Webpage Layout Copyright License Agreement
Exhibit 4.35
This Web Layout Copyright License Agreement (this
“Agreement”) is entered into as of February 28,
2008 between the following two parties in Beijing, PRC.
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The Licensor:
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Baidu Online Network Technology (Beijing) Co., Ltd. | |
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Legal Address:
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12/F., Ideal International Plaza, No. 58 North-West 4th Ring, Haidian District, Beijing, PRC, 100080 | |
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The Licensee:
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Beijing BaiduPay Science and Technology Co., Ltd. (the “Company”) | |
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Legal Address:
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Xxxx 000, 0/X, Xxxxx X, Xxx Xx. 00 Xxxxxxxxxxxx Xxxxx Street, Haidian District, Beijing, PRC, 100081 |
WHEREAS
1. The Licensor, a wholly foreign-owned enterprise
registered in Beijing under the laws of the People’s
Republic of China (the “PRC”), owns the web layout
copyright of the following websites: xxx.xxxxxxxx.xxx
(the “Copyright”).
2. The Licensee, a company registered in Beijing, PRC under
the laws of the PRC, which carries out the business of online
payment for
e-commerce
and operates xxx.xxxxxxxx.xxx (the “Websites”).
3. The Licensor agrees to license the right to use the
Copyright to the Licensee in accordance with the terms and
conditions set forth herein and the Licensee agrees to accept
the license on the terms and conditions set forth herein.
NOW THEREFORE, the parties, upon negotiations, agree as
follows:
1. Granting of License
1.1 The Web Layout Copyright
1.1.1 Upon the terms and conditions hereinafter set forth,
the Licensor hereby grants to the Licensee and the Licensee
hereby accepts the right to use the Copyright in the PRC.
1.1.2 The Licensor shall have the sole and exclusive
ownership of the Copyright, including all improvements, updates,
derivative products and intellectual property rights thereof,
whether such improvements, updates, derivative products and
intellectual property rights are made by the Licensor or the
Licensee. The rights and obligations under this paragraph shall
survive the termination of this Agreement.
1.2 Scope
1.2.1 The right to use the Copyright granted by the
Licensor to the Licensee is effective only for the business
operation of the Websites by the Licensee. The Licensee agrees
that it will not use, or authorize any use, directly or
indirectly, of the Copyright on any other website or media,
unless otherwise provided for in this Agreement.
1.2.2 The right to use the Copyright granted by the
Licensor to the Licensee is effective only in the PRC (not
include Hong Kong, Macau and Taiwan). The Licensee agrees not to
use or authorize any use of the Copyright, directly or
indirectly, in any other region.
1.2.3 The Licensor shall not license a third party to use
the Copyright without the consent of the Licensee.
2. Terms of Payment
The Licensee agrees to pay the Licensor license fees.
Calculation and payment of amounts shall be determined
separately.
3. Intellectual Property and Confidentiality
3.1 The Licensee shall use its reasonable effort to protect
and maintain the confidentiality of any and all data and
information from the Licensor marked as or known by the Licensee
to be confidential (collectively, the “Confidential
Information”). Upon termination of this Agreement, the
Licensee shall return any Confidential Information to the
Licensor or destroy it itself, delete any Confidential
Information from any electronic devices and cease to use such
Confidential Information as required by the Licensor. The
Licensee shall not disclose, grant or transfer any Confidential
Information to any third party without the Licensor’s
written consent.
3.2 Both parties agree that this Article 4 shall
survive the invalidity, amendment, cancellation, termination or
unenforceability of this Agreement.
4. Representations and Warranties
4.1 The Licensor represents and warrants as follows:
4.1.1 It is a wholly foreign-owned enterprise duly
registered in Beijing, PRC and validly existing under the laws
of the PRC;
4.1.2 It has the exclusive ownership of the Copyright.
4.1.3 The execution and performance of this Agreement by it
are within its corporate power and business scope. It has taken
all necessary actions and obtained all necessary consents or
approvals by third parties or government agencies. The execution
and performance of this Agreement by it do not violate the laws
and contracts binding upon or influencing it; and
4.1.4 Upon execution, this Agreement will constitute a
legal, valid and binding obligation of the Licensor enforceable
against the Licensor in accordance with its terms.
4.2 The Licensee represents and warrants as follows:
4.2.1 It is a company duly registered in PRC and validly
existing under the laws of the PRC;
4.2.2 The execution and performance of this Agreement by it
are within its corporate power and business scope. It has taken
all necessary actions and obtained all necessary consents or
approvals by third parties or government agencies. The execution
and performance of this Agreement by it do not violate the laws
and contracts binding upon or influencing it; and
4.2.3 Upon execution, this Agreement will constitute a
legal, valid and binding obligation of the Licensee enforceable
against the Licensee in accordance with its terms.
5. Licensor’s Ownership and Protection of
Licensor’s Rights
5.1 The Licensor agrees, during the term of this Agreement
and thereafter, not challenge the ownership and other rights of
the Copyright by the Licensor, the effectiveness of this
Agreement or conduct any other action that is deemed by the
Licensor as harmful to its ownership, other rights and license
of the Copyright.
5.2 The Licensee agrees to provide necessary assistance to
the Licensor to protect the licensor’s rights with respect
to the Copyrights. In the event that third parties make claims
with respect to the Copyright, the Licensor may, at its
discretion, respond to such claim in its own name, in the name
of the Licensee or in the name of both the Licensor and the
Licensee. If any third party infringes upon the Copyright, the
Licensee shall notify the Licensor immediately in writing of
such infringement of which the Licensee has knowledge, and only
the Licensor has the right to take actions against such
infringing parties.
5.3 The Licensee agrees that it shall use the Copyright
only in accordance with this Agreement and shall not to use the
Copyright in any manner that could be deemed by the Licensor to
be fraudulent, misleading or otherwise harmful to the Copyright
or the reputation of the Licensor.
6. Effective Date and Term
6.1 This Agreement shall be executed and become effective
as of the date first set forth above. The term of this Agreement
is five (5) years unless terminated earlier pursuant to
this Agreement.
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6.2 This Agreement may be extended automatically for one
year upon its expiration (including the expiration of any
extended term) unless the Licensor prior to the expiration
hereof gives written notice not to extend this Agreement.
7. Termination
7.1 This Agreement shall terminate on the date of
expiration or the date of the expiration of extended terms when
the Licensor notifies the Licensee in writing not to extend this
Agreement.
7.2 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 Article 3 of this Agreement and fails to
cure such breach within 30 days from the date the breaching
party receives the written notice of its breach from the
non-breaching party. During the term of this Agreement, the
Licensor may terminate this Agreement at any time by providing
written notice to the Licensee within 30 days before such
termination.
7.3 Articles 1.1.2, 3, 5 and 10 shall survive the
termination or expiration of this Agreement.
8. Effect of Termination or Expiration
Upon and after the expiration or termination of this Agreement,
all rights granted to the Licensee hereunder shall forthwith
revert to the Licensor, which shall be free to license the right
to use the Copyright to others and the Licensee cease any
further direct or indirect use of the Copyright.
9. Force Majeure
9.1 Force Majeure, which includes but not limited to acts
of governments, acts of nature, fires, explosions, typhoons,
floods, earthquakes, tides, lightning or war, means any
unforeseen event that is beyond the party’s reasonable
control and cannot be prevented with reasonable care of the
affected party. However, any insufficiency of creditworthiness,
capital or financing shall not be regarded as an event beyond
the party’s reasonable control. The party affected by Force
Majeure and seeking exemption from performing the obligations
under this Agreement shall inform the other party of such
exemption and any action taken by it in performing this
Agreement.
9.2 In the event that the affected party is delayed in or
prevented from performing its obligations under this Agreement
by Force Majeure, and only to the extent such delay and
prevention, the affected party shall not be liable for
obligations under this Agreement. The affected party shall take
appropriate measures to minimize or remove the effects of Force
Majeure and attempt to resume the performance of the obligations
that were 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 using their best
efforts.
10. Settlement of Disputes
Any dispute arising in connection with the interpretation and
performance of the provisions of this Agreement shall be
resolved by the parties in good faith through negotiations. In
case no resolution can be reached by the Parties within thirty
(30) days after either party makes a request for a dispute
resolution through negotiations, either party may refer such
dispute to the China International Economic and Trade
Arbitration Commission (the “CIETAC”) for arbitration
in accordance with CIETAC’s arbitration rules then in
effect. The seat of arbitration shall be in Beijing, and the
language of the proceedings shall be Chinese. The arbitral award
shall be final and binding upon both parties.
11. 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 each relevant party or
both parties set forth below or such other address or addressees
as specified by such party from time to time. The date when the
notice is deemed to be duly served shall be determined as
follows: (a) a notice delivered personally is deemed duly
served upon delivery; (b) a notice sent by mail is deemed
duly served the tenth (10th) day after the date when the postage
prepaid registered airmail was sent out (as is shown on the
postmark), or the fourth (4th) day after the delivery date
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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 for relevant documents.
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Licensor:
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Baidu Online Network Technology (Beijing) Co., Ltd. | |
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Address:
12/F, Ideal
Intl. Plaza, No. 58 West-North 4th Ring, Beijing PRC, 100080 |
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| Attn: Xxxxx Xxxx | ||
| Facsimile: 00 00 0000-0000 | ||
| Tel: 00 00 0000-0000 | ||
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Licensee:
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Beijing BaiduPay Science and Technology Co., Ltd. | |
| Address: Xxxx 000, 0/X, Xxxxx X, Xxx Xx. 00 Xxxxxxxxxxxx Xxxxx Street, Haidian District, Beijing, PRC, 100081 | ||
| Attn: Xxx Xx | ||
| Facsimile: 00 00 0000-0000 | ||
| Tel: 00 00 0000-0000 |
12. Assignment and Sublicense
12.1 The rights and obligations licensed by the Licensor to
the Licensee pursuant to this Agreement shall not be assigned,
pledged or sublicensed without the prior written consent of the
Licensor.
12.2 The Licensee hereby agrees that the Licensor may
transfer the rights and obligations under this Agreement to any
third party at its discretion, and such transfer shall only be
subject to a written notice to the Licensee by the Licensor, and
no further consent from the Licensee will be required.
13. Applicable Law
The validity, performance and interpretation of this Agreement
shall be governed by the laws of the PRC.
14. Amendment or Supplement
The parties may amend or supplement this Agreement by written
agreement. The amendments or supplements to this Agreement duly
executed by both parties shall form an integral part of this
Agreement and shall have the same legal effect as this Agreement.
15. Severability
If any provision of this Agreement is judged to be invalid or
unenforceable because it is inconsistent with applicable laws,
such invalidity or unenforceability shall be only with respect
to such laws, and the validity, legality and enforceability of
the other provisions hereof shall not be affected.
16. Appendices
The Appendices to in this Agreement shall form an integral part
of this Agreement and shall have the same legal effect as this
Agreement.
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IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be duly executed on its behalf by its legal
representative or a duly authorized representative as of the
date first set forth above.
Licensor: Baidu Online Network Technology (Beijing) Co.,
Ltd.
| Authorized Representative: |
/s/ Xxxxx
Xxxx
|
Name:
Title:
Seal: [Baidu Online Network Technology (Beijing) Co., Ltd. seal]
Licensee: Beijing BaiduPay Science and Technology Co.,
Ltd.
| Authorized Representative: |
/s/ Xxx
Xx
|
Name:
| Title: |
Seal: [Beijing BaiduPay Science and Technology Co., Ltd. seal]
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