Exhibit 4.1
[English Translation]
CHINA MOBILE COMMUNICATIONS CORPORATION
AND
CHINA MOBILE (HONG KONG) LIMITED
TRADEMARK LICENSE AGREEMENT
JULY 18, 2002
LINKLATERS & ALLIANCE
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TRADEMARK LICENSE AGREEMENT
This Trademark License Agreement (this "Agreement") is entered into among the
following parties as of July 18, 2002:
1. China Mobile Communications Corporation, a state-owned enterprise
incorporated and duly existing in accordance with the PRC laws with its
legal address at No. 53A, Xi Bian Men Nei Da Jie, Xxxx Xx District,
Beijing, the PRC (hereinafter referred to as "Party A");
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 60/F., Xxx Xxxxxx, 00 Xxxxx'x Xxxx Xxxxxxx, Xxxx
Xxxx (hereinafter referred to as "Party B");
3. Guangdong Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 000, Xxx Xxx Xxx Xx, Xxxxxxxxx, Xxxxxxxxx
Xxxxxxxx, the PRC;
4. Zhejiang Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 000, Xx Xx Xxxxx Xx, Xxxxxxxx, Xxxxxxxx
Xxxxxxxx, the PRC;
5. Jiangsu Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 00, Xx Xx Xx, Xxxxxxx, Xxxxxxx Xxxxxxxx,
the PRC;
6. Fujian Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 00, Xx Xxxx Xx, Xxxxxx, Xxxxxx Xxxxxxxx,
the PRC;
7. Henan Mobile Communication Company Limited, a limited liability company
incorporated and duly existing in accordance with the PRC laws with its
legal address at Xx. 00, Xxx Xxxx Xx, Xxxxxxxxx, Xxxxx Xxxxxxxx, the
PRC;
8. Hainan Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 00, Xxx Xxxx Xx, Xxx Xxx Xxxxxxxx,
Xxxxxx, Xxxxxx Xxxxxxxx, the PRC;
9. Beijing Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 00, Xxxx Xxxxx Xxx, Xxxx Xxxxx Xxxxxxxx,
Xxxxxxx, the PRC;
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10. Shanghai Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at 00/X, Xxxx Xxx, Xx. 000, Xxxxxxx Xxxx Xx,
Xxxxxxxx, the PRC;
11. Tianjin Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 00, Xxx Xxxx Xx, Xx Xxxx District,
Tianjin, the PRC;
12. Shandong Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 00, Xxxx Xxx Xx, Xxxxx, Xxxxxxxx
Xxxxxxxx, the PRC;
13. Hebei Mobile Communication Company Limited, a limited liability company
incorporated and duly existing in accordance with the PRC laws with its
legal address at Xx. 000, Xxxx Xxxx Xxx, Xxxxxxxxxxxx, Xxxxx Xxxxxxxx,
the PRC;
14. Liaoning Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at No. 128, Shi Yi Xxx Xx, Xxxx He District,
Shenyang, Liaoning Province, the PRC;
15. Guangxi Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at No. 92, Min Zu Xx Xxx, Nanning, Guangxi
(Zhuang nationality) Autonomous Region, the PRC;
16. China Mobile (Shenzhen) Limited, a limited liability company
incorporated and duly existing in accordance with the PRC laws with its
legal address at No. 9023, Bing He Xx Xxx, Futian District, Shenzhen,
Guangdong Province, the PRC;
17. Anhui Mobile Communication Company Limited, a limited liability company
incorporated and duly existing in accordance with the PRC laws with its
legal address at Xx. 000, Xxx Xxxx Xxxxxxxx, Xxxx Xx Xx, Xxxxx Xxxx,
Xxxxx Xxxxxxxx, the PRC;
18. Hunan Mobile Communication Company Limited, a limited liability company
incorporated and duly existing in accordance with the PRC laws with its
legal address at No. 169, Fu Rong Xxx Xx, Xxxx Xxx District, Changsha
City, Hunan Province, the PRC;
19. Hubei Mobile Communication Company Limited, a limited liability company
incorporated and duly existing in accordance with the PRC laws with its
legal address at No. 10, Jiang Xing Lu, Jiang Han District, Wuhan City,
Hubei Province, the PRC;
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20. Jiangxi Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xxx Xxxx Building, Tao Yuan Xiao District,
Nanchang City, Jiangxi Province, the PRC;
21. Sichuan Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 00, Xxxx Xxxx Xxxxx Xxx, Xxxxxxx Xxxx,
Xxxxxxx Xxxxxxxx, the PRC;
22. Chongqing Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at No. 134, Xx Xxxx Lu, Jiu Long Po District,
Chongqing City, the PRC;
23. Shaanxi Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 0, Xxx Xx Xxxx Xx Xxxx, Xxxx Xxxx,
Xxxxxxx Xxxxxxxx, the PRC; and
24. Shanxi Mobile Communication Company Limited, a limited liability
company incorporated and duly existing in accordance with the PRC laws
with its legal address at Xx. 00, Xxxxxx Xx Xx Xxx, Xxxxxxx Xxxx,
Xxxxxx Xxxxxxxx, the PRC.
The foregoing Guangdong Mobile Communication Company Limited, Zhejiang Mobile
Communication Company Limited, Jiangsu Mobile Communication Company Limited,
Fujian Mobile Communication Company Limited, Henan Mobile Communication Company
Limited, Hainan Mobile Communication Company Limited, Beijing Mobile
Communication Company Limited, Shanghai Mobile Communication Company Limited,
Tianjin Mobile Communication Company Limited, Shandong Mobile Communication
Company Limited, Hebei Mobile Communication Company Limited, Liaoning Mobile
Communication Company Limited, Guangxi Mobile Communication Company Limited, and
China Mobile (Shenzhen) Limited, Anhui Mobile Communication Company Limited,
Hunan Mobile Communication Company Limited, Hubei Mobile Communication Company
Limited, Jiangxi Mobile Communication Company Limited, Sichuan Mobile
Communication Company Limited, Chongqing Mobile Communication Company Limited,
Shaanxi Mobile Communication Company Limited, and Shanxi Mobile Communication
Company Limited are all the directly or indirectly wholly owned subsidiaries of
Party B, all located in Mainland China, collectively referred to as "Party B's
Domestic Subsidiaries"
WHEREAS
A. Party A is the lawful owner of the Licensed Trademarks (as defined
herein). Party A obtained a total of five Trademark Registration
Certificates for the
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Licensed Trademarks issued by the Trademark Bureau under the State
Administration for Industry and Commerce of China (hereinafter referred
to as the "State Trademarks Bureau") on October 14, 2000 and February
28, 2002;
B. Party B is a company whose common shares are listed on the Hong Kong
Stock Exchange and the New York Stock Exchange, approximately 25% of
its outstanding shares are owned by offshore investors, and Party A is
the indirect controlling shareholder of Party B;
C. Party A and Party B entered into a Trademark License Agreement on
October 8, 1999, and a Supplemental Agreement in Connection with the
Spectrum/(Telephone) Number Resources Usage Agreement, Trademark
License Agreement, the Sharing of Inter-Provincial Transmission Line
Leasing Fees Agreement, and the Inter-Provincial Network Roaming,
Domestic and International Roaming Settlement Agreement (hereinafter
referred to as the "Supplemental Agreement") on September 19, 2000, to
memorialize the agreement among and between the parties with respect to
the authorization by Party A to Party B, Party B's Domestic
Subsidiaries and all of its Affiliates governing their use of the
Licensed Trademarks;
D. Party A, Party B and Party B's Domestic Subsidiaries entered into a
Trademark License Agreement on April 24, 2002, under which Party A
granted Party B and Party B's Domestic Subsidiaries the right to use
the Licensed Trademarks in their respective operating regions and areas
of operation in Mainland China and the right to authorize Third Parties
engaging in related business activities to use the Licensed Trademarks
in specific geographic and operating areas;
E. Party A, Party B and Party B's Domestic Subsidiaries hereby wish to
reiterate the contents contained in the Trademark License Agreement
executed on April 24, 2002, and agree to further extend the scope of
the Licensed Trademarks.
After due consideration, in order to protect Party A's legal right in the
Licensed Trademarks and the Licensee's 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, means any individual, company,
partnership, community 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: The trademarks set forth in Appendix 1 hereto
(including the trademarks in the Chinese language and the English
language, the graphic
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trademarks and the trademarks formed by a combination of each of the
foregoing trademarks), including the registered and non-registered
trademark rights enjoyed in Mainland China and abroad appertaining to
such trademarks, and the "China Mobile" trademarks registered by Party
A at the State Trademarks Bureau, with respect to which Party A was
issued a Trademark Registration Certificate (Ref No.: 1459995) on
October 14, 2000, and four Trademark Registration Certificates (Ref
No.: 1723536, 1723537, 1723538 and 1723539, respectively) on February
28, 2002. The photocopies of the five copies of the Trademark
Registration Certificates mentioned above are attached as Appendix 1 to
this Agreement.
1.3. Licensees: means Party B, Party B's Domestic Subsidiaries and all the
branches of Party B's Domestic Subsidiaries.
1.4. Third Parties: means any individuals, legal persons, companies,
enterprises, governmental departments or other economic entities or
organizations other than the parties to this Agreement.
1.5. Force Majeure: means 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.
ARTICLE TWO GRANT OF LICENSE
2.1. Party A hereby agrees that it shall grant the Licensees the
non-exclusive right to use the Licensed Trademarks in Mainland China
and allow the Licensees to use the Licensed Trademarks in their
respective operating regions and areas of operation in Mainland China
in accordance with the terms and conditions of this Agreement.
Therefore, the Licensees shall have the right to use the Licensed
Trademarks in their respective operating regions and areas of operation
in Mainland China in accordance with the terms and conditions hereof.
2.2. In addition, Party A hereby agrees that it shall grant Party B the
non-exclusive right to use the Licensed Trademarks in Hong Kong Special
Administrative Region and to use the Licensed Trademarks in its
respective operating regions and areas of operation in Hong Kong
Special Administrative Region in accordance with the terms and
conditions hereof during the term of this Agreement. Therefore, Party B
shall have the right to use the Licensed Trademarks in its respective
operating regions and areas of operation in Hong Kong Special
Administrative Region in accordance with the terms and conditions
hereof.
2.3. The Licensees shall not assign any of their rights or obligations
hereunder to any Third Parties without the written consent of Party A.
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ARTICLE THREE GRANT OF THIRD PARTY LICENSE
3.1. Party A hereby agrees that it shall authorize the Licensees to
separately enter into a China Mobile Communications Trademark License
Agreement (hereinafter referred to as the "Third Party Agreement") with
Third Parties engaging in the relevant business activities (including
and limited to business activities such as sales, marketing,
promotions, sales by authorized dealers of mobile phones and
maintenance by authorized dealers) within the 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.
3.2. Third Party Agreement shall be jointly executed by Party A (in the
capacity as the Licensor), the corresponding Licensee hereunder (in the
capacity as the agent) and the Third Parties (in the capacity as the
Authorized Licensees) engaging in the relevant business activities. The
corresponding Licensee hereunder shall have the right and obligation to
supervise the reasonable use of the Licensed Trademarks inside the
specific operating and geographical areas specified by such Third
Parties who engage in the relevant business activities.
3.3. Party A hereby authorizes the Licensees to file the Third Party
Agreements with the State Trademark Bureau and relevant regulatory
authorities in the name and on behalf of Party A.
3.4. 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
referred to as the "Annual Plans"). The Licensees shall only enter into
a Third Party Agreement with any Third Party if Party A has examined
and approved the Annual Plans. The Licensees shall file an executed
copy of such agreements following its execution with Party A and be
responsible for filing the Third Party Agreements with the State
Trademark Bureau and the relevant regulatory authorities within the
time limit as required by the relevant PRC laws and regulations.
3.5. If the Licensees 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 may approve such applications filed from time
to time by the Licensees in its discretion.
ARTICLE FOUR REPRESENTATIONS AND WARRANTIES
4.1. Each party to this Agreement shall make the following representations
and warranties to the other parties:
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a. It is a legal person duly organized and existing under the PRC
laws (in the case of Party A and Party B's Domestic
Subsidiaries or Hong Kong laws (in the case of Party B);
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;
c. Its representative, who executes this Agreement, has been
granted the right and power to execute this Agreement by valid
power of attorney, resolutions of its Board of Directors, or
any other valid authorizations; and
d. This Agreement and its appendix shall constitute legal, valid
and binding obligations of each party to this Agreement upon
execution.
4.2. Party B agrees that it will be responsible in supervising and
monitoring each of Party B's Domestic 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 its 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 its use of the disputed Licensed
Trademarks.
4.4. Party A shall maintain and renew the registration of the Licensed
Trademarks and pay the relevant costs 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.
4.5. Party A shall take all necessary actions to protect its proprietary
right with respect to the registered Licensed Trademarks, and it agrees
that it will not take any actions intentionally to harm such
proprietary right. If Party A intentionally gives up its proprietary
right or any part of the registered Licensed Trademarks or fails to
register or renew the Licensed Trademarks in any way, Party A shall
deliver a written notice to the Licensees with respect to its decision
sixty days before the date of such decision and obtain the prior
consent of the Licensees.
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
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Licensed Trademarks to the Licensees. Without affecting the use of the
Licensed Trademarks by the Licensees in accordance with the terms and
conditions of this Agreement, the Licensees acknowledge Party A's
proprietary rights in the Licensed Trademarks (such rights includes but
not limited to the rights with respect to the enjoyment, 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 to
any Affiliates of Party A at the request of Party A) to protect the
Licensed Trademarks, including providing any materials or documents and
not taking actions that will prevent or adversely affect the
registration or renewal of the Licensed Trademarks in China or other
places.
4.8. 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 LICENSING FEE
5.1. Party A agrees that the Licensees shall have the right to use the
Licensed Trademarks without compensation before October 13, 2005.
5.2. From October 14, 2005, a licensing fee for the Licensed Trademarks
shall be negotiated by the parties and specified in a supplemental
contract (hereinafter referred to as the "Supplemental Contract"), but
in no event such licensing fee for using the Licensed Trademarks shall
be more that the licensing fee paid by any other Affiliates of Party A
at the same time. Each party to this Agreement agrees that the
Supplemental Contract shall only come into effect upon the satisfaction
of the following conditions:
a. If necessary, an exemption shall be obtained for Party B in
connection with the Supplemental Contract from the Hong Kong
Stock Exchange with respect to the connected transactions in
accordance with the Listing Rules of the Hong Kong Stock
Exchange; and
b. If necessary, the Supplemental Contract shall be approved by
an independent shareholder of Party B who has no connected
relationship with Party B pursuant to the Listing Rules of the
Hong Kong Stock Exchange.
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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 may supervise any products, packages, labels, advertisements or
any promotional materials or marketing that use the Licensed
Trademarks, provided or sponsored by the Licensees and 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
brand. The Licensees agree to comply with all of Party A's requests in
this regard in a timely manner.
The Licensees shall maintain the following files (for one year) so that
Party A may be able to 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 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 departments, actual users or other
entities; and
c. Form, letterheads or other samples or copies containing the
Licensed Trademarks set forth in this Article Six.
6.4. Upon the execution of this Agreement Party A shall provide to the
Licensees the most recent manual for identification of corporate system
(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 most recent manual for identification of
corporate system provided by Party A.
ARTICLE SEVEN INFRINGEMENT AND DAMAGES
7.1. In the event of breach of any obligations, responsibilities,
undertakings or covenants under this Agreement by Party A, Party A
shall indemnify the Licensees against any financial loss incurred by
the Licensees attributable to such
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breaches. In the event of breach of any obligations, responsibilities,
undertakings and covenants under this Agreement by the Licensees, 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 [the events] of
force majeure, the affected party shall not be held liable for any
breach arising from such events.
7.3. If the Licensees know of any infringement or threatened 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 foregoing matter]. Upon receipt of the
foregoing notice and report from the Licensees, Party A shall take all
appropriate actions, including instituting legal proceedings or
otherwise stopping the actual or threatened infringement. The Licensees
shall cooperate with Party A in connection with Party's actions, and
their expenses incurred in connection with such cooperation shall be
reasonably compensated out of the fees paid by the infringing person.
ARTICLE EIGHT TERM, EFFECTIVENESS AND TERMINATION OF CONTRACT
8.1. This Agreement shall come into effect on the date the authorized
representatives or legal representatives of each party execute this
Agreement and expire on October 7, 2007. Unless each party to this
Agreement has executed the Supplemental Contract in accordance with
Article 5.2 of this Agreement, each party may further negotiate whether
to renew this Agreement after its expiration.
8.2. Party A shall have the right to terminate this Agreement in any of the
following events:
a. The Licensees breach this Agreement or any of the
representations and warranties and the Licensees fail to cure
such breach within thirty days of 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; or
c. Party B goes bankrupt, becomes the subject under any
liquidation and dissolution proceedings, discontinues its
operations, or fails to pay its debts on schedule.
8.3. Party B shall have the right to terminate this Agreement in any of the
following events:
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a. Party A breaches this Agreement or any of the representations
and warranties and the Licensees fail to cure such breach
within thirty days of receipt of a written notice of Party B
with a detailed account of the Licensees' acts of breach; or
b. Party A no longer has any proprietary right in the registered
Licensed Trademarks.
8.4. If any party wishes to terminate this Agreement in accordance with
Article 8.2 or Article 8.3 of this Agreement, it shall notify 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 and the Licensees shall not
continue its use of the Licensed Trademarks and the Licensees
shall not attempt to register or use 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 in its 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 the
Trademark Administration of the termination of this Agreement.
The provisions of this Article 8.5 shall survive the termination of
this Agreement.
ARTICLE NINE DISPUTE RESOLUTIONS, APPLICABLE LAWS AND OTHERS
9.1. For any disputes between the parties that arise from the effect,
interpretation or performance of this Agreement, each party shall
endeavor to resolve in a friendly manner. In the event of any failure
to resolve such disputes after consultation, any party may 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.
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9.2. The PRC laws govern the making, effect, interpretation and
implementation of this Agreement and the dispute resolutions.
9.3. 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.
9.4. This Agreement is written in Chinese and the original of this Agreement
will be prepared in sixty-three copies. Each party to this Agreement
shall hold two originals and Party A shall hold the remaining originals
for purposes of registration or filing. All the originals of this
Agreement shall have equal force and effect.
9.5. This Agreement shall constitute the entire agreement between the
parties with respect to the agreed matters relating to this Agreement
and supercede any intentions or understanding of the parties with
respect to such matters or any previously executed agreements,
contracts or written documents, including but not limited to the
Trademark License Agreement executed by Party A and Party B on October
8, 1999, the full contents in relation to the trademarks licensing set
forth in the Supplemental Agreement executed by Party A and Party B on
September 19, 2000, and the Trademark License Agreement executed by
Party A, Party B and Party B's Domestic Subsidiaries on April 24, 2002.
In connection with the granting of the right to use the Licensed
Trademarks under this Agreement, the relevant parties are required to
deliver to the State Trademarks Bureau and the relevant local
administration for industry and commerce a copy of this Agreement for
filing purposes, but not required to file any other agreements
(including but not limited to the Trademark License Agreement executed
by the relevant parties on April 24, 2002).
9.6. Any amendments to this Agreement shall only become effective upon the
execution of a written agreement between the respective authorized
representative of each party to this Agreement, and such amendments
shall be filed with the State Trademarks Bureau and the relevant local
administration for industry and commerce.
9.7. The failure of any party to exercise or postpone exercising its rights,
powers or preemptive rights under this Agreement shall not be deemed
that it has waived 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.
9.8. This Agreement may be made in counterparts for execution by each party.
Counterparts bearing respective signatures shall constitute a binding
contract. In the event that this Agreement shall be executed in
counterparts, the date each
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party successfully exchanges its signed counterpart with the other
party by facsimile shall be the date of execution.
9.9. Party A shall assist Party B in obtaining all approvals required for
the effectiveness and performance of this Agreement. Party A shall
submit a copy of this Agreement to the State Administration for
Industry and Commerce and the State Trademarks Bureau for filings
within three months upon execution of this Agreement. Each of Party B's
Domestic Subsidiaries shall deliver a copy of this Agreement to its
respective local administration for industry and commerce for filing
purposes.
9.10. Any matters that are not addressed under this Agreement shall be dealt
with by each of the Parties to this Agreement 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.
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SIGNATURE PAGE
China Mobile Communications Corporation China Mobile (Hong Kong) Limited
Authorized Representative Authorized Representative
/s/ XUE Taohai /s/ LI Zhenqun
------------------------------ ---------------------------
Guangdong Mobile Communication Zhejiang Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ LI Gang /s/ XU Long
------------------------------ --------------------------
Jiangsu Mobile Communication Fujian Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ HE Ning /s/ LIU Ping
------------------------------ ---------------------------
Henan Mobile Communication Hainan Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ YUAN Jianguo /s/ WEI Ping
------------------------------ --------------------------
Beijing Mobile Communication Shanghai Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ SHA Yuejia /s/ XXXXX Xxx
------------------------------ --------------------------
Tianjin Mobile Communication Shandong Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ ZHANG Xuehong /s/ XXX Xxxx
------------------------------ --------------------------
Hebei Mobile Communication Liaoning Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ ZHANG Liande /s/ XXXX Xxxxx
------------------------------ --------------------------
Guangxi Mobile Communication China Mobile (Shenzhen) Limited
Company Limited Authorized Representative
Authorized Representative
/s/ GAN Yuecai /s/ LI Zhenqun
------------------------------ --------------------------
Anhui Mobile Communication Hunan Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ ZHANG Daode /s/ WANG Jiangen
------------------------------ --------------------------
Hubei Mobile Communication Jiangxi Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ XXXX Xxxx /s/ XXXXX Rigao
------------------------------ --------------------------
Sichuan Mobile Communication Chongqing Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ LI Hua /s/ XXXX Xxxxxxx
------------------------------ --------------------------
Shaanxi Mobile Communication Shanxi Mobile Communication
Company Limited Company Limited
Authorized Representative Authorized Representative
/s/ HUO Zhicheng /s/ GAO Buwen
------------------------------ --------------------------
15
APPENDIX I
TRADEMARKS OF CHINA MOBILE COMMUNICATIONS CORPORATION
16
