INTELLECTUAL PROPERTY AGREEMENT
This
Intellectual Property Agreement (this “Agreement”) is entered into in
ShenZhen on February 08, 2007 between the following two
parties:
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd. (经纬恒通科技（深圳）有限公司
)
Registration
Address: Xxxx 0000 X,Xxxxxx Xx-xxxx Xxxxx Xxxxx X,Xxxx An Cyber Park,Futian
District,Shenzhen,China
Party
B:
ShenZhen JingWei Communication Co., Ltd.(深圳经纬通信技术有限公司)
Registration
Address: Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
WHEREAS:
1.
Party
A,
a wholly foreign-owned enterprise incorporated under the laws of the People’s
Republic of China (the ”PRC”), which has the right of the intellectual property
(including but not limited to Trademark,
the Ownership of Consumer Data Base, Software Copyright and
License)
specified in the Appendix I of this Agreement (the “intellectual
property”).
2.
Party
B
is a limited liability company duly incorporated and validly existing under
the
PRC law, which is licensed by relevant government authorities to engage in
the
internet information service value-added telecommunication service;
3.
Party
A
agrees to license the non- exclusive right to use the intellectual property
pursuant to this Agreement to Party B in accordance with the terms and
conditions set forth herein and Party B agrees to accept the right to use the
intellectual property on the same terms and conditions set forth
herein.
NOW
THEREFORE, both Parties agree as follows:
1.
Grant
of
License
1.1
The
Intellectual Property
1.1.1
Upon
the
terms and conditions hereinafter set forth, Party A hereby agrees to grant
and
Party B hereby agree to accept the right to use the intellectual property in
PRC. The license under this Agreement is a non-exclusive, non-assignable and
non-transferable license.
1.1.2
Party
A
owns the sole and exclusive right of the intellectual property, including any
improvement, upgrades and derived products, no matter whether such products
are
created by Party A or Party B. The right and obligation under 1.1.2 of this
article shall survive upon termination of this Agreement.
1.2
Scope
1.2.1
The
Intellectual Property granted to Party B shall only be used to the scope of
Party B’s Business operated by Party B. Party B shall not sub-license the
Intellectual Property to others or use the Intellectual Property in the third
party’s training, business share, lease without the consent from Party A, unless
there are opposite stipulations in this Agreement.
1.2.2
The
use
right granted under this Agreement is only valid in the PRC. Party B agrees
not
to directly or indirectly use or authorize to use the Intellectual Property
in
the other regions.
2.
Terms
of
Payment: Party B agrees to pay Party A the Intellectual Property License fees
(the “License Fees”) and the specified amount of the license fees and the form
of payment are set forth in Appendix 2. Party A has the right to exempt the
obligation of payment or adjust the amount of the License Fees set forth in
Appendix 2 according to the actual circumstances from time to time.
3.
Party
A’s
Rights and Protection of the Party A’s Rights
3.1
Party
B
agrees, during the term of this Agreement, or thereafter, not to query the
copyright or any rights of Party A in connection with the Intellectual Property,
and conduct any actions that is deemed by Party A as harmful to its rights
or
license.
3.2
Party
B
agrees to provide necessary assistances to help Party A to protect the rights
of
Intellectual Property. Party A may participate the lawsuits related to the
claims of compensation with its own desire, on behalf of itself, Party B or
both
Parties, once any third party claims the compensation in connection with the
Intellectual Property of Party A. If any third party infringes any right of
Intellectual Property, Party B shall notify Party A immediately in written
of
such infringements within the scope that it knows, and only Party A has the
right to take actions against such infringements.
3.3
Party
B
agrees to use the Intellectual Property only pursuant to this Agreement and
not
to use the Intellectual Property by manner of deceit, misleading or others
manners that are deemed by Party A as harmful to the Intellectual Property
or
the reputation of Party A.
4.
Confidentiality
4.1
Party
B
shall protect and maintain the confidentiality of any and all confidential
data
and information acknowledged or received by Party B from Party A (collectively
the “Confidential Information”). Upon termination of this Agreement, Party B
shall return Confidential Information to Party A or destroy it itself and delete
Confidential Information from any electronic devices and cease to use them
as
required by Party A. Party B shall not disclose, grant or transfer any
Confidential Information to any third party and will not use the Confidential
Information without Party A’s written consent.
4.2
Both
Parties agree that the Article 4 shall survive whatever this agreement is
amended, rescinded or terminated.
5.
Representations
and Warranties
5.1
Party
A
represents and warrants as follows:
5.1.1
Party
A
is a wholly foreign-owned enterprise duly incorporated and validly existing
under the laws of the PRC.
5.1.2
Party
A,
subject to its company power and business scope, has taken necessary company
actions to get the proper authorization and the consents or approvals (if
necessary) from other third party or governments, without breaching any
restricts of the laws and company that binds or affects Party A to execute
and
perform this Agreement.
5.1.3
The
Agreement will constitute a legal, valid and binding agreement of Party A and
will be enforceable against Party A in accordance with its terms upon its
execution.
5.1.4
Party
A
owned copyright or license of the Intellectual Property.
5.2
Party
B
represents and warrants as follows:
5.2.1
Party
B
is a company duly registered and validly existing under the laws of the PRC
and
is licensed by relevant government authorities to engage in the internet
information service value-added telecommunication service.
5.2.2
Party
B,
subject to its company power and business scope, has taken necessary company
actions to get the proper authorization and the consents or approvals (if
necessary) from other third party or governments, without breaching any
restricts of the laws and company that binds or affects Party B to execute
and
perform this Agreement.
5.2.3
The
Agreement will constitute a legal, valid and binding agreement of Party B and
will be enforceable against Party B in accordance with its terms upon its
execution.
6.
Effective
Date and Term
6.1
This Agreement has been duly executed as of the date first set forth above
and shall be effective simultaneously. The term of this Agreement is five (5)
years unless the early termination in accordance with this Agreement. However,
Party A and Party B shall review this Agreement every six (6) months to
determine whether any amendment or supplement to the Agreement is necessary
by
considering the circumstances after the executing of this
Agreement.
6.2
This
Agreement may be extended by both Parties in writing upon the expiration of
this
Agreement. The term of extension will be decided by the consultation of both
Parties.
7.
Termination
7.1
Early
Termination
Without
prejudice to any legal or other rights or remedies of the party who asks for
termination of this Agreement, any Party has the right to terminate this
Agreement immediately with written notice to the other party in the event the
other party materially breaches this Agreement including but not limited to
the
obligation under Article 3 of this Agreement and fails to cure its breach within
thirty (30) days from the date it receives written notice of its breach from
the
non-breaching party. During the term of this Agreement, Party A may terminate
this Agreement at any time with a written notice to Party B 30 days before
such
termination.
7.2
Effect
of
Termination or Expiration
Upon
and
after the expiration or termination of this Agreement, Party B shall not have
all rights granted pursuant to this Agreement and will refrain from further
direct or indirect use of the Intellectual Property.
8.
Force
Majeure
8.1
Force
Majeure, which includes but not limited to acts of governments, acts of nature,
fire, explosion, typhoon, flood, earthquake, tide, lightning or war, means
any
event that is beyond the party’s reasonable control and cannot be prevented with
reasonable care of the affected party. However, any shortage of credit, capital
or finance shall not be regarded as an event beyond the party’s reasonable
control. The party affected by Force Majeure and seeks for the exemption from
performing the obligations under this Agreement shall inform the other party
of
such exemption and any action taken by it for performing this
Agreement.
8.2
In
the
event that the affected party is delayed in or prevented from performing its
obligations under this Agreement by Force Majeure, only within the scope of
such
delay or prevention, the affected party will not be responsible for any damage
by reason of such a failure or delay of performance. The affected party shall
take appropriate manners to minimize or remove the effects of Force Majeure
and
attempt to resume the performance of the obligations delayed or prevented by
the
event of Force Majeure. Once the event of Force Majeure is removed, both parties
agree to resume the performance of this Agreement with their best
efforts.
9.
Settlement
of Disputes: Both Parties shall strive to settle any dispute arising from the
interpretation or performance through friendly consultation. In case no
settlement can be reached through consultation within 30 days after one party
ask for consultation, each party can submit such matter to China International
Economic and Trade Arbitration Commission (the “CIETAC”) in accordance with its
rules, and the arbitration proceedings shall be conducted in Chinese and shall
take place in Beijing. The arbitration award shall be final and conclusive
and
binding upon the parties and shall be enforceable in accordance with its
terms.
10.
Notices:
Notices or other communications required to be given by any party pursuant
to
this Agreement shall be written in English and Chinese and delivered personally
or sent by registered mail or postage prepaid mail or by a recognized courier
service or by facsimile transmission to the address of relevant each party
or
both parties set forth below or other address of the party or of the other
addressees specified by such party from time to time. The date when the notice
is deemed to be duly served shall be determined as the follows: (a) a notice
delivered personally is deemed duly served upon the delivery; (b) a notice
sent
by mail is deemed duly served the tenth (10th) day after the date when the
air
registered mail with postage prepaid has been sent out (as is shown on the
postmark), or the fourth (4th) day after the delivery date to the
internationally recognized courier service agency; and (c) a notice sent by
facsimile transmission is deemed duly served upon the receipt time as is shown
on the transmission confirmation of relevant documents.
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd.
Address:
Room 1605 B,Tianan Hi-tech Plaza Tower A,Tian An Cyber Park,Futian
District,Shenzhen
Attn:
Ms.
Xxx Xxxxx
Fax: 00-0000-00000000 Tel:
00-0000-00000000
Party
B:
ShenZhen JingWei Communication Co., Ltd.
Address:
Tianxiang Building Block A 13th, Tian An Cyber Park, Futian District,
Shenzhen.
Attn:
Mr.
Xxx Xx
Fax: 00-0000-00000000 Tel:
00-0000-00000000
11.
Assignment
or Sublicense: This Agreement and all the rights and obligations of Party B
hereunder shall not be assigned, pledged, sublicensed without the prior written
consent of Party A.
12.
Applicable
Law: The validity, implementation and interpretation of this Agreement shall
be
governed by the laws of PRC.
13.
Amendment
and Supplement: Any amendment and supplement of this Agreement shall be made
by
both parties in writing. The amendment and supplement duly executed by both
parties shall be deemed as a part of this Agreement and shall have the same
legal effect as this Agreement.
14.
Severability:
If any clause hereof is judged as invalid or non-enforceable according to
relevant laws, such clause shall be deemed invalid only within the applicable
area of the Laws and without affecting other clauses hereof in any
way.
15.
Appendices:
The Appendices referred to in this Agreement are an integral part of this
Agreement and have the same legal effect as this Agreement.
IN
WITNESS THEREOF Both Parties hereto have caused this Agreement to be duly
executed on their behalf by a duly authorized representative as of the date
first set forth above.
Party
A:
JingWei HengTong Technology (ShenZhen) Co., Ltd.
Legal
Representative/Authorized Representative:
Seal:
Party
B:
ShenZhen JingWei Communication Co., Ltd.
Legal
Representative/Authorized Representative:
Seal:
5
Appendix
1
List
of
Intellectual property
|
Item
|
Certificate
Name
|
Certificate
number
|
Issue
date
|
|
1
|
Product
Registration Certificate (Operation
analysisV1.0) (经篛分析炑件V1.0)
|
深
DGY
-
2003
-
0164
|
2003.3.6
|
|
2
|
Product
Registration Certificate (NGNbilling
and operationV2.1)(NGN综合篛帐和瑟狇炑件V2.1)
|
深
DGY
-
2005
-
0030
|
2005.1.27
|
|
3
|
Product
Registration Certificate (YL-2000Telecom
operation billingV3.X)(宇恧YL-2000电信业务瑟狇帐务系统V3.X)
|
深
DGY
-
2001
-
0177
|
2001.6.15
|
|
4
|
Product
Registration Certificate (YLDC-2000multiserver
data collectionV2.10)(YLDC-2000羬机渹椺炑件V2.10)
|
深
DGY
-
2003
-
0163
|
2003.3.6
|
|
5
|
Product
Registration Certificate (YL-2001major
account managementV2.0)(YL-2001大客户管理炑件V2.0)
|
深
DGY
-
2003
-
0105
|
2003.3.6
|
|
6
|
Product
Registration Certificate (Data
xxxx housingV1.0)(新宇恧炑件数据仓库炑件V1.0)
|
深
DGY
-
2006
-
0780
|
2006.3.16
|
|
7
|
Product
Registration Certificate (GT800-OBSSoperationV3.0)新宇恧GT800-OBSS篛帐炑件V3.0)
|
深
DGY
-
2006
-
0363
|
2006.4.29
|
|
8
|
software
ownership certificate (NGNopeation
and billingV2.1)(NGN综合篛帐和瑟狇炑件V2.1)
|
2005SR02400
|
2005.03.03
|
|
9
|
software
ownership certificate (telecom
operation strategic analysisV1.0)(电信决策支持系统V1.0)
|
2004SR03050
|
2004.04.08
|
List
of
Consumer Data Acquisition and Management Contracts
|
Contract
|
Contract
Partner
|
|
|
1
|
Consumer
Data Acquisition and Management Contract
|
ShenZhen
HongTian Hi-Tech Development Co, Ltd
深圳市宏天攨科技发展有榰公司
|
|
2
|
Consumer
Data Acquisition and Management Contract
|
ShenZhen
Doubi Digital Tech Co, Ltd
深圳市多比数码技术有榰公司
|
|
3
|
Consumer
Data Acquisition and Management Contract
|
GuangDong
FengDa Hi-Tech Co, Ltd
广东丰灂攨科技有榰公司
|
Appendix
2 Account and payment method of License Fee
Party
B
should pay for All Intellectual Property RMB 1,000,000 per year to Party A
as
license fee. Party B shall pay the license fee to the account designated by
Party A before December 31 each year. Party A has the right to determine whether
or not to exempt the Party B’s obligation to pay license fee at its
discretion.
