Advertising Services Agreement - Beijing Pioneer Media Advertising Co. Ltd. and Shanghai Camera Media Investment Co. Ltd.
DATED AS OF THE 23RD DAY OF DECEMBER 2006
BEIJING PIONEER MEDIA ADVERTISING CO., LTD.
AND
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD.
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ADVERTISING SERVICES AGREEMENT
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ADVERTISING SERVICES AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is entered into as of this 23rd day of December
2006.
BETWEEN
BEIJING PIONEER MEDIA ADVERTISING CO., LTD., a company incorporated under the
laws of the People's Republic of China ("PRC") with a registered address of
B186, #18, Jianshe Road, Kaixuan Avenue, Liang Township, Fangshan District,
Beijing, PRC; 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 ("SCM")
WHEREAS
A. SCM 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") whereby IMTV
grants, inter alia, certain advertising and other rights to SCM; and
B. SCM and the Company wish to grant to the Company exclusive advertising
agency rights with respect to the Advertising Rights (as defined
hereinafter) in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth hereinafter and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATIONS.
1.1 In this Agreement, unless the context requires otherwise:
(a) words importing the singular shall include the plural and vice versa
and words importing a gender include every gender;
(b) words denoting persons shall include bodies corporate or
unincorporate, firms, partnerships, joint ventures, associations of
persons, government departments or agencies, organizations or trusts
(whether or not having a separate legal personality);
(c) references to "party" or "parties" in this Agreement are to a party or
to the parties to this Agreement;
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(d) references to a party to this Agreement shall include its successors
and permitted assigns; and
(e) references to this Agreement or to a document or agreement in this
Agreement shall be construed as a reference to this Agreement or that
document or agreement as amended or re-executed from time to time.
1.2 Unless the context otherwise requires, the terms below shall have the
following meanings:
"ADVERTISING RIGHTS" means all the advertising rights obtained by SCM in
connection with the IMTV Agreement from time to time;
"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;
"CIETAC" shall have the meaning ascribed to it under Article 10.2;
"CONTROL", "CONTROLS", "CONTROLLED" (or any correlative term) means the
possession, directly or indirectly, of the power to direct or cause the
direction 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;
"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;
"INDEMNIFIED PARTY" shall have the meaning ascribed to it under Article 12;
"INDEMNIFYING PARTY" shall have the meaning ascribed to it under Article
12;
"MONTHLY PAYMENTS" shall have the meaning ascribed to it under Article 2;
"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;
"RMB" means renminbi, the lawful currency of the PRC; and
"TERM" shall have the meaning ascribed to it under Article 4.1.
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ARTICLE 2 PAYMENT TERMS.
2.1 Subject to Article 2.2 below, the Company hereby agrees to procure the
payment, on a monthly net off basis of RMB3,000,000 (the "MONTHLY
PAYMENTS") to SCM or such other party designated by SCM on and subject to
the terms and conditions of this Agreement.
2.2 The Monthly Payments are subject to further adjustments from time to time
by agreement in writing by the parties.
2.3 The Monthly Payments shall be paid by cash, transfer cheque or bank
transfer or using such other method as may be acceptable to the Company to
the account of SCM or any other accounts as SCM may direct in writing from
time to time.
ARTICLE 3 ADVERTISING RIGHTS.
3.1 In consideration for the Monthly Payments, throughout the Term, SCM hereby
grants to the Company on an exclusive basis the agency rights to operate
the Advertising Rights owned by SCM. The foregoing, however, would not
affect SCM's right to operate itself the Advertising Rights, the details of
such operation shall be negotiated by the parties.
3.2 During the Term, SCM shall not grant the agency rights with respect to the
Advertising Rights to any other parties.
3.3 If so required for the business, the Company may at its sole discretion
decide to entrust to its Affiliates which have legal qualifications with
all or part of the advertising agency rights obtained from SCM, but the
Company shall notify SCM in advance.
3.4 Without prejudice to Article 9, and by reasonable prior notice, during the
Term, the Company and its auditors shall have unrestricted rights to
inspect all books and records of SCM at any time and from time to time.
ARTICLE 4 TERM.
4.1 Unless otherwise terminated pursuant to Article 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 a period of not less than ten
(10) years, the exact term of extension shall be determined by the parties
in writing (the "TERM").
ARTICLE 5 TERMINATION
5.1 This Agreement may be terminated by the Company at any time without
compensation by written notice to SCM sixty (60) Business Days' prior to
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such termination.
5.2 Without prejudice to any legal or other rights or remedies which either
party may have, either party has the right to terminate this Agreement
immediately by written notice to the other party in the event the other
party materially breaches this Agreement.
ARTICLE 6 RELATIONSHIP OF THE PARTIES.
6.1 It is understood and agreed that the parties to this Agreement are
independent of each other and nothing herein contained shall be deemed to
establish or otherwise create a partnership or joint venture between the
parties, or grant a franchise as defined in any applicable law or
regulation. Each party is responsible for its own payment of workers'
compensation insurance, disability benefits, unemployment insurance, as
well as any other employment benefits with respect to its employees. No
party shall have the right or power to bind the other party to any contract
or agreement with any third party, and shall not have the right or power to
direct any operations of the other party's business.
ARTICLE 7 TRADE SECRETS; GOOD WILL.
7.1 By entering into this Agreement or otherwise, no party shall acquire any
rights to or under any good will, trademark, tradename, patent or copyright
or application for any thereof, trade secret, web page or other property of
the other party and its Affiliates. If, during the term of this Agreement,
any such rights should become for any reason whatsoever vested in either
party by operation of law or otherwise, the other party, as applicable,
agrees that it shall immediately, at the request of the counter party, as
applicable, or on the termination or expiration of this Agreement, assign
any and all such rights, together with any goodwill appurtenant thereto, to
the other party as applicable.
ARTICLE 8 REPRESENTATIONS, WARRANTIES, AND COVENANTS.
8.1 Each party represents, warrants and covenants to the other that the
following statements are true and correct as of the date of this Agreement
and acknowledges that the other party has relied upon the completeness and
accuracy of such representations, warranties and covenants in entering into
this Agreement:
(a) it has the corporate capacity to enter into this Agreement and to
perform each of its obligations hereunder; and
(b) it has duly authorized, executed and delivered this Agreement and this
Agreement constitutes a legally valid and binding obligation of it
enforceable against it in accordance with its terms except as such
enforcement may be limited by applicable bankruptcy, insolvency and
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other laws of general application affecting the enforcement of
creditors' rights and subject to general equitable principles.
8.2 SCM further represents, warrants and covenants to the Company that the
following statements are true and correct as of the date of this Agreement
and acknowledges that the Company has relied upon the completeness and
accuracy of such representations, warranties and covenants in entering into
this Agreement:
(a) SCM has duly authorized, executed and delivered the IMTV Agreement and
the IMTV Agreement constitute a legally valid and binding obligation
of it enforceable against it in accordance with its terms except as
such enforcement may be limited by applicable bankruptcy, insolvency
and other laws of general application affecting the enforcement of
creditors' rights and subject to general equitable principles;
(b) SCM and its Affiliates have not granted and, during the term of this
Agreement, will not grant any rights or licenses to the whole or any
part of the IMTV Agreement, and, there exist no facts, agreements or
other documents by which any of SCM or its Affiliates is bound that
would conflict with SCM's obligations or the Company's rights under
this Agreement;
(c) SCM has or shall obtain all required licenses, consents, approvals and
permits from any person necessary to perform its obligations under
this Agreement and each will otherwise comply with all applicable
statutes, laws, rules, regulations and industry standards with respect
to the performance of its obligations under this Agreement;
(d) SCM has performed all of the obligations required to be performed by
it and is entitled to all benefits under, and is not alleged to be in
default of the IMTV Agreement. Each of the IMTV Agreement is in full
force and effect, unamended, and there exists no material default or
event of material default or event, occurrence, condition or act
which, with the giving of notice, the lapse of time or the happening
of any other event or condition, would become a material default or
event of material default under the IMTV Agreement; and
(e) SCM shall not amend, terminate, breach or waive any of its rights
under the IMTV Agreement without the prior written consent of the
Company or its Affiliates.
8.3 The Company further represents, warrants and covenants to SCM that the
following statements are true and correct as of the date of this Agreement
and acknowledges that SCM has relied upon the completeness and accuracy of
such representations, warranties and covenants in entering into this
Agreement:
(a) The Company has or shall obtain all required licenses, consents,
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approvals and permits from any person necessary to perform its
obligations under this Agreement and each will otherwise comply with
all applicable statutes, laws, rules, regulations and industry
standards with respect to the performance of its obligations under
this Agreement.
ARTICLE 9 SUCCESSORS AND ASSIGNS.
9.1 This Agreement shall be binding upon and enure to the benefits of the
parties and their respective successors and permitted assigns.
9.2 Unless otherwise provided herein, no party hereto may assign or transfer
any of its rights or obligations under this Agreement to any third party
without the prior written consent of the other party.
ARTICLE 10 GOVERNING LAW AND DISPUTE RESOLUTION.
10.1 This Agreement shall be governed by and construed in accordance with the
laws of the PRC.
10.2 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.
10.3 The place of arbitration shall be Shanghai, PRC.
10.4 The language of the arbitration shall be Chinese.
10.5 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.
ARTICLE 11 FURTHER ASSURANCE.
11.1 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.
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ARTICLE 12 INDEMNIFICATION.
12.1 Each party (the "INDEMNIFYING PARTY") agrees to indemnify the other and,
its officers, directors, agents, employees, successors and assigns (the
"INDEMNIFIED PARTY") from and against any and all claims, damages, losses
and expenses, including reasonable attorneys' fees, arising out of or
relating any breach of this Agreement by the Indemnifying Party; provided
that the parties shall have no liability to indemnify the other of any
losses arising directly as a result of (i) any competent governmental
authority in the PRC shall have issued any order, decree or ruling or takes
any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, or (ii) such indemnity arises
from the actions or inactions of the other party, it Affiliates or other
Persons under the Control of that party.
ARTICLE 13 ENTIRE AGREEMENT.
13.1 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.
ARTICLE 14 CONFIDENTIALITY.
14.1 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.
ARTICLE 15 NOTICES.
15.1 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:
(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.
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(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.
THE COMPANY
E1-1507, Dong Fang Guangchang, 1 Chang An Street, Dong Cheng
District, Beijing 100738, China
For the attention of : Irene Wang
Phone No.: 010 -85188370
Fax No.: 010 -85188374
SCM
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
15.2 Any party may at any time change its address for service by notice in
writing delivered to the other party in accordance with the terms hereof.
ARTICLE 16 MISCELLANEOUS.
16.1 Time shall be of the essence of this Agreement.
16.2 The headings in this Agreement are inserted for convenience only and shall
not affect the construction of this Agreement.
16.3 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.
16.4 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
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remaining provisions hereof in such jurisdiction or rendering that or any
other provision of this Agreement invalid, illegal or unenforceable in any
other jurisdiction.
16.5 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.
16.6 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.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to execute this Agreement as of the date first written above.
BEIJING PIONEER MEDIA ADVERTISING CO., LTD.
[Company chop of Beijing Pioneer Media Advertising Co., Ltd.]
By: /s/
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Name:
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Title: Authorized Signatory
SHANGHAI CAMERA MEDIA INVESTMENT CO., LTD.
[Company chop of Shanghai Camera Media Investment Co., Ltd.]
By: /s/
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Name: Zhang Guan Ming
Title: Legal Representative