Exhibit 4.145
WEBSITE DEVELOPMENT AGREEMENT
This Website Development Agreement (the "Agreement") is entered into this
1st day of January, 2007 (the "Effective Date") by and between:
SHANGHAI XXXXXX NETWORKING CO., LTD. a corporation duly organized and
validly existing under the laws of the People's Republic of China (the
"PRC") and having its principal place of business at Xx.0 Xxxxxx Xxxxxxxx,
Xx. 000 Xxxx Xxxx, Xxxxxx New Area, Shanghai 201203, the PRC ("Xxxxxx
Networking"); and
SHENGQU INFORMATION TECHNOLOGY (SHANGHAI) CO., LTD., a corporation duly
organized and validly existing under the laws of the PRC and having its
principal place of business at Xx.0 Xxxxxx Xxxxxxxx, Xx. 000 Xxxx Xxxx,
Xxxxxx New Area, Shanghai 201203, the PRC ("Shengqu").
Xxxxxx Networking and Shengqu shall be referred to individually as a
"Party" and collectively as the "Parties".
RECITALS
WHEREAS, Shengqu has the sufficient ability to plan and design website
content and provide development website for Rainbow Service Online;
WHEREAS, Xxxxxx Networking desires to cooperate with Shengqu.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, the Parties
hereto agree as follows:
1 DEFINITION
As used in this Agreement, the following terms shall have the meanings set forth
below:
1.1 "Service Fees" shall mean the fees paid by Xxxxxx Networking to Shengqu in
consideration of the Rainbow Service website development services provided
by Shengqu pursuant to this Agreement.
Each of the following terms shall have the meanings ascribed to them in the
Sections set forth opposite such terms:
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"Agreement" Preamble
"Confidential Information" Section 9.1
"Effective Date" Preamble
"Force Majeure Event" Section 10.1
2 SCOPE OF COOPERATION
2.1 Shengqu will make use of it's ability to plan, design and develop website
for Xxxxxx Networking.
2.2 Xxxxxx Networking shall provide the information, according to which the
development content will be prepared, twenty (20) days before the date upon
which Shengqu will begin preparing the development content. The development
content shall be made in strict accordance with Xxxxxx Networking's
requirements.
2.3 Shengqu shall develop the website in accordance with Xxxxxx Networking's
requirements, and provide Xxxxxx Networking with a software or hard copy
version of the materials.
2.4 Xxxxxx Networking shall pay the Service Fees set forth in Section 6.
3 TIMETABLE.
Shengqu shall provide Xxxxxx Networking with development services, from
time to time, upon the receipt of a service request from Xxxxxx Networking.
4 OBLIGATIONS AND RIGHTS OF SHENGQU.
4.1 Shengqu shall have the right to review the information provided by Xxxxxx
Networking. In the event that the content does not comply with the laws or
regulations of the PRC, Shengqu shall have the right to refuse to provide
Xxxxxx Networking its services.
4.2 Shengqu shall have the right to charge the Service Fees set forth in this
Agreement.
4.3 Shengqu shall ensure that development is finished on time and are in
accordance with Xxxxxx Networking's requirements, and in the event that the
development does not satisfy such requirements, Shengqu shall compensate
Xxxxxx Networking.
5 OBLIGATIONS AND RIGHTS OF XXXXXX NETWORKING
5.1 Xxxxxx Networking shall determine the requirements according to which the
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website shall be designed and developed, and such requirements shall be
provided to Shengqu on time. The requirements shall comply with the laws
and regulations of the PRC.
5.2 Xxxxxx Networking shall pay the Service Fees as set forth in this
Agreement.
5.3 Xxxxxx Networking shall own the copyrights and other relevant rights of the
information it provides Shengqu under this Agreement and own the copyright
of the Rainbow Service Website.
6 PRICE AND PAYMENT
6.1 The Service Fees shall be determined according to the information provided
in the service request forms submitted to Shengqu by Xxxxxx Networking from
time to time.
6.2 Methods of payment:
6.2.1 Xxxxxx Networking shall submit to Shengqu a service request form when it
is in need of Shengqu's services. At the end of each month, Shengqu shall
provide Xxxxxx Networking with an invoice completed according to the
service request form. Xxxxxx Networking shall pay the Service Fees within
ten (10) business days of receiving the invoice.
6.2.2 The Service Fees shall be paid by check or through a bank transaction.
6.3 Taxes obligations arising in connection with this Agreement shall be borne
by the Parties in accordance with the relevant laws and regulations of the
PRC.
6.4 The method for calculating the Service Fees is set forth below: Service
Fees = number of the service requests x RMB100,000
7 REPRESENTATIONS AND GUARANTEES OF SHENGQU.
7.1 Shengqu has the ability to plan, design and develop website, and agrees to
provide Xxxxxx Networking with its services.
7.2 Shengqu has all requisite power and authority to execute this Agreement.
7.3 Shengqu shall carry out the obligations of this Agreement in accordance
with the relevant laws and regulations of the PRC.
7.4 The execution of this Agreement does not and will not violate any agreement
existing between Shengqu and any other person or entity. Shengqu shall
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indemnify all loss of Xxxxxx Networking in connection with any breach of
this section (including all reasonable costs and expenses arising from such
compensation).
8 REPRESENTATIONS AND GUARANTEES OF XXXXXX NETWORKING.
8.1 Xxxxxx Networking has all requisite power and authority to execute this
Agreement.
8.2 Xxxxxx Networking guarantees that the information, according to which the
website will be made, complies with the laws and regulations of the PRC.
9 CONFIDENTIALITY.
9.1 Any and all information, disclosed in writing and designated as
confidential or, if disclosed orally, designated as confidential at the
time of disclosure, relating in any way to actual or potential customers,
products, patents, source codes, object codes, technical data, information,
inventions, procedures, methods, designs, strategies, drawings, samples,
specifications, plans, assets, liabilities, costs, revenues, profits,
organization, employees, agents, distributors or other business affairs in
general shall be treated as confidential information ("Confidential
Information").
9.2 Neither Party shall use or disclose any Confidential Information of the
other Party to any persons or entities without prior written approval,
except in the event that the confidential information of the other Party is
used for the sole purpose of carrying out the obligations under this
Agreement.
9.3 Each Party shall keep the information concerning the transactions
contemplated by this Agreement in strict confidence. Neither Party shall
disclose the information concerning the transactions contemplated by this
Agreement to any third party without the other Party's prior written
approval. However, the receiving Party shall be permitted to disclose the
confidential information under any laws, rules or regulation of stock
exchange or provide any documents, reports or disclose in the method of a
press release or by other ways to investors.
9.4 The term of this confidentiality is the same as this Agreement.
10 FORCE MAJEURE
10.1 Force Majeure shall mean severe natural disasters such as typhoon, flood,
storm, earthquake, fire, wars, whether announced or not, riots, civil
commotion and/or any other cause beyond the reasonable control of the Party
whose performance is affected ("Force Majeure Event").
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10.2 The time for performance or cure shall be extended for a period equal to
the duration of the Force Majeure Event, however the financial terms of
this Agreement shall not be adjusted.
10.3 The Party whose performance is affected by such a cause shall promptly
notify the other party hereto of such impossibility of performance, and
provide the other Party with a written certificate within five days after
the Force Majeure Event happens, and shall take affirmative and effective
steps to mitigate the effects of the Force Majeure Event. Once the effects
of the Force Majeure Event disappears, the Party whose performance is
affected shall provide the other Party with a prompt notice.
10.4 In the event that the Party, whose performance is affected, expects that
the Force Majeure Event will exceeds 30 days, the Parties shall negotiate
the performance of the Agreement in good faith.
11 LIABILITY OF BREACH.
11.1 Special Liability of Breach. During the performance of the Agreement, in
the event Shengqu is unable to complete the media content in accordance
with Xxxxxx Networking's requirements, Xxxxxx Networking shall have the
right to compensation and the right to require Shengqu to continue the
perform its obligations. In the event Shengqu's inability is caused by a
third party, the Parties shall negotiate a satisfactory resolution. If the
breach cannot be satisfactorily resolved by the Parties through friendly
consultation, Shengqu shall refund Xxxxxx Networking an amount equal to two
times the Service Fees.
11.2 Common Liability of Breach.
(a) In case one Party (non-breaching party) declares the other Party (breaching
party) commit any things breach the Agreement and provide the certificate
of such things, and prove such things make the Agreement can't be
performed, performed entirely or delayed, then, non-breaching party has the
rights to require breaching party take on its liability of breach, and
cease performing the obligations under this Agreement in case it wouldn't
like to terminate this Agreement.
(b) The breaching Party shall take steps to mitigate the effects within 7 days
after it is informed the reality of breach, in case the breaching Party
doesn't mitigate during the 7 days, the non-breaching Party has rights
terminate the Agreement and require breaching Party to compensate all the
economic loss (including direct loss, indirect loss and all the other
expenses and costs hereunder). This Section 11.2(b) shall survive
expiration or termination of this Agreement for
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any reason.
(c) In case other sections of this Agreement provide otherwise in connection of
breach and liability of breach that are different from this Section
11.2(c), then this Section 11.2(c) doesn't apply.
12 TERMINATION
12.1 This Agreement may be terminated by the Parties by providing a joint
written notice.
12.2 One Party may terminate this Agreement upon written notice to the other
Party in the event of the occurrence of one or more of the following:
(a) One Party has expressed definitely or indicated through its action that it
will not perform material obligations of this Agreement before this
Agreement's expiration;
(b) One Party has committed a material breach of this Agreement which is
capable of remedy and fails to cure such breach within 14 days after the
breaching party receives written notice thereof from the other party;
(c) One Party experiences a bankruptcy or is unable to pay its debt.
12.3 After this Agreement is terminated:
(a) The parts have been performed will not be performed any more;
(b) Shengqu shall return the content for information making provided by Xxxxxx
Networking immediately.
13 GOVERNING LAW, FORM AND JURISDICTION.
13.1 The validity, explanation, performance and dispute resolving of this
Agreement shall be in accordance with the laws and regulations of the PRC.
13.2 In the event of any dispute, controversy of difference, the Parties hereto
shall conduct discussions and negotiations in good faith. If such dispute
can not be satisfactorily resolved by the Parties themselves whining 60
days after one Parties provides a written requirement of negotiation to the
other, the Parties hereby consent and submit disputes to the court where
Xxxxxx Networking is located.
13.3 In the event of a dispute is heard by the court, the Parties shall continue
the
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performance of the remaining parts of this Agreement.
14 MISCELLANEOUS
14.1 Assignment. No Party may assign or transfer its rights under this Agreement
to a third party without the prior written consent of the other Party.
Notwithstanding the foregoing, Shentyue shall have the right to assign this
Agreement to its Affiliate(s) by giving prior written notice to Shengqu.
Subject to the restrictions on assignment and transfers set forth herein,
this Agreement shall be binding upon and shall inure to the benefit of the
Parties and their respective successors and assigns.
14.2 Binging. This Agreement, together with the exhibits referenced and attached
hereto, shall become effective after it is executed by a duly authorized
representative, officer or agent of the Parties. This Agreement is binding
upon and inures to the benefit of the parties and their heirs, executors,
legal and personal representatives, successors and assigns, as the case may
be. All amendments to this Agreement shall be binding upon the Parties so
long as the same are in writing and executed by both Parties.
14.3 Notices. Except as otherwise expressly provided in this Agreement, all
notices sent by either Party to the other Party pursuant to or in
connection with this Agreement shall be in writing and shall be deemed to
have been sufficiently given and received for the purposes of this
Agreement if sent to the other Party at the address or facsimile number
listed below for such Party, or to such other address or facsimile number
of which either Party may so notify the other Party in writing.
14.4 Severability. If any provision of this Agreement is found to be illegal,
invalid or unenforceable, that provision shall be limited or eliminated to
the minimum extent necessary so that this Agreement shall otherwise remain
in full force and effect and enforceable.
14.5 Effectiveness. This Agreement shall become effective after the authorized
representatives of the Parties signed it, and the Agreement shall remain in
effect for a period of one (1) year thereafter. Upon the expiration of the
initial term of this Agreement, the Agreement shall be automatically
renewed provided that neither Party suggests otherwise.
14.6 Amendments. This Agreement shall not be modified or amended except by
written agreement signed by duly authorized representatives of the Parties.
Such amendment agreement shall be considered a part of this Agreement and
the Agreement shall remain in full force and effect and enforceable.
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14.7 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties have executed this Agreement through their duly
authorized representatives on the date first set forth above.
SHANGHAI XXXXXX NETWORKING CO., LTD.
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
SHENGQU INFORMATION TECHNOLOGY
(SHANGHAI) CO., LTD.
By: /s/ Chen Tianqiao
---------------------------------
Name: Chen Tianqiao
Title: Chief Executive Officer
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EXHIBIT A
DEVELOPMENT REQUEST
NAME DATE OF DELIVERY SIZE PRICE REMARK
---------- ---------------- ---- ----- ------
Note: Material requirements will be provided along with the relevant
explanations.
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