EXHIBIT 4.31
ONLINE GAME SOFTWARE SUBLICENSE AGREEMENT
This License Agreement (together with the exhibits referenced and attached
hereto, the "Agreement") is made and entered into this 1st day of September,
2005 (the "Effective Date") by and among:
SHENGQU INFORMATION TECHNOLOGY (SHANGHAI) 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
("Shengqu" or "Licensor");
SHANGHAI XXXXXX NETWORKING 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 ("Xxxxxx Networking");
NANJING XXXXXX NETWORKING CO., LTD., a corporation duly organized and
validly existing under the laws of the PRC and having its principal place
of business at Room 801, 18 F International Garden Apartment,
High-technology Area, Nanjing, the PRC ("Nanjing Xxxxxx"); and
HANGZHOU BIANFENG NETWORKING CO., LTD., a corporation duly organized and
validly existing under the laws of the PRC and having its principal place
of business at Xxxxx 00 Xxxxxxx Xxxxxxxxx, Xx 0000 Xxxxxxxx Xxxx, Xxxxxxxx,
Zhejiang, the PRC ("Bianfeng Networking").
For the purpose of this Agreement, Xxxxxx Networking, Nanjing Xxxxxx and
Bianfeng Networking shall be referred to individually as a "Licensee" and
collectively as the "Licensees". Each Licensee and the Licensor shall be
referred to individually as a "Party" and collectively as the "Parties".
RECITALS
WHEREAS, Shengqu engages in the business of developing, licensing, sourcing
and sublicensing online games;
WHEREAS, the Licensees engage in the business of operating, publishing,
distributing and selling online games;
WHEREAS, Shengqu desires to grant, and Xxxxxx Networking, Nanjing Xxxxxx
and Bianfeng Networking desire to receive, a license to operate the Game various
areas of the Territory.
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NOW, THEREFORE, in consideration of the promises and covenants contained
herein and other good and valuable consideration exchanged pursuant to the terms
hereof, and the mutual consideration, the Parties agree as set forth below.
1 DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth
below.
1.1 "Business Day" shall mean any day other than a Saturday, Sunday or a legal
holiday in the PRC.
1.2 "Central-south China" shall mean the provinces of Henan, Hunan, Hubei,
Guangdong and Hainan and the Guangxi autonomous region.
1.3 "Client Software" shall mean that portion of the software to be distributed
to End Users for installation on personal computers or other devices and
designed to enable such end users to remotely access, and interact with,
the Server Software via the Internet.
1.4 "East China" shall mean the provinces of Jiangsu, Zhejiang, Anhui, Fujian,
Jiangxi and Shandong and Shanghai Municipality.
1.5 "End Users" shall mean individual users (and not entities or businesses or
Internet Cafes) located in the Territory who are offered or provided access
to the Game.
1.6 "Game" shall mean the online casual computer game (both Client Software and
Server Software) known as "3G Hero" (or variations of the foregoing), which
was developed by Shengqu.
1.7 "Intellectual Property" shall mean inventions, articles of manufacture,
compositions of matter, methods, apparatus, improvements thereof, ideas,
conceptions, formulas, data, programs, other works of authorship,
derivative works, know-how, improvements, discoveries, developments,
designs and techniques, technical or business information, names or marks,
characters, other proprietary information, or any other intellectual
property anywhere in the world, whether tangible or intangible.
1.8 "Intellectual Property Rights" shall mean all proprietary and intellectual
property rights worldwide, including without limitation any and all utility
patents, design patents, industrial registrations, copyrights, trademarks,
trade secrets, moral rights, character rights, sui generis protection,
rights of
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publication, rights of privacy, trade dress, state law right, and any other
worldwide intangible or tangible right anywhere in the world that is
related to Intellectual Property (including without limitation any pending
registrations, applications, divisionals, continuations, derivatives,
reissues, and reexaminations associated therewith).
1.9 "Licensed Marks" shall mean the Localized Game Marks and such other
trademarks expressly authorized in writing by Shengqu to be used by the
Licensees.
1.10 "Localized Game Marks" shall mean the trademarks registered in Mandarin
Chinese for the Game.
1.11 "North China" shall mean Beijing and Tianjin Municipalities, Hebei and
Shanxi [CHINESE CHARACTERS] provinces and the Inner Mongolia autonomous
region.
1.12 "North-east China" shall mean the territory of Liaoning, Jilin and
Heilongjiang Provinces.
1.13 "North-west China" shall mean the provinces of Shanxi [CHINESE CHARACTERS],
Gansu and Qinghai, and the Ningxia and Xinjiang autonomous regions.
1.14 "Online Services" shall mean the underlying and supporting online game
services (including, but not limited, to Web portals, customer support,
billing, quality assurance, technical support, live operations, network
operations, online customer relations, account support, and other personnel
and/or elements) necessary to operate the Server Software and the game data
centers so as to permit online Internet access and play by End Users using
the Client Software.
1.15 "Server Software" shall mean that portion of the Game that is designed to
allow multiple end users that have the Client Software installed and/or
running on remote personal computers or devices to interact with each other
online via the Internet.
1.16 "South-west China" shall mean the provinces of Sichuan, Guizhou and Yunnan,
Chongqin Municipality and the Tibet autonomous region.
1.17 "Territory" shall mean Ease China, North-east China, North China,
North-west China, South-west China and Central-south China.
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
"Distribution Rights" Section 2.1
"Effective Date" Preamble
"Party" Preamble
"PRC" Preamble
"Term" Section 4.1
2 LICENSE GRANT
2.1 Grant. During the Term of this Agreement, Shengqu hereby grants to (i)
Xxxxxx Networking a license for North China, North-west China and
South-west China, (ii) Nanjing Xxxxxx a license for Central-south China and
East China, and (iii) Bianfeng Networking a license for North-east China
(the "Distribution Rights") to:
(a) provide the Online Service to End Users;
(b) promote, market, operate, maintain, offer and distribute the software
for the Localized Game in the Territory; and in connection therewith,
copy and use textual, sound and/or graphical content pertaining to the
Game, including the characters, stories and sound recordings, in
marketing collateral;
(c) install, copy and use the Game for purposes of operating, maintaining,
and distributing the Online Services in the Territory;
(d) reproduce and distribute (either directly or indirectly) the Client
Software of the Game (in object code form only) to End Users located
in the Territory in connection with the Online Services; and
(e) copy, use and display the Licensed Marks in the Territory in
connection with the promotion, marketing, support, offering, copying,
distribution and sublicensing of the Game.
3 LICENSE FEES AND ROYALTY FEES
3.1 License Fees.
(i) Xxxxxx Networking shall pay to Shengqu the sublicense fees of RMB
400,000;
(ii) Nanjing Xxxxxx shall pay to Shengqu the sublicense fees of RMB
1,400,000; and
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(iii) Bianfeng Networking shall pay to Shengqu the sublicense fees of RMB
200,000.
3.2 Royalty Fees. In further consideration of the distribution rights and
related rights granted by Shengqu to the Licensees hereunder, the Licensees
shall pay to Shengqu a royalty fee equal to 35% of revenues on a monthly
basis.
3.3 Royalty Statements. The Licensees shall provide Shengqu with a statement
within ten (10) Business Days of the end of each calendar month during the
Term of this Agreement.
3.4 Royalty Payments. All payments of royalty fees shall be computed by the
Licensees on a monthly basis, and shall be due and payable by wire transfer
to a bank account designated by Shengqu by the 30th day of the month after
the month in which Shengqu confirms the royalty statement under Clause 3.3.
3.5 Shengqu shall provide the Licensees with a receipt for a monthly royalty
payment by the 15th day after the Licensees makes such monthly royalty
payment.
4 TERMS AND TERMINATION
4.1 Term. The initial term of this Agreement shall commence on the Effective
Date and shall expire on the first anniversary of the Effective Date,
subject to extension or renewal by mutual written agreement of the Parties
hereto or earlier termination in accordance with the terms and conditions
of this Agreement. The initial term and all extensions and renewals thereof
shall collectively be referred to as the "Term."
4.2 Termination.
(a) Mutual Termination Rights. Each Party may terminate this Agreement, without
penalty or liability to such Party, immediately upon written notice thereof
(i) in the event of the commencement of any liquidation, dissolution,
voluntary or involuntary bankruptcy, insolvency, receivership or similar
proceeding of the other Party; (ii) if the other Party is unable to pay its
debts as they become due, has explicitly or implicitly suspended payment of
its debts as they become due (except debts contested in good faith) or if
the creditors of
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the other Party have taken over its management or a substantial part of its
assets.
(b) Shengqu Termination Rights. This Agreement may be terminated by Shengqu,
without penalty or liability to Shengqu upon providing written notice
thereof to the Licensees.
4.3 Termination Effect. The Parties agree that upon the expiration of the Term
or earlier termination of this Agreement, and except as may be otherwise
mutually agreed in writing by the Parties:
(a) All rights and obligations of the Parties under this Agreement, except
as provided in Section 4.4 (Survival) below, shall terminate and no
longer be valid or bind the Parties. Without limiting the generality
of the foregoing.
(b) All accrued royalty fees due for periods prior to such expiration or
termination shall become due and payable within thirty (30) Business
Days following the later of (i) the date of such expiration or
termination; and (ii) the receipt by the Licensees of Shengqu's
invoice for such royalty fees.
4.4 Survival. The provisions of Section 4.3 (Termination Effect), Section 4.4
(Survival) and Section 5.3 (Disputes and Governing Law) of this Agreement
shall survive the termination or expiration of this Agreement.
5 MISCELLANEOUS
5.1 Assignment. No Licensee may assign or transfer its rights under this
Agreement to a third party without the prior written consent of the other
Licensor.
5.2 Entire Agreement. This Agreement constitutes the entire agreement between
the Parties with respect to the subject matter hereof, and merges, revokes
and supersedes all prior and contemporaneous agreements, understandings,
arrangements, documents and communications (whether written or oral)
between the Parties and is intended as a final expression of their
agreement.
5.3 Disputes and Governing Law. This Agreement shall be construed in accordance
with the laws of the PRC. Any disputes that arise in connection with this
Agreement shall be litigated in courts located within the Pudong New Area,
Shanghai, the PRC.
5.4 Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Agreement may be executed and
delivered by facsimile and transmission by facsimile shall be considered
proper delivery for legal purposes.
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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.
SHENGQU INFORMATION TECHNOLOGY
(SHANGHAI) CO., LTD.
By:
---------------------------------
Name: Chen Tianqiao
Title: Chief Executive Officer
SHANGHAI XXXXXX NETWORKING CO., LTD.
By:
---------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
NANJING XXXXXX NETWORKING CO., LTD.
By:
---------------------------------
Name: Tang Jun
Title: President
HANGZHOU BIANFENG NETWORKING CO., LTD.
By:
---------------------------------
Name: Wang Jingying
Title: Senior Vice President
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