AGREEMENT
Exhibit
10.3
AGREEMENT
DATE :- The
13th
day of
May 2005.
PARTIES :-
|
A)
|
Chuangrun
Media Limited, a corporation incorporated in Hong Kong and having
its
registered office at Xxxx 0000, 14/F, SUP Tower, 00-00 Xxxx’x Xxxx, Xxxxx
Xxxxx, Xxxx Xxxx (hereinafter referred to as ‘Chuangrun’) represented by
its authorized representative Xx. Xxx Xxx-Xxxxx
and
|
|
B)
|
Actionview
Far East Limited, a corporation incorporated in Hong Kong and having
its
registered office/principal place of business at 12/F, Chuang’s City Tower
Xx. 00-00 Xxxxxxxx Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx (hereinafter referred
to
as ‘Actionview’) represented by its legal representative Xx. Xxxxxx
Xxxx.
|
WHEREAS:
|
1.
|
ActionView
International, Inc.
of
Canada has developed and owns a proprietary backlit scrolling billboard
advertising system (defined in Clause 1 and hereinafter referred
to as the
Display System).
|
|
2.
|
ActionView
International, Inc.
is
a shareholder of Actionview and has duly licensed Actionview to
market and
distribute the Display System and to grant sub-licenses of the
Display
System and the Proprietary Rights (as defined hereunder) to third
parties
in Asia.
|
|
3.
|
Actionview
and Chuangrun have agreed to co-operate in providing advertising
service
to customers in Guangzhou, PRC using the Display
System.
|
IT
IS
HEREBY MUTUALLY AGREED as follows:
|
1
|
DEFINITIONS
AND INTERPRETATION
|
|
1.1
|
For
the purpose of this agreement, the following expressions shall
bear the
respective meaning set forth below.
|
Business:
the
business of advertising by means of the Display System.
Display
Unit:
means a
unit of the Display System deployed in the Business of either 1m. x 1.5 m.
or
1.2 m. x 1.8 m. or 1.5 m. x 4.0 m
or 1m. x
1.5m. (double-sided) or
such
other dimensions as the parties may agree from time to time.
Display
System:
means
the Actionview backlit scrolling billboard including the built-in controlling
software.
Effective
Date:
as
defined in Clause 6.
Force
Majeure:
means,
in relation to either party, any circumstances beyond the reasonable control
of
that party.
Manual:
the
operation manual produced by Actionview as amended from time to time by
Actionview in respect of the Display System
Patents:
means
all patents now or hereafter held (including but not limited to patents now
in
the course of registration) by ActionView Inc. and/or Actionview relating
to the
Display System or any part thereof.
Premises:
the
locations proposed to be used by Chuangrun for the installation of Display
Units
PRC:
the
People’s Republic of China
Proprietary
Rights:
means
the Patents, Trade Marks, Trade Names and the package of industrial and
intellectual property rights relating to all trade marks, trade names, logos,
insignia, models, designs, copyrights, know-how, drawings, plans and/or patent
in or in connection with the Display System and/or the Manual licensed by
ActionView
International Inc.
to
Actionview.
Restricted
Information:
means
any information which is disclosed by either party to this agreement to the
other pursuant to or in connection with this agreement (whether orally or
in
writing, and whether or not such information is expressly stated to be
confidential or marked as such).
Revenue:
means
the gross turnover derived from the Business by Chuangrun whether or not
invoiced, less business tax, sales commissions and Premises rental
fee.
Term:
means
the term of this agreement as defined in Clause 6 below.
Territory:
means
Guangzhou City Area of the PRC.
Trade
Marks:
means
‘ActionView’ or any other trade xxxx (whether registered or not) which may now
or hereafter be used by ActionView
International Inc.
and/or
Actionview in connection with the Display System.
Trade
Names:
means
‘ActionView’ or any other trade name (whether registered or not) which may now
or hereafter be used by ActionView
International Inc.
and/or
Actionview in connection with the Display System.
|
1.2
|
The
headings in this agreement are for convenience only and shall not
affect
its interpretation.
|
|
2
|
RESPONSIBILITIES
OF THE PARTIES
|
|
2.1
|
Chuangrun
shall
|
|
2.1.1
|
procure
Premises within the Guangzhou Metro System, the Guangzhou Airport
at
Huadu, and such other locations within the City of Guangzhou, P.R.C.
for
installation of Display Units;
|
|
2.1.2
|
enter
into such lease, license or other agreement with such party as
may be
necessary for the use of Premises;
|
|
2.1.3
|
install
Display Units at the Premises and maintain the Display Units at
all times
in good clean operational
condition;
|
|
2.1.4
|
use
its best endeavor to promote the
Business;
|
|
2.1.5
|
enter
into binding contracts with advertisers and/or other users of the
Display
Units by itself or through its approved
agents;
|
|
2.1.6
|
perform
and observe all the terms and conditions contained in the aforesaid
lease,
license or other agreement mentioned in Clause 2.1.2 and contracts
mentioned in 2.1.5;
|
|
2.1.7
|
be
responsible for the collection of Revenue from advertisers and
other users
of the Display Units.
|
|
2.2
|
Actionview
shall
|
|
2.2.1
|
supply
Display Units to Chuangrun and deliver the same to Chuangrun in
Guangzhou
and provide technical support for
installation;
|
|
2.2.2
|
supply
spare parts for the Display Units;
|
|
2.2.3
|
provide
product training and technical
support;
|
|
2.2.4
|
be
responsible for the costs of transporting Display Units to Premises
within
the Territory.
|
|
3
|
RIGHTS
GRANTED TO CHUANGRUN
|
|
3.1
|
For
the sole purpose of the operation of the Business from the Premises,
Actionview grants Chuangrun for the Term, the following
rights:
|
|
3.1.1
|
the
right and license to use the Proprietary Rights and the Display
System;
|
|
3.1.2
|
the
right to receive all Actionview's know-how, training and assistance
as
indicated below;
|
|
3.2
|
Chuangrun
shall use the rights granted under Clause 3.1 in accordance with
the terms
and within the limits stated herein and shall perform each of its
obligations provided for herein.
|
|
3.3
|
Chuangrun
shall not use the rights hereby granted for any purpose other than
operating of Business from the Premises or use them after the expiration
or termination of this agreement, howsoever
caused.
|
|
3.4
|
The
grant of all such rights to Chuangrun shall be conditional (and
continue
to be conditional during the Term) upon Chuangrun observing in
full its
obligations set forth in Clauses 3.2 and 3.3
above.
|
|
4
|
LEGAL
STATUS OF THE PARTIES
|
|
4.1
|
Chuangrun
shall conduct the Business as an independent business operator
in its own
name and on its own account.
|
|
4.2
|
Chuangrun
shall operate the Business in compliance with all applicable laws
and
regulations and shall apply for, obtain and have renewed all permits,
authorizations and licenses required for the operation of the Business
at
its own expense.
|
|
4.3
|
Neither
party is an employee, agent, sales representative, nor a partner
of the
other. Neither party shall hold itself out as such or as having
any power
or authority to enter into contracts in the name of the other,
or to
commit the other in any way to any third parties or to incur any
obligation on behalf of the other.
|
|
5
|
RESTRAINTS
ON CHUANGRUN
|
|
5.1
|
During
the Term, Chuangrun shall not:
|
|
5.1.1
|
Install
Display Units at any location other than the Premises without the
prior
consent in writing of Actionview which consent shall not be unreasonably
withheld (provided that if Actionview is unable to supply the Display
Units, Chuangrun is entitled to co-operate with any third
party);
|
|
5.1.2
|
use
the Proprietary Rights otherwise than in relation to the operation
of the
Business;
|
|
5.1.3
|
have
the right to grant any further sub-license of the Proprietary Rights
or
part thereof to any third party;
|
|
5.1.4
|
conduct
the Business or any part thereof by or through any agent without
the prior
written consent of Actionview, which consent shall not be unreasonably
withheld.
|
|
6
|
TERM
|
Subject
to the provisions of Clauses 16 and 17 below, this agreement shall come into
force on April 1, 2005 (hereinafter referred to as the Effective Date) and
continue in force until March 31, 2010.
|
7
|
OBLIGATIONS
OF ACTIONVIEW
|
|
7.1
|
Prior
to the execution of this agreement, Actionview has delivered to
Chuangrun
those Display Units mentioned Schedule 1 to this agreement and
Chuangrun
hereby acknowledges the receipt of the said units. Actionview shall
deliver the number of Display Units mentioned in Schedule 2 to
this
agreement in accordance within the period mentioned therein. All
Display
Units shall remain the property of Actionview during and after
the
Term.
|
|
7.2
|
Actionview
shall provide Chuangrun from time to time
with:
|
|
7.2.1
|
plans
and specifications for the installation of Display Units at the
Premises
insofar as not included in the
Manual;
|
|
7.2.2
|
such
general supervision of the preparation of the Premises for installation
as
Actionview shall consider
appropriate;
|
|
7.3
|
Before
the execution of this agreement, Actionview has delivered a copy
of the
Manual to Chuangrun on loan and Chuangrun hereby acknowledges receipt
of
the Manual.
Actionview shall be entitled to update the Manual from time to
time
provided that Actionview shall forward to Chuangrun on loan full
written
particulars of such updates.
|
|
7.4
|
Actionview
shall be responsible for all maintenance and repairs of the display
units.
|
|
7.5
|
Actionview
shall carry out the maintenance works with an average response
time of 4
hours.
|
|
8
|
OBLIGATIONS
OF CHUANGRUN
|
|
8.1
|
Chuangrun
shall use its best endeavors to promote and expand the Business
within the
Territory and collaborate with Actionview and protect its interests
with
the diligence of a responsible
businessperson.
|
|
8.2
|
Chuangrun
shall conduct the Business in full compliance with all operational
systems, procedures, policies, methods and requirements prescribed
in the
Manual as well as in any supplemental notices, revisions or amendments
thereto.
|
|
8.3
|
Chuangrun
acknowledges that the Manual and all such additional and supplemental
materials shall at all times remain the sole and exclusive property
of
Actionview and the copyright therein shall at all times remain
and/or vest
in Actionview.
|
|
8.4
|
Chuangrun
shall hire a sufficient number of employees, suitably qualified
to operate
the Business and to meet all likely demands of its
customers.
|
|
8.5
|
Chuangrun
shall keep true and complete documentation and accounting records
concerning the Business and Revenue including but not limited
to
|
|
8.5.1
|
Contracts
with advertisers and third parties for the use of the Display Units;
and
|
|
8.5.2
|
Invoices
issued to such advertisers and third
parties
|
|
8.5.3
|
All
evidence of receipts of Revenue and payment of
tax
|
and
allow
Actionview to inspect and take copy of such documentation and records upon
48
hours prior notice
|
8.6
|
Chuangrun
shall establish a good system of financial control and take all
practicable steps to prevent late payment or default in payment
of Revenue
by third parties.
|
|
9
|
IMPROVEMENTS
MADE BY ACTIONVIEW
|
|
9.1
|
If
Actionview makes any improvements to the Display System, it shall
without
delay communicate the same to Chuangrun and Chuangrun shall without
delay
use such improvements, free of all further royalties, charges or
payment
whatsoever, at the time and in the manner specified by Actionview
in
writing.
|
|
10
|
IMPROVEMENTS
MADE BY CHUANGRUN
|
|
10.1
|
Chuangrun
shall notify Actionview any improvements which shall be made to
the
Display System to be useful to the operation of the Business and
shall
grant Actionview a permanent, royalty-free, exclusive and worldwide
license with respect to said improvements, including the right
to
sub-license.
|
|
11
|
REPRESENTATIONS
BY ACTIONVIEW/OBLIGATIONS OF
ACTIONVIEW
|
|
11.1
|
Actionview
represents that:
|
|
11.1.1
|
it
is duly licensed by ActionView
International, Inc.
to
use the Proprietary Rights, including the right to grant sub-licenses
thereof to Chuangrun in the manner set out in this
agreement;
|
|
11.1.2
|
as
far as Actionview is aware, the use by Chuangrun of the rights
granted
under Clause 3 of this agreement does not infringe the rights of
any third
party within the Territory;
|
|
11.1.3
|
it
is not aware, at the time of the execution of this agreement, of
any
action, claim or proceedings brought or threatened in respect of
any of
the Proprietary Rights.
|
|
12
|
REPRESENTATIONS
BY CHUANGRUN/OBLIGATIONS OF
CHUANGRUN
|
|
12.1
|
Chuangrun
acknowledges that Actionview
International, Inc.
is
the owner and Actionview is the licensee of the Proprietary Rights
and all
proprietary rights , title, and interest in the Display System
and the
goodwill associated therewith and that such goodwill shall inure
to and be
at all times vested in ActionView
International, Inc.
and Actionview exclusively.
|
|
12.2
|
Chuangrun
shall use the Proprietary Rights only in the manner required or
authorized
and permitted by Actionview and only in connection with the operation
of
the Business.
|
|
12.3
|
Chuangrun
shall not register or attempt to register any of the Trade Marks,
Trade
Names, Patents or any other Proprietary Rights in Chuangrun's name
or that
of any other person, firm, entity or
corporation.
|
|
12.4
|
Chuangrun
shall not, without Actionview's prior written consent, register
any
company name or trade xxxx or make use of any business name incorporating
any of the Trade Names or Trade Marks or other Proprietary Rights
or
incorporating any similar-sounding name which is confusingly similar
to,
or unfairly competing with, any of the Trade Marks or Trade
Names.
|
|
12.5
|
If
Chuangrun becomes aware of any infringement or threatened infringement
of
any of the Trade Marks, Trade Names or Patents or any other Proprietary
Rights or any act of unfair competition or any act likely to impair
the
goodwill or reputation of/or associated with any of the Trade Marks
or
Trade Names or Proprietary Rights, or of any claim asserted by
a third
party in respect of the use of any of the aforesaid within the
Territory,
Chuangrun shall promptly give Actionview full particulars of such
circumstance.
|
|
12.6
|
Actionview
shall have the conduct of all proceedings relating to the Trade
Marks or
Trade Names or Patents or any other Proprietary Rights and Actionview
shall in its sole discretion decide what action (including an action
at
law, an arbitral proceeding or an out-of-court settlement) to take,
if
any, with respect to any infringement of the aforesaid or any claims
asserted by any third party in relation
thereto.
|
|
12.7
|
Chuangrun
shall provide Actionview with full assistance and cooperation in
any
action, claim or proceedings brought or threatened in respect of
any of
the Trade Marks or Trade Names or Patents or any other Proprietary
Rights
and at the request of Actionview shall join with Actionview in
such action
or proceedings, provided it has a cause of action under the applicable
law
- it being understood that all costs incurred in connection with
this
assistance/actions will be borne by
Actionview.
|
|
12.8
|
During
the Term, Chuangrun must expressly identify itself as a licensee
(and not
the owner) of the Trade Marks, Trade Names and Patents on all invoices,
order forms, receipts, business stationery, and
contracts.
|
|
12.9
|
If
so requested by Actionview, Chuangrun shall arrange for the execution
of a
formal Trade Xxxx sub-license and the registration thereof at the
relevant
Trade Marks Registry or Registries, at its own expense and shall
make any
other necessary filings under national law to reflect its status
as a
licensee.
|
|
12.10
|
Chuangrun
must comply with Actionview's instructions in filing and maintaining
any
requisite Trade Names and Trade Marks registrations and must execute
any
documents Actionview or its counsel deems necessary to obtain protection
for the Trade Marks or the Trade Names and to maintain their continued
validity and enforceability.
|
|
12.11
|
Chuangrun
expressly acknowledges and agrees
that:
|
|
12.11.1
|
any
and all goodwill arising from Chuangrun's use of the Proprietary
Rights in
accordance with this agreement is solely and exclusively for Actionview's
benefit, and upon expiration or termination of this agreement,
no monetary
amount will be assigned as attributable to any goodwill associated
with
Chuangrun's use of the Display System or the Proprietary
Rights;
|
|
12.11.2
|
Actionview
reserves the right to add and/or substitute different Proprietary
Rights
for use in connection with the Display System and the businesses
operating
under the Display System.
|
|
13
|
REVENUE
SHARING
|
|
13.1
|
Chuangrun
shall pay Actionview 30% of the Revenue. Revenue is defined as
the gross
turnover derived from the Business by Chuangrun less Premises rental
fees,
15% sales commissions and 8% sales
tax.
|
|
13.2
|
Notwithstanding
Clause 13.1, Chuangrun shall pay Actionview for each and every
Display
Unit of the dimensions mentioned in column 1 of the table below
the
minimum revenue mentioned in the corresponding row of column 2
within the
period mentioned in the corresponding row in column 3 of that
table:
|
|
1
|
2
|
3
|
|
1.0
m. x 1.5 m
|
RMB¥
25,200.00
|
6
months from date of delivery of the Display Unit to
Chuangrun
|
|
1.2
m x 1.8 m
|
RMB¥
25,200.00
|
6
months from date of delivery of the Display Unit to
Chuangrun
|
|
1.5
m x 4.0 m
|
RMB¥
94,500.00
|
6
months from date of delivery of the Display Unit to
Chuangrun
|
|
1.0m
x 1.5 m.
(double-sided)
|
RMB¥
70,000.00
|
3
months from date of delivery of the Display Unit to
Chuangrun
|
|
13.3
|
Conditional
upon Actionview having received the minimum revenue as set out
in the
table in clause 13.2, Actionview’s share of the Revenue shall be reduced
to 25% in respect of that Display Unit of the dimensions mentioned
in
column 1 of the table below for the period set out in the corresponding
row of column 2 of that table:
|
|
1
|
2
|
|
1.0
m. x 1.5 m
|
For
the 1st to 6th months (inclusive) after the date of receipt by
Actionview
of the said minimum revenue in respect of that Display
Unit
|
|
1.2
m x 1.8 m
|
For
the 1st to 6th months (inclusive) after the date of receipt by
Actionview
of the said minimum revenue in respect of that Display
Unit
|
|
1.5
m x 4.0 m
|
For
the 1st to 6th months (inclusive) after the date of receipt by
Actionview
of the said minimum revenue in respect of that Display
Unit
|
|
1.0
m. x 1.5 m.
(double-sided)
|
For
the 1st to 3rd months (inclusive) after the date of receipt by
Actionview
of the said minimum revenue in respect of that Display
Unit
|
|
13.4
|
Conditional
upon Actionview having received the minimum revenue as set out
in the
table in clause 13.2, Actionview’s share of the Revenue shall be further
reduced to 20% in respect of that Display Unit of the dimensions
mentioned
in column 1 of the table in Clause 13.3 from the date of expiry
of the
period mentioned in the corresponding row of column 2 of that table
until
the expiration or earlier termination of this
agreement.
|
|
13.5
|
For
the avoidance of doubt, notwithstanding Clause 13.3 or 13.4 Actionview’s
share of Revenue in respect of other
Display Units in respect of which Actionview has not been paid
the
aforesaid minimum revenue shall remain at 30% throughout the term
of this
agreement.
|
|
13.6
|
Within
14 days after the end of each month, Chuangrun shall deliver to
Actionview
a true and accurate statement of the month’s total Revenue with detailed
breakdown by each Display Unit and
customer.
|
|
13.7
|
Chuangrun
shall, within 30 days of receipt of Activonview’s invoice on its share of
Revenue or the minimum revenue pursuant to Clauses 13.2, pay to
Actionview
in Hong Kong and in Hong Kong dollars (at the exchange rate between
Hong
Kong dollars and Renminbi published by the People’s Bank of China on the
date of payment) the amount due to Actionview without any demand.
Chuangrun shall not make any deduction or set-off from the amount
payable
to Actionview save and except the administrative fee and tax set
out in
Clause 13.8. Chuangrun shall cause the payment to be paid to the
following
bank account:-
|
Bank
& Branch :
Hong
Kong and Shanghai Banking Corporation Limited
Account
Name :
Actionview Far East Limited
Account
No. : 000-000000-000
|
13.8
|
Chuangrun
shall be entitled to deduct from the amount payable to Actionview
an
administrative fee equivalent to 2% of such
amount.
|
|
13.9
|
In
case Chuangrun having received Revenue but fails to pay Actionview’s share
of Revenue in full or fails to pay Actionview the minimum share
of Revenue
in accordance with Clause 13.2, Chuangrun shall pay interest on
the amount
due and unpaid at the rate of 0.3% per day, such interest shall
be payable
from the due date for payment until the actual date of payment
whether
before or after any judgment is given by any court having
jurisdiction.
|
|
14
|
CONFIDENTIALITY
|
|
14.1
|
Except
as provided by clauses 14.2 and 14.3, each of Chuangrun and Actionview
shall at all times during the continuance of this agreement and
after its
expiration or termination:
|
|
14.1.1
|
Use
its best endeavors to keep all Restricted Information confidential
and
accordingly not to disclose any Restricted Information to any other
person; and
|
|
14.1.2
|
Not
use any Restricted Information for any purpose other than the performance
of the obligations under this
agreement.
|
|
14.2
|
Any
Restricted Information may be disclosed by either party
to:
|
|
14.2.1
|
Any
customers or prospective customers of the Business on a need to
know
basis
|
|
14.2.2
|
Any
governmental or other authority or regulatory body;
or
|
|
14.2.3
|
any
employee of that party or of any of the afore mentioned persons,
to such
extent only as is necessary for the purposes contemplated by this
agreement, or as is required by law and subject in each case to
the
discloser using its best endeavors to ensure that the person in
question
keeps the same confidential and does not use the same except for
the
purposes for which the disclosure is
made.
|
|
14.3
|
Any
Restricted Information may be used by either party for any purpose,
or
disclosed by either party to any other person, to the extent only
that:
|
|
14.3.1
|
It
is at the date hereof, or hereafter becomes, public knowledge through
no
fault of that party (provided that in doing so the discloser shall
not
disclose any Restricted Information which is not public knowledge);
or
|
|
14.3.2
|
It
can be shown by the discloser, to the reasonable satisfaction of
the other
party, to have been known to it prior to its being disclosed by
the other
party to the discloser.
|
|
15
|
FORCE
MAJEURE
|
|
15.1
|
If
either party is affected by Force Majeure it shall forthwith notify
the
other party of the nature and extent
thereof.
|
|
15.2
|
Neither
party shall be deemed to be in breach of this agreement, or otherwise
be
liable to the other, by reason of any delay in performance, or
non-performance, of any of its obligations hereunder to the extent
that
such delay or non-performance is due to any Force Majeure of which
it has
notified the other party; and the time for performance of that
obligation
shall be extended accordingly.
|
|
15.3
|
If
the Force Majeure in question prevails for a continuous period
in excess
of six months, the parties shall enter into bona fide discussions
with a
view to alleviating its effects, or to agreeing upon such alternative
arrangements as may be fair and
reasonable.
|
|
16
|
TERMINATION
|
|
16.1
|
If
either party at any time commit any material breach of any terms,
covenants or representations herein contained and shall fail to
remedy any
such breach within 30 days after written notice given hereof by
the other
party, this agreement shall terminate automatically (i.e. without
the need
for the non-defaulting party to obtain a Court's decision in this
respect)
upon the expiration of the above mentioned
period.
|
|
16.2
|
Without
prejudice to the application of Clause 16.1, either party (hereafter
called the ‘Innocent Party’) shall be entitled to terminate this
agreement, with immediate effect (i.e., without the need to obtain
a
Court's decision in this respect) by written notice to such effect
to the
other party (hereafter called the ‘Wrongful
Party’):
|
|
16.2.1
|
if
the Wrongful Party shall be liquidated, becomes insolvent or suffers
any
other insolvency or bankruptcy process or seeks any protection
from its
creditors or is unable to pay its debts as and when they fall
due;
|
|
16.2.2
|
If
the Wrongful Party ceases to do business, or otherwise forfeits
the right
to do or transact business in the jurisdiction where the Premises
are
located.
|
|
16.2.3
|
If
|
|
a)
|
all
or a substantial part of the capital stock or other property assets
or
interests of the Wrongful Party is acquired by any third party,
or
|
|
b)
|
A
major change in the allocation of the voting rights held in respect
of the
Wrongful Party occurs, or
|
|
c)
|
The
Wrongful Party merges with any third party or
|
|
d)
|
There
shall be a change in the ownership of 50% or more of the shareholdings
in
the Wrongful Party from that existing at the date of this agreement
and
the Wrongful Party fails to give any prior written notice to the
Innocent
Party
|
The
Innocent Party may in its own discretion terminate this agreement with immediate
effect (without need to obtain a Court's decision in this respect).
|
17
|
EFFECTS/OBLIGATIONS
UPON TERMINATION
|
|
17.1
|
Upon
termination or expiration of this agreement, all rights granted
hereunder
to Chuangrun shall forthwith terminate, and Chuangrun shall observe
and
perform the following:
|
|
17.1.1
|
Chuangrun
shall immediately cease to operate the Business and shall not thereafter,
directly or indirectly, represent to the public or hold itself
out to have
any business relation with
Actionview.
|
|
17.1.2
|
Chuangrun
shall allow, and procure all relevant third parties to allow, Actionview
to have access to the Premises and remove all Display Units within
30
days. The costs of removal and transportation of Display Units
from
Premises shall be borne by
Actionview.
|
|
17.1.3
|
Chuangrun
shall immediately and permanently cease to use, in any manner whatsoever,
any format, confidential methods, programs, procedures and techniques
associated with the Display System, the Trade Names/Trade Marks
and any
other Proprietary Rights. In particular, Chuangrun shall cease
to use,
without limitation, all advertising materials or promotional displays,
uniforms, stationery, forms and any other articles which display
the Trade
Marks/Trade Names.
|
|
17.1.4
|
Chuangrun
shall promptly pay
|
|
a)
|
Actionview’s
share in all amounts receivable from advertisers and other users
of
Display Units (whether actually received by Chuangrun in its account
or
not) up to the date of termination or expiration of this agreement;
and
|
|
b)
|
All
other sums due and payable to
Actionview.
|
|
17.1.5
|
Chuangrun
shall immediately return Display Units which are not installed
at Premises
and
all unused spare parts to Actionview. The transportation costs
thereof
shall be borne by Actionview.
|
|
17.1.6
|
Chuangrun
shall immediately return to Actionview all copies of all proprietary
materials delivered by Actionview to Chuangrun under this agreement,
including the Manual, all records, files, instructions, correspondence,
brochures, agreements, disclosure statements and any material bearing
Confidential Information any and all other materials provided on
loan and
relating to the operation of the Business in Chuangrun's possession
(in
each case in whatsoever media or format the same shall be recorded),
and
all copies thereof (all of which are acknowledged to be Actionview's
property), and shall retain no copy or record of any of the foregoing
excepting only Chuangrun’s copy of this agreement, any correspondence
between the parties and any other documents which Chuangrun reasonably
needs for compliance with any provision of law. All costs of delivering
all materials required by this Clause 18 shall be borne by Chuangrun.
In
addition to the foregoing, Chuangrun shall immediately turn over
to
Actionview any and all signs, software and/or other property under
lease
or license from Actionview.
|
|
17.2
|
The
termination or expiration of this agreement shall not prejudice
any right
or liability accrued to either party under the terms of this agreement
before the termination or
expiration.
|
|
17.3
|
Upon
the termination or expiration of this
agreement,
|
|
17.3.1
|
Clauses
1, 7.1 (in respect of Actionview’s property rights in Display Units), 8.3,
12.1, 12.2, 12.3, 12.4, 12.6, 12.11, 13.8 (relating to Chuangrun’s
responsibility for taxes payable to the PRC tax authorities), 14,
17, 18,
19, 20, 21 and 22 shall survive and continue to be valid and binding
on
the parties.
|
|
17.3.2
|
Clauses
7.5.1 and 7.5.2 shall survive and continue to be valid and binding
on the
parties before Chuangrun has fully performed its obligations under
Clause
17.1.5.
|
|
17.3.3
|
Clauses
8.6, 13.7, 13.8 and 13.9 shall survive and continue to be valid
and
binding on the parties before Chuangrun has fully performed its
obligations under Clause 17.1.4.
|
|
18
|
SEVERABILITY
|
|
18.1
|
Should
any clause be considered invalid or unenforceable by a Court of
competent
jurisdiction or an Arbitral Tribunal, all other provisions shall
remain in
full force and effect and shall not be
affected.
|
|
18.2
|
The
parties agree, however, to replace, when possible, any provision
declared
invalid by a provision which shall reflect their initial intent,
as
objectively and consistently as possible and in accordance with
the basic
relationship existing between the
parties.
|
|
19
|
ENTIRE
AGREEMENT
|
|
19.1
|
This
agreement sets forth the entire agreement and understanding of
the parties
hereto relating to the subject matter contained herein and merges
all
prior discussions between them and neither party shall be bound
by any
previous agreements, negotiations, commitments and writings other
than as
expressly stated in this agreement.
|
|
19.2
|
This
agreement may not be changed, modified or supplemented in any manner
orally or otherwise except by an instrument in writing signed by
a duly
authorized representative of each of the parties
hereto.
|
|
20
|
NO
WAIVER
|
|
20.1
|
The
non-enforcement of any provision contained in this agreement shall
not be
construed by either party as a waiver of the right to enforce the
provision at another time under different circumstances and/or
enforce
other provisions of this agreement.
|
|
20.2
|
In
particular, the failure of either of the parties hereto to claim
damages
or to terminate this agreement by reason of the breach of any of
the
provisions hereof by the other party shall not stop the party not
in
default from thereafter claiming damages or terminating this agreement
by
reason of any subsequent breach of any of the provisions
hereof.
|
|
21
|
APPLICABLE
LAW
|
This
agreement is governed by the law of Hong Kong and the parties agree to submit
to
the non-exclusive jurisdiction of the Hong Kong courts.
|
22
|
LANGUAGE
AND COUNTERPARTS
|
This
agreement is executed in quadruplicate and in Chinese languages.
|
23
|
FURTHER
ASSURANCE
|
Chuangrun
and Actionview agrees to negotiate in good faith and execute such further
documents or agreements and do all such things reasonably necessary to carry
out
the provisions of this agreement, including, without limitation, the
facilitation of legally remitting Actionview’s share of Revenue from
China.
SCHEDULE
1
|
Size
|
Quantity
|
Remark
|
|
1.0m
x 1.5m
|
10
sets
|
Already
installed in Guangzhou Metro
|
|
(Single-sided)
|
||
|
1.2m
x 1.8m
|
2
sets
|
In
Chuangrun’s warehouse pending installation
|
|
(Single-sided)
|
SCHEDULE
2
|
Size
|
Quantity
|
Delivery
on or before
|
Remark
|
|
1.0m
x 1.5m
|
50
sets
|
30th
April, 2005
|
For
Airport Bus Stop
|
|
(Double-sided)
|
|||
|
1.5m
x 4.0m
|
100
sets
|
Date
to be advised
|
For
Airport Departure Hall
|
|
(Single-sided)
|
|||
|
For
and on behalf of
CHUANGRUN
MEDIA LIMITED
LIMITED
|
For
and on behalf of
ACTIONVIEW
FAR EAST
|
|
“SIGNED”
/s/
Xxx Xxx-Xxxxx
Chuangrun
Media Limited
By
Xxx Xxx-Xxxxx, its director
and
duly authorized representative
representative
|
“SIGNED”
/s/
Xxxxxx Xxxx
Actionview
Far East Limited
By
Xxxxxx Xxxx, its director
and
duly authorized
|
|
Witness:
|
Witness:
|
