EXHIBIT 10.1 COOPERATION AGREEMENT
Published on November 16, 2009
Cooperation
Agreement
This Cooperation Agreement
(“Agreement”) is entered
into by and among the following parties on this 3rd day of
July, 2009:
|
(1)
|
China Youth Interactive
Cultural Media (Beijing) Co., Ltd., a limited liability
company duly established and existing under the laws of the People’s
Republic of China (“PRC” or “China”) with its
domicile at 5th
Floor, Huaxia Bank Building, 22 Jianguomennei Street, Dongcheng District,
Beijing, China (hereinafter, “CYI”);
|
|
(2)
|
China Youth Net Advertising Co.
Ltd., a limited liability
company duly established and existing under the laws of the PRC with its
domicile at Room 705, 38, Chaowai Street, Chaoyang District, Beijing,
China (hereinafter, “CYN
Ads”); and
|
|
(3)
|
Youth Media (Hong Kong)
Limited, a company duly organized and existing under the laws of
Hong Kong, with its registered address at Level 28, Three Pacific Place, 1
Queen’s Road East, Hong Kong (“YMHK”).
|
(Each a
“Party”, and two or more
collectively the “Parties”)
Whereas,
|
(A)
|
CYI
is a business entity ultimately controlled by China Youth League and is
entrusted by China Youth League to develop, set up and operate a
comprehensive network platform with on-campus students as targeted users
and to provide information and related value-added services through such
network under China Youth League, and CYI has obtained an exclusive
authorization from the Movie and Television Network Center of China Youth
League
(the “Center”) for
that purpose. Related to that, the Center, which is a also controlled by
China Youth League, has been approved by the PRC State Administration of
Radio, Film and Television (“SARFT”) and issued an
Online Video-Audio License (as defined here below) and a Mobile Network
Video-Audio License (as defined here below) by the same authority for
dissemination of video and audio contents through an information
network.;
|
|
(B)
|
CYN
Ads was granted by China Youth Net Technology (Beijing) Co., Ltd. (“CYN”), which is one of
the shareholders of CYI holding 51% of CYI’s total equity interest, with
certain advertising rights to place advertisements through networks under
the auspices of CYN;
|
|
(C)
|
YMHK
owns or has access to technologies, media contents and other desired
resources that are valuable to the network operated or to be operated by
CYI; and
|
|
(D)
|
CYI
and YMHK are willing to cooperate with each other with respect to the
aforesaid network and any other business opportunities in related
areas;
|
Now, Therefore, after friendly
discussions and based on the principles of equality and mutual benefit, the
Parties agree on the following terms and conditions:
1. Definition
and Interpretation
1.1 Definition
1
Unless
otherwise defined or interpreted in the contexts of this Agreement capitalized
terms used herein shall have the following meanings:
“Affiliate” means, in terms of any
Party, any company, corporation, partnership, joint venture or other entity that
directly or indirectly Controls, is Controlled by or is under common Control
with that Party.
“Control”, “Controls”, “Controlled” (or any
correlative term) means the possession, directly or indirectly, of the power to
direct or cause the direction of the management of a Person, whether through the
ownership of voting securities, by contract, credit arrangement or proxy, as
trustee, executor, agent or otherwise. For the purpose of this
definition, a Person shall be deemed to Control another Person if such first
Person, directly or indirectly, owns or holds more than 50% of the voting equity
interests in such other Person.
“Effective Date” means the
execution date of this Agreement.
"Intellectual Property Rights”
means patents, trade marks, service marks, trade names, design rights (whether
registrable or not), any applications for the foregoing, copyright and other
assignable intellectual property rights (whether registrable or not) in any
country, including but not limited to the format, layout, and the look and feel
of any of the Content.
“Campus Network” means video
and audio distribution network based on, including but not limited to, the China
Education and Research Network ( “CERN”), the broadband network
infrastructure built in schools, universities and other education institutions.
After the Mobile Campus Network (as defined below in Clause 2.1.2) is launched,
any reference of “Campus Network” under this Agreement shall also include the
reference of the Mobile Campus Network as well, to the extent
possible.
“Person” means any natural
person, corporation, company, association, partnership, organization, business,
firm, joint venture, trust, unincorporated organization or any other entity or
organization, and shall include any governmental authority.
“Territory” means the People’s
Republic of China (which, for the purpose of this Agreement, shall not include
Hong Kong, Macau and Taiwan).
1.2 Interpretation
References
to an “Exhibit” or a “Schedule” are, unless otherwise specified, to an exhibit
or a schedule attached to this Agreement and references to an “Article” or a
“Clause” are, unless otherwise specified, to one of the articles or clauses of
this Agreement.
References
to any word in the singular form, if applicable, include the references to such
a word in the plural form, and vice versa.
Words
importing any particular gender shall include all other genders.
The
headings in this Agreement are for purposes of easy reference only and shall not
be considered in construing this Agreement.
|
2.
|
Cooperation
and Grant of Rights
|
2.1 The Campus
Network
2
|
2.1.1
|
CYI
on the one side and YMHK on the other side agree to cooperate with each
other to develop, build and operate a fully managed Campus Network. The
Center is holding the Information Network Video-Audio Content
Dissemination License
issued by SARFT with the series no. 0105108 (the “Online Video-Audio
License”) and CYI is holding the Telecommunication and Information
Service Business License
issued by the Telecommunication Administrative Bureau of Beijing, China
with the series no. 070249 (the “ICP License”), both of
which licenses are required for the setup, development and operation of
the Campus Network. The Center has granted an exclusive authorization to
CYI (“the Center’s
Authorization”) to entrust CYI to setup, develop and operate the
Campus Network.
|
|
2.1.2
|
At
the initial stage, the Campus Network is a network that is only accessible
on the campuses of universities and colleges in the Territory. CYI will,
by itself or through any of its Affiliates, launch a mobile network (the
“Mobile Campus
Network”) for distribution of student-targeted video-audio contents
via mobile network as soon as practicable after the signing of this
Agreement. For that purpose, the Center is holding an Approval on Mobile
Network Video-Audio Content Dissemination
issued by SARFT with the series no. of Guang Ju Wang Zi [2009] No.
5 (the “Mobile
Network Video-Audio License”). CYI and YMHK agree that,
upon the launch of such Mobile Campus Network, CYI and YMHK will expand
their cooperation under this Agreement to such Mobile Campus Network. It
is the intention of CYI and YMHK that later on, upon their mutual
agreement, they may expand the Campus Network in manner permitted and
appropriate in law so that it is accessible by the public via the
Internet.
|
|
2.1.3
|
The
Campus Network will be deployed across a centrally controlled and
protected system and will make use both of proprietary software systems
and technologies controlled by YMHK and its Affiliates and software
systems and technologies controlled by others (the “Technology”). YMHK will
license to CYI and will cause its relevant Affiliates to license to CYI
for use by the Campus Network in the Territory any Technology YMHK or its
relevant Affiliate might control and has the right to license. Related to
this, YMHK has established Youth Media (Beijing) Limited, a
wholly-foreign-owned company 100% invested by and owned by YMHK in
Beijing, China (“YMBJ”) to provide to CYI
with relevant business, commercial, operational and technical supports,
assistances and services with respect to the setup, operation, maintenance
and expansion of the Campus Network according to a separate agreement
between CYI and YMBJ (the “Commercial and Technical
Services Agreement”).
|
|
|
It
is the agreement of CYI and YMHK that the board of directors of YMBJ shall
be composed of five (5) directors, of which three (3) shall be nominated
by YMHK (and one of them shall be the chairman and legal representative of
YMBJ) and the other two (2) nominated by CYI. Further, the articles of
association of YMBJ shall contain appropriate provisions that certain
significant business matters of YMBJ shall require unanimous approval of
all five directors or with substantially the same
effect.
|
|
|
CYI
and YMHK also agree that if requested by CYI, YMBJ shall have a deputy
general manager, the candidate of which shall be nominated by CYI. YHMK
and CYI shall cause and ensure the board of directors and the general
manager of YMBJ to appoint such candidate nominated by CYI from time to
time as YMBJ’s deputy general manager according to the articles of
association of YMBJ.
|
3
|
2.1.4
|
The
Campus Network will deliver a range of content (the “Content”) from premium
international and domestic entertainment providers that is to be sourced
by YMHK and/or its Affiliates or by CYI or its Affiliates independently or
with the help of YMHK and/or its Affiliates, and it is also anticipated by
the Parties that to the extent permitted by applicable law and beneficial
to the Campus Network and the cooperation contemplated in this Agreements,
the Campus Network may also deliver Content by the end users of the Campus
Network, provided
that the Content to be delivered via the Campus Network shall be
subject to review and approval by CYI and relevant authorities of China
that are required by applicable laws, rules and media control policies of
China or are otherwise reasonably believed as necessary or beneficial to
the smooth operation of the Campus Network. All Intellectual Property
Rights and other proprietary rights in any translated, amended, revised or
updated Content independent created by YMHK or any of its Affiliates shall
automatically vest in YMHK or its relevant Affiliate, while YMHK agrees
that CYI shall have the right to use such Content for free on the Campus
Network only.
|
|
2.1.5
|
It
is the intention of the Parties that at the initial stage of the
Cooperation, the Content of the Campus Network (excluding Mobile Campus
Network) shall be advertiser supported and provided free to end users,
while the Parties may explore and discuss in the future to introduce a
business model of the Campus Network under which the end users shall pay
fees to view or download the Content from the Campus Network or access to
other services provided by the Campus Network. The Technology will permit
the Campus Network to process the Content enabling the Content to be
served with advertisements. CYI and YMHK contemplate that a business based
on the Campus Network will be established whereby advertisers will be
procured who will pay advertising fees to have their advertisements placed
in or around the Content on the Campus Network. Whereever possible,
advertising on all Content delivered through the Campus Network will be
tracked.
|
|
2.2
|
Cooperation
|
|
2.2.1
|
In
addition to other responsibilities provided in this Agreement, CYI will
and will cause all their Affiliates
to:
|
|
|
(a)
|
provide
all reasonable assistance to assure the legal and smooth operation of the
Campus Network, especially that the Center shall provide all reasonable
assistance to ensure the legal distribution of video-audio contents which
can be accessed via the Campus
Network;
|
|
|
(b)
|
make
all efforts to expand the user base of the Campus Network by entering into
cooperation agreements with universities and colleges for setting up
servers in such universities or
colleges;
|
|
|
(c)
|
marketing
the Campus Network on all current internet sites owned or controlled by
CYN or its Affiliates and provide linked banners and/or menu access of the
Campus Network from the home page for internet sites owned or controlled
by CYN or its Affiliates;
|
|
|
(d)
|
make
the Campus Network available via CERN, and after the launch of the Mobile
Campus Network, via China Mobile, every day and week of every year,
subject, however, to system-wide downtime, and provide the Campus Network
with access to and use of data centers, bandwidth rates, service code, and
channel owned or controlled by CYI;
|
|
|
(e)
|
fully
assist YMHK and YMHK Affiliates in protecting its Intellectual Property
Rights and other rights to the full extent permitted in
law;
|
4
|
|
(f)
|
be
responsible and ensure that all information (including, but not limited
to, the Content) to be disseminated through the Campus Network shall be in
compliant with all applicable legal requirements;
and
|
|
|
(g)
|
source
or create Content for the Campus
Network.
|
|
2.2.2
|
In
addition to other responsibilities provided in this Agreement, YMHK will
and/or cause its relevant Affiliates to, to the extent permitted by
applicable laws:
|
|
|
(a)
|
license
to CYI for use by the Campus Network in China any Technology they
currently control and have the right to license, according to this
Agreement and any other relevant agreement(s) relating to the cooperation
contemplated in this Agreement;
|
|
|
(b)
|
advise
on the concept and design of the Campus
Network;
|
|
|
(c)
|
through
YMBJ, provide to CYI with relevant business, commercial, operational and
technical supports, assistances and services with respect to the setup,
operation, maintenance and expansion of the Campus Network, according to
the Commercial and Technical Services Agreement;
and
|
|
|
(d)
|
source
or cause the sourcing of international Content for the Campus
Network.
|
2.3 Granting of Rights to
YMHK
In
addition to any other right that is granted by CYI to YMHK under this Agreement,
considering the cooperation contemplated in this Agreement and YMHK’s support,
assistances and services to CYI for the Campus Network, CYI hereby agrees to
exclusively grant YMHK or any third party/parties designated by YMHK with the
following rights during the Term of this Agreement and any renewal period of the
Term:
|
|
(a)
|
exclusive
right to advertise on the Campus Network and to source advertising
business for this purpose;
|
|
|
(b)
|
exclusive
right to sell and operate the commercial campus marketing events, provided that CYI’s
previous written consents of such events shall be
required;
|
|
|
(c)
|
right
to provide foreign commercial content to the Campus Network (excluding
non-profit, educational content exchange and those contents that are not
permitted to be disseminated through the Campus Network under applicable
Chinese laws); and
|
|
|
(d)
|
enjoy
the rights with respect to the setup, operation, maintenance and expansion
of the Campus Network according to the Commercial and Technical Services
Agreement.
|
2.4 Mobile Campus
Network
The
cooperation between YMHK CYI (or Affiliates of CYI) on Mobile Campus Network
shall be limited to campus related contents, including video-audio contents on
the Campus Network and other contents and advertising rights related to such
contents. YMHK and CYI (or Affiliates of CYI) may further enter into separate
agreement regarding their cooperation on the Mobile Campus Network, if
needed.
|
2.5
|
Confirmation of CYN
Ads
|
5
|
|
CYN
Ads hereby expressly acknowledges and agrees to the cooperation and
granting of rights to YMHK under this Agreement and surrenders whatever
rights it has or may have obtained from CYN, CYI, or any other party
regarding the Campus Network, especially those which are or may be in
conflict or compete with, or may interfere with the exercise of, the
rights granted to YMHK under this
Agreement.
|
|
2.6
|
Compensation to
CYI
|
|
|
YMHK
agrees that as consideration for granting of rights to YMHK under this
Agreement, YMHK will give compensation to CYI side in an amount equal to
20% of YMBJ’s annual after-tax profits and dividends, if any, as audited
by YMBJ’s independent auditor and which YMHK will obtain from YMBJ for
each financial year of YMBJ during the Term of this Agreement. CYI agrees
that YMHK will direct YMBJ to make such compensation to CYN no later than
30 days after YMBJ’s annual audited financial statements are duly approved
by YMBJ’s board of directors. CYI and YMHK agree that such compensation
constitutes all compensation of any kind to CYI and its shareholders,
employees or Affiliates for this Agreement and the cooperation
contemplated in this Agreement (except for those other payments to CYI, if
any, that are specifically provided in other agreements between CYI, YMHK
and/or YMBJ).
|
|
|
CYI
and CYN Ads agree and acknowledge that (a) the payments and
compensation specifically described in this Agreement and other agreements
between relevant parties in connection with the cooperation project
contemplated hereby constitute and represent full payment, satisfaction
and discharge of any and all amounts CYI and CYN Ads, their shareholders,
directors, employees or Affiliates are entitled to arising out of or in
connection with this Agreement and the cooperation project contemplated by
this Agreement, and that (b) the execution and delivery of this Agreement
by CYI and CYN Ads shall operate as a full release and discharge of any
past and present claims among the Parties related to compensation under
this Agreement and other relevant agreements, except for the specific
obligations provided herein and therein.
|
3. Other
Aspects of the Cooperation
3.1 Required Licenses and
Approvals
CYI
undertake that it will cause and ensure the Center will maintain the validity
and effect of the Online Video-Audio License and Mobile Network Video-Audio
License, and continuously authorize and cooperate with CYI on an exclusive basis
for the operation of Campus Network which allows dissemination of video-audio
contents via the Campus Network during the Term of this Agreement and any
renewal period of the Term.
CYI
undertakes that it will maintain the validity and effect of the ICP License as
well as any other license, permit and consent required for its setup, operation,
maintenance and expansion of the Campus Network during the Term of this
Agreement and any renewal period of the Term, and CYI undertakes that it will
seek and secure all necessary support and assistance in this regard from its
relevant Affiliates.
CYI
confirms to YMHK that, by obtaining the Mobile Network Video-Audio License, the
Center has successfully obtained the required government approval and
authorization to develop and launch the Mobile Campus Network. CYI undertakes to
further expand the scope of CYI’s ICP License to allow CYI to provide
information services via the Mobile Campus Network.
CYI
undertakes that it will launch the Mobile Campus Network or cause the Mobile
Campus Network to be launched as soon as practically possible to start the
cooperation with YMHK according to this Agreement. In case the Mobile
Campus Network is operated by any Affiliate of CYI, CYI shall ensure such
Affiliate acknowledges, accepts and honors all provisions under this Agreement
to the extent it is relevant to the Mobile Campus Network, and upon the request
of YMHK, CYI shall procure such Affiliate to enter into agreement with YMHK for
this purpose.
6
CYI
undertakes that it will abide by all applicable laws and regulations relevant to
the operation of the Campus Network and the cooperation under this Agreement to
ensure the legal operation of the Campus Network during the Term of this
Agreement. CYI undertake that, within seven (7) days after the Effective Date,
they will procure (a) a written confirmation from the Center on its consent and
support of the cooperation contemplated in this Agreement and provide a copy of
that to YMHK; and (b) a written confirmation from Wo Er Shi Tong Technology
(Beijing) Co., Ltd., which is the
other shareholder of CYN Ads, on its consent to the granting to YMHK all rights
related to advertising businesses and CYN Ads’s waiver of such rights under this
Agreement and provide a copy to YMHK, if such documents have not been provided
to YMHK as of the Effective Date of this Agreement.
CYI
further undertakes that it will be responsible to apply to and try its best
effort to obtain all other required approvals, license, permits and
registrations of Chinese governmental or regulatory authorities for the Campus
Network and other businesses that are contemplated in this Agreement or to be
developed and operated by the cooperation of CYI and YMHK.
3.2 Expansion of the Coverage of
the Campus Network
CYI
undertakes that, during the Term and any renewal period of the Term, it will use
its best efforts to expand the coverage of the Campus Network in the Territory
by entering into necessary or desirable agreements with schools, colleges and
universities in the Territory, and that, for such purpose, to the extent
necessary, it will cause and ensure any of their Affiliates will provide
necessary assistance to such expansion.
3.3 Exclusive Rights Granted to
YMHK
CYI and
CY Ads hereby undertake that during the Term of this Agreement and any renewal
period of the Term:
|
|
(a)
|
none
of them will appoint any other licensee or otherwise delegate any right to
any third person (including any CYN Affiliate) which will in any way
influence or impact the cooperation contemplated by this Agreement or any
right that has been granted to YMHK under this
Agreement;
|
|
|
(b)
|
none
of them will undertake or become involved in any business or activity
which, in the reasonable opinion of YMHK, competes or may compete with the
Campus Network or will in any way influence or impact the cooperation
contemplated by this Agreement or any right that has been granted to YMHK
under this Agreement;
|
|
|
(c)
|
they
will cause and make sure all their Affiliates, directors, officers and
employees also to be bound by the same obligations set out in Clauses
3.2(a) and (b) above.
|
3.4 Equity Transfer of
CYI
It is
acknowledged by CYI and YMHK that a person acceptable to them
has purchased from Guangzhou Zongzhi Digital Science and Technology
Co., Ltd., who
was the original other shareholder of CYI holding 50% of CYI’s total equity
interest, 49% of CYI’s total equity interest and has replaced Guangzhou Zongzhi
Digital Science and Technology Co., Ltd. as a shareholder of CYI.
7
4. Term
and Termination
4.1
Term
This
Agreement shall take effect from the Effective Date and continue in full force
and effect for twenty (20) years thereafter (the “Term”), unless otherwise
terminated in accordance with Clause 4.2.
This
Agreement may be renewed for an additional term of ten (10) years by notice in
writing given by YMHK to the other Parities at least sixty (60) days prior to
the expiry of the Term, and accordingly the Term will be extended by the said
ten (10) years.
4.2 Termination
|
4.2.1
|
Either
CYI on the one side or YMHK on the other side may terminate this
Agreement:
|
|
|
(a)
|
if
the Commercial and Technical Services Agreement is terminated according to
its terms;
|
|
|
(b)
|
if
the other side commits a material breach of this Agreement which is not
capable of being remedied;
|
|
|
(c)
|
if
the other side commits a material breach of this Agreement which is
capable of being remedied but not remedied within thirty (30) days upon
receiving written notice from the non-breaching side requiring remedy;
and
|
(d) if
the other side becomes insolvent or bankrupt.
|
4.2.2
|
Upon
termination of the Agreement, CYI shall terminate the transmission of the
Content with immediate effect, and any and all agreements between two or
more of the Parties shall also be terminated
immediately.
|
5. Further
Assurance
CYI and
CYN Ads collectively on the one part and YMHK on the other part agree, at its
own expense, to take any further action and to execute any further documents or
instruments as the other side may reasonably request to give effect to the
transactions contemplated by, and to the terms of, this Agreement and any other
agreement referred to in this Agreement. In particular, and without limiting the
foregoing, the Parties agree to amend this Agreement as may be necessary to
comply with applicable laws, including without limitation the laws of the
PRC.
6. Representations
and Warranties
6.1 Each Party’s Representations
and Warranties
Each of the Parties represents and
warrants to the others that:
|
|
(a)
|
It
is duly organized and validly existing under the laws of the jurisdiction
where it is incorporated or established and has full legal capacity and
power to enter into and perform this Agreement and any other agreement
related to the cooperation contemplated by this Agreement to which it is a
party;
|
8
|
|
(b)
|
its
execution, delivery and performance of this Agreement and any other
agreement related to the cooperation contemplated by this Agreement to
which it is a party have been duly authorized by all necessary corporate
action required to be taken by it. This Agreement has been, and each other
agreement related to the cooperation contemplated by this Agreement to
which it is a party upon execution and delivery thereof will have been,
duly executed and delivered by it, and has constituted or will constitute
the legal, valid and binding obligation of it, enforceable against it in
accordance with their terms.
|
|
|
(i)
|
its
execution, delivery and performance of this Agreement and any other
agreement related to the cooperation contemplated by this Agreement to
which it is a party does not and will
not:
|
|
|
(x)
|
require
any authorization, consent, filing, registration or notice of or with any
government agency in the PRC; or
|
|
|
(y)
|
result
in any violation or breach of any agreement, obligation or order to which
it is a party or to which it is
subject.
|
6.2 Further Representations and
Warranties of CYI and CYN Ads
CYI and
CYN Ads hereby further represent and warrant to YMHK that during the Term and
any renewal period of the Term:
|
|
(a)
|
they
are and shall remain entitled to grant to YMHK all rights granted under
this Agreement, free of all third-party liens, claims and encumbrances;
and
|
|
|
(b)
|
with
respect to the granting of the rights to YMHK under this Agreement, they
have acquired all requisite licenses, permissions and clearances from any
and all third parties for YMHK to exercise the rights granted
herein.
|
7. Indemnity
|
7.1
|
CYI
on the one part and YMHK on the other part (each a “Indemnifying Party”)
shall be responsible and liable to fully indemnify the other side, the
other side’s Affiliates, and directors, officers and employees of the
other side and its Affiliates (collectively, the “Indemnitees” and each an
“Indemnitee”) and
hold each such Indemnitee harmless from and against any and all costs,
expenses, loss, damages, liabilities, claims and proceedings which may be
incurred or suffered by or taken against each such Indemnitee in relation
to:
|
|
|
(a)
|
the
exercise of the rights granted herein to CYI on the one part or YMHK on
the other part (as the case may be);
and
|
|
|
(b)
|
any
breach by the Indemnifying Party of any provision of this Agreement or any
act, default, omission or negligence of any nature on the part of the
Indemnifying Party and any of their officers, employees or agents and
otherwise howsoever in connection with the rights hereby
granted.
|
8. Non-disclosure
|
8.1
|
The
Parties agree that all information, materials or documents that any Party
has accessed due to the execution and performance of this Agreement or
because of its connection with this Agreement, and which are indicated by
the other Party/Parties to be confidential shall be kept secret and shall
not be disclosed to any third party without the written consent of the
relevant other Party.
|
9
|
8.2
|
The
Parties agree that no Party shall use the documents, materials or
information obtained from the other Party/Parties for purposes other than
those provided in this Agreement or those necessary or beneficial to the
cooperation contemplated in this Agreement, or provide such documents,
materials or information to any third party, either directly or
indirectly.
|
|
8.3
|
The
above Clauses 8.1 and 8.2 are not applicable to a Party’s disclosure
(a) to its advisors, agents, shareholders, directors or officers, (b) to
financial institutions and banks whose consent or financing will be
obtained for the transaction contemplated hereby, (c) as may be compelled
in a judicial or administrative proceeding or as otherwise required by law
(in which case the disclosing Party shall notify the other Parties in
writing promptly thereof), and (d) as may be required by government or
regulatory authorities or stock exchanges or agencies that have
jurisdiction over a Party (or its Affiliate) or the transaction
contemplated hereby (in which case the disclosing Party shall notify the
other Parties in writing promptly
thereof).
|
9. Governing
Law and Dispute Resolution
9.1 Governing
Law
The
execution, validity, interpretation, performance and dispute resolution of this
Agreement shall be governed by and construed in accordance with the laws of
China (including its conflict of law rules).
9.2 Dispute
Resolution
Any
controversies and disputes arising out of or relating to this Agreement,
including, without limitation, any question regarding its existence, validity
(including the validity or scope of this arbitration provision) or termination
(collectively, the “Disputes” and each, a “Dispute”), which cannot be
settled amicably by the Parties within a period of sixty (60) days after a
Party’s written notice to the other Parties on the occurrence of a Dispute,
shall be subject to arbitration by China International Economic and Trade
Arbitration Commission (the “Arbitration Center”) upon application of any
Party. The Parties hereby agree that any and all such Disputes shall be
referred to and finally resolved by arbitration by the Arbitration Center in
Beijing, China, applying the arbitration
rules of the Arbitration Center in force as of the date of the
arbitration. If for any reason any provision of this Agreement is found to
be unenforceable, that provision will be enforced to the maximum extent possible
to effect the intent of the Parties, and the remainder of this Agreement will
continue in full force and effect. The arbitration tribunal shall consist
of three (3) arbitrators to be appointed in accordance with arbitration rules of
the Arbitration Center. The place of arbitration shall be Beijing, China,
and the language used in such arbitration, including the language of the
decision and the reasons supporting such decision shall be Chinese and
English. The decision of the arbitration tribunal shall be final and
binding upon the Parties concerned. During the process of the arbitration, the
Parties shall continue their performance of this Agreement, except for the
matter(s) under arbitration.
10
|
10.
|
Other
Provisions
|
|
10.1
|
Entire
Agreement
|
|
This
Agreement shall replace the Cooperation Agreement entered into by and
among the same Parties hereto and CYN on May 29, 2008. But this Agreement
shall not have any impact over the effect and validity of the contracts,
agreements and documents entered into or signed by relevant parties for
the implementation of the cooperation contemplated
hereunder.
|
|
|
10.2
|
Amendments
|
|
Any
amendments to this Agreement shall be made through written agreements
executed by duly authorized representatives of the
Parties.
|
|
|
10.3
|
Severability
|
|
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other
jurisdiction.
|
|
|
10.4
|
No Waiver
|
|
Unless
waived by writing, failure by a Party to enforce any term of this
Agreement upon another Party’s default under this Agreement shall not be
deemed as a waiver of future enforcement of that or any other term in this
Agreement. Failure or delay of a Party to enforce any of its rights under
this Agreement shall not be deemed as a waiver of such
right.
|
|
|
10.5
|
Notices
|
|
All
notices, requests, demands and other communications required or permitted
under this Agreement shall be in writing in both Chinese and English and
shall be deemed to have been duly given and made upon being delivered to
the recipient party by recognized courier service, fax transmission (with
confirmation of receipt) for those parties having a fax number listed
below or by registered or certified mail (postage prepaid, return receipt
requested), and addressed to the applicable address set forth below or
such other address as may be designated in writing hereafter by the
recipient
party:
|
|
If
to CYI:
|
16th
Floor, Changbao Plaza, 1 An Hua Bei Li, Guangqumennei Street, Chongwen
District, Beijing, China
|
|
Attn:
Ouyang Xiangqun
|
|
|
Fax
no: (86 10) 5133 6877
|
|
|
If
to CYN Ads:
|
Room
705, 38, Chaowai Street, Chaoyang District, Beijing,
China
|
|
Attn:
Ouyang Xiangqun
|
|
|
Fax
no: (86 10) 5133 6877
|
|
|
If
to YMHK:
|
4143
Glencoe Avenue, Marina Del Rey, California 90292
|
|
Attn:
Jay Rifkin
|
|
|
Fax
no: (1 310) 651
9629
|
11
|
10.6
|
Successors and Assigns
|
|
This
Agreement shall bind and inure to the benefit of each Party's respective
successors and permitted assigns. Unless otherwise expressly permitted in
this Agreement, no Party shall have the right to assign any of its rights
hereunder or any interest herein without obtaining the prior written
consent of the other Parties, and any purported assignment made without
obtaining such written consent shall be null and void, provided, however, that
YMHK may transfer its rights and obligations hereunder to its Affiliates
without the need for consent from the other Parties.
|
|
|
10.7
|
Language
|
|
This
Agreement is made in both Chinese and English, and both language versions
are equally valid. All exhibits and schedules attached hereto, if any,
shall constitute an inseparable part of this Agreement and have the same
force as the text of this Agreement.
|
|
|
10.8
|
Counterparts
|
|
This
Agreement shall be made in three (3) originals for each language version,
with each Party holding one of
them.
|
[Signatures
on the Following Page]
12
In Witness Whereof, the Parties
have caused this Agreement to be duly executed and delivered as of the date
first above written.
|
|
China Youth Interactive
Cultural Media (Beijing) Co., Ltd.
|
|
|
By:/s/
|
|
|
China
Youth Net Advertising Co. Ltd.
|
By:/s/ |
|
|
Youth
Media (Hong Kong) Limited
|
By:/s/ |
13