EXHIBIT 4.1
The undersigned hereby represents that the agreement as Exhibit 4.1 to the
Annual Report on the Form 20-F (File No. 1-14696) of China Mobile (Hong Kong)
Limited is a fair and accurate English translation of the original in Chinese.
DATED this 11th day of June, 2002
China Mobile (Hong Kong) Limited
By: /s/ Xxx Xxxx
-----------------------------
Name: Xxx Xxxx
Title Authorized Signatory
Exhibit 4.1
[English Translation]
CHINA MOBILE COMMUNICATIONS CORPORATION
AND
CHINA MOBILE (HONG KONG) LIMITED
TRADEMARK LICENSE AGREEMENT
APRIL 24, 2002
LINKLATERS & ALLIANCE
Agreement on Trademark Use 3
ARTICLE One Definitions 6
ARTICLE Two Authorized Licensing 7
ARTICLE Three Licensing Authorized to Third Parties 8
ARTICLE Four Representations and Warranties 8
ARTICLE Five Licensing Fee 10
ARTICLE Six Supervision 11
ARTICLE Seven Infringement and Damages 12
ARTICLE Eight Term, Effectiveness and Termination of Contract 12
ARTICLE Nine Resolution of Disputes, Applicable Laws and Others 13
Appendix I Trademarks of China Mobile Communication 17
AGREEMENT ON TRADEMARK USE
This Agreement on Trademark Use (this "Agreement") is entered into among the
following parties as of April 24, 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 Xx. 00X, Xx Xxxx Xxx Xxx Xx Xxx, Xxxx Xx Xxxxxxxx,
Xxxxxxx, 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 00/X., Xxx Center, 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,
xxx XXX;
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, xxx
XXX;
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, xxx XXX;
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, xxx XXX;
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, xxx XXX;
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, xxx XXX;
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, xxx
XXX;
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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, xxx
XXX;
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 Xxxxxxxx, Xxxxxxx, xxx XXX;
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, xxx XXX;
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, xxx
XXX;
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 Xx. 000, Xxx Xx Xxx Xx, Xxxx Xx Xxxxxxxx, Xxxxxxxx,
Xxxxxxxx Xxxxxxxx, 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 Xx. 00, Xxx Xx Xx Xxx, Xxxxxxx, Xxxxxxx (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
Xx. 0000, Xxxx Xx Xx Xxx, Xxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxxxx Xxxxxxxx,
xxx XXX;
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 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"
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;
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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 Xx. 000, Xx Xxxx Xxx Xx, Xxxx Xxx Xxxxxxxx, Xxxxxxxx Xxxx,
Xxxxx Xxxxxxxx, xxx XXX;
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 Xx. 00, Xxxxx Xxxx Xx, Xxxxx Xxx Xxxxxxxx, Xxxxx Xxxx,
Xxxxx Xxxxxxxx, the PRC;
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, xxx XXX;
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 Xx. 000, Xx Xxxx Xx, Xxx Xxxx Xx Xxxxxxxx, Xxxxxxxxx Xxxx,
xxx XXX;
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,
xxx XXX.
The foregoing 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 hereinafter referred to as the "Target Companies".
WHEREAS
A. Party A is the lawful owner of the Licensed Trademarks (as defined herein).
Party A has obtained the "Trademark Registration Certificate" for the
Licensed Trademarks issued by the Trademark Bureau under the State
Administration for
5
Industry and Commerce of China (hereinafter referred to as the "State
Trademarks Bureau") on October 14, 2000;
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 major shareholder of Party B;
C. Party A and Party B entered into the "Trademark License Agreement" on
October 8, 1999, and the "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 intends to sell to Party B and Party B intends to purchase from
Party A its whole equity interest in the Target Companies, subject to the
approvals from the relevant governmental authorities of the PRC;
E. Party B and the Target Companies all hope that, and Party A agrees that the
Target Companies are the Licensees hereunder (as defined herein) and
authorized to use the Licensed Trademarks after becoming the directly or
indirectly wholly-owned subsidiaries of Party B; and
F. Party A and Party B agree that further amendments shall be made as to the
authorization by Party A of the use of the Licensed Trademarks by the
Licensees hereunder.
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.
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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 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 a "Trademark Registration
Certificate" (Ref No.: 1459995) was obtained by Party A on October 14,
2000.
1.3. Licensees: means Party B, Party B's Domestic Subsidiaries and all of its
Affiliates, and also include the Target Companies and all of its Affiliates
after the Target Companies have become the directly or indirectly wholly
owned subsidiaries of Party B.
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 AUTHORIZED LICENSING
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 LICENSING AUTHORIZED TO THIRD PARTIES
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, Party B's Domestic Subsidiaries and the
Target Companies) 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 and the Target Companies (after
they have become directly or indirectly wholly-owned subsidiaries of Party
B) 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.
9
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 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 within five years of the date of the
approval for the registration of the Licensed Trademarks (i.e. before
October 13, 2005).
5.2. From the sixth year (i.e. 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 take 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
10
with Party B pursuant to the Listing Rules of the Hong Kong Stock
Exchange.
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 Chapter 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 Chapter Six.
6.4. Upon the execution of this Agreement Party A shall provide to the Licensees
a [copy of] 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.
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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 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 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.
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8.3. Party B shall have the right to terminate this Agreement in the following
events:
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. Any party may deliver a written notice to the other parties sixty days
prior to its intention to terminate this Agreement pursuant to Article 8.2
or Article 8.3 of this Agreement. 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
regulatory authorities in the area of 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 thirty-two copies. Each party to this Agreement shall
hold one original and Party A shall hold the remaining originals for the
purposes of registration and filings. All the originals of this Agreement
shall have the 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
the parties on October 8, 1999, and the full contents in relation to the
trademarks licensing set forth in the "Supplemental Agreement" executed on
September 19, 2000. Any amendments to this Agreement shall only become
effective upon the execution of an agreement in writing 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 regulatory authorities in the area of industry and commerce.
9.6. 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.
9.7. 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 party successfully exchanges its signed
counterpart with the other party by facsimile shall be the date of
execution.
9.8. 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
and the Target Companies (after becoming the directly or indirectly
wholly-owned subsidiaries of Party B)
14
shall deliver a copy of this Agreement to its respective local
administration for industry and commerce for filing purposes.
9.9. 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/ XX Xxxxxxxxx /s/ XX Xxxxxxx
---------------------------------------------- ----------------------------------------------
Guangdong Mobile Communication Company Limited Zhejiang Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ LI Gang /s/ XX Xxxx
---------------------------------------------- ----------------------------------------------
Jiangsu Mobile Communication Company Limited Fujian Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ HE Ning /s/ XXX Xxxx
---------------------------------------------- ----------------------------------------------
Henan Mobile Communication Company Limited Hainan Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ XXXX Xxxxxxx /s/ XXX Xxxx
---------------------------------------------- ----------------------------------------------
Beijing Mobile Communication Company Limited Shanghai Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ XXX Xxxxxx /s/ XXXXX Xxx
---------------------------------------------- ----------------------------------------------
Tianjin Mobile Communication Company Limited Shandong Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ XXXXX Xxxxxxx /s/ XXX Xxxx
---------------------------------------------- ----------------------------------------------
Hebei Mobile Communication Company Limited Liaoning Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ XXXXX Xxxxxx /s/ XXXX Xxxxx
---------------------------------------------- ----------------------------------------------
Guangxi Mobile Communication Company Limited China Mobile (Shenzhen) Limited
Authorized Representative Authorized Representative
/s/ XXX Xxxxxx /s/ XXXX Xxxxxxx
---------------------------------------------- ----------------------------------------------
Anhui Mobile Communication Company Limited Hunan Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ XXXXX Xxxxx /s/ XXXX Xxxxxxx
---------------------------------------------- ----------------------------------------------
Hubei Mobile Communication Company Limited Jiangxi Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ XXXX Xxxx /s/ XXXXX Xxxxx
---------------------------------------------- ----------------------------------------------
Sichuan Mobile Communication Company Limited Chongqing Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ XX Xxx /s/ XXXX Xxxxxxx
---------------------------------------------- ----------------------------------------------
Shaanxi Mobile Communication Company Limited Shanxi Mobile Communication Company Limited
Authorized Representative Authorized Representative
/s/ XXX Xxxxxxxx /s/ XXX Xxxxx
---------------------------------------------- ----------------------------------------------
16
APPENDIX I
TRADEMARKS OF CHINA MOBILE COMMUNICATIONS CORPORATION
17
