IP Licensing Agreement By and between Daqing Sunway Technology Company Limited And Sunway World Through Technology (Daqing) Co. Ltd. May 30, 2007
By
and
between
Daqing
Sunway Technology Company Limited
And
Sunway
World Through Technology (Daqing) Co. Ltd.
May
30,
2007
1
This
IP
Licensing Agreement (“this Agreement”) is made and entered into by and between
the following parties on the date of May 30th,
2007 in
Heilongjiang Daqing.
Sunway
World Through Technology (Daqing) Co., Ltd. (“the Licensor”) is a foreign
invested company whose legal address is Jianshe Road, North Software Park,
High
and New Technology Industry Development Zone, Daqing City.
Daqing
Sunway Technology Company Limited (“the Licensee”) is a foreign invested company
whose legal address is Jianshe Road, Software Park, High and New Technology
Industry Development Zone, Daqing City.
(The
Licensor and the licensee shall be “the Parties” together, or “the Party” or
“each Party” under this agreement)
Whereas:
|
(1)
|
The
Licensor mainly engages in Computer software development, medical
appliance development and
production.
|
|
(2)
|
The
Licensee mainly engages in Computer software development, data processing,
data base service, computer equipment maintenance; computer outer
equipment, apparatus, meters, the production and sale of the electronic
products, and communicational equipment (not including the transmission
equipment). household appliance; Petroleum chemical technical service,
computer and the series products, computer software, computer outer
equipment, apparatus, electronic equipment export and import business,
production of the medical
instrument.
|
|
(3)
|
The
Licensor agrees to exclusively grant the Licensor to use its patents,
trademarks, software and other related IP (collectively called“ IP”), and
the Licensee agrees to pay the relative royalty fee according to
this
Agreement.
|
The
Parties agree the followings:
2
1 THE
DEFINITION
Except
provided otherwise, the terms under this Agreement mean:
“This
Agreement” refers to this IP Licensing Agreement and its Appendix
1;
“Signing
Date” refers to the date on which this Agreement is signed;
“Technology”
refers to the IP mentioned Article 2 and Appendix hereof;
“License
Term” refers to the term as defined in Article 2.5;
“License
Fee” refers to the fee paid by the Licensee as provided in Article
3;
“RMB”
refers to legal currency in P.R.China;
“Business
day” refers to any day except Saturday, Sunday and other days authorized
to
the
banks to close;
|
2
|
THE
MAIN CLAUSES OF THIS AGREEMENT
|
2.1
The
Licensor agrees to exclusively grant the Licensee to utilize IP in its related
production and sale operation within the business scope during the term agreed
in this Agreement hereunder. More details of the IP please refer to Appendix
One.
2.2
The
Licensor shall provided the IP rights and the technical support, and related
guide and inspection as required by the Licenseeôand
conduct training and supervision to the technical and research stuff of the
Licensee .
2.3
The
term of the license is 5
years
from the date of execution of this Agreement.
|
3
|
CONSIDERATION
|
The
Licensee shall pay the license fee to the Licensor in the following manners
agreed by the Parties:
|
3.1
|
The
Licensee shall pay the Licensor the license fee equal to 5% of annual
revenue before December 31st
of
each year.
|
3
|
3.2
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PAYMENT
METHORD
|
The
License fee shall be paid to the Licensor through Bank of Communications
(Licensor’s bank) and China Industry and Commercial Bank (Licensee’s
bank).
|
4
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DELIVERY
OF TECHNOLOGY MATERIALS
|
4.1
The
Licensor shall timely deliver the technology materials within
10
days
as
of the date of execution of this Agreement.
4.2
The
Licensee shall, within 3 working days upon receipt of tendered materials, make
confirmation of such receipt and give notice to the Licensor.
|
5
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MODIFIVATION
AND AMENDMENT OF TECHNOLOGYL
MATERIALS
|
5.1
In
order to satisfy its design standard, material requirement, technological
facilities, and other manufacturing conditions, the Licensee shall be entitled
to make modification and amendment on the technology materials on the condition
of maintaining the original basic design, and notify the Licensor of the
modification and amendment.
5.2
Each
Party shall, within the valid term of this Agreement, freely provide the
improved and developed Technology to the other party, and the IP right of the
improved and developed Technology shall be granted to the party making such
improvement and development, and may not be assigned to any third party without
the written agreement by the other party.
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6
|
WARRANTIES,
REPRESENTATION AND UNDERTAKINGS
|
6.1
WARRANTIES, REPRESENTATIONS AND UNDERTAKING BY THE LISENSOR
6.1.1
The
Licensor is the legal enterprise which is duly incorporated and valid existing;
for the purpose of execution and implementation of this Agreement, it has
obtained all required authorization and entitled to do so.
6.1.2
Pursuant to the provisions hereof, the Licensor shall provided and delivered
to
the Licensee with the related IP and technical information, and warrant that
it
has the right to license such IP.
4
6.1.3 The Licensor guarantees that it has not entered into any contracts or agreements conflicting with this Agreement before the Signing Date and within the term hereof, and shall not assign the rights and obligation to any third party under this Agreement.
6.1.5
For
the purpose of implementation of this Agreement, the Licensor promise that
it
shall take all necessary actions, steps and make all documents to execute all
the terms in this Agreement.
6.2
WARRANTIES, REPRESENTATIONS AND UNDERTAKING BY THE LISENSEE
6.2.1
The
Licensee is the legal enterprise which is duly incorporated and valid existing;
for the purpose of execution and implementation of this Agreement, it has
obtained all required authorization and entitled to do so.
6.2.2
The
Licensee warrants paying license fee to the Licensor in accordance with the
provisions hereunder.
6.2.3
The
Licensor guarantees that it has not entered into any contracts or agreements
conflicting with this Agreement within the term hereof, and shall not assign
the
rights and obligation to any third party under this Agreement.
6.2.4
Any
warrants, representation and undertakings made by the Licensee do not contain
inaccurate statement related to major events, or omit the major events which
could cause misunderstanding of the statements.
6.2.5
The
Licensee undertakes that it may in no event assign or make disclosure any IP
hereunder in any form to a third party without written agreement by the Licensor
within the term hereof.
6.2.6
For
the purpose of implementation of this Agreement, the Licensor promise that
it
shall take all necessary actions, steps and make all documents to execute all
the terms in this Agreement.
7.
CONFIDENTIALITY
7.1
Any
information, documents, data and all other materials (herein “confidential
information”) arising out of the negotiation, signing, and implement of this
Agreement, shall be kept in strict confidence by the Parties within 3 years
after the termination of this Agreement. Unless compelled to disclose in
judicial or administrative process, or by other requirements of laws, any third
party, except for those enjoying the rights to know the confidential
information, shall neither be informed about or use the above confidential
information, nor use the confidential information for the purpose not related
to
complete this Agreement.
5
7.2
The
above confidentiality obligations of the Parties shall be independently
effective and survive the date of on which this Agreement
terminates.
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8
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FORCE
MAJEURE
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8.1
“Force Majeure” refers that any event, condition, situation or the combination
of event, condition and situation, which is outside the direct or indirect
reasonable controlling scope of the influenced party, and is limited by
inevitable event, condition or situation that the influenced party could not
reasonable anticipate, or avoid, prevent or inevitable postpone either’s perform
under the terms of this Agreement. Neither party shall be liable to the other
for any delay or failure to perform its obligation under this Agreement, if
such
failure or delay is due to force majeure. However, one party shall notify the
other party in writing as soon as practical of any delay due to force majeure.
After the force majeure ceases, each party shall continue to perform under
this
Agreement.
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9
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LIABILITIES
FOR BREACH OF THIS AGREEMENT
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9.1
After
the effective date of this Agreement, if either party is in default,
nonperforming, or partly performing terms of this Agreement, or is in default
of
any warranties, representations and undertakings of this Agreement, it may
constitute default. The non-breaching party can allow the breaching party to
remedy in a reasonable time period. If the breaching party does not remedy
within the reasonable time period, the non-breaching party shall hold the
breaching party liable for all the damages resulted from the breaching party’s
default. All the economic loss, including attorney fees, litigation and
arbitration costs incurred by the default, shall be paid by the breaching party.
The breaching party shall also be responsible to participate the relevant
litigation. The economic loss shall not exceed the amount that breaching party
could anticipate or should anticipate as of the date of this
Agreement.
6
IP
Licensing Agreement
|
10
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EFFECTIVE
DATE
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10.1
This
agreement is effective from the Signing Date (If it is signed by a designated
person, a letter of the power of attorney is necessary) and shall remain
effective until it is terminated pursuant to Section 12.
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11
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GOVERNING
LAW AND DISPUTE RESOLUTION
|
11.1
The
effectiveness, interpretation, implementation and dispute-resolution related
to
this Agreement shall be governed under the laws of the People’s Republic of
China.
11.2
Any
dispute arising out of this Agreement, including but not limited to execution,
enforcement, implementation, interpretation, default, modification, and
termination, shall be resolved by both parties through mutual negotiation.
If
both parties could not reach an agreement within 30 days since the dispute
is
brought forward, either Party may submit the dispute to Beijing Arbitration
Commission for arbitration under its applicable rules. The
arbitration award should be final and binding upon both parties, if the losing
party refuses to enforce the arbitration award, the winning party may seek
enforcement of arbitration award in a PRC court with jurisdiction over the
dispute; and the winning party shall have the right to ask the losing party
to
pay for all professional service (including but not limited to legal counsel
service, arbitration fees, enforcement fees) costs in the course of arbitration
and other related costs.
11.3
During the process of dispute-resolution, both parties shall continue to perform
other terms under this Agreement, except for provision of dispute
resolution.
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12
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MODIFICATION,
CANCELLATION, TERMINATION
|
12.1
The
modification of this Agreement shall not be effective without written agreement
through negotiation. If the Parties could not reach an agreement, this Agreement
remains effective.
12.2
Licensor may terminate this Agreement with upon 30 days written notice to
Licensee.
7
IP
Licensing Agreement
|
12
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GENERAL
|
13.1
Any
statement, stipulation and promise made by one party to the other, which are
the
foundation and precondition to the Agreement, shall be complete and genuine.
After the effective date, if either party discovers the fact does not comply
with the other party’s representation and warranties, the discovering party
shall disclose immediately the above fact to the other. All the losses, costs,
expenses, or obligations shall be compensated if it is resulted by either
party’s default of its representation and warranties.
13.2
Any
representation, warranties and undertakings shall be separate and independent
under this Agreement, which also shall not be limited by any provisions, except
provided otherwise.
13.3
If
any provisions of this Agreement shall be construed to be illegal, invalid,
or
unenforceable according the laws of China, they shall not affect the legality,
validity and enforceability of the other provisions of this Agreement. If any
provision is deemed to be illegal, invalid, or unenforceable, both parties
shall
modify this agreement through negotiation, and shall apply to both parties’
original intend as close as possible.
13.4
This
Agreement constitutes the entire agreement between the Parties relating to
this
licensing, which together with the Appendix 1 represents both parties’ genuine
expression. This Agreement supersedes all prior or contemporaneous discussions,
or presentations and proposals, written or oral, with respect to subject matters
discussed herein.
13.5
Except as otherwise provided by the laws, either party’s failure or postpone to
exercise rights under this Agreement does not constitute the waiver of the
rights. Exercise rights solely or partly does not constitute the prevention
from
exercising other rights, or privileges.
13.6
All
headings used in this Agreement are intended for convenience of reference only.
They will not affect the construction or interpretation of the
Agreement.
13.7
Except otherwise provided in this Agreement, the mentioned article, clause
and
appendix refer to the article, clause and appendix of this
Agreement.
13.8
Any
notice hereunder shall be delivered upon personal delivery, fax, and registered
air mail to such address as indicated at the first page of the Agreement, unless
otherwise being given written notice of another modified address from one party
to the other party. All notices shall be deemed to have been given or delivered
upon (1) registered mail, 5 business days after deposit in the mail; (2)by
personal delivery or fax, 2 business days after transmission. If the notice
is
delivered by fax, it should be confirmed by original through registered air
mail
or personal delivery.
8
IP
Licensing Agreement
13.9
The
parties may sign additional agreement regarding to related matters of this
Consignment. Additional agreement and this Agreement have the same
effectiveness.
13.10
All
the appendix of this Agreement is the integral part of this Agreement, which
has
the same effectiveness with this Agreement.
13.11
This Agreement is written in both English and Chinese. If the two versions
conflict, the Chinese version shall prevail.
IN
WITNESS THEREFORE,
the
parties hereof have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
9
IP
Licensing Agreement
[Signature
Page Only]
For
and
on behalf of
Sunway
World Through Technology (Daqing) Co. Ltd. (Seal)
Legal
Representative (or Authorized Representative) Signature
Daqing
Sunway Technology Company Limited (Seal)
Legal
Representative (or Authorized Representative) Signature
10
IP
Licensing Agreement
APPENDIX
1: IP LIST
|
1.
|
Licensed
Patents Listæ
|
|
序号
|
Certificate
No.
|
Authorized
Institution
|
Name
of Patent
|
Patent
No.
|
Application
date
|
Valid
Term(Year)
|
|
1
|
523933
|
SIPC
|
气动管澭物流传灭眻置
|
ZL
01 2 71975 7
|
20011202
|
10
|
|
2
|
532336
|
SIPC
|
管澭朲向炔换器
|
ZL
02 2 09902 6
|
20020122
|
10
|
|
3
|
534389
|
SIPC
|
一种管澭换向器
|
ZL
02 2 09901 8
|
20020122
|
10
|
|
4
|
556112
|
SIPC
|
气动管澭物流传灭收发站箱
|
ZL
02 2 73509 7
|
20020523
|
10
|
|
5
|
275295
|
SIPC
|
气动管澭物流传灭收发站箱
|
ZL
02 3 52960 1
|
20020523
|
10
|
|
6
|
567890
|
SIPC
|
气动管澭物流传灭气濿子
|
ZL
02 2 73510 0
|
20020523
|
10
|
|
7
|
655292
|
SIPC
|
平移切换式气动管澭物流传灭收发站箱
|
ZL
03 2 60602 8
|
20030924
|
10
|
|
8
|
719650
|
SIPC
|
物流传灭系统縖斏动炘澭炚
|
ZL
2004 2 0070058 5
|
20040728
|
10
|
|
9
|
719482
|
SIPC
|
物流传灭系统炚用炘澭
|
ZL
2004 2 0070057 0
|
20040728
|
10
|
|
10
|
732675
|
SIPC
|
平移切换式气动管澭物流传灭收发站
|
ZL
2004 2 0063538 9
|
20041011
|
10
|
|
11
|
743362
|
SIPC
|
物流管澭爑由眻置
|
ZL
2004 2 0063537 4
|
20041011
|
10
|
|
12
|
738892
|
SIPC
|
一种管澭朲向炔换器
|
ZL
2004 2 0063535 5
|
20041011
|
10
|
|
13
|
739042
|
SIPC
|
一种管澭换向器
|
ZL
2004 2 0063536 X
|
20041011
|
10
|
11
IP
Licensing Agreement
|
2.
|
Licensed
Software List
|
|
No.
|
Certificate
No.
|
Software
Name
|
Authorized
Institution
|
Certificate
Issued Date
|
Valid
Term (Year)
|
|
ï
|
Hei
DGY-2003 0005
|
Sunway
Logistics Controlling SoftwareÊ1.0
|
Heilongjiang
Software Industry Commission
|
20030310
|
5
|
|
3.
|
Licensed
Trademark List
|
|
No.
|
Trademark
No.
|
Authorized
Institution
|
Classification
|
Valid
Term
|
|
1
|
1102674
|
CTMO
|
No.9th
|
From
September 14th,
1997to September 13th,
2007
|
|
2
|
3205734
|
CTMO
|
No.10th
|
From
December 24th,
2003 to December 13th,
2013
|
Note:
“CTMO”
refers to Trademark Office, State Administration of Industry and
Commerce
“SIPC”
refers to State Intellectual Property Office of the People’s Republic of
China
12