Agreement-1
A LICENSE AGREEMENT
made this 4th day of January, 1999
BETWEEN
TecnoChannel Technologies Sdn Bhd a company incorporated in Malaysia whose
business address is at Xxx X0, Xxxxxxxxxx Xxxx Xxxxxxxx, 00000 Xxxxx Xxxxxx,
Xxxxxxxx (hereinafter referred to as "Licensor") on the one part
And
NetChina whose business address is at Beijing, China (hereinafter referred to as
"Licensee") on the other
WHEREAS:
1. Licensor to license its ThunderServe software (hereinafter referred to as
"the Software") to the Licensee
2. The Licensee wishes to use the Software to facilitate the access of its
customers to the Internet
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. LICENSE TO USE
1.1 Subject to the terms and conditions contained in this agreement, the
Licensor hereby grants to the Licensee the right to use the Software solely
in China (hereinafter referred to as "the License") provided that the
Licensee does not remove alter any proprietory legends or notices contained
in the Software.
1.2 The Software is confidential information belonging to the Licensor and
title to the Software is retained by the Licensor. The Licensee shall not
decompile, disassemble, decrypt, extract or otherwise reverse engineer the
Software. The Software may not be leased or assigned in whole or in part.
2. MYWEB ON-LINE SERVICE
The Licensor agrees to make available the traditional Chinese version of MyWeb
Online Service with full testing and acceptance by the Licensee prior to the
launch of the service.
The Licensee agrees to ensure that all its Internet subscribers using the MyWeb
Online Service shall be directed to the MyWeb Online Service web site upon
connection to the Internet. The consideration for directing the subscribers to
the MyWeb On Line Service will be US Dollars [***] million.
The MyWeb On-Line Service for the Licensee will be jointly managed by the
parties to this agreement and revenue derived from advertising and transactions
will be [***] . The business plan of co-operation between the
parties will be set up under separate agreement, upon further consultation by
the parties.
3. MAINTENANCE
The License does not include maintenance and support of the Software by the
Licensor.
4. PAYMENTS
The consideration for the License shall be US Dollars [***] upon
signing of this agreement. The fee per subscriber is USD [***]
per annum, and is payable to the Licensor within 3 months of the date of
invoice, subject to the successful completion of the testing and launch of
service according to the business plan, mutually agreed by both parties.
5. ENGINEERING, TESTING AND BUSINESS PLAN
The Licensor will be solely responsible for the engineering of the MyWeb On-line
Service, including its traditional Chinese version for the Territory. It is
hereby agreed and declared that the parties to this agreement shall jointly test
and develop the service for the Territory, and finalize the business plan for
the MyWeb set-top box and the MyWeb On-Line Service in the Territory.
6. MARKETING & PROMOTION
It is hereby agreed and declared that the parties to this agreement shall
jointly market and promote the MyWeb set-top box and the MyWeb On-Line Service
and where appropriate, the Licensor shall encourage subscribers to use the
services of the Licensee.
7. TRADEMARKS AND LOGOS
Unless otherwise authorised by the Licensor, the Licensee is not authorised to
use any trademarks or logos belonging to the Licensor. The Licensee acknowledges
that the Licensor owns the ThunderServe trademark and MyWeb trademark and all
MyWeb related trademarks, logos and icons and agrees not to do anything harmful
to or inconsistent with the Licensor's rights in the aforementioned marks.
[***] Portions of this page have been omitted pursuant to a request for
Confidential Treatment and filed separately with the Commission.
8. WARRANTY
The Software will be delivered to the Licensee and shall be free from defects.
The Licensee's sole remedy in the event of a defective Software shall be a
replacement of the Software.
9. LIMITATION OF LIABILITY
In no event will the Licensor be liable for any lost revenue, profit or data or
for direct, indirect, special, consequential, incidental or punitive damages,
however caused and regardless of the theory of liability arising out of the use
of or inability to use the Software.
10. TERM OF LICENSE
The License shall be for a period of 1 year (hereinafter referred to as "the
Term").
11. TERMINATION
11.1 Either party may terminate this agreement in the event the other party is
in material breach and has not cured such breach within 30 days after
written notice by the other party.
11.2 All rights of the Licensee to the Software shall terminate upon expiry
of or termination of this agreement.
12. SECRECY
Not at any time during or after the Term will either party divulge or allow to
be divulged to any persons any confidential information relating to the business
or affairs of the other and the details of this agreement. In the event that
this Clause is breached, both parties agree that the aggrieved party shall be
entitled to claim against the other for damages and further equitable relief as
it deems necessary.
13. NON-ASSIGNMENT
The Licensee shall not assign or sub-contract any of its rights under this
agreement without the consent in writing of the Licensor.
14. COMPLIANCE WITH LAWS
To the extent applicable hereto, both parties shall comply with all laws,
regulations, policies and guidelines of Malaysia.
15. GOVERNING LAW
This agreement shall be governed and construed in all respects in accordance
with the laws of Malaysia.
16. ARBITRATION
Any differences or disputes arising from this agreement shall be settled by an
amicable effort of both parties.
16.1 An attempt to arrive at a settlement shall be deemed to have failed as
soon as one of the parties notifies the other in writing.
16.2 If an attempt at settlement has failed, the parties shall try to settle
their dispute via arbitration in accordance with the applicable
arbitration legislation of Malaysia.
16.3 In the event that any attempt at an amicable settlement pursuant to
Clause 13.1 has failed, either party may seek to resolve their
differences or disputes in a valid court of law.
17. NO WAIVER
The failure of any party to assert or enforce any right hereunder (whether upon
a breach of this agreement by the other party hereto or otherwise) shall not be
deemed to be a waiver of such right with respect to any such breach or any
subsequent breach; nor will any waiver be implied from the acceptance of any
payment or service, except where the waiver has been expressly agreed to in
writing and signed by both parties.
18. NOTICE
Any notice or communication under this agreement shall be in writing and may be
given by registered post, facsimile or personal delivery to the following
addresses:
To : TecnoChannel Technologies Sdn Bhd
Xxxx X0, Xxxxxxxxxx Xxxx Xxxxxxxx
00000 Xxxxx Xxxxxx, Malaysia
ATTN : XX X. X. XXXX
To : NetChina
Beijing China
ATTN : XX XXXX PING GUO
19. SEVERABILITY
If any one or more of the provisions contained in this agreement or any document
executed in connection herewith is found by any court of law with jurisdiction
over the matter to be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired in any way.
20. FORCE MAJEURE
Neither party shall be liable for delay in performance or failure to perform, in
whole or in part, the terms of this agreement if such failure or delay is due to
labour dispute, strike, war, or act of war, insurrections, riot, civil
commotion, act of publish enemy, accident, ire, flood, acts of God or other
causes beyond the reasonable control of such party and any delay or failure
shall not be considered to be a breach of this agreement. In the event that this
agreement cannot be performed due to the aforementioned circumstances for a
continuous period of 30 days, either party may at its discretion terminate this
agreement by notice in writing.
21. VARIANCE
All changes, modifications, variations and amendments to this agreement must be
in writing to be valid.
22. COST
Both parties shall be responsible for their solicitors' costs involved in the
preparation of this agreement. The stamp duty shall be borne by the Licensee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
Tecnochannel Technologies Sdn Bhd NetChina
By: /s/ Signature illegible By: /s/ Signature illegible
----------------------- -----------------------
Name : X X Xxxx Name: Fang Ping Guo
President & CEO Manager
Date : Date:
