e) must ensure that all content contained within the Content as
distributed complies with the laws and regulations of the PRC (unless
such non-compliance is caused by IMTV).
8.3 Term of Representations. The Recipient covenants and agrees that all of the
foregoing warranties and representations under Clauses 8.1 and 8.2 shall
remain
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true and correct for the duration of this Agreement, and must take all
actions necessary, at its cost, to fulfill its obligations under this
Clause.
8.4 Content Provider's Representation. The Content Provider represents and
warrants that it is free to enter into this Agreement and to perform its
obligations under this Agreement.
8.5 Content Provider's Covenants. Without limiting the generality of Clause
8.3, the Content Provider warrants that:
(a) it has obtain all required licenses, consents, approvals and permits
from any person necessary to perform its obligations under this
Agreement and will otherwise comply with all applicable statutes,
laws, rules, regulations and industry standards with respect to the
performance of its obligations under this Agreement;
(b) the Content itself does not violate the laws of the PRC;
(c) it has the right to provide the Content to the Recipient and that the
Content does not infringe the copyright or other rights of any third
parties.
8.6 Term of Representations. The Content Provider covenants and agrees that all
of the foregoing warranties and representations under Clauses 8.4 and 8.5
shall remain true and correct for the duration of this Agreement and must
take all actions necessary, at its cost, to fulfill its obligations under
this Clause.
9. INDEMNITY
9.1 Indemnity. Each party (the "INDEMNIFYING PARTY") agrees to indemnify (and
keep indemnified) and hold harmless the other (including the Content
Provider's successors, Affiliates, officers, directors, employees and
agents) (the "INDEMNIFIED PARTY") from and against any and all claims,
damages, losses and expenses arising out of or in connection with any
breach of this Agreement by the Indemnifying Party; provided that the
parties shall have no liability to indemnify the other (including the
Content Provider's successors, Affiliates, officers, directors, employees
and agents) of any losses arising directly as a result of (i) the
compliance with any order, decree or ruling or takes any other action
restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement issued by any competent governmental
authority in the PRC, or (ii) the actions or inactions of the other party,
its Affiliates or other Persons under the Control of that party. This
indemnity is additional to and cumulative or any other remedies the
Indemnified Party may have under this Agreement or otherwise in law and/or
equity as a result of the actions of the Indemnifying Party.
9.2 Indemnity regarding sublicensees. Without limiting the generality of Clause
9.1, the Recipient shall indemnify (and keep indemnified) and hold harmless
the Content Provider (including the Content Provider's successors,
Affiliates,
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officers, directors, employees and agents) from and against any and all
actions, claims, liability, costs, losses, damages and expenses arising by
reason of any claim or action brought against the Recipient by any
sublicensee(s) or any other person or entity as a result of or attributable
to the Recipient's distribution and/or syndication of any part of the
Content in the PRC (to the extent not caused by a breach of this Agreement
by the Content Provider).
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the PRC.
10.2 Arbitration. Any dispute, controversy or claim arising out of or in
connection with this Agreement, including any question regarding its
existence, validity or termination, shall be settled through friendly
consultation between the parties. In the event that no settlement is
reached within 30 Business Days from the date of notification by either
party to the other that it intends to submit a dispute, controversy or
claim to arbitration, then such dispute, controversy or claim shall be
finally resolved by arbitration under the arbitration rules of the China
International Economic and Trade Arbitration Commission ("CIETAC") as at
present in force, which rules are deemed to be incorporated by reference
into this Article. The place of arbitration shall be Shanghai, PRC. The
language of the arbitration shall be Chinese. The tribunal shall consist of
three arbitrators. Two arbitrators shall be selected by the respective
parties. The third arbitrator shall be selected by agreement between the
parties or, failing agreement within 10 Business Days of the appointment of
the two party-nominated arbitrators, by the chairman of CIETAC.
11. FURTHER ASSURANCE
11.1 Assurance. Each party shall do all acts and execute and deliver all
documents as may be necessary to give effect to the provisions set forth
herein.
12. CONFIDENTIALITY
12.1 Confidentiality. Unless otherwise agreed by the parties, the parties agree
to keep the terms and conditions of this Agreement strictly confidential.
The Agreement or the terms and conditions thereof will only be disclosed if
and to the extent necessary under the laws and regulations of the PRC.
13. NOTICES
13.1 Notices. Notices or other communications required to be given by any party
pursuant to this Agreement shall be in writing in Chinese and may be
delivered personally or sent by registered airmail or postage prepaid, by a
recognized courier service or by facsimile transmission to the address of
the other party set forth below. The dates on which such notices shall be
deemed to have effectively given shall be determined as follows:
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(a) notices given by personal delivery shall be deemed effectively given
on the date of personal delivery.
(b) notices given by registered airmail or postage prepaid shall be deemed
effectively given on the tenth Business Day after the date on which
they were mailed (as indicated by the postmark).
(c) notices by courier shall be deemed effectively given on the fifth
Business Day after they were sent by recognized courier service.
(d) notices given by facsimile transmission shall be deemed effectively
given on the first Business Day following the date of successful
transmission and receipt as evidenced by the transmission report.
Content Provider
Room 701, Kun Tai International Mansion
12B Chao Wai Street, ChaoYang District,
Beijing 100020,
China
For the attention of: Zhu Shan
Phone No.: 010 -58645200
Fax No.: 010 -58797151
Recipient
2nd Floor, Da Zhong Finance Building,
1033 Yan An Road West
Shanghai 200050
PRC
For the attention of: Mr. Zhang Guanming
Telephone No.: 021-61612110
Facsimile No.: 021-61612108
With a copy to Richard Wang & Co.:
18th Floor, Union Building
100 Yan An Road East, Shanghai 200002, P.R.C.
Attention: Catherine Chen
Telephone No.: (8621) 6326 5800
Facsimile No.: (8621) 6321 8890
13.2 Any party may at any time change its address for service by notice in
writing
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delivered to the other party in accordance with the terms hereof.
14. MISCELLANEOUS
14.1 Time of Essence. Time shall be of the essence of this Agreement.
14.2 Headings. The headings in this Agreement are inserted for convenience only
and shall not affect the construction of this Agreement.
14.3 Amendments. This Agreement may not be amended or modified except in writing
signed by all parties, and any amendment and supplement to this Agreement
shall form part of this Agreement and shall have the same legal effect as
this Agreement.
14.4 Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties in connection with the transactions
hereby contemplated. This Agreement supersede all previous agreements,
arrangements and understandings between the parties with regard to such
transaction which shall cease to have any further force or effect.
14.5 Severance. Any provision of this Agreement which is invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions
hereof in such jurisdiction or rendering that or any other provision of
this Agreement invalid, illegal or unenforceable in any other jurisdiction.
14.6 Counterparts. This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same agreement,
and either party may enter into this Agreement by executing a counterpart.
14.7 Languages. This Agreement shall be executed in both the English and Chinese
languages and in the event of any discrepancy between the two versions, the
parties hereto shall negotiate in good faith to resolve the discrepancy
provided that if such good faith negotiation does not resolve in a
resolution, then the Chinese version of this Agreement shall prevail.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
above written.
BEIJING CENTURY MEDIA CULTURE CO., LTD.
By: /s/
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Name:
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Title: Authorized Signatory
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD.
By: /s/ Zhang Guan Ming
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Name: Zhang Guan Ming
Title: Legal Representative