TRADEMARK LICENSE AGREEMENT
Exhibit 4.33
[English Translation]
This Trademark License Agreement (this “Agreement”) is entered into between the following parties in June 7, 2021:
| Licensor: | China Mobile Communications Corporation, a state-owned enterprise incorporated and duly existing in accordance with the PRC laws with its legal address at 00 Xxx Xxxx Xxxxxx, Xx Xxxxx Xxxxxxxx, Xxxxxxx, the PRC (hereinafter referred to as “Party A”); and | |
| Licensees: | China Mobile Limited, a limited liability company incorporated and duly existing in accordance with Hong Kong laws with its legal address at 60/F., The Center, 99 Queen’s Road Central, Hong Kong (hereinafter referred to as “Party B”). | |
| China Mobile Communication Company Limited, a limited liability company incorporated and duly existing in accordance with PRC laws with its legal address at 00 Xxx Xxxx Xxxxxx, Xx Xxxxx Xxxxxxxx, Xxxxxxx, the PRC (hereinafter referred to as “Party C”) | ||
The above Party A, Party B and Party C are called hereinafter respectively as a “Party”, and collectively as “Parties”.
Party A consents that Party B sub-licenses the Licensed Trademarks (as defined herein) to all of its subsidiaries. Hence, the Licensees also include all subsidiaries of Party B and the following main subsidiaries include:
| 1. | China Mobile International Limited, a limited liability company incorporated and duly existing in accordance with Hong Kong laws with its legal address at 00/X., Xxxxx 0, Xxxxxxx Commerce Centre, 51 Xxxx Xxxxxx Road, Xxxx Xxxxx, NT, Hong Kong. |
| 2. | China Mobile Hong Kong Limited, a limited liability company incorporated and duly existing in accordance with Hong Kong laws with its legal address at 00/X., Xxxxx 0, Xxxxxxx Commerce Centre, 51 Xxxx Xxxxxx Road, Xxxx Xxxxx, NT, Hong Kong. |
| 3. | China Mobile Investment Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 00 Xxx Xxxx Xxxxxx, Xx Xxxxx Xxxxxxxx, Xxxxxxx, the PRC. |
| 4. | China Mobile Information Technology Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 11, 41/F., GoTone Tower, 9023 Bing He Road, Futian District, Shenzhen, Guangdong, China. |
| 5. | Aspire Digital Technology (Shenzhen) Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at W601, Shenzhen-Hong Kong Industry-University-Research Base, 15 Hi-tech South 7th Road, High-tech Zone Community, Yuehai Street, Nanshan District, Shenzhen, Guangdong, China. |
| 6. | Aspire Information Network (Shenzhen) Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at W501, Shenzhen-Hong Kong Industry-University-Research Base, 15 Hi-tech South 7th Road, High-tech Zone Community, Yuehai Street, Nanshan District, Shenzhen, Guangdong, China. |
| 7. | Aspire Information Technology (Beijing) Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 0xx Xxxxx, Xxxxxxxx 00, Xxxx 4, 186 Nan Si Xxxxx Xx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx. |
Party A consents that Party C sub-licenses the Licensed Trademarks to all of its subsidiaries. Hence, the Licensees also include all subsidiaries of Party C and the following main subsidiaries of Party C include:
| 1. | China Mobile Group Beijing Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 0 Xxxx Xxx Xxxx Xxx Xxxxxx, Xxxx Xxxxx District, Beijing, the PRC; |
| 2. | China Mobile Group Tianjin Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 64 M Zone, Bonded Area, Tianjin Port, Tianjin, the PRC; |
| 3. | China Mobile Group Shanghai Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 000 Xxxxx Xxxx Xxxx, Xx Xxx Xxxxxxxx, Xxxxxxxx, the PRC; |
| 4. | China Mobile Group Chongqing Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 2 Xing Guang San Lu, Yu Bei District, Chongqing, the PRC; |
| 5. | China Mobile Group Hebei Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 000 Xxxx Xxxx Xx, Xxxxxxxxxxxx, Xxxxx Xxxxxxxx, the PRC; |
| 6. | China Mobile Group Shanxi Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Mobile Tower A, Wu Luo Street, Economy &Technology Development Zone, Taiyuan, Shanxi Province, the PRC; |
| 7. | China Mobile Group Neimenggu Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at A39 Teng Fei Nan Road, Huhhot, Neimenggu Autonomous Region, the PRC; |
| 8. | China Mobile Group Liaoning Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 6 Xxx Xxxx Jie, Hun Nan Xin District, Shenyang, Liaoning Province, the PRC; |
| 9. | China Mobile Group Jilin Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 2899 Xxx Xxxx Xx Xx, Changchun, Jilin Province, the PRC; |
| 10. | China Mobile Group Heilongjiang Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 168 Xin Wan Street, Song Bei District, Harbin, Heilongjiang Province, the PRC; |
| 11. | China Mobile Group Jiangsu Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 59 Hu Xx Xx, Nanjing, Jiangsu Province, the PRC; |
| 12. | China Mobile Group Zhejiang Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 19 Xxx Xxxx Xxxx Xx, Hangzhou, Zhejiang Province, the PRC; |
| 13. | China Mobile Group Anhui Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 000 Xxxxx Xxxx Xx, Xxxxx, Xxxxx Xxxxxxxx, the PRC; |
| 14. | China Mobile Group Fujian Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 140 Hu Xxxx Xx, Fuzhou, Fujian Province, the PRC; |
| 15. | China Mobile Group Jiangxi Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 58 Zi An Lu, Nanchang, Jiangxi Province, the PRC; |
| 16. | China Mobile Group Shandong Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 20569 Xxxx Xxx Lu, Jinan, Shandong Province, the PRC; |
| 17. | China Mobile Group Henan Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 48, Jing San Lu, Zhengzhou, Henan Province, the PRC; |
| 18. | China Mobile Group Hubei Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 66 Xxxxx Xxxx San Lu, Jiang Han District, Wuhan, Hubei Province, the PRC; |
| 19. | China Mobile Group Hunan Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 489 Xxx Xxxx Xxx Xx, Xx Xxxx Xxxxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx, the PRC; |
| 20. | China Mobile Group Guangdong Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at GoTone Building, 11 Zhu Jiang Xi Lu, Zhu Xxxxx Xxx Xxxxx, Xxxx Xx District, Guangzhou, Guangdong Province, the PRC; |
| 21. | China Mobile Group Guangxi Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 117 Xxx Xxx Avenue, Nanning, Guangxi Zhuang Autonomous Region, the PRC; |
| 22. | China Mobile Group Hainan Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 88 Xxx Xxxx Lu, Xxx Xxx District, Haikou, Hainan Province, the PRC; |
| 23. | China Mobile Group Sichuan Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 000 Xx Xxxx 0 Xxxx, Xx-xxxx Xxxxxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, the PRC; |
| 24. | China Mobile Group Yunnan Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at China Mobile Tower, 2 Qian Fu Road, Xi Shan District, Kunming, Yunnan Province, the PRC; |
| 25. | China Mobile Group Guizhou Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 1 Long Hai Road, Xxxx Xxxx Hu District, Guiyang, Guizhou Province, the PRC; |
| 26. | China Mobile Group Xizang Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 84 Xxx Xxx Xxxxx Xx, Lhasa, Xizang Autonomous Region, the PRC; |
| 27. | China Mobile Group Shaanxi Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 60 Xxx Xx Xx Xx, Hi-Tech Industrial Development Zone, Xian, Shaanxi Province, the PRC; |
| 28. | China Mobile Group Gansu Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 666 Bei Xxx Xx Xi Lu, Lanzhou, Gansu Province, the PRC; |
| 29. | China Mobile Group Qinghai Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 48 Kun Lun Dong Road, Xining, Qinghai Province, the PRC; |
| 30. | China Mobile Group Ningxia Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 16 Hou Hai Lu, Xxx Xxxx District, Yinchuan, Ningxia Hui Autonomous Region, the PRC; |
| 31. | China Mobile Group Xinjiang Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 1966 Hong Guang Xxxx Xx, Shui Mo Gou District, Urumqi, Xinjiang Uyghur Autonomous Region, the PRC; |
| 32. | China Mobile Group Design Institute Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at A16 Xxx xxxx Street, Hai Xxxx District, Beijing, the PRC; and |
| 33. | China Mobile Group Device Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Xxxx 000, Xxxxx X00, Xxxxx 0, Xxx Xx Xxxx Xi Lu, Xxxxx Xxxx District, Beijing, the PRC. |
| 34. | The Government & Enterprises Branch of China Mobile Communications Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Xxxx 000X, 00 Xxxx Xxxx Xxxx, Xxxx Xxxxx District, Beijing, the PRC. |
| 35. | China Mobile Group Finance Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at the 19th & 00xx Xxxxx, #0 Xxxxxxxx, #0 Xxxx, Xxx Xxx Nan Avenue, Xi Cheng District, Beijing, the PRC. |
| 36. | China Mobile IoT Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 0-00 Xxxx Xxxx Xxxxxxxx, X&X Innovation Center, 8 Yu Ma Road, Nan An District, Chongqing, the PRC. |
| 37. | China Mobile (Suzhou) Software Technology Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 58 Kun Lun Shan Road, Hi-Tech Zone, Suzhou, Jiangsu Province, the PRC. |
| 38. | China Mobile (Hangzhou) Information Technology Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Tower A01, 1600 Yu Hang Tang Lu, Xx Xxxxx Street,Yu Hang District, Hangzhou, Zhejiang Province, the PRC. |
| 39. | China Mobile Online Services Company limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at the conjunction of Xxx Xxxx Road and Xxx Xxxx Avenue, Economic and Technical Development Zone, Luoyang, Henan Province, the PRC. |
| 40. | MIGU Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Room 400, Tower 5, 11 De Xxxxx Xxxx Wai Avenue, Xi Cheng District, Beijing, the PRC. |
| 41. | China Mobile Internet Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Tower 1.1, 333 Gao Tang Road, Xxxx Xx District, Guangzhou, Guangdong Province, the PRC. |
| 42. | China Mobile Tietong Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 2 Guang Ning Bo Street, Xi Cheng District, Beijing, the PRC. |
| 43. | China Mobile Investment Holdings Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Room 201, Tower A, 1 Qian Wan Yi Road, Qianhai Shenzhen-HongKong Cooperation Zone, Shenzhen, the PRC. |
| 44. | The Research Institution of China Mobile Communication Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 19th Floow, 00 Xxx Xxxx Xxxxxx, Xx Xxxxx Xxxxxxxx, Xxxxxxx, the PRC. |
| 45. | Fujian Funuo Mobile Communication Technology Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Xxxxxxxx 00, X Xxxx, 00Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx, the PRC. |
| 46. | China Mobile e-Commerce Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 1118 Software Center Tower, 662 Lu Gu Avenue, Hi-tech District, Changsha, Hunan, the PRC. |
| 47. | China Mobile System Integration Co., Ltd, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 1118 Software Center Tower, 662 Lu Gu Avenue, Hi-tech District, Changsha, Hunan, the PRC. |
| 48. | China Mobile (Chengdu) ICT Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 1118 Software Center Tower, 662 Lu Gu Avenue, Hi-tech District, Changsha, Hunan, the PRC. |
| 49. | China Mobile (Shanghai) ICT Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 2nd Floor, Building 13, 27 Xxx Xxx Qiao Road, Free Trade Pilot Zone, Shanghai, the PRC. |
| 50. | China Mobile Financial Technology Co., Ltd., a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Xxxx 000X, 0/X., 00 Xx Xxxxx Xxxx Xxx Avenue, Xi Cheng District, Beijing, the PRC. |
| 51. | China Mobile Xxxxx’an ICT Co., Ltd., a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at 00 Xx Xxx Xxxx Xxxxx, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxx, the PRC. |
| 52. | CM Information Technology Company Limited, a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Room 1006, Building 16, Yard 16, Xxxx Xxx Bei San Street, Future Science City, Xxxxx Xxxx District, Beijing, the PRC. |
| 53. | China Mobile Information System Integration Co., Ltd., a limited liability company incorporated and duly existing in accordance with the PRC laws with its legal address at Xxxx 0000-00, Xxxxxxxx 0, Xxxx 0, Xxxx Xxxx Xxx, Xxxx Xxx District, Beijing, the PRC. |
WHEREAS
| A. | Party A, Party B and Party C intend to execute this Agreement to replace the Trademark License Agreement they entered into in December 2017. |
| B. | Party A is the lawful owner of the Licensed Trademarks. |
| C. | Party A agrees, in accordance with the terms and conditions hereof, to license the Licensees to use the Licensed Trademarks. The Licensees agree to use the Licensed Trademarks of Party A in accordance with the terms and conditions hereof. |
After due consideration, in order to protect Party A’s legal right in the Licensed Trademarks and the Licensees’ legal rights in the use of the Licensed Trademarks, Party A and the Licensees agree as follows:
ARTICLE ONE DEFINITIONS
Except as otherwise provided herein, the following terms shall have the meanings set forth below:
| 1.1. | Affiliates: with respect to any person, refer to any individual, company, partnership, association or other entity or organization that directly or indirectly controls, is controlled by, or under the common control of, such person. |
| 1.2. | Licensed Trademarks: refer to the trademarks as set forth in but not limited to Appendix hereto and other valid, newly-applied and granted trademarks registered by Party A, including its co-owned trademarks, except for those newly-applied trademarks claimed as unlicensed trademarks by Party A. Party A will reasonably determine the exclusion scope based on the objective situation with the principle of satisfying the licensee’s business operation and development needs.. The licensed areas are the same as those of the registered trademarks. |
| 1.3. | Licensees: refer to Party B, Party B’s subsidiaries, Party C and Party C’s subsidiaries. |
| 1.4. | Third Parties: refer to any individuals, legal persons, companies, enterprises, governmental departments or other economic entities or organizations other than the parties (including its affiliates) to this Agreement. |
| 1.5. | Force Majeure: refers to all unforeseeable, unavoidable events or the effect of which are insurmountable, that materially affect a party’s capability to perform its obligations under this Agreement, in whole or in part. |
| 1.6 | PRC: refers to the People’s Republic of China ((excluding, solely for the purpose of this Agreement, the Hong Kong Special Administrative Region of China, the Macau Special Administrative Region of China, and Taiwan, China). |
| 1.7 | Hong Kong: refers to the Hong Kong Special Administrative Region of China. |
ARTICLE TWO GRANT OF LICENSE
| 2.1. | Party A hereby agrees to grant the Licensees the non-exclusive right to use the Licensed Trademarks within the registered territory and allow the Licensees to use the Licensed Trademarks within the term of Licensing in accordance with the terms and conditions hereof. Therefore, the Licensees shall have the right to use the Licensed Trademarks in accordance with the terms and conditions hereof. |
| 2.2. | The term of licensing: ten (10) years starting from the effective date of this Agreement. This Agreement shall automatically renew for a 10-year term, provided that no party raises any objections or terminates the license before its expiry. |
| 2.3. | The scope of use: the goods and services in consistence with the registered scope of the licensed trademarks as recorded in the Trademark Register of the trademark authority where the licensed trademarks are registered (or other equivalent documents stipulated by the laws of the place of registration). |
| 2.4. | The Licensees shall not assign any of their rights or obligations hereunder to any Third Parties without the written consent of Party A. |
ARTICLE THREE GRANT OF THIRD PARTY LICENSE
| 3.1. | After the Licensees have performed the procedures stipulated in Article 3.3 and 3.4 and satisfied the relevant conditions, Party A hereby agrees to authorize the Licensees to separately enter into a China Mobile Trademark License Agreement (hereinafter the “Third Party Agreement”) with Third Parties engaging in the relevant business activities (including marketing, business promotions and agency, mobile phones sales and maintenance) within its respective areas of operation and operating regions based on its own business development needs. The Third Party Agreement shall authorize Third Parties to reasonably use the Licensed Trademarks within the specific operating and geographic areas. The Licensees shall have the right and obligation to supervise the reasonable use of the Licensed Trademarks within the specific operating and geographical areas specified by such Third Parties that engage in the relevant business activities. |
| 3.2. | Party A hereby authorizes the Licensees to file, as the sub-licensor, the Third Party Agreements with the State Trademark Bureau and relevant regulatory authorities. |
| 3.3. | The Licensees shall submit an estimated number of Third Party Agreements to be entered into with any local Third Parties for the next year in accordance with its own business development needs (hereinafter the “Annual Plans”). The Licensees shall enter into a Third Party Agreement with any Third Party, and file an executed copy of such agreements for filing with the State Trademark Bureau and the relevant regulatory authorities within the time limit as required by the relevant PRC laws and regulations. |
| 3.4. | If the Licensees due to its rapid business expansion have a genuine need to permit new Third Parties engaging in the relevant activities to use the Licensed Trademarks that were not included in the Annual Plans, the Licensees may file applications with Party A for a specific number of additional Third Party Agreements. Party A will approve in a timely fashion such applications based on the objective conditions under the principle of meeting the requirements of the Licensees’ business operation and development needs. |
ARTICLE FOUR REPRESENTATIONS AND WARRANTIES
| 4.1. | Each party to this Agreement shall make the following representations and warranties to the other parties: |
| a. | It is a legal person duly organized and existing under the PRC or Hong Kong laws; |
| b. | It has the full power and authority to execute this Agreement, to perform all the obligations and to grant all the authorizations under this Agreement; and |
| c. | This Agreement and its appendix shall constitute the legal, valid and binding obligations of each party to this Agreement upon execution. |
| 4.2. | Party B and C shall be responsible for urging and restricting each of its subsidiaries in performing their respective obligations under this Agreement in accordance with the terms and conditions hereof. |
| 4.3. | Party A undertakes to the Licensees that Party A has not created or allowed, and will not create or allow, the existence of any guarantee, pledge or encumbrance otherwise relating to the Licensed Trademarks prior to the execution of this Agreement and during the term of this Agreement. Party A further undertakes that in the event that any third party disputes or takes any legal actions against the Licensees in respect of their use of the Licensed Trademarks, it will perform its legal obligations in accordance with the terms and conditions hereof, including but not limited to, to appear before court, to defend and to indemnify. Party A agrees to compensate and indemnify the Licensees for and against any losses arising from their use of the disputed Licensed Trademarks. |
| 4.4. | Party A undertakes that Party A and its subsidiaries (excluding Party B and its subsidiaries) will not use or permit any other third parties other than the Licensees hereunder to use the Licensed Trademark to engage in any business that is the same or similar to and constitutes competition with, the main business of Party B and its subsidiaries, or Party C and its subsidiaries. If the main business of Party B and its subsidiaries, and Party C and its subsidiaries changes after the signing of and during the existence of this Agreement, the Licensees shall notify Party A within one month. |
| 4.5. | Party A shall maintain and renew the registration of the Licensed Trademarks and pay the relevant fees as well as file all necessary applications so that the Licensees may lawfully use the Licensed Trademarks and become the legal licensee of the Licensed Trademarks, including but not limited to following the filing procedures at the State Trademark Bureau, Hong Kong Intellectual Property Department or any other trademark authorities in any other registered jurisdictions of the Licensed Trademark. |
| 4.6. | This Agreement shall not grant any other rights to any Licensee except for the right to use the Licensed Trademarks in accordance with the terms and conditions of this Agreement and Party A shall not be deemed to have sold or transferred the Licensed Trademarks to the Licensees. The Licensees acknowledge Party A’s proprietary rights in the Licensed Trademarks (such rights include but not limited to the rights with respect to the entitlement, registration, renewal and applications of registration and renewal, and all of the rights relevant to such rights). The Licensees shall not have the right to file any registration application for the Licensed Trademarks, any trademarks, service logos, other names, marks or languages, or any packages, commercial exteriors, color graphics or designs that bear resemblance to the Licensed Trademarks in any country or region without obtaining the prior written consent of Party A. |
| 4.7. | The Licensees agree to provide reasonable assistance to Party A (or its Affiliates at the request of Party A) to protect the Licensed Trademarks, including providing any information or documents, and not taking any actions that will prevent or adversely affect the registration or renewal of the Licensed Trademarks in China or other places. The Licensees also agree to notify Party A in a timely fashion and provide any necessary assistance in case of finding any third parties infringing the exclusive right of the Licensed Trademarks. |
| 4.8. | The Licensees shall have the obligation to keep all non-public information confidential in relation to this Agreement and Party A. This confidentiality obligation shall not terminate or be cancelled because of the termination or cancellation of this Agreement. |
| 4.9. | Each Licensee shall not describe itself to be, or imply that it is, an agent or representative of Party A, or state or guarantee to any third party that it may require Party A to take any direct or indirect responsibility and/or obligation. Otherwise, all responsibilities incurred shall be borne by the Licensee. |
| 4.10. | Each party to this Agreement agrees to unconditionally execute any other legal documents and take any other actions required for consummating this Agreement, including but not limited to following the filing procedures at the State Trademark Bureau. |
ARTICLE FIVE LICENSE FEE
| 5.1. | As long as the Licensees comply with all agreements hereof, Party A agrees that the Licensees shall have the right to use the Licensed Trademarks without compensation. However, under the circumstances as follows, Party A may ask for a license fee: |
| a) | Party A is entitled to require a license fee for some specific reasons or when some situation in relation to a Licensee changes. However, in case that the free license will not seriously infringe on the legitimate rights and interests of Party A, Party A shall not require a fee for the licensing in principle; |
| b) | The Licensees can make Third Party licenses with a license fee in accordance with the actual condition, taking full account of the value of Party A’s trademarks, and with Party A’s prior approval. |
| 5.2. | Under the circumstances of Article 5.1 (a) and (b) hereof, Party A may license to the Licensees for a fee. The license fee for the Licensed Trademarks shall be negotiated by the parties and specified in a supplemental contract (hereinafter the “Supplemental Contract”), but in no event such license fee for using the Licensed Trademarks shall be more than the license fee paid by any other Affiliates of Party A at that time. |
ARTICLE SIX SUPERVISION
| 6.1. | The Licensees shall comply with all of the relevant applicable laws and regulations and obtain the relevant governmental approvals relating to the use of the Licensed Trademarks. |
| 6.2. | The Licensees shall not use the Licensed Trademarks in a way that will damage or adversely affect Party A, its business or its reputation nor combine the Licensed Trademarks with any trademarks of the Licensees or any third party or any other languages, marks or designs to create a new logo containing the Licensed Trademarks or bearing resemblance thereto. |
| 6.3. | Party A has the right to supervise the quality of the Licensees’ goods and services using the Licensed Trademarks. The Licensees shall ensure the quality of the goods and services using the Licensed Trademarks. Measures include but are not limited to: Party A may supervise any products, packages, labels, advertisements or any promotional materials or marketing activities that use the Licensed Trademarks, provided or sponsored by the Licensees. Party A shall have the right to withhold its permission for such promotional or marketing activities if it deems such use harmful to its business, reputation or trademarks. The Licensees agree to comply with all of Party A’s requests in this regard in a timely manner. |
| 6.4. | The Licensees shall indicate its own company name and place of manufacture on its goods or services using the Licensed Trademarks. |
| 6.5. | Party A has the right to inspect the following records of the Licensees at any time and the Licensees shall maintain the following records for at least one year, so that Party A may determine whether the Licensees have complied with the relevant requirements set forth in this Article Six: |
| a. | Sample packages, labels, advertisements, or originals or photos of any other literature for products containing the Licensed Trademarks that are used in promotional or marketing activities; |
| b. | All of the files of any appeals or claims with respect to the Licensed Trademarks that have been filed by consumers, competitors, governmental authorities, actual users or other entities; and |
| c. | Forms, letterheads or other samples or copies containing the Licensed Trademarks set forth in this Article Six. |
| 6.6. | Upon the execution of this Agreement, Party A shall provide to the Licensees the latest manual for the corporate logo (and any updated or amended version) relevant to the use of the Licensed Trademarks by the Licensees in accordance with the terms and conditions hereof. The Licensees shall strictly implement the relevant standards set forth in the latest corporate logo manual provided by Party A. The Licensees shall neither change the text, graphics and combination thereof, nor use the Licensed Trademark outside the scope of the license. |
ARTICLE SEVEN INFRINGEMENT AND INDEMNITY
| 7.1. | In the event that Party A breaches any obligations, responsibilities, undertakings or covenants under this Agreement, Party A shall indemnify the Licensees against any financial loss incurred by the Licensees attributable to such breaches. In the event that the Licensees breach any obligations, responsibilities, undertakings and covenants under this Agreement, the corresponding Licensee shall indemnify Party A against any financial loss incurred thereby attributable to such breaches. |
| 7.2. | In the event of the failure of any party to this Agreement to perform the obligations and duties under this Agreement due to a Force Majeure event, the affected party shall not be held liable for any breach arising from such event, except for those the laws state otherwise. The party that fails to perform its obligations and duties under this Agreement due to a Force Majeure event shall notify the other party immediately and take all reasonable actions to reduce the impact of the Force Majeure event. |
| 7.3. | If the Licensees know of any infringement or potential infringement of Party A’s right in the Licensed Trademarks, the Licensees shall immediately notify Party A and provide to Party A a report detailing all of its knowledge about the infringement. Upon receipt of the foregoing notice and report from the Licensees, Party A shall have the right to evaluate the infringement or potential infringement and take all appropriate actions including legal proceedings or other actions to stop the actual or potential infringements. The Licensees shall cooperate with Party A in connection with the actions. And any expenses incurred by the Licensees in connection with such cooperation shall be reasonably compensated out of the fees paid by the infringer. |
| 7.4 | Under the circumstances where a third party makes any claims to the Licensor or the Licensees with respect to the Licensed Trademarks within the scope hereof, one party shall take actions and fully cooperate to protect the other parties’ rights and interests. |
ARTICLE EIGHT TERM, EFFECTIVENESS AND TERMINATION
| 8.1. | This Agreement shall come into effect from the date of stamping by the Parties and terminate upon the expiration of the term of licensing. |
| 8.2. | Party A shall have the right to terminate this Agreement or the corresponding licensing hereunder in any of the following events: |
| a. | The Licensees breach this Agreement or any of the representations and warranties hereof, and fail to correct such breach within thirty (30) days after receipt of a written notice from Party A with a detailed account of the Licensees’ acts of breach; |
| b. | Party A no longer directly or indirectly holds any interest in Party B and its subsidiaries, Party C and its subsidiaries arising from the change of shareholding etc.; or |
| c. | Party C becomes bankrupt and the subject of any liquidation and dissolution proceedings, discontinues its operations or fails to pay its debts on schedule. |
| 8.3. | Party B and C shall have the right to terminate this Agreement in any of the following events: |
| a. | Party A breaches this Agreement or any of the representations and warranties hereof, and fails to correct such breach within thirty(30) days after receipt of a written notice from Party B or Party C with a detailed account of the Licensor’s acts of breach; or |
| b. | Party A no longer has any proprietary right in the Licensed Trademarks. |
| 8.4. | If any party wishes to terminate this Agreement in accordance with Article 8.2 or Article 8.3 hereof, it shall notify the other parties in writing with a 60-day advance notice. Such notice shall provide its reasons for termination and this Agreement will be terminated upon expiration of such 60-day period. |
| 8.5. | After the termination of this Agreement: |
| a. | The right to use the Licensed Trademarks by the Licensees shall be immediately terminated. The Licensees shall not continue their use of the Licensed Trademarks or attempt to register or use any trademarks, service logos, other names, marks, languages, package profiles, color, design or graphics same as or similar to the Licensed Trademarks; |
| b. | The Licensees shall provide to Party A or its designated Affiliates any materials under their custody with respect to or containing a Licensed Trademark, or make alterations to such materials so that they no longer incorporate any Licensed Trademark; and |
| c. | Each party to this Agreement shall notify all of the relevant local administration for industry and commerce and Trademark authorities of the termination of this Agreement. |
The provisions of this Article 8.5 shall survive the termination of this Agreement.
ARTICLE NINE BREACH OF CONTRACT
| 9.1. | The Licensees’ breach of any agreement hereof shall be deemed a breach of contract. In case of any act of breach, the Licensees shall pay Party A RMB100,000 as penalty and be liable for damages caused if the penalty is inadequate to cover the damages. |
ARTICLE TEN DISPUTE RESOLUTION, APPLICABLE LAWS AND OTHERS
| 10.1. | For any disputes arising from the effect, interpretation or performance of this Agreement, the parties shall endeavor to resolve in a friendly manner. In the event of any failure to resolve such disputes after consultation, any party can submit such disputes to the China International Economic and Trade Arbitration Committee for arbitration in Beijing in accordance with its arbitration rules then in effect. The arbitration award shall be final and binding on each party to this Agreement. Except for the matters under dispute submitted for arbitration, the remaining provisions of this Agreement shall remain in effect. |
| 10.2. | The making, effectiveness, interpretation and implementation of, the dispute resolution arising from this Agreement shall be governed by PRC laws. |
| 10.3. | As acknowledged by the Parties, on January 26, 2016, Party A issued a Licensing Letter to MIGU Company Limited, Party B’s subsidiary, authorizing MIGU to use the MIGU series trademarks owned by Party A for a total of 29 trademarks as set out in the appendix of the licensing Letter. the term of the license ends on the date of completion of the transfer of the aforementioned MIGU series trademarks. The licensing mothod is exclusive. The Parties agree that the aforementioned Licensing Letter from Party A to MIGU Company Limited will continue to be valid. In case this Article conflicts with any other clauses of this agreement, this Article shall prevail. |
| 10.4. | This Agreement is severable. If any provision is rendered illegal or unable to be implemented by the competent arbitration committee, but has no fundamental effect on the effectiveness of this Agreement, such provision shall not affect the validity and performance of the remaining provisions of this Agreement. |
| 10.5. | Within the term of this Agreement, the effectiveness of this Agreement will not be affected by change of registered office address of Party A, Party B and its subsidiaries, Party C and its subsidiaries. |
| 10.6. | Party B and its subsidiaries, Party C and its subsidiaries in this Agreement includes all their branches. |
| 10.7. | This Agreement is written in Chinese and the original of which is prepared in seventy copies. Party A shall keep eight originals while each of Party B and its subsidiaries and Party C and its subsidiaries as set out in this Agreement shall hold one originals. All of the originals of this Agreement shall have equal force and effect. |
| 10.8. | This Agreement and its appendix shall constitute the entire agreement between the Parties with respect to the agreed matters relating to this Agreement and supersede any intentions or understanding of the Parties with respect to such matters or any previous agreements, contracts or written documents. |
| 10.9. | Any amendments to this Agreement shall only become effective upon the execution of a written agreement by the Parties to this Agreement, and such amendments shall be filed with the State Trademarks Bureau and the relevant local administration for industry and commerce. |
| 10.10. | The failure of any party to exercise or postpone exercising its rights, powers or preemptive rights under this Agreement shall not be deemed as a waiver of such rights, powers or preemptive rights and a partial exercise of such rights, powers or preemptive rights shall not preclude the future exercise of such rights, powers or preemptive rights. |
| 10.11. | This Agreement may be made in counterparts for execution by each party. Counterparts bearing respective signatures shall constitute a binding contract. In the event of this Agreement being executed in counterparts, the date each party successfully exchanges its signed counterpart with the other party by facsimile shall be the date of execution. |
| 10.12. | Party A shall be responsible for the filings of this Agreement with the relevant authorities. The Third Party Agreements entered into between Party B, Party C or their respective subsidiaries and any third parties within the licensing scope of Party A shall perform the relevant formalities in accordance with Party A’s authorization and PRC laws and regulations |
| 10.13. | This Agreement shall prevail if there is a conflict between this Agreement and any other authorization or contracts or agreements in relation to Party A’s trademark license issue. |
| 10.14 | Any matters that are not addressed under this Agreement shall be dealt with by the Parties hereto separately. |
This Agreement is executed by the duly authorized representative of each party to this Agreement as of the date set forth in the first paragraph of this Agreement for faithful compliance.
SIGNATURE PAGE
Party A:
China Mobile Communications Group Company Limited (chop)
Party B:
China Mobile Limited (chop)
Party C:
China Mobile Communication Company Limited (chop)
