Exhibit 10.5
TRADE NAME LICENSE AGREEMENT
This Trade Name License Agreement (hereinafter referred to as this "Agreement")
is entered into by and between the following parties on May 28, 2007 in
Shenzhen:
PARTY A: SHENZHEN NEPSTAR PHARMACEUTICAL CO., LTD.
Registered address: Xxxxxxx Xxxxxxxx X-00X, Xxxxxxx Xxxxxxxx, Xxxxxxxx
PARTY B: [REGIONAL NEPSTAR COMPANY]
Registered address:
Whereas:
(1) Party A is a limited liability company incorporated and registered in
Shenzhen in accordance with law of People's Republic of China ("PRC") to
engage in pharmaceutical wholesale, computer network technology development
and technology consulting and service in accordance with law as approved by
relevant governmental authorities of PRC;
(2) Party B is a limited liability company incorporated and registered in
[Place of Regional Nepstar Company] in accordance with law of PRC to engage
in pharmaceutical retail as approved by relevant governmental authorities
of PRC;
(3) Party A owns the trademark right and trade name ownership to
"(CHINESE CHARACTERS)", "NEP-STAR DRUG STORE" ("Neptstar") and relevant
combined logos as set forth in Exhibit I of this Agreement; and
(4) Party B desires to obtain from Party A the license to use such Nepstar
trade names.
Therefore, upon discussion, both parties agree on this Agreement as follows:
1. GRANT OF LICENSE
1.1 License of Nepstar Trade Names
Party A agrees to grant Party under the terms and conditions of this
Agreement, and Party B agrees to accept from Party A under the terms
and conditions of this Agreement, the non-exclusive license to use
Nepstar as Party B's trade names and company logos. Without prior
written consent of Party A, Party B may not assign or sub-license the
license.
If Party A registers additional trade marks, trade names or logos
after
effectiveness of this Agreement, which may be used by Party B's
business, Party A may license such new trade marks, trade names or
logos to Party B in accordance with this Agreement. Party B shall not
pay any additional license fee to Party A for such license other than
the License Fee payable under this Agreement,.
1.2 Scope
The right of Party B to use Nepstar trade names and logos granted by
this Agreement shall only be valid inside China. Party B agrees that
without written consent of Party A, Party B may not use Nepstar in any
region outside China. In addition, without prior written consent of
Party A, Party B may not accept license of, or use, any trade xxxx,
trade name or logo of any third party.
1.3 Filing and Registration
Within five working days after execution of this Agreement, Party B
shall use its best effort to assist Party A in completing registration
of the license under this Agreement with relevant trade xxxx bureau or
industry and commerce administration authority.
2. AMOUNT, PAYMENT AND SECURITY OF LICENSE FEE
2.1 Party B agrees to pay Party A the trade xxxx license fee ("License
Fee") equaling 10% of Party B's pre-tax income every year.
2.2 Upon completion of audit of Party B for each fiscal year, Party B
shall, based on the auditing results, pay the Service Fee to the
account designated by Party A in 30 days and in any circumstance no
later than April 30 of each calendar year. Party A has the right to
release Party B from its obligation to pay the License Fee or adjust
the amount of the License Fee at any time.
The License Fee payable by Party B to Party A hereunder is secured by
pledges on the equity interests in Party B owned by Party B's
shareholders other than Party A ("Party B's Other Shareholders"), and
by pledges on the equity interests in the Party B's Other Shareholders
owned by shareholders of Party B's Other Shareholders.
3. RIGHTS OF PARTY A AND PROTECTION OF RIGHTS
3.1 Party B hereby acknowledges that Party A has sole and exclusive rights
with respect to Nepstar, as well as patent right, trade name
ownership, copyright and other relevant intellectual property with
respect to Nepstar. Party B will protect the foregoing rights of Party
A and will strictly comply with Party A's
requirement in using Nepstar, and will not use Nepstar for purposes
other than pharmaceutical wholesale, retail and operation of
pharmaceutical retail stores and convenience stores, or make any
change to the design of Nepstar. Party B agrees that during and after
the term of this Agreement, it will not challenge the intellectual
property rights or other rights of Party A with respect to Nepstar,
challenge the effectiveness of this Agreement, or take any action that
Party A deems to infringe its rights and license.
3.2 Party B agrees to provide necessary assistance to Party A in
protecting the rights of Party A with respect to Nepstar. In the event
of any infringement by any third party on Nepstar, Party B shall
promptly notify Party A in writing to the extent of Party B's
knowledge of such infringement. Party A in its sole discretion has the
right to decide whether to take any action against such infringement.
If Party A decides to take action against such infringement, Party B
shall use its best effort to cooperate with Party A.
3.3 Party B agrees to use Nepstar as its trade names and company logos
only in accordance with this Agreement and not to use Nepstar in any
means that Party B deems to be cheating, misleading or otherwise
harmful for Nepstar or Party A's reputation.
4. REPRESENTATION AND WARRANTY
4.1 Party A hereby represents and warrants as follows:
4.1.1 that Party A is a limited liability company legally incorporated
and effectively existing in accordance with law of PRC;
4.1.2 that Party A's execution and performance of this Agreement is
within its corporate power and business scope and Party A has
taken necessary corporate actions and obtained appropriate
authorization and has obtained requisite consent and approval
from third parties and governmental authorities. Such execution
and implementation is not in violation of any restriction of any
PRC law or contract binding on or affecting it;
4.1.3 that upon execution, this Agreement constitutes lawful, valid
and binding obligation of Party A, enforceable in accordance with
its provisions; and
4.1.4 that Party A has the trademark or trade name ownership right and
copyright with respect to Nepstar according to law of PRC.
4.2 Party B hereby represents and warrants as follows:
4.2.1 that Party B is a limited liability company legally incorporated
and effectively existing in accordance with law of PRC;
4.2.2 that Party B's execution and performance of this Agreement is
within its corporate power and business scope and Party B has
taken necessary corporate actions and obtained appropriate
authorization and has obtained requisite consent and approval
from third parties and governmental authorities. Such execution
and implementation is not in violation of any restriction of any
PRC law or contract binding on or affecting it; and
4.2.3 that upon execution, this Agreement constitutes lawful, valid
and binding obligation of Party B, enforceable in accordance with
its provisions.
5. EFFECTIVENESS AND TERM
5.1 This Agreement is executed on the date as set forth above and becomes
effective at the same time. Unless upon early termination in
accordance with this Agreement, the term of this Agreement shall be
ten years from the effective date.
5.2 With written consent of both Party A and Party B, this Agreement may
be renewed upon expiry. The term of renewed contract will be
determined by the parties hereof. If the parties fail to agree on
renewal or the term of renewed agreement, unless Party A provides a
written notice of no renewal before the expiry, this Agreement shall
be automatically renewed for an additional year after expiry
(including the expiry of any renewed term).
5.3 Any amendment, modification or supplement to this Agreement shall be
made in writing and shall become effective when the authorized
representatives of both parties sign thereon.
6. TERMINATION
6.1 Early Termination
Without prejudice to the rights or remedy enjoyed by the party
requesting early termination under law or due to any other reason,
either party may terminate this Agreement immediately by sending
written notice to the other party if the other party is in material
breach of contract including without limitation violating the
obligation under Article 3 hereof and fails to correct such breach in
30 days after receiving the notice from the non-breach party
concerning the occurrence and existence of breach. During the term of
this Agreement, Party A may terminate this Agreement at any time by
providing Party B a written notice 30 days earlier.
6.2 Effect of Expiry or Termination of Agreement
Upon termination or expiry of this Agreement, Party B will not have
any right granted to is under this Agreement. Party B may no longer
directly or indirectly use any Nepstar trade name and logo.
7. FORCE MAJEURE
7.1 "Force Majeure" means any event that is beyond the reasonable control
of one party and is not avoidable even under reasonable attention of
the affected party, including without limitation, governmental act,
natural power, fire, explosion, storm, flood, earthquake, tide,
lightening and war, provided that, the deficiency of credit, capital
or fund-raising shall not be deemed as an event out of reasonable
control of one party. The party affected by Force Majeure and seeking
to be released from fulfilling its obligation under this Agreement or
any article hereunder shall notify such event to the other party in
writing as soon as possible.
7.2 In the event of delay or suspension of implementation of this
Agreement due to any Force Majeure as defined above, the party
affected by such Force Majeure will not be required to assume any
liability under this Agreement, but the affected party may be released
from such liability provided that such party seeking for release has
use its reasonable practical effort to implement the contract and such
release shall be limited in the extent of delay or suspension. Once
such releasing event has been corrected or remedied, the parties agree
to resume performance under this Agreement with its best effort.
8. DISPUTE RESOLUTION
In case of any dispute arising between the parties concerning the
interpretation and implementation of any provision under this Agreement,
the parties shall resolve such dispute through discussion in good faith. If
the parties fail to achieve agreement upon resolution of such dispute in
thirty (30) days after one party requests to resolve such dispute through
discussion, either party may submit relevant dispute to China International
Economic and Trade Arbitration Commission for arbitration in accordance
with its then valid arbitration rules. The place of arbitration shall be
Shenzhen and the language to be used in such arbitration shall be Chinese.
The arbitration award shall be final and binding on both parties.
9. NOTICE
Any notice or other communication from either party in accordance with this
Agreement shall be made in writing in Chinese or English and may be sent by
personal delivery, registered mail, pre-paid mail or acceptable courier
service or facsimile to the following address or addresses of the related
party or both parties or other address as notified by the other party to
such party from time to time or address of others as designated by the
other party. The notice shall be deemed to be delivered (a) for notice
delivered by personal delivery, on the date of personal delivery; (b) for
notice sent by mail, on the third (3) day after the prepaid air registered
mail is sent out (as indicated on the mail xxxx) or on the second (2) day
after given to the internationally recognized courier service institution,
and (c) for notice sent by facsimile, at the receiving time as indicated by
transmission confirmation letter of relevant document.
PARTY A: SHENZHEN NEPSTAR PHARMACEUTICAL CO., LTD.
address: Nepstar Building A-15B, Nanshan District, Shenzhen
Attention: Xxxxx Xxxxx
Fax: 0000-00000000
Tel: 0000-00000000
PARTY B: [REGIONAL NEPSTAR COMPANY]
10. ASSIGNMENT AND SUBLICENSE
Without written consent of Party A, Party B may not assign or sub-license
this Agreement and its rights and obligations hereunder.
11. APPLICABLE LAW
The implementation, interpretation and enforcement of this Agreement shall
be governed by law of PRC.
12. SEVERABILITY OF AGREEMENT
If any provision under this Agreement is held to be invalid or
unenforceable due to conflict with relevant law, then such provision shall
be deemed to be invalid only in the extent of jurisdiction of relevant law
and may not affect the legal effect of other provisions hereof.
13. COPIES OF AGREEMENT
Four original copies of this Agreement shall be signed, two of which are
held by
the each party separately, while the rest shall be used for registration
and filing. Each original shall have the same legal effect.
IN WITNESS WHEREOF, both parties have caused their respective legal
representative or authorized representative to sign on this Agreement on the
date set forth above written.
PARTY A: SHENZHEN NEPSTAR PHARMACEUTICAL CO., LTD.
Legal Representative: Xxxxx Xxxxx
Seal:
PARTY B: [REGIONAL NEPSTAR COMPANY]
Legal Representative:
Seal:
EXHIBIT I
LICENSED TRADEMARKS
1. (CHINESE CHARACTERS)
2. "NEP-STAR DRUG STORE"
3. (NEP-STAR DRUG STORE LOGO)
