TRADEMARK PURCHASE AND ASSIGNMENT AGREEMENT

This TRADEMARK PURCHASE AND ASSIGNMENT AGREEMENT OF ZOOM MARKS IN THE PRC (“Agreement”) is made as of this 18th day of October, 2010 (“Effective Date”) by and between ZOOM TELEPHONICS, INC., a corporation organized under the laws of  Delaware, USA (“Assignor”) and JIANGSU LEIMONE ELECTRONICS CO., LTD., a company organized under the laws of the People’s Republic of China that is a wholly-owned subsidiary of Zoom Technologies, Inc. (“Assignee”). Each of the parties to this Agreement is individually referred to herein as a “Party” and collectively as the “Parties.”

WHEREAS, Assignor is the owner of certain rights, title and interest in and to the ZOOM Marks in the PRC as defined hereafter;

 

WHEREAS, on January 28, 2009, Assignor entered a License Agreement (the “Original License”) with Tianjin Tong Guang Group Digital Communication Co., Ltd., a company organized under the laws of the People’s Republic of China (“Tianjin Tong Guang ”) to grant Tianjin Tong Guang a limited right, license and privilege to use the ZOOM Marks (“Tianjin Tong Guang”License”);

 

WHEREAS, on October 18, 2010, Tianjin Tong Guang, Assignor and Assignee entered into a Binding Letter Agreement (“Binding Letter Agreement”) in which Tianjin Tong Guang agreed to the termination of the Tianjin Tong Guang License and relinquishment of all rights to the Zoom Marks thereunder;

 

WHEREAS, the Binding Letter Agreement further provided that the Assignor would assign its trademark rights in the ZOOM Marks in the PRC to the Assignee, and the Assignee would accept such assignment on the terms set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants, mutual promises and agreements set forth herein and in the Binding Letter Agreement, and intending to be legally bound hereby, the Parties agree as follows.

 

In this Agreement unless the context otherwise requires:-

 

 

 2.1 The Assignor hereby irrevocably assigns, grants and transfers to the Assignee, all of the Assignor’s right, title, and interest in and to the ZOOM Marks in the PRC including all common law rights, and any trademark registrations and applications, along with the goodwill of the business symbolized therewith.

2.2  The Assignor hereby authorizes the Assignee and/or its designated agent to record this Assignment with the trademark office of the PRC. The Assignor shall execute any and all additional instruments, writings and other documents and take any additional steps as may be necessary or proper as determined by the Assignee, at the sole expense of the Assignee, in order to effect the assignment of the ZOOM Marks, and shall otherwise cooperate with the Assignee to accomplish the purpose of this Agreement.

 

 

8.2  The failure of either party to insist upon a strict performance of any of the terms or provisions of this Agreement by the other party shall not be construed as a waiver of such rights or of its right to require future performance of that term or condition.

 

8.3  If any portion of this Agreement shall be declared invalid by order, decree or judgment of a court of competent jurisdiction, this Agreement shall be construed as if such portion had not been inserted herein except when such construction would constitute a substantial deviation from the general intent and purpose of the Parties as reflected in this Agreement.

8.4  Upon execution by both parties, this Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all discussions, negotiations, agreements and past dealings, either oral or written, between or among the parties relating to the subject matter hereof. Any change, modification or amendment of this Agreement shall be in writing and signed by the Party against whom enforcement is sought.

All notices, statements, demands, requirements or other communications and documents required or permitted to be given, served or delivered to any Party under this Agreement (a “Communication”) shall be in writing in the English language and shall be either (1) delivered by hand (including, without limitation, delivery by courier) or sent by prepaid certified or registered mail (airmail in the case of all international Communications), with return receipt requested, to that Party at its address stated below, or (2) sent by electronic mail to the Person and email address identified below (and in all cases under this subparagraph (2) a copy shall also be dispatched immediately by prepaid certified or registered mail or by courier or by hand delivery to the addr essee), or to such other Person and address as that Party may from time-to-time have notified the other Party as being its representative Person and address for the purposes of this Agreement to the exclusion of all previously applicable Persons and/or addresses.  A Communication once given, served or delivered shall be irrevocable without the consent of the recipient which may be given or withheld in its absolute discretion.  A Communication shall be deemed to have been given served or delivered:

 

(i)    if delivered by hand, upon delivery (including, without limitation, delivery by courier) on the date of the delivery (and in the case of delivery by courier as evidenced by the signed receipt obtained by the courier service upon delivery);

 

(ii)   if sent by mail, upon proof of receipt or refusal; and

 

(iii)  if sent by electronic mail, the date of transmission if during business hours in the place of its receipt or, if it is not, the next succeeding Business Day in the place of its receipt, subject to its having in fact been received; if the electronic mail is not received, then the date of receipt of the paper copy transmitted to the recipient shall control.