INTELLECTUAL PROPERTY OWNERSHIP AND CROSS LICENCE AGREEMENT

　　知識產(chǎn)權(quán)許可協(xié)議

　　TABLE OF CONTENTS

　　1. DEFINITIONS 定義

　　2. INTERPRETATION 對所有權(quán)的解釋

　　3. TERM 期間

　　4. OWNERSHIP 所有權(quán)

　　5. LICENCE GRANTS 許可授予

　　6. OTHER LIMITATIONS ON OWNERSHIP AND LICENCES

　　對所有權(quán)和許可權(quán)的其他限制

　　7. WARRANTIES 承諾

　　8. LIMITATION OF LIABILITY 責(zé)任限制

　　9. CONFIDENTIAL INFORMATION 保密信息

　　10. DISPUTE RESOLUTION 爭端解決

　　11. NOTICE 通知

　　12. COMPLIANCE 遵守法律

　　13. ASSIGNMENT 權(quán)力和義務(wù)的轉(zhuǎn)讓

　　14. WAIVER 權(quán)力的放棄

　　15. SEVERABILITY 可分割條款

　　16. NO UNREASONABLE DELAY OR WITHHOLDING不得無故延誤和阻礙協(xié)議批準(zhǔn)

　　17. FORCE MAJEURE 不可抗力

　　18. AMENDMENT 條款變更

　　19. ENTIRE AGREEMENT 協(xié)議的完整性

　　20. GOVERNING LAW 管轄法

　　SCHEDULE A 附件一

　　SCHEDULE B 附件二

　　THIS INTELLECTUAL PROPERTY OWNERSHIP AND CROSS LICENCE AGREEMENT is made the day of

　　BETWEEN:

　　1) LIMITED (a company incorporated in, and existing under the laws of whose [registered office] [principal place of business in The People’s Republic of China] is at

　　(“Parent”); and

　　2) LIMITED (a company incorporated in, and existing under the laws of whose [registered office] [principal place of business in The People’s Republic of China] is at

　　(“Subsidiary”).

　　WHEREAS Parent and Subsidiary have agreed on the basis of equality and mutual benefit to apportion between them the ownership, rights to and benefit of certain existing patents and patent applications and non-registrable intellectual property.

　　NOW IT IS HEREBY AGREED as follows:

　　1. DEFINITIONS

　　In this Agreement, unless the context otherwise requires:

　　1.1 "Affiliate" shall mean any body corporate which controls, is under common control with, or is controlled by, any other body corporate;

　　1.2 "Confidential Information" shall mean (i) all ideas and information of any kind, including, without limitation, business plans, data, know-how, products and trade secrets provided by a party (the "disclosing party") to another party ("the receiving party") which is labelled by the disclosing party as "confidential", "proprietary" or with a legend of similar import; (ii) Intellectual Property obtained from a disclosing party; and (iii) information orally disclosed and identified as confidential at the time of such disclosure which is summarised in writing within thirty (30) days of such disclosure. Confidential Information shall not include any information which is (a) lawfully in the receiving party's possession, with no restriction on use or disclosure, prior to its acquisition from the disclosing party; (b) received in good faith by the receiving party, with no restrictions on use or disclosure, from a Third Party not subject to any confidentiality obligation to the disclosing party; (c) now or later becomes publicly known through no breach of any confidentiality obligation by the receiving party; (d) released by the disclosing party to any other person, firm or entity (including, without limitation, governmental agencies) without restriction on use or disclosure; or (e) independently developed by or for the receiving party without any reliance on or use of Confidential Information of the disclosing party.

　　1.3 "Excluded Intellectual Property" shall mean any Intellectual Property:

　　(a) to the extent it is a corporate name, copyright, domain name, service mark, trade mark or application for any of the foregoing and the benefit of any renewal or extension of such a right; or

　　(b) which exists and is owned by one party (or any of its Affiliates) at the date of this Agreement and is licensed to another party (or any of its Affiliates) pursuant to a separate written agreement.

　　1.4 "Existing Patents" shall mean the patents and patent applications, together with any patents granted in respect of any of the foregoing applications to the extent owned, or jointly owned, by either of the parties on the date of this Agreement.

　　1.5 "Intellectual Property" shall mean all present and future rights conferred by law (and all moral rights) in or in relation to business names, circuit layouts, computer software (including, without limitation, source and object codes and documentation), confidential information, copyright, designs, domain names, formulae, inventions, know-how, patents, plant varieties, recipes, service marks, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

　　1.6 "Jointly Owned Intellectual Property" means Intellectual Property that is jointly owned by the parties whether by operation of clause 4.1(c), 4.2 or 4.3(b) or otherwise.

　　1.7 "Non-Registrable Intellectual Property" shall mean all unpatented inventions (whether or not patentable), trade secrets, know-how and proprietary information, including but not limited to compositions, correspondence and notes, financial, marketing and business data, formulae, computer software (including, without limitation, source and object codes and documentation), databases, designs, discoveries, drawings, ideas, information, manuals, models, plans, plant varieties, photographs, pricing and costing information, procedures, processes, proposals, recipes, reports, samples and specifications to the extent owned by either party on the date of this Agreement but does not include any Excluded Intellectual Property.

　　1.8 "Third Party" means a person that is not the relevant party and is not an Affiliate of the relevant party.

　　2. INTERPRETATION

　　2.1 In this Agreement, a reference to ownership includes all right, title and interest in and to the subject property.

　　3. TERM

　　3.1 This Agreement starts on the day that it is executed by all parties and, unless earlier terminated in accordance with the terms of this Agreement, terminates on ?[Date].

　　4. OWNERSHIP

　　4.1 Existing Patents

　　With effect from the date of this Agreement, the ownership of Existing Patents shall be apportioned as follows:

　　(a) the Existing Patents listed in Schedule A shall be owned by Parent;

　　(b) the Existing Patents listed in Schedule B shall be owned by Subsidiary;

　　(c) all other Existing Patents shall be jointly owned by Parent and Subsidiary.

　　4.2 Non-Registrable Intellectual Property

　　With effect from the date of this Agreement, Parent and Subsidiary shall jointly own all Non-Registrable Intellectual Property.

　　4.3 Intellectual Property resulting from Jointly Owned Intellectual Property

　　The ownership of Intellectual Property resulting from Jointly Owned Intellectual Property after the date of this Agreement shall be apportioned as follows:

　　(a) where only one party employs the author(s) or contributor(s) of such Intellectual Property, that party; and

　　(b) in any other circumstance, will be jointly owned by the Parent and Subsidiary.

　　4.4 Excluded Property

　　This Agreement does not affect the ownership of Excluded Intellectual Property.

　　4.5 Preparation, Prosecution and Enforcement of Jointly Owned Intellectual Property

　　Subsidiary shall control the preparation, filing and prosecution of any patent applications relating to Jointly Owned Intellectual Property and the maintenance and enforcement of any patents that result therefrom, and the cost thereof shall be borne equally by Subsidiary and Parent; provided, however, that (i) Subsidiary will consult Parent regarding the choice of jurisdictions in which to protect such Jointly Owned Intellectual Property; (ii) Subsidiary will provide copies of all documents filed with, or received from, the relevant patent or other government offices in connection with the prosecution of such applications; and (iii) the choice of legal and other advisers shall be reasonably satisfactory to Parent. If Subsidiary refuses to file a patent application for protection of any Jointly Owned Intellectual Property after Parent has requested that Subsidiary do so, Parent may do so, with legal and other advisers reasonably satisfactory to Subsidiary, and the cost thereof shall be borne equally by Subsidiary and Parent.

　　4.6 Limitations and Obligations of Ownership.

　　(a) To the extent that any party has any ownership interest in any Intellectual Property that is to be owned jointly with, or exclusively by the other party in accordance with the provisions of this Agreement, such first party undertakes to assign to such other party such portion or all of the first party's ownership interest in such Intellectual Property as relevant. The first party shall execute and procure such documents and take such other actions, including without limitation any filing or registration with any government authority, as may be reasonably requested from time to time by the other party to obtain for the other party's benefit such portion or all of the first party's ownership interest in such Intellectual Property as relevant or otherwise to effect such assignment.

　　(b) Subject to the obligations of confidentiality set out in this Section 4.6:

　　(i) each party shall have an equal undivided joint interest in and to all Jointly Owned Intellectual Property;

　　(ii) each party shall have the right to licence or sublicense Jointly Owned Intellectual Property without any duty to account to any other party for any income or proceeds thereof;

　　(iii) each party shall have the right to exercise or otherwise exploit Jointly Owned Intellectual Property (including, without limitation, the right to make, use, offer for sale, sell, and make versions, adaptations and derivative works) in any manner and by any means now known or hereafter devised, in perpetuity, without any duty to account to any other party for any income or proceeds thereof;

　　(iv) each party shall obtain waivers of any and all claims against any other party which any employee, subcontractor or agent of such first party may now or hereafter have in any jurisdiction in respect of moral rights relating to any Jointly Owned Intellectual Property, and to the extent that such rights may not be waived, such first party shall secure covenants and stipulations of those individuals not to assert any such rights against any of the other parties or their respective successors, assigns, licensees and sublicensees;

　　(v) if either party becomes aware of any infringement, misuse or misappropriation of any Jointly Owned Intellectual Property, or any attempt to invalidate any Jointly Owned Intellectual Property, such party shall promptly notify the other party, and the parties shall thereafter confer in good faith regarding the steps, if any, which should be taken to remedy any such infringement, misuse or misappropriation or any such attempted invalidity. Any party shall have the right, at its sole discretion and expense, to enforce any rights relating to Jointly Owned Intellectual Property against a Third Party. The other parties shall reasonably cooperate with the first party in respect of any such enforcement proceedings; provided, however, that the party bringing such proceeding shall reimburse the other parties for such other parties’ costs and reasonable expenses, including reasonable legal fees, incurred in connection with such cooperation; and provided, further, that the duty of cooperation shall not interfere or diminish in any way with the right of such other parties to grant licences, including licences to the accused infringer, and otherwise exploit all of such other parties' rights in the Jointly Owned Intellectual Property.

　　(c) Notwithstanding anything contained in this Agreement, each party expressly reserves the right to enforce its agreements with current and former employees relating to Jointly Owned Intellectual Property or relating to obligations of confidentiality, nondisclosure and non-use of proprietary or Confidential Information.

　　5. LICENCE GRANTS

　　5.1 Parent to Subsidiary

　　(a) Existing Patents. On the terms and subject to the conditions set out in this Agreement and subject to rights and licences granted to any Third Party on or before the date of this Agreement, Parent hereby grants to Subsidiary a worldwide, non-exclusive, perpetual, royalty-free and irrevocable right and licence to exercise and otherwise exploit all of the Existing Patents listed on Schedule A including, without limitation, the right to make, have made, use, offer for sale, sell, lease and licence, by any manner and means now known or hereafter devised. The licence created by this Section 5.1(a) shall include the right of Subsidiary to sublicense to ? [Company] and its successors and assigns; provided, however, that they agree to be bound by the terms and conditions of this Agreement, but shall not otherwise include the right to sublicense.

　　(b) Acknowledgement Subsidiary acknowledges and agrees that, as between the parties and as of the date of this Agreement, Parent exclusively owns any and all right, title and interest in Existing Patents listed on Schedule A, and that under this Agreement, Subsidiary shall acquire no right, title, or interest in or to any of the foregoing, other than any rights expressly granted in this Agreement.

　　5.2 Subsidiary to Parent

　　(a) Existing Patents. On the terms and subject to the conditions set out in this Agreement and subject to rights and licences granted to any Third Party on or before the date of this Agreement, Subsidiary grants to Parent a worldwide, non-exclusive, perpetual, royalty-free and irrevocable right and licence to exercise and otherwise exploit all Existing Patents listed on Schedule B including, without limitation, the right to make, have made, use, offer for sale, sell, lease and licence, by any manner and means now known or hereafter devised. The licence created by this Section 5.2(a) shall include the right of Parent to sublicense to ? [Company]; provided, however, that they agree to be bound by the terms and conditions of this Agreement, but shall not otherwise include the right to sublicense.

　　(b) Acknowledgement. Parent acknowledges and agrees that, as between the parties and as of the date of this Agreement, Subsidiary exclusively owns any and all right, title and interest in Existing Patents Schedule B, and that under this Agreement, Parent shall acquire no right, title, or interest in or to any of the foregoing, other than any rights expressly granted in this Agreement.

　　5.3 Limitations and Obligations of Licensees

　　(a) Each party agrees neither to do nor to permit any act which may in any way jeopardize the validity of any other party's Intellectual Property licensed to such first party in this Agreement.

　　(b) If a party becomes aware of any infringement, misuse or misappropriation of any Intellectual Property of the other party licensed to the first party pursuant to the terms of this Agreement, the first party shall notify the other party as soon as reasonably practicable and shall cooperate reasonably with the other party, at the other party's request and expense, to take all such action as is necessary to prevent such infringement, misuse or misappropriation and seek compensation in respect thereof.

　　(c) Nothing contained in this Agreement shall be construed as obliging any party to obtain, maintain or enforce Intellectual Property licensed to the other party.

　　(d) Nothing contained in this Agreement shall be construed as granting to any party, by implication, estoppel or otherwise, any licence or other right under any Intellectual Property, except for those rights expressly granted in this Agreement.

　　6. OTHER LIMITATIONS ON OWNERSHIP AND LICENCES

　　6.1 Prior Obligations

　　All rights in or to Intellectual Property granted by any party by assignment, licence or otherwise, are subject to any rights granted to any Third Party in respect of such Intellectual Property in force as at the date of this Agreement.

　　6.2 Third Party Intellectual Property

　　Each party acknowledges that, in order to exercise any rights granted in this Agreement, it may need to seek a licence of or otherwise obtain rights to use Intellectual Property owned by a Third Party. Such licences or other rights shall be at such party's sole cost and expense and the party obtaining such licences or other permissions shall be solely responsible for observing and complying with the terms and conditions under which such Intellectual Property is licensed or right is otherwise obtained from the relevant Third Party.

　　7. WARRANTIES

　　7.1 No Conflict in Intellectual Property

　　Each party warrants to the others that, to the best of its knowledge, it owns, or otherwise has all necessary rights in and to the Intellectual Property to assign ownership thereof or to grant the rights and licences provided for in this Agreement.

　　7.2 Disclaimer

　　The warranties contained in this Section 7 are in lieu of all other warranties, express or implied, whether arising by course of dealing or performance, custom, trade usage or otherwise, including but not limited to, implied warranties of merchantability, title and fitness for a particular purpose or warranties against infringement. Without limiting the foregoing, each party expressly disclaims any express or implied warranty or representation (i) that the exercise or other exploitation of any Intellectual Property assigned or licensed by it in this Agreement shall be free from infringement of any Third Party rights and (ii) of merchantability or fitness for a particular purpose. Except for the warranties expressly set out in this Section 7 each of the parties acknowledges and agrees that it has relied on no other representations or warranties in entering into this Agreement.

　　8. LIMITATION OF LIABILITY

　　Except in the case of any breach by any party as licensee of the limitations and restrictions on the rights granted to it by the licensor, no party be entitled to recover from any other party any incidental, consequential, indirect, special or punitive damages (including, without limitation, damages for loss of business, loss of profits or loss of use), whether based on contract, tort (including, without limitation, negligence), or any other cause of action relating to Intellectual Property assigned or licensed pursuant to the terms of this Agreement or Confidential Information, or otherwise relating to this Agreement, even if the defaulting party has been informed of or should have known of the possibility of the non-defaulting party sustaining such damages.

　　9. CONFIDENTIAL INFORMATION

　　9.1 Restrictions

　　The Confidential Information of the disclosing party may be used by the receiving party only for the performance of its obligations and the exercise of its rights pursuant to this Agreement and may only be disclosed to those employees, subcontractors or agents of the receiving party who have a need to know in order so to perform or exercise. Except and to the extent set forth in Section 9.2, the receiving party may not disclose Confidential Information of the disclosing party to any other person, entity or the public without the prior written consent of the disclosing party; provided, however, that such Confidential Information may be disclosed by the receiving party without the necessity of prior written consent to the receiving party's employees, subcontractors or consultants who require access to such Confidential Information to perform the receiving party's obligations or to exercise its rights pursuant to this Agreement; provided, however, such persons have entered into written agreements which contain obligations of nondisclosure and non-use no less restrictive than set forth in this Section 9.1, which agreements shall be enforceable by the disclosing party.

　　9.2 Compliance with Governmental, Judicial Requirements

　　If a receiving party receives a request to disclose any Confidential Information of the disclosing party (whether pursuant to a valid and effective subpoena, an order issued by a court or other governmental authority of competent jurisdiction or otherwise) on advice of legal counsel that disclosure is required under applicable law, the receiving party agrees that, prior to disclosing any Confidential Information of the disclosing party, it shall (i) notify the disclosing party of the existence and terms of such request or advice, (ii) cooperate with the disclosing party in taking legally available steps to resist or narrow any such request or to otherwise eliminate the need for such disclosure at the disclosing party's sole expense, if requested to do so by the disclosing party, and (iii) if disclosure is required, it shall be the obligation of the disclosing party to use its best efforts to obtain a protective order or other reliable assurance that confidential treatment shall be afforded to such portion of the Confidential Information of the disclosing party as is required to be disclosed.

　　9.3 Continuing Obligation

　　The obligation of nondisclosure and non-use with respect to Confidential Information of the disclosing party shall survive and continue for a period of five (5) years after the date of this Agreement; provided, however, that the obligations of non-disclosure and non-use shall continue in perpetuity for software in any form.

　　10. DISPUTE RESOLUTION

　　10.1 General

　　Any controversy or claim arising out of or relating to this Agreement, or any alleged breach hereof, shall be settled first, by good faith efforts of the parties to reach mutual agreement as set forth below.

　　10.2 Initial Resolution

　　Any party which wishes to commence the dispute resolution process shall send written notice to the other party with a summary of the matters in dispute and a request to commence such process. Each party to such dispute shall appoint a representative who shall have the authority to take all such action as is necessary to resolve the dispute.

　　Discussions and correspondence between the representatives for the purposes of attempting to resolve such disputes shall be treated as Confidential Information.

　　10.3 Injunctive Relief

　　The foregoing notwithstanding, each party shall have the right to seek injunctive relief in an applicable court of law pending resolution of the dispute in accordance with the foregoing.

　　11. NOTICE

　　11.1 Any notice required or authorised to be given under, or in connection with, this Agreement by either party to the other shall be in writing in the English language.

　　11.2 Any such notice shall be sent to the recipient at the address set out in Section 11.4, or as otherwise directed by the recipient pursuant to Section 11.5. Notices may be delivered by hand or sent by registered post, courier or by facsimile.

　　11.3 If delivered by hand or sent by courier, notice will be deemed to have been given on the date of delivery at the recipient’s address. If sent by facsimile, notice will be deemed to have been given on the date of despatch, subject to confirmation of uninterrupted transmission by a transmission report provided that any notice sent by facsimile after 5:30 p.m. (local time at the recipient’s address) on any business day or at any time on a Saturday, Sunday or public holiday (in the jurisdiction where the recipient has its address) shall be deemed to have been given at 9:00 a.m. on the next following business day. If sent by registered post, notice will be deemed to have been given two (2) business days after posting if sent from The People’s Republic of China to an address within The People’s Republic of China or seven (7) business days after posting if sent from overseas to an address within The People’s Republic of China or vice versa.

　　11.4 The parties’ addresses and other details for the purposes of this Clause 11 are, subject to Clause 11.5, as follows:

　　PARENT:

　　?[Insert Address]

　　Fax Number: ?[Insert Fax Number]

　　For the attention of ?

　　SUBSIDIARY:

　　?[Insert Address]

　　Fax Number: ?[Insert Fax Number]

　　For the attention of ?

　　11.5 Either party may notify the other of any change of its address, facsimile number or the person for whose attention any notice should be marked, provided that such notification shall not have effect earlier than two (2) business days after the date on which it is deemed given pursuant to this Clause 11.

　　12. COMPLIANCE

　　12.1 Subsidiary and Parent shall each comply with the provisions of all applicable laws, ordinances, regulations and codes in fulfilment of their obligations under this Agreement.

　　12.2 Each party must do anything including without limitation execute any document or complete any necessary filing or registration with any government authority that the other party may reasonably require to give full effect to this Agreement.

　　13. ASSIGNMENT

　　13.1 This Agreement will not be assigned by either party to any Third Party without the written consent of the other party, and any purported assignment prohibited by this provision shall be null and void; except either party may assign this Agreement, without such consent, to an (i) Subsidiary or (ii) an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganisation, acquisition, sale or otherwise. The terms and conditions of this Agreement shall be binding on and inure to the benefit of the permitted successors and assigns of the Parties.

　　14. WAIVER

　　14.1 Failure to enforce any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions, or of any other terms or conditions.

　　15. SEVERABILITY

　　15.1 Should any provision of this Agreement be held to be illegal, invalid or unenforceable under the laws of any particular jurisdiction, such provision shall be severed from this Agreement, the legality, validity and enforceability of the remaining provisions of this Agreement in such jurisdiction shall remain unaffected and the legality, validity and enforceability of all provisions of this Agreement in any other jurisdiction shall not be affected.

　　16. NO UNREASONABLE DELAY OR WITHHOLDING

　　16.1 Where agreement, approval, acceptance, consent or similar action by Parent or Subsidiary is required, such action shall not be unreasonably delayed or withheld.

　　17. FORCE MAJEURE

　　17.1 Neither party to this Agreement (hereinafter in this Clause 17 referred to as the “affected party”) shall be deemed to be in breach of this Agreement or otherwise liable to the other as a result of any delay or failure in the performance of its obligations if and to the extent that such delay or failure is caused by any force majeure and the time for performance of the relevant obligation(s) shall be extended accordingly. For the purposes of this clause, “force majeure” shall mean any event or circumstances which is or are beyond the reasonable control of the affected party including, without limitation, any flood, earthquake, storm, typhoon, subsidence, epidemic or other natural disaster or calamity, any war or threat thereof, terrorist action, riot, invasion, civil disorder, insurrection, any action or failure to act on the part of any governmental authority in any jurisdiction, any trade embargo, industrial action, strike or lockout, any shortage or absence of raw materials, labour or components, any destruction, damage or malfunction of or to any factory, equipment, plant or materials and any breach of contract, default or insolvency by or of any Third Party including, without limitation, any sub-contractor, employee or officer of such Third Party.

　　17.2 The affected party shall immediately notify the other party of the nature, extent and possible duration of the event or circumstances constituting the force majeure, use all reasonable endeavours to reduce the effect of such event or circumstances on the performance of its obligations and, forthwith after cessation of such event or circumstances, notify the other party thereof and resume full performance of its obligations.

　　17.3 If any event or circumstances constituting the force majeure delays the performance by the affected party of its obligations for a continuous period of not less than [six (6)] months, the other party shall be entitled to give notice to the affected party to terminate this Agreement. Any such notice, which shall be irrevocable, shall specify the date on which such termination is to have effect, not being less than [fourteen (14)] days after the date on which such notice is deemed to be given.

　　18. AMENDMENT

　　18.1 No amendment or variation of this Agreement shall be effective unless made in writing and signed by the parties.

　　19. ENTIRE AGREEMENT

　　19.1 The parties acknowledge that this Agreement, together with any documents referred to in this Agreement, constitutes the entire agreement between them relating to its subject matter and that this Agreement replaces and supersedes any previous oral or written arrangements, agreements, drafts, warranties, representations or understandings made or existing between them with respect to such subject matter.

　　19.2 Each of the parties acknowledges to the other that it has not been induced to enter into this Agreement by any warranty, representation or statement other than as set out in this Agreement and agrees that it shall not be entitled to any remedy against the other in relation to any such other warranty, representation or statement except in the case of any fraud or similar misconduct.

　　20. GOVERNING LAW

　　20.1 This Agreement shall be governed by, and construed in all respects in accordance with, the laws of The People’s Republic of China.

　　20.2 In relation to any proceedings to enforce, or arising out of or in respect of, this Agreement, both parties irrevocably and unconditionally agree to submit to the non-exclusive jurisdiction of the courts of The People’s Republic of China and waive any objection to proceedings in the courts of The People’s Republic of China on the grounds of forum non conveniens or venue.

　　AS WITNESS the hands of duly authorised representatives of the parties the day and year first above written.

　　SIGNED by

　　For and on behalf of

　　?

　　SIGNED by

　　For and on behalf of




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