SOFTWARE LICENSE AGREEMENT
Exhibit 4.97
This Software License Agreement (the “Agreement”) is entered into as of January 12, 2006 between the following two parties in Beijing.
| The Licensor: | Hurray! Times Communications (Beijing) Ltd. | |
| Legal Address: | Xx. X00, Xxxxx X, Xxxx Xxxx Xxxxx, Xx. 4 Huayuan Road, Haidian District, Beijing | |
| The Licensee: | Shanghai Magma Digital Technology Co. Ltd. | |
| Legal Address: | 00X, XxxXxx Xxxxxx Xx. 000 XxxxXxx Xxxx, Xxxxxxxx Xxxxx | |
WHEREAS, the Licensor, a wholly foreign-owned enterprise registered in Beijing under the laws of the People’s Republic of China (the “PRC”), owns the copyrights of the software described in Appendix 1;
WHEREAS, the Licensee, a limited liability company registered in Beijing under the laws of the PRC, is licensed by competent governmental authorities to operate the business of value-added telecommunications services;
WHEREAS, the Licensor desires to license the rights to use the software provided under this Agreement to the Licensee in accordance with the terms and conditions set forth herein, and the Licensee wishes to accept the license in accordance with the terms and conditions set forth herein;
NOW THEREFORE, the parties agree as follows:
| 1. | Grant of License |
| 1.1 | Software License |
| According to the terms and conditions hereinafter set forth, the Licensor agrees to grant a license to the Licensee to use the software provided under this Agreement (as listed in Appendix 1, hereinafter the “Software”), and the Licensee accepts the license to use the Software. The license hereunder is non-exclusive. |
| 1.2 | Territory |
| 1.2.1 | The use of the Software granted by the Licensor to the Licensee extends only to the scope of the business operated by Licensee relating to the value-added telecommunications services operated by the Licensee. The Licensee agrees that it will not otherwise directly or indirectly use, or authorize others to use the Software, unless this Agreement provides to the contrary. |
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| 1.2.2 | The license hereby granted extends only to the PRC. The Licensee agrees that it will not directly or indirectly use, or authorize others to use the Software in any other area. |
| 2. | Terms of Payment |
| The Licensee agrees to pay to the Licensor a license fee and the details, calculation method and form of payment of such license fee are set forth in Appendix 2. |
| 3. | Goodwill |
| The Licensee recognizes the value of the goodwill associated with the Software, and acknowledges that the Software and all intellectual property rights therein and goodwill pertaining thereto shall be solely owned by the Licensor, and that the Software has a secondary meaning in the mind of the public. |
| 4. | Confidentiality |
| 4.1 | The Licensee shall protect and maintain the confidentiality of any and all confidential data and information acknowledged or received by the Licensee by accepting licensing of the Software from the Licensor (collectively the “Confidential Information”). Upon termination of this Agreement, the Licensee shall, at the Licensor’s request, return any and all documents, information or software containing any such Confidential Information to the Licensor or destroy it and delete the Confidential Information from any electronic devices and cease to use them. The Licensee shall not disclose, grant or transfer any Confidential Information to any third party without the Licensor’s prior written consent. |
| 4.2 | Section 4.1 shall survive any amendment, expiration or termination of this Agreement. |
| 5. | Representations and Warranties |
| 5.1 | The Licensor represents and warrants as follows: |
| 5.1.1 | the Licensor is a company duly registered and validly existing under the laws of the PRC; |
| 5.1.2 | the Licensor, subject to its business scope, has full right, power, authority and capacity and all necessary consents and approvals of any other third party and government authority to execute and perform this Agreement, which shall not be against any enforceable and effective laws or contracts; |
| 5.1.3 | the Agreement will constitute a legal, valid and binding agreement of the Licensor and will be enforceable against the Licensor in accordance with its terms upon its execution; |
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| 5.1.4 | the Licensor has the copyright and ownership of the Software. |
| 5.2 | The Licensee represents and warrants as follows: |
| 5.2.1 | the Licensee is a company duly registered and validly existing under the laws of the PRC and is licensed by the relevant PRC government authority to engage in the business of providing information services in respect of value-added telecommunications services of the second category; |
| 5.2.2 | the Licensee has executed and performed this Agreement within its corporate authority and business scope, and it has obtained all necessary consents and approvals of any other third party and government authority to execute and perform this Agreement, which shall not be against any enforceable and effective laws or contracts. |
| 5.2.3 | the Agreement will constitute a legal, valid and binding agreement of the Licensee and will be enforceable against the Licensee in accordance with its terms upon its execution. |
| 6. | The Licensor’s Rights of Licensing and Protection of the Licensor’s Rights |
| 6.1 | The Licensee agrees that it will not during the term of this Agreement, or thereafter, object to the license right or any other rights of the Licensor in and to the Software or object to the validity of this license or otherwise take or fail to take any action that impairs such rights or license. |
| 6.2 | The Licensee agrees to assist the Licensor to the extent necessary in the procurement of any protection or to protect any of the Licensor’s rights to the Software. In the event any third party lodges a claim concerning the Software, the Licensor, if it so desires may commence or prosecute any claims or suits in its own name or in the name of the Licensee or join the Licensee as a party thereto. In the event any third party infringes upon the Software, the Licensee shall notify the Licensor in writing of any infringements or imitations by others of the Software which may come to the Licensee’s attention, and the Licensor shall have the sole right to determine whether or not any action shall be taken on account of any such infringements. |
| 6.3 | The Licensee further agrees to use the Software only in accordance with this Agreement and shall not use the Software in any way which, in the opinion of the Licensor, is deceptive, misleading or in any way damages the Software or the reputation of the Licensor. |
| 7. | Quality |
| The Licensee shall use its reasonable best efforts to improve the quality of its business, in order to protect and enhance the reputation of the Software. |
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| 8. | Promotion |
| In all cases where the Licensee uses promotional materials relevant to the Software, the production cost of such materials shall be borne by the Licensee. All copyrights or other intellectual property rights of such materials concerning the Software shall be the sole and exclusive property of the Licensor whether developed by the Licensor or the Licensee. The Licensee agrees not to promote or advertise any of the Software on radio, television, newspapers, magazines, the Internet or other media without the prior written consent of the Licensor. |
| 9. | Effective Date and Term |
| 9.1 | This Agreement has been duly executed as effective on the date first set forth above. The term of this Agreement is ten (10) years unless earlier terminated as set forth below. However, the Licensor and the Licensee shall review this Agreement every 3 months to determine whether any amendment to the Agreement is necessary after considering the circumstances. |
| 9.2 | This Agreement may be extended for one year if the Licensor gives the Licensee its written consent of the extension of this Agreement before the expiration of this Agreement. However, the Licensee has no right to compel such extension. |
| 10. | Record Filing |
| Within three (3) months after the execution of the Agreement, the Licensor shall make a record filing of a copy of this Agreement to the relevant software administration authority of China. |
| 11. | Termination |
| 11.1 | Termination or Expiration. |
| This Agreement shall expire on the earlier of the termination date or the date when the Licensor’s right of licensing the Software under this Agreement is terminated, unless this Agreement is extended as set forth above. |
| 11.2 | Early Termination |
| Without prejudice to any legal or other rights or remedies of the party requesting termination of this Agreement, any party has the right to terminate this Agreement immediately by written notice to the other party in the event the other party materially breaches this Agreement including, without limitation, Sections 6.1, 6.2 and 6.3 of this Agreement and fails to rectify such breach within 30 days from the date it receives written notice of its breach from the non-breaching party. |
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| During the term of this Agreement, the Licensor may terminate this Agreement at any time by written notice to the Licensee, and the termination shall be effective 30 days after the termination notice is delivered. |
| 11.3 | Survival. |
| Articles 3, 4, 6, 15 and 16 shall survive after the termination of this Agreement. |
| 12. | Force Majeure |
| 12.1 | Force Majeure shall refer to any event that is beyond the party’s reasonable control and cannot be prevented with reasonable care, including acts of governments, acts of nature, fire, explosion, typhoon, flood, earthquake, tide, lightning or war. However, any shortage of credit, capital or finance shall not be regarded as an event beyond the control of a party. The party affected by Force Majeure shall notify the other party about the release without delay. |
| 12.2 | In the event that the affected party is delayed in or prevented from performing its obligations under this Agreement by Force Majeure, only within the scope of such delay or prevention, the affected party will not be responsible for any damage by reason of such a failure or delay of performance. The affected party shall take appropriate means to minimize or remove the effects of Force Majeure and attempt to resume performance of the obligations delayed or prevented by the event of Force Majeure. After the event of Force Majeure is removed, both parties agree to resume performance of this Agreement with their best efforts. |
| 13. | Notices |
| Notices or other communications required to be given by any party pursuant to this Agreement shall be written in English and Chinese and shall be deemed to be duly given when it is delivered personally or sent by registered mail or postage prepaid mail or by a recognized courier service or by facsimile transmission to the address of the relevant party or parties set forth below. |
| Licensor: | Hurray! Times Communications (Beijing) Ltd. | |
| Address: | Xx. X00, Xxxxx X, Xxxx Xxxx Xxxxx, Xx. 4 Huayuan Road, Haidian District, Beijing | |
| Licensee: | Shanghai Magma Digital Technology Co. Ltd. | |
| Address: | 00X, XxxXxx Xxxxxx Xx. 000 XxxxXxx Xxxx, Xxxxxxxx Xxxxx | |
| 14. | Assignment or Sublicense |
| This Agreement and all the rights and obligations licensed by the Licensor to the Licensee shall not be assigned, leased, pledged, sublicensed, or the economic benefits of the license granted hereby or any portion of the rights included therein otherwise transferred to any third party without the prior written consent of the Licensor. |
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| 15. | Settlement of Disputes |
| The parties shall strive to settle any dispute arising from the interpretation or performance in connection with this Agreement through friendly consultation. In case no settlement can be reached through consultation within 30 days after one party requests for consultation, each party can submit such dispute to the China International Economic and Trade Arbitration Commission (the “CIETAC”). The arbitration shall follow the then current rules of CIETAC, and the arbitration proceedings shall be conducted in Chinese and shall take place in Beijing. The arbitration award shall be final and binding upon the parties and shall be enforceable in accordance with its terms. |
| 16. | Applicable Law |
| The validity, interpretation and implementation of this Agreement shall be governed by the laws of the PRC. |
| 17. | Amendment and Supplement to the Agreement |
| Any amendment and supplement of this Agreement shall be effective if in writing and signed by both parties. The amendment and supplement duly executed by both parties shall form a part of this Agreement and shall have the same legal effect as this Agreement. |
| 18. | Severability |
| Any provision of this Agreement which is invalid or unenforceable due to conflict of relevant laws in a jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in that jurisdiction, without affecting in any way the legal effect of remaining provisions hereof. |
| 19. | Appendices |
| The Appendices referred to in this Agreement are an integral part of this Agreement and have the same legal effect as this Agreement. |
| 20. | Others |
| This Agreement shall be executed in Chinese in duplicate. |
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed on their behalf by a duly authorized representative as of the date first set forth above.
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| Software License Agreement | ||
| (No Text on This Page) | ||
| By: |
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| Licensor : Hurray! Times Communications (Beijing) Ltd. | ||
| Representative: | ||
| By: |
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| Licensee: Shanghai Magma Digital Technology Co. Ltd. | ||
| Representative: | ||
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Appendix 1
List of the Software
1. MMS-VASPro V1.0
2. M—Box
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License Fee Calculation Method and Payment Method
The Licensee shall pay a License fee of RMB 10,000 yuan per year to the Licensor. In its sole decision, the Licensor may decide to exempt the Licensee’s license fee.
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