Exclusive Cooperation Agreement
Exhibit
10.18
Exclusive Cooperation Agreement
between
Kunming Television Station
and
Kunming Taishi Information Cartoon Co.,
Ltd.
May 2008
Table
of
Contents
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Chapters
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Pages
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1.
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Definitions
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2
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2.
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Cooperation
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3
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3.
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Obligations
of Party A
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3
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4.
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Obligations
of Party B
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4
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5.
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Exclusivity
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4
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6.
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Representations
and Warranties
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5
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7.
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Breach
and Indemnifications
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6
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8.
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Term
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6
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9.
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Consequences
of Termination
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7
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10.
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Confidentiality
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7
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11.
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Dispute
Resolution
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8
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12.
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Miscellaneous
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9
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Appendix
Appendix 1 Cooperation of the Parties
This Exclusive Cooperation Agreement (Agreement) is entered into in Kunming, People's Rep ublic of China
(PRC) on [Ÿ] 2008
by and
between
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(1)
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Kunming Television
Station, a PRC
television station with its registered address at Xx.000, Xxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxx Xxxxxxxx (Party
A);
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and
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(2)
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Kunming Taishi
Information Cartoon Co., Ltd. , a Sino-foreign equity joint venture duly established
and existing under
the PRC Law (defined below) with its registered address
at [Ÿ](Party
B).
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(Individually a Party and collectively the Parties)
RECITALS
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A.
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Party A is a TV station, duly established
under the PRC Law, which owns Kunming Television Station
Comprehensive
Channel, Life Channel, Entertainment Channel, Economics Channel, Film and
TV Series Channel, and News Channel (collectively, the Channel) and the relevant database information. Party A also operates
an advertising business of the Channel and possesses the relevant Governmental
Authorizations (defined
below).
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B.
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Party B’s business mainly involves technology services for advertisement production,
advertisement information consulting and database management and whose business scope includes design and development of computer
graphic, design and development of 3D
cartoon, management
consulting services and technology
support.
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C.
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Party A seeks to grant the right
of advertisement operation on the Channel (Advertisement
Operation Right) to Party B and seeks to cooperate with Party B
on matters related
to database information and Governmental
Authorizations.
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NOW,
THEREFORE, the Parties
agree as follows:
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1.
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DEFINITIONS
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1.1
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Unless expressly provided
otherwise, the following terms used in this Agreement shall have the following
meanings:
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Business
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shall mean the advertising
operations of Party
A;
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Force Majeure
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any earthquake, storm, fire,
flood, war, changes to the relevant state and administrative laws or
regulations and policies, or any other significant event of natural or
human-caused disaster arising after the signing hereof which is
unforeseen, unavoidable and not possible to overcome, and is
beyond the control of any Party, and prevents the total or partial
performance of this Agreement by any Party;
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Governmental
Authorizations
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shall mean all consents,
approvals, permits and filings required under PRC Law for the proper
operation of the Business; and
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PRC Law
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shall mean all laws and
legislation of the PRC that are in effect, including laws, regulations, resolutions,
decisions, decrees and orders of government agencies and other documents
of a legislative, administrative or judicial
nature.
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2.
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COOPERATION
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The Parties agree that they shall cooperate on the following matters, and take
into account the principles
of equity and mutual
benefits:
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2.1
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Party A shall exclusively and irrevocably
grant to Party B the Advertisement Operation Right.
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2.2
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Party A shall provide to Party B all necessary and relevant
support, as well as most-favored terms for the Business.
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2.3
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Party A shall share its resource
with Party B, including but not limited to all the clients’ information (e.g.
database)
(Resource). Party A shall not engage
in, or cooperate
with, any third party
with regard
to the
Resource that
is similar to
what is set forth in
this
Agreement.
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3.
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OBLIGATIONS OF PARTY A
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Party A shall be required throughout the
term of this Agreement to perform the following obligations:
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3.1
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act in good faith towards Party B
and use its best efforts to fulfill any and all duties and
obligations arising under this
Agreement;
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3.2
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act in the long-term, best
interests of Party B;
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3.3
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attempt to minimize the costs for
cooperation
in accordance with
the provisions of this Agreement;
and
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3.4
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to ensure the exclusivity of the cooperation in
accordance with the Section 5 of this Agreement, shall not engage in, or cooperate with any third party, on matters that are similar to
what is set forth in
this
Agreement, without the prior written consent
of Party B.
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4.
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OBLIGATIONS OF PARTY B
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4.1
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Party B shall act in good faith with respect
to Party A, and do its utmost to
perform any and all duties and obligations under this Agreement;
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4.2
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Party B shall act in the
long-term
best interests of
Party A;
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4.3
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Party B shall act pursuant to the provisions
hereunder to reduce the cost of cooperation to the greatest extent
possible;
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4.4
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Party B shall be required
throughout the term of this Agreement to provide Party A with such
assistance as may be requested by Party A in order to provide the cooperation in an efficient and effective
manner in accordance with the provisions of this Agreement;
and
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4.5
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Subject to the applicable PRC Law, Party B shall
only enter into an exclusive service
agreement with the Kunming Kaishi Advertising
Co., Ltd. (“Advertising
Company”) and grant the exclusive
advertisement agent right to the Advertising Company for the management of advertisement of the
Channel.
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5.
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EXCLUSIVITY
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5.1
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Party A shall not, directly or
indirectly (through agents or otherwise), send to any third party, or
encourage or solicit any third party to send, or accept from any third
party a proposal, or engage in any discussions or negotiations with, or
furnish any information to any third party, regarding the transactions or
services under this
Agreement.
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5.2
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If Party A or any of its
shareholders receive any proposal or other communication from a third
party in respect of a proposed cooperation that is similar to or related
to any of the transactions or services set forth under this Agreement, Party A shall promptly
communicate to Party B the substance of such proposal or
communication.
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5.3
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No provision in this Agreement
shall restrict Party B from cooperating or entering into agreements
similar to this Agreement with other TV stations or other
entities.
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5.4
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Except as otherwise agreed hereunder,
Party B shall be the
sole and exclusive owner of all rights, title and interests to any and all
intellectual property rights arising from the performance of this
Agreement, including, but not limited to, any copyrights,
trademarks, patents, know-how and
otherwise.
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6.
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REPRESENTATIONS AND
WARRANTIES
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6.1
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Party A hereby represents and
warrants as follows:
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6.1.1
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Party A is a TV station duly registered and existing
under PRC
Law;
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6.1.2
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Party A has full right, power, authority
and capacity and all consents and approvals of any other third party and
the relevant governmental authorities that are necessary to execute,
deliver and perform this Agreement, which shall not violate or infringe
any enforceable and effective laws or
contracts;
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6.1.3
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The Agreement shall constitute a
legal, valid and binding agreement of Party A and is enforceable against
it in accordance with the terms upon its
execution.
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6.1.4
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Party A has ownership
of the Channel and has, in accordance with the PRC Law,
the right of final judgment in respect of the advertisements produced by Party B in accordance with PRC
law..
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6.2
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Party B hereby represents and
warrants as follows:
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6.2.1
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Party B is a Sino-foreign equity joint
venture enterprise
duly registered and
validly existing under PRC Law and is licensed to engage in the
business described on its business license, as set forth in Item B in the
Background Section above.
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6.2.2
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Party B has full right, power,
authority and capacity and all consents and approvals of
any other third party and the relevant governmental authorities, that are
necessary to execute, deliver and perform this Agreement, which shall not
violate or infringe any enforceable and effective laws or
contracts;
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6.2.3
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The Agreement shall constitute a
legal, valid and binding agreement of Party B and is enforceable against
it in accordance with the terms upon its
execution.
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7.
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BREACH AND
INDEMNIFICATIONS
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7.1
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If either Party (Breaching
Party) violates any
provision of this
Agreement, fails to perform its obligations hereunder, or performs its
obligations contrary to the provisions hereunder, which results in a
material economic loss for the other party (Non-Breaching
Party), it shall be
deemed to have committed a breach of this Agreement
(Breach). In such case, the Non-Breaching
Party shall be entitled to issue a written notice to the Breaching Party
requiring rectification of the Breach within 10 days after
receipt.
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7.2
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The Breaching Party shall be
liable to indemnify
the Non-Breaching party for any and all losses sustained as a result of the
Breach. The damages payable by the Breaching Party to the Non-Breaching
shall be equal to the losses incurred by the Non-Breaching Party as a
result of the Breach.
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8.
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TERM
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This Agreement shall come into effect as of the date of
execution hereof and shall remain in effect for 20 years, unless terminated in the following circumstances:
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8.1
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by Party B serving 30 days prior written
notice; or
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8.2
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by the Non-Breaching Party,
in the event of Breach, if the Breaching Party has not
rectified
within 30 days
of the receipt of the notice from the
Non-Breaching Party.
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8.3
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this Agreement shall continue to
be effective during the period in which Party B lawfully exists; in
the event
that the Party
B’s operational term is extended, the term hereof shall be
automatically extended accordingly; and in the event that Party B terminates its operation
early, ceases to be lawfully established, or has its operational
qualification
revoked, this
Agreement shall be
automatically terminated
accordingly.
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9.
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CONSEQUENCES OF
TERMINATION
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9.1
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In the event that this Agreement
is terminated, Party B agrees that it shall remain liable to Party A for
any payment owing and outstanding, including the expenses and indemnities under this
Agreement prior to the date of such
termination.
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9.2
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The termination of this Agreement,
for any reason whatsoever, shall not affect the respective rights,
obligations and liabilities of each of the Parties accrued prior to such
termination.
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9.3
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The license granted hereunder by
Party A shall be withdrawn in the event of the termination hereof for any
reason.
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10.
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CONFIDENTIALITY
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Each Party shall maintain as strictly
confidential the provisions and existence of this Agreement and any information relating to the
business of the other Party to which it might have access including, but not
limited to, databases, financial and business plans, and any other information
deemed to be confidential by the other Party, unless the said confidential information has already entered
the public domain or was disclosed by the other Party pursuant to a court order
or the applicable laws of the relevant jurisdiction.
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11.
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FORCE
MAJEURE
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11.1
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Occurrence and Consequences of an
Event of Force Majeure.
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11.1.1
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A Party that cannot perform its
obligations under this Contract ("Hindered Party") in full or in part as a
direct result of an Event of Force Majeure, shall not
be deemed to be in breach of this Contract if all of the following
conditions are
met:
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11.1.1.1
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the Event of Force Majeure was the
direct cause of the stoppage, impediment or delay encountered by the
Hindered Party in performing its obligations under this
Contract;
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11.1.1.2
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the Hindered Party used its best
efforts to perform its obligations under this Contract and
to reduce the losses to the other Party or to the Company arising from the
Event of Force Majeure; and
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11.1.1.3
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at the time of the occurrence of
the Event of Force Majeure, the Hindered Party informed the other Party
and the Company,
providing written information on such event within ten Business Days of
its occurrence, including a statement of the reasons for the delay in
implementing or partially implementing this
Contract.
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11.1.2
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In the occurrence of an Event of Force Majeure, the Parties shall discuss
and decide whether this Contract should be amended in light of the impact
of the event upon the implementation hereof, and whether the Hindered
Party should be partially or fully freed from its obligations
hereunder.
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12.
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DISPUTE
RESOLUTION
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12.1
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Governing
Law. This Agreement shall be governed
by PRC Law. Where PRC Law is silent on a particular matter relating
to this Agreement, reference shall be made to international commercial
practice.
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12.2
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Dispute
Resolution.
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12.2.1
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If any dispute arises in
connection with this Agreement, the Parties shall attempt in the first
instance to resolve such dispute through friendly consultation or
mediation.
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12.2.2
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If the dispute cannot be resolved
in the above manner within thirty (30) days after the commencement of
consultations, either Party may submit the dispute to arbitration as
follows:
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12.2.2.1
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all disputes arising out of or in
connection with this Agreement shall be submitted to China International
Economic and Trade Arbitration Commission which shall be
conducted by three (3) arbitrators in Beijing in accordance with the
Commission’s arbitration rules;
and
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12.2.2.2
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the arbitration shall be conducted
in the Chinese language, with the arbitral award being final and binding
upon the
Parties. The cost of arbitration shall be allocated as determined by
the arbitrators.
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12.2.3
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when any dispute is submitted to
arbitration the Parties shall continue to perform this
Agreement.
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13.
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MISCELLANEOUS
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13.1
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Party B hereby agrees that
Party A shall, at its
sole discretion, determine the performance of any and all of its
obligations in the manner as it deems fit, provided that it does not
violate the applicable PRC Law or the provisions of this
Agreement.
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13.2
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Party A shall, for the
purposes of this
Agreement and applicable laws, constitute an independent
contractor
cooperating with Party B pursuant to the terms and
conditions of this
Agreement.
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13.3
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The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity and enforceability
of any other provision of this Agreement, provided that the material
interests of the Parties are not
affected.
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13.4
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This Agreement and the Schedules
hereto constitute the entire agreement between the Parties with respect
to the subject matter
hereof, and shall supersede any prior expression of intent or
understanding relating hereto and may only be modified or amended by a
written instrument signed by the authorized representatives of the
Parties.
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13.5
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This Agreement has been prepared in Chinese in
6 sets of originals. Each Party
shall hold 3
sets of
original.
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13.6
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The failure of any Party to
enforce or require performance of any of the provisions of this Agreement,
or to exercise any rights provided herein, shall in no way be construed as a waiver of
such provision, right, or thereafter affect such Party's right to enforce
any provision of this
Agreement.
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13.7
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All notices or other
communications sent by either Party shall be written in English or
Chinese, and delivered in person (including by courier),
by mail, or fax, to the other Party at the following
addresses. The date at which the communication shall be deemed
to be duly given or made shall be confirmed as follows: (a) for notices
delivered in person, the day when the notice is received; (b) for
notices delivered by mail, 10 days after the delivery date for air
certified mail with postage prepaid (as shown on stamp) or 4 days after
the delivery date for an internationally certified delivery institution;
and (c) for notices by fax, the receipt date
shown on the delivery confirmation paper of the relevant
document.
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If
to Party A:
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Kunming
Television Station
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Address:
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Xx.
000, Xxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxx Xxxxxxxx
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Telephone:
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(86)-0351-8302574
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Fax:
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(86)-0351-4042780
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Attention:
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Mr.
Yongping LV
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If
to Party B:
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Kunming
Taishi Information Cartoon Co., Ltd.
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Address:
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[Ÿ]
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Telephone:
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[Ÿ]
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Fax:
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[Ÿ]
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Attention:
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[Ÿ]
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[The space below has been intentionally
left blank.]
IN WITNESS
WHEREOF, the Parties have
caused this Agreement to be
executed by their duly authorized representatives on the date first written
above.
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For and on Behalf
of
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Party
A: Kunming Television
Station
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Company
seal
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By:
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Name:
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Title:
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Date:
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For and on Behalf
of
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Party B: Kunming Taishi
Information Cartoon Co., Ltd.
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Company
Seal
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By:
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Name:
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Title:
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Date:
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Exclusive
Cooperation Agreement
- 11
-
Appendix
1
Cooperation of the Parties
Exclusive
Cooperation Agreement
- 12
-
