EXHIBIT 10.35
DOMAIN NAME LICENSE AGREEMENT
This Domain Name License Agreement (the "Agreement") is entered into as
of 27 November, 2003 between the following two parties in Shanghai.
THE LICENSOR: SHANGHAI LINKTONE CONSULTING CO., LTD.
LEGAL ADDRESS: F6, Ganglu Square , Xx.00, Xxxxxx Xxxx, Xxxxxxxx
THE LICENSEE: SHANGHAI WEILAN COMPUTER CO., LTD.
LEGAL ADDRESS: Xx.000, Xxxxxxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
WHEREAS, the Licensor, a wholly foreign-owned enterprise registered in
Shanghai under the laws of the People's Republic of China (the"PRC", which has
the right to licence the domain names xxxxxxxx.xxx.xx, xx0000.xxx.xx,
xx0000.xxx, "linktonenet".com (in Traditional Chinese characters),
"linktonenet".com (in Simplified Chinese characters), "linktonenet".net (in
Traditional Chinese characters), "linktonenet".net (in Simplified Chinese
characters), "linktone". net (in Simplified Chinese characters) and
"linktone".net (in Traditional Chinese characters),(the "Domain Names").
WHEREAS, the Licensee, a company registered in Shanghai under the laws
of the PRC, is licensed by Shanghai Municipal Telecommunication Management
Bureau to carry on the business of the information provision service(not include
the Internet Information Service and telephone information service);
WHEREAS, the Licensor desires to license the Domain Names to the
Licensee in accordance with the terms and conditions set forth herein and the
Licensee wishes to accept the license on the terms and conditions set forth
herein;
NOW THEREFORE, the parties agree as follows:
1. GRANT OF LICENSE
1.1 THE DOMAIN NAMES
Upon the terms and conditions hereinafter set forth, the Licensor
hereby grants a general license to the Licensee the Domain Names, and
the Licensee hereby accepts the general license to use the Domain
Names.
1.2 SCOPE
The use of the Domain Names granted by Licensor to Licensee extends
only to the business operated by Licensee. The Licensee agrees that it
will not make, or authorize any use, direct or indirect, of the Domain
Names by any other means,
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unless there are opposite stipulations in this Agreement.
2. TERMS OF PAYMENT
The Licensee agrees to pay the Licensor license fees and the specified
amount of the license fees and the form of payment are set forth in
Appendix 1.
3. GOODWILL
The Licensee recognizes the value of the goodwill associated with the
Domain Names and the relevant rights, and acknowledges that the Domain
Names therein and goodwill pertaining thereto shall be the sole and
exclusive property of the Licensor, and that the Domain Names have a
secondary meaning in the mind of the public.
4. CONFIDENTIALITY
4.1 The Licensee shall protect and maintain the confidentiality of
any and all confidential data and information acknowledged or
received by the Licensee by accepting the licence of the
Domain Names from the Licensor (collectively the "Confidential
Information"). Upon termination or expiration of this
Agreement, the Licensee shall, at the Licensor's option,
return Confidential Information to the Licensor or destroy it
itself and delete Confidential Information from any electronic
devices and cease to use them. The Licensee shall not
disclose, grant or transfer any Confidential Information to
any third party and will not use the Confidential Information
without the Licensor's written consent.
4.2 Section 4.1 shall survive any amendment, expiration or
termination of this Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Licensor represents and warrants as follows:
5.1.1 the Licensor is a company duly registered and validly
existing under the laws of the PRC;
5.1.2 the Licensor has the exclusive ownership of domain
name xxxxxxxx.xxx.xx, xx0000.xxx.xx, xx0000.xxx,
(CHINESE NAME). Com((CHINESE NAME)), (CHINESE NAME).
Com((CHINESE NAME)),(CHINESE NAME) (CHINESE NAME).
net((CHINESE NAME)), CHINESE NAME. net((CHINESE
NAME)),(CHINESE NAME). net ((CHINESE NAME)) (CHINESE
NAME). net (CHINESE NAME), and has the right to
licence the domain names xxxxxxxx.xxx.xx,
xx0000.xxx.xx, xx0000.xxx, (CHINESE NAME).
Com((CHINESE NAME)), (CHINESE NAME). Com((CHINESE
NAME)), (CHINESE NAME). net(CHINESE NAME), (CHINESE
NAME). net((CHINESE NAME)), (CHINESE NAME). net
((CHINESE NAME)) (CHINESE NAME). net ((CHINESE
NAME)), to others;
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5.1.3 the Agreement will constitute a legal, valid and
binding agreement of the Licensor and will be
enforceable against the Licensor in accordance with
its terms upon its execution.
5.2 The Licensee represents and warrants as follows:
5.2.1 the Licensee is a company duly registered and validly
existing under the laws of the PRC and is licensed by
Shanghai Municipal Telecommunication Management
Bureau to engage in the business of the information
provision service(not include the Internet
Information Service and telephone information
service);
5.2.2 the Licensee, subject to its business scope, has full
right, power, authority and capacity and all
necessary consents and approvals of any other third
party and government to execute and perform this
Agreement;
5.2.3 the Agreement will constitute a legal, valid and
binding agreement of the Licensee will be enforceable
against the Licensee in accordance with its terms
upon its execution.
6. THE LICENSOR'S TITLE AND PROTECTION OF THE LICENSOR'S RIGHTS
6.1 The Licensee agrees that it will not, during the term of this
Agreement, or thereafter, attack the title, right of licencing
or any rights of the Licensor in and to the Domain Names or
attack the validity of this license.
6.2 The Licensee agrees to assist the Licensor to the extent
necessary in the procurement of any protection or to protect
any of the Licensor's rights to the Domain Names, and the
Licensor, if it so desires may commence or prosecute any
claims or suits in its own name or in the name of the Licensee
or join the Licensee as a party thereto. The Licensee shall
notify the Licensor in writing of any infringements of the
Domain Names that may come to the Licensee's attention, and
the Licensor shall have the sole right to determine whether or
not any action shall be taken on account of any such
infringements.
6.3 The Licensee further agrees to use the Domain Names only in
accordance with this Agreement and shall not use the Domain
Names in any way that, in the opinion of the Licensor, is
deceptive, misleading or in any way damages such Domain Names
or the reputation of the Licensor.
7. QUALITY
The Licensee shall use its reasonable best efforts to improve the
quality of the net of
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Domain Name, so to protect and enhance the reputation of the Domain
Names.
8. PROMOTION
8.1 In all cases where the Licensee makes promotion material
involving the net of Xxx, the production cost of such material
thereof shall be borne by the Licensee. All copyrights or
other intellectual property rights of such material concerning
the Domain Name thereto shall be the sole and exclusive
property of the Licensor whether developed by the Licensor or
the Licensee.
8.2 The Licensee agrees not to advertise or publicize any of the
Domain Names on radio, television, papers, magazines, the
Internet or otherwise without the prior written consent of the
Licensor.
9. COMPETITIVE WEB SITE
In the event that any of the Domain Names contradict with any of the
trademark or domain name used by any of the Licensor's parent company
or affiliate of the Licensor's parent company at the present time or
any time in the future, then the Licensor shall have the right to
terminate the Agreement by a written notice to the Licensee 30 days
before such termination.
10. EFFECTIVE DATE AND TERM
10.1 This Agreement has been duly executed by both parties'
authorized representatives as of the date first set forth
above and shall be effective simultaneously. The term of this
Agreement is ten (10) years or the date of the expiration of
period of validity of the Domain Names (which ever is the
shorter) unless earlier terminated as set forth below.
However, the Licensor and the Licensee shall review this
Agreement every three (3) months to determine whether any
amendment to the Agreement is necessary after considering the
circumstances.
10.2 This Agreement may be extended one year only if the Licensor
gives the Licensee its written consent of the extension of
this Agreement before the expiration of this Agreement.
However, the Licensee has no right to confirm such extension.
11. TERMINATION
11.1 Termination on Expiration.
This Agreement shall expire on the early date of the date due or the
date when the Licensor's right to grant a license is terminated unless
this Agreement is extended as
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set forth above.
11.2 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 without limitation Section 6.1, 6.2 and 6.3 of this Agreement
and fails to cure its breach within 30 days from the date it receives
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 with a written notice to the Licensee 30 days
before such termination.
11.3 Survival.
Article 3, 4, 6 and 16 shall survive after the termination or
expiration of this Agreement.
12. EFFECT OF TERMINATION OR EXPIRATION
Upon and after the expiration or termination of this license, all
rights granted to the Licensee hereunder shall forthwith revert to the
Licensor, who shall be free to license others to use the Domain Names
and the Licensee will refrain from further use of the Domain Names or
any, direct or indirect use.
13. FORCE MAJEURE
13.1 Force Majeure, which includes acts of governments, acts of
nature, fire, explosion, typhoon, flood, earthquake, tide,
lightning, war, means any event that is beyond the party's
reasonable control and cannot be prevented with reasonable
care. However, any shortage of credit, capital or finance
shall not be regarded as an event of Force Majeure. The party
affected by Force Majeure shall notify the other party without
delay.
13.2 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 means to minimize or
remove the effects of Force Majeure and attempt to resume
performance of the obligations delayed or prevented by the
event of Force Majeure. After the event of Force Majeure is
removed, both parties agree to resume the performance of this
Agreement with their best efforts.
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14. NOTICES
Notices or other communications required to be given by any party
pursuant to this Agreement shall be written in English and Chinese and
shall be deemed to be duly given when it is 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 the
relevant party or parties set forth below.
Party A: SHANGHAI LINKTONE CONSULTING CO., LTD.
F6, Ganglu Square , Xx.00, Xxxxxx Xxxx, Xxxxxxxx
Party B: SHANGHAI WEILAN COMPUTER CO., LTD.
Xx.000, Xxxxxxxxxxx Xxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx
00. NO ASSIGNMENT OR SUBLICENSE BY THE LICENSEE
15.1 This Agreement and all the rights and duties hereunder are
personal to the Licensee. The Licensee agrees that it will not
assign, lease, pledge, sublicense, or in any other way
transfer the economic benefits of the license granted hereby
or any portion of the rights included therein to any third
party without the prior written consent of the Licensor.
15.2 The Licensee hereby agrees that the Licensor shall be able to
transfer all or any of its rights and obligation under this
Agreement to any third party at its discretion, and such
transfer shall only be subject to a written notice serviced to
the Licensee by the Licensor, and no any further consent from
the Licensee will be required.
16. SETTLEMENT OF DISPUTES
The 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").
The arbitration shall follow the current rules of CIETAC, and the
arbitration proceedings shall be conducted in Chinese and shall take
place in Shanghai. The arbitration award shall be final and binding
upon the parties and shall be enforceable in accordance with its terms.
17. APPLICABLE LAW
The validity, interpretation and implementation of this Agreement shall
be governed by the laws of PRC.
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18. AMENDMENT AND SUPPLEMENT
Any amendment and supplement of this Agreement shall come into force
only after both parties sign a written agreement. The amendment and
supplement duly executed by both parties shall be part of this
Agreement and shall have the same legal effect as this Agreement.
19. SEVERABILITY
Any provision of this Agreement which is invalid or unenforceable
because of violating the relevant laws in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions
hereof.
20. APPENDICES
The Appendices referred to in this Agreement are an integral part of
this Agreement and have the same legal effect as this Agreement.
21. OTHERS
This Agreement is executed by Chinese and English in duplicate, and in
case of confliction, the Chinese version is prevail.
IN WITNESS THEREOF the 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.
THE LICENSOR : SHANGHAI LINKTONE CONSULTING CO., LTD.
Representative: /s/ Xxx Xx
THE LICENSEE: SHANGHAI WEILAN COMPUTER CO., LTD.
Representative: /s/Xxxxxxx Xxx Xxxx
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APPENDIX 1
Licensee should pay for each the domain name RMB10,000 per year to
Licensor as license fee. The Licensor has the sole right to determine whether or
not to exempt the Licensee's obligation to pay License fee.
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